Appellant Billy Wayne Miracle was convicted by a jury of aggravated robbery with two convictions alleged for enhancement and given the mandatory sentence of life imprisonment. Miracle exhausted state remedies and pursuant to 28 U.S.C. § 2254, filed a habeas corpus application with the federal district court. Acting upon the United States magistrate's report and recommendation, the district court denied relief. On this appeal appellant claims the trial resulting in his conviction was the product of prosecutorial vindictiveness in violation of due process rights recognized in Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974).1 Because we believe Miracle has made a sufficient claim of prosecutorial vindictiveness under Blackledge and this court's own decisions, we vacate the judgment of the district court and remand.

On May 24, 1974, Miracle was indicted in Cause 16,202 in the 108th District Court, Potter County, Texas for the second degree felony of robbery with one prior felony conviction charged for enhancement.2 The indictment alleged that appellant perpetrated the offense upon Hal Brown on September 1, 1972. Under Texas law the charge carried a potential punishment of 5 to 99 years.3 On October 16, 1974, a second grand jury impaneled in Potter County returned to the 47th District Court a true bill indicting Miracle for aggravated robbery, a first degree felony, with two felony convictions alleged for enhancement.4 This indictment, styled 16,365-A, was based on the same September 1, 1972 robbery of Hal Brown. Because of the two enhancement convictions, the charge in 16,365-A carried an automatic punishment of life imprisonment.

After both indictments were returned, the prosecutor chose to proceed to trial in the 47th District Court on Cause 16,202, the robbery charge carrying a potential 5-99 year punishment. In a bifurcated trial the jury found Miracle guilty, and at the sentencing stage determined that he previously had been convicted of the enhancement felony and sentenced him to 99 years imprisonment. Shortly thereafter appellant filed a motion for a new trial on grounds of jury misconduct. At a hearing on the motion, the trial judge found that the jury had discussed during deliberations appellant's potential status under the state's parole laws. The court therefore granted Miracle a new trial.

The state prosecutor who tried Miracle elected to retry him on 16,365-A, the aggravated robbery-two enhancement felony charge. At the conclusion of appellant's trial on 16,365-A, the jury found him guilty and subsequently concluded that he had been convicted twice of felony offenses. Accordingly, the trial judge sentenced Miracle to life imprisonment as required by law.5

This court's appraisal of appellant's claim of prosecutorial vindictiveness must adhere to the principles established by the Supreme Court in Blackledge v. Perry, 417 U.S. 21, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974) and developed by this Circuit in Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977) and Jackson v. Walker, 585 F.2d 139 (5th Cir. 1978). Blackledge and its progeny make clear that the substantial discretion traditionally accorded state prosecutors in bringing defendants to trial on criminal charges is subject to the due process guarantees of the Fourteenth Amendment. Moreover, the decisions hold that when an accused is convicted and successfully exercises his statutory or constitutional rights to obtain direct or collateral relief from the conviction, a state may not marshal more numerous or severe charges against the defendant in order to punish him for availing himself of appropriate remedies or discourage future defendants from a similar exercise of their rights.6 Blackledge, supra 417 U.S. at 27-28, 94 S. Ct. 2098; Jackson, supra at 142-43; Hardwick, supra at 301. As the Supreme Court stated in Blackledge :

A person convicted of an offense is entitled to pursue his statutory right . . ., without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration. (citation omitted).

417 U.S. at 28, 94 S. Ct. at 2102, 2103.

The advancement of a prosecutorial vindictiveness claim brings into conflict two antithetical interests: (1) the due process right of the defendant to be free of apprehension that the state might subject him to an increased potential punishment if he exercises his right to make a direct or collateral attack on his conviction, and (2) the prosecutor's broad discretion to control the decision to prosecute. Jackson, supra at 143; Hardwick,supra at 301. Because of the societal importance of both policies, the actual showing an accused must make to establish a due process violation depends on a careful balancing of the defendant's interest against that of the state. Jackson, supra at 145. A court must "weigh the extent to which allowing the second (prosecution of the defendant) will chill the exercise of the defendants' appeal rights against the extent to which forbidding the second (prosecution) will infringe on the exercise of the prosecutor's independent discretion." 585 F.2d at 145.

Employing this calculus in Blackledge, the Supreme Court found from the circumstances that the interest of the State was completely overborne by the defendant's right to be free of the fear of vindictiveness. The Court therefore held that a due process violation was established by the accused's showing that his second prosecution posed a "reasonable likelihood of vindictiveness", creating an apprehension in future defendants that the state would retaliate against their exercise of constitutional or statutory rights.7 No actual vindictiveness or retaliation motive was required to be shown.

Blackledge involved a defendant convicted in a state district court of assault with a deadly weapon, a misdemeanor, and sentenced to six months. After his conviction, the defendant exercised his statutory right to obtain a trial de novo in state Superior Court. Prior to this trial, the prosecution secured a superseding indictment charging the accused with the felony of assault with intent to kill and inflict serious bodily injury. The indictment covered the same conduct for which the defendant was convicted in the district court. After pleading guilty to the new indictment, he was sentenced to five to seven months imprisonment.

