21-3108.Effect of former prosecution.(1) A prosecution is barred if the defendant was formerly prosecuted forthe same crime, based upon the same facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal or in adetermination that the evidence was insufficient to warrant aconviction; or
(b) Was terminated by a final order or judgment, even if enteredbefore trial, which required a determination inconsistent with any factor legal proposition necessary to a conviction