MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to decide whether a State may retry a defendant after his conviction has been reversed by an appellate court on the ground that the evidence introduced at the prior trial was insufficient, as a matter of law, to sustain the jury's verdict.IOn September 7, 1965, petitioner Greene and Jose Manuel Sosa were indicted by a Florida grand jury for the murder of Nicanor Martinez.  The indictment charged that Sosa "did hire, procure, aid, abet and counsel" Greene to murder Martinez, and that petitioner had carried out the premeditated plan, shooting the victim to death with a pistol.  A state court jury subsequently found the defendants guilty of first-degree murder, without a recommendation of mercy.  Pursuant to Florida law at the time, the trial court sentenced both defendants to death.On appeal to the Florida Supreme Court, the convictions of Greene and Sosa were reversed and new trials ordered.  The reviewing court was sharply divided, however, with a majority composed of four justices joining a brief per curiam opinion which disposed of the case in the following terms:"After a careful review of the voluminous evidence here, we are of the view that the evidence was definitely lacking Page 437 U. S. 21 in establishing beyond a reasonable doubt that the defendants committed murder in the first degree, and that the interests of justice require a new trial.  The judgments are accordingly reversed and remanded for a new trial."Sosa v. State, 215 So. 2d 736, 737 (1968).  (Emphasis added.)  Three justices dissented without opinion; we can do no more than speculate that the dissenting justices concluded there was sufficient evidence to support the jury verdict.  In addition, a separate "special concurrence" was filed on behalf of three of the four justices who had also joined the per curiam opinion remanding for a new trial.  These three concurring justices undertook a detailed examination of various asserted trial errors, and found that, on at least one claim, the trial court had committed reversible error. [Footnote 1]  This point concerned the improper admission of certain hearsay evidence which, in the opinion of the concurring justices, had a "potential probative force" that could have been "highly incriminating or critical to the establishment of an ultimate fact in dispute."  Id. at 745.  While the concurrence of the three justices makes no mention of evidentiary insufficiency as such, the opinion concludes:"For the reasons stated, the judgments should be reversed and remanded for a new trial, so we have agreed to the Per Curiam order doing so."Id. at 746.  The "reasons stated" by the concurring justices thus concerned trial error, but, paradoxically, the three explicitly joined the court's per curiam opinion which rested exclusively on the Page 437 U. S. 22 ground that the evidence was insufficient to support the verdict.The case was then remanded, and, after some intervening procedural maneuvering, the defendants were ordered retried in the Circuit Court of Orange County, Fla.  Prior to their second trial, however, the defendants filed a suggestion for a writ of prohibition, claiming that their retrial would violate the Double Jeopardy Clause of the Federal Constitution, as it was applied to the States by Benton v. Maryland, 395 U. S. 784 (1969).  They contended that the per curiam opinion of the State Supreme Court was tantamount to a finding that the trial court should have directed a verdict of not guilty, and hence a second trial for first-degree murder would constitute double jeopardy.  When the trial court refused to issue the writ, review was sought in the Second District Court of Appeal of Florida.  That court likewise declined to issue a writ of prohibition, but expressly stated that it was not rendering"an opinion as to the propriety of a new trial after a reversal for lack of sufficient evidence to establish, as a matter of law, the essential elements of the crime charged."Sosa v. Maxwell, 234 So. 2d 690, 692 (1970).  Rather, the District Court of Appeal was of the view that the Supreme Court's reversal"appear[ed] to be based on a finding that the evidence, though technically sufficient, [was] so tenuous as to prompt an appellate court to exercise its discretion and, in the interest of justice, grant a new trial."Id. at 691. [Footnote 2]  Considering the case Page 437 U. S. 23 in this posture, the court indicated that it could find no precedent in Florida law which would bar a retrial on double jeopardy grounds. [Footnote 3]  Certiorari was subsequently sought in the Supreme Court of Florida, which denied the petition without comment.  240 So. 2d 640 (1970).Greene and Sosa were then retried.  On January 15, 1972, they were convicted of first-degree murder, and each received a life sentence, the second jury having recommended mercy.  From this judgment, they appealed to the Fourth District Court of Appeal of Florida, raising again their contention that the second trial violated the Double Jeopardy Clause.  While conceding "the point to be academically intriguing," Greene v. State, 302 So. 2d 202, 203 (1974), that court refused to reach the merits of the double jeopardy claim, holding instead that the Court of Appeal's earlier disposition of the issue was res judicata.  Greene and Sosa applied for a writ of certiorari in this Court, and certiorari was denied.  Greene v. Florida, 421 U.S. 932 (1975).Having exhausted all avenues of direct relief, petitioner Greene [Footnote 4] applied for a writ of habeas corpus in the United States District Court, arguing once more that his second trial was held in violation of the Double Jeopardy Clause.  Although the District Court was sympathetic to petitioner's claim, [Footnote 5] it felt constrained by prior Fifth Circuit precedent to Page 437 U. S. 24 dismiss the petition.  From this ruling, petitioner appealed to the Court of Appeal, which affirmed the District Court on the basis of an earlier Fifth Circuit case, United States v. Musquiz, 445 F.2d 963 (1971).  546 F.2d 51 (177).  The Musquiz decision had interpreted several of this Court's cases [Footnote 6] to mean that, under 28 U.S.C. § 2106, a court of appeals could order a new trial after a conviction had been reversed due to evidentiary insufficiency "if a motion for a new trial was made in the trial court."  