Joseph Patrick PAYNE, Sr., petitioner, v. VIRGINIA.

This petition for certiorari seeks review of a judgment of the Supreme Court of Virginia rejecting petitioner's double jeopardy challenge to a conviction for robbery which followed a prior conviction for capital murder committed during the perpetration of the robbery while armed with a deadly weapon. In this case, as in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam), where "conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery . . ., the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one." Ibid. See also In re Nielsen, 131 U.S. 176, 188, 9 S.Ct. 672, 676, 33 L.Ed. 118 (1889).

Accordingly, the motion for leave to proceed in forma pauperis is granted, the petition for writ of certiorari is granted, and the judgment of the Supreme Court of Virginia is reversed. Harris v. Oklahoma, supra.

It is so ordered.