The Supreme Court recognized that the felony indictment was a more severe charge because of the potential increase in punishment. 417 U.S. at 27-28, 94 S. Ct. 2098. As a result other defendants might perceive the charge as a retaliatory measure for the exercise of the right to appeal. At the same time, the indictment did not represent an initial decision by the prosecutor to bring charges for separate criminal acts. It was merely a substitution of a more severe charge for the same conduct, a "harsher (variation) of the same original decision to prosecute." Hardwick, supra at 302. There being no other crimes, the prosecutorial interest in discretion was slight, and under these circumstances, the Supreme Court held the defendant's showing of a reasonable apprehension of vindictiveness sufficed to render the indictment constitutionally deficient.8

In Hardwick and Jackson, however, this court concluded from the factual settings of the cases that the prosecutorial interest in broad discretion outweighed the countervailing due process interest. Accordingly, we held that a mere claim of apprehension of vindictiveness, without a determination of actual vindictiveness, established only prima facie proof of a due process violation. Jackson, supra at 148-49; Hardwick, supra at 302-03. The burden was shifted to the state to prove that the prosecutor's motive was not vindictive. Id.

Unlike Blackledge, Hardwick involved the reindictment and retrial of an accused on criminal conduct not alleged in the original indictment. The defendant was initially indicted, tried and convicted of bank robbery and assault of a policeman. After a successful appeal of the conviction, but before his second trial, the state obtained another indictment adding two distinct criminal acts, robbery of a bank customer and a second assault. The Hardwick court held that the state's interest in having the freedom to initiate prosecution for these distinct offenses was superior to the defendant's interest. A fortiori, the court concluded that the prosecutor was entitled to the opportunity to explain the second prosecution, which on its face appeared vindictive.

Similarly, in Jackson the accused was also retried for a different offense, aggravated burglary, after the reversal of his conviction for aggravated kidnapping. Moreover, the aggravated burglary charge was a lesser offense. While aggravated kidnapping carried a maximum sentence of life imprisonment, the maximum sentence for aggravated burglary was 30 years.9 The prosecution of the accused on a less serious charge minimized the likelihood of vindictiveness. Consequently, the defendant's interest was significantly outweighed by the state's interest in the liberty to retry defendant for distinct criminal behavior, and the court remanded the case to the district court to permit the state to prove the prosecution was not conceived in vindictiveness.

Before this court applies this balancing equation to the instant case, we must consider the state's argument that the Blackledge doctrine is inapplicable to the prosecution in 16,365-A. The State of Texas contends there was no prosecutorial vindictiveness under Blackledge because the challenged indictment in 16,365-A was returned before Miracle's trial on 16,202 and was pending at the time he exercised the right to attack his conviction. Hence, the prosecution in 16,365-A could not have been motivated by retaliation. We believe appellee reads Blackledge too narrowly. Due process not only proscribes vindictive indictments, it also protects against vindictive prosecutions.

Admittedly, Blackledge and Hardwick each involved a factual sequence of indictment, conviction, successful appeal, reindictment on a harsher charge, and conviction. But the major evil with which Blackledge is concerned, is a vindictive prosecution and trial of an accused on more severe or numerous charges after the defendant has exercised a constitutional or statutory right. Obviously it is primarily the trial and conviction on the harsher charges which may place other defendants in fear of reprisal and deter future challenges of convictions.10 For at these stages of the prosecution the specter of receiving a more exacting penalty for the same crime becomes a stark reality. Therefore, Blackledge's principles apply to the peculiar circumstances of this case, where Miracle was twice indicted in different state courts for the same offense, he was tried on one indictment, he successfully attacked his conviction, and the prosecutor chose to retry him on the second indictment. The question for this court is whether the second prosecution was barred by Blackledge.

Having determined our rules on prosecutorial vindictiveness govern the instant case, we must canvass the competing policies, beginning with the defendant's interest in minimizing the apprehension of prosecutorial vindictiveness. We are mindful that Sine qua non of a prosecutorial vindictiveness claim is that the second charge is a fact harsher than the first.11 Jackson, 585 F.2d at 146. Normally, before a second prosecution can give rise to the appearance of vindictiveness required by Blackledge, it must be founded on charges more serious than those alleged in the original prosecution. The state argues, however, that the charge in 16,365-A was not in fact a harsher charge because Miracle received the same punishment, life imprisonment, for both charges,12 and under either life sentence he will be eligible for parole after twenty years.

We are convinced that the aggravated robbery offense for which Miracle was retried constituted a more severe offense. The state's approach flies in the fact of our decisions. In Hardwick the defendant received a life sentence and a ten year sentence, to be served consecutively, for the two crimes alleged in his first trial. Following his subsequent conviction under the indictment alleging two additional offenses, he was given two life sentences and two ten year terms. The state contended that the sentence under the second indictment was not harsher since under either sentence he would be eligible for parole at the same time.

We rejected this focus on the end result, stating:

This (approach) blinks reality. We cannot assume that a parole board would consider a prisoner with four felony convictions in the same light as a prisoner with two felony convictions, and in any event Hardwick's "potential period of incarceration" Blackledge v. Perry, 417 U.S. 21, 28, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974), has been doubled.

558 F.2d at 300. Likewise, this court will not determine the severity of the offenses here by speculation on whether the Texas Parole Board would view a prisoner with an aggravated robbery conviction plus two enhancement convictions in the same light as a prisoner convicted for robbery with one enhancement conviction.

Moreover, Hardwick and Blackledge indicate that the severity of an alleged offense is not determined by the actual punishment imposed but by the potential punishment for the offense, viewed prospectively. This rule was well articulated by the D. C. Circuit in United States v. Jamison, 164 U.S.App.D.C. 300, 505 F.2d 407 (1974). In that case two defendants were indicted for second degree murder carrying a possible punishment range of twenty years to life imprisonment. During their trial, defendants requested and received a mistrial. Thereafter the prosecution had them reindicted and tried for first degree murder, carrying a mandatory life sentence. Both prosecutions were founded on the same criminal episode. The Jamison court determined that the first-degree murder prosecution violated Blackledge because it encompassed a harsher charge and might thereby create an apprehension of vindictiveness. In reaching its conclusion, the court concentrated on the fact that the defendants potentially could receive a harsher sentence for first-degree murder.

(W)e find ample difference (in severity) in terms of length of sentence alone between second and first degree murder. It hardly seems an empty threat (to other defendants) that the crime with which one is charged may be increased from one carrying a sentence of "life or not less than twenty years," the prescribed sentence for second degree murder, to one carrying a mandatory life sentence, the prescribed sentence for first degree murder. The fact that in a particular case the Actual impact on the defendant of a charge increase is slight is, of course, not determinative . . . . (Emphasis ours)

164 U.S.App.D.C. at 308, 505 F.2d at 415.

In the case at bar Miracle was initially tried in 16,202 for robbery with one enhancement conviction, carrying a potential punishment of 5 years to life. The State then retried him in 16,365-A for aggravated robbery plus two enhancement convictions. In doing so, the prosecution increased the severity of the original offense in at least two different ways. First, it changed the primary offense in the second indictment from robbery, a second degree felony, to aggravated robbery, a first degree felony. When joined with one enhancement conviction, aggravated robbery authorizes a potential punishment of 15 to 99 years imprisonment,13 as compared to the potential 5-99 year sentence carried by robbery with one enhancement felony. The aggravated robbery charge was harsher because it would expose Miracle to a minimum 15 year sentence while under the robbery charge he could potentially receive as few as five years.

The State of Texas further increased the charge by adding an additional enhancement conviction. The resulting indictment removed from the jury all discretion to assess a sentence as low as five years and required the accused, as a habitual felon, to be given life imprisonment. Given the vast difference between potential sentences under the two charges, it ignores reality to contend that 16,365-A did not constitute a more serious offense. Being founded on a harsher charge, the indictment and trial in 16,365-A may have created within other defendants a real apprehension of prosecutorial vindictiveness. For this reason, the accused's interest is a substantial one.

Arrayed against appellant's due process right is a prosecutorial interest resembling in weight that in Blackledge. As in Blackledge, both prosecutions were directed at the same criminal act, the September 1, 1972 robbery of Hal Brown. In the instant case the second prosecution represents a substitution of a more severe charge, aggravated robbery with an additional enhancement felony, for the same criminal offense, a reopening of the original decision to prosecute Miracle for the robbery. Missing from the prosecution in 16,365-A is a new decision or act of discretion by the state attorney to initiate charges against Miracle for distinct criminal acts. This adopting of a "different approach to prosecutorial duty" is a critical facet of prosecutorial freedom, and its presence in Hardwick and Jackson tipped the scales in favor of the prosecution. Conversely, its absence here, as in Blackledge, appears to diminish the state's interest.

Moreover, at no time during these proceedings has the state offered an explanation for "upping the ante" against Miracle. This silence lends some weight to Miracle's contention that the only likely motive was vindictiveness.14 The state's substitution of charges for the same offense and its failure to explain such action tends to render the interest in noninterference with prosecutorial discretion minimal and subordinate to the defendant's right to noninterference with his efforts to secure post-conviction relief.

Because the constitutional policy to avert vindictiveness is a valuable constitutional right, Miracle's claim of a reasonable apprehension of retaliation was sufficient to raise the issue of a due process violation under Blackledge. Consequently, the state may not reindict or retry Miracle on a charge carrying a potentially greater punishment than 5 years to 99 years.

We vacate and remand for appropriate action consistent with this opinion.

VACATED and REMANDED.