546 F.2d  at 56.  Noting that Greene had made a motion for a new trial after his first conviction, and that the Florida Supreme Court had "review power at least equal to that possessed by this Court [of Appeals] under § 2106," ibid., the court held that a new trial had been a constitutionally permissible remedy.We granted certiorari, 432 U.S. 905 (1977), to review the judgment of the United States Court of Appeals.IIIn Burks v. United States, ante p. 1, decided today, we have held that the Double Jeopardy Clause precludes a second trial once a reviewing court has determined that the evidence introduced at trial was insufficient to sustain the verdict.  Since the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings, Benton v. Maryland, supra, we are bound to apply the standard announced in Burks to the case now under review.If we were confronted only with the per curiam opinion of the Florida Supreme Court, reversal in this case would follow.  Page 437 U. S. 25 The per curiam disposition, standing by itself, leaves no room for interpretation by us other than that a majority of the State Supreme Court was"of the view that the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree. . . ."By using the precise terminology "lacking in establishing beyond a reasonable doubt," the highest court in Florida seems to have clearly said that there was insufficient evidence to permit the jury to convict petitioner at his first trial. [Footnote 7]  The dispositive per curiam opinion makes no reference to the trial errors raised on appeal.  Viewed in this manner, the reasoning enunciated in Burks would obviously compel the conclusion that Greene's second trial violated the Double Jeopardy Clause.But the situation is confused by the fact that three of the four justices who joined in the per curiam disposition expressly qualified their action by "specially concurring" in an opinion which discussed only trial error.  One could interpret this action to mean that the three concurring justices were concerned Page 437 U. S. 26 simply with trial error, and joined in the remand solely to afford Greene and Sosa a fair, error-free trial -- even though they were satisfied that the evidence was sufficient to support the verdict.  A reversal grounded on such a holding, of course, would not prevent a retrial. [Footnote 8]  See Burks, ante at  437 U. S. 15-16; United States v. Tateo, 377 U. S. 463,  377 U. S. 465 (1964).  The problem with this interpretation is that the opinion concludes by expressly stating that the three concurring justices had "agreed to the Per Curiam order. . . ."  When the concurrence is considered in light of the language of the per curiam opinion, it could reasonably be said that the concurring Justices thought that the legally competent evidence adduced at the first trial was insufficient to prove guilt.  That is, they were of the opinion that, once the inadmissible hearsay evidence was discounted, there was insufficient evidence to permit the jury to convict. [Footnote 9]Given the varying interpretations [Footnote 10] that can be placed on the actions of the several Florida appellate courts, we conclude that this case should be remanded to the Court of Appeals for reconsideration in light of this opinion and Burks v. United Page 437 U. S. 27 States, ante, 437 U. S.  1.  The Court of Appeals will be free to direct further proceedings in the District Court or to certify unresolved questions of state law to the Florida Supreme Court.  See Fla.Stat. § 25.031 (1977), Fla.App. Rule 4.61; Lehman Bros. v. Schein, 416 U. S. 36 (1974).Reversed
U.S. Supreme CourtGreene v. Massey, 437 U.S. 19 (1978)Greene v. MasseyNo. 76-6617Argued November 28, 1977Decided June 14, 1978437 U.S. 19SyllabusOn appeal of the first-degree murder convictions of petitioner and another, the Florida Supreme Court reversed by a per curiam opinion and ordered a new trial.  That opinion, which a majority of four justices joined, stated that "the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree," and that the "interests of justice require a new trial."  Three justices dissented without opinion.  Three of the justices who had joined the per curiam also filed a "special concurrence," which, though concerned only with trial error, concluded that, "[f]or the reasons stated, the judgments should be reversed and remanded for a new trial, so we have agreed to the Per curiam order doing so."  Before the second trial, defendants unsuccessfully contended in the state courts that the per curiam opinion was tantamount to a finding that the trial court should have directed a verdict of not guilty, and that a second trial for first-degree murder would constitute double jeopardy; and the defendants were retried and convicted of first-degree murder.  Petitioner and his codefendant, by appeal in the state courts and petitioner by application for habeas corpus in the District Court and Court of Appeals, unavailingly pressed their double jeopardy claims.Held: Burks v. United States, ante 437 U. S.  1, precludes a second trial once a reviewing court has determined that the evidence introduced at trial is insufficient to sustain the verdict.  Standing by itself, the per curiam would therefore clearly compel the conclusion that petitioner's second trial violated the Double Jeopardy Clause.  But the special concurrence leaves open the possibility that three of the justices who joined the per curiam were concerned simply with trial error, and joined in the remand solely to give the defendants an error-free trial -- even though they were satisfied that the evidence was sufficient to support the verdict.  So that the ambiguity can be resolved, the case is remanded to the Court of Appeals for reconsideration in light of the Court's opinion and Burks, supra.  Pp.  437 U. S. 24-27.546 F.2d 51, reversed and remanded.BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined. POWELL, Page 437 U. S. 20 J., filed a concurring opinion, post, p. 27. REHNQUIST, J., filed an opinion concurring in the judgment, post, p.  437 U. S. 27.  BLACKMUN, J., took no part in the consideration or decision of the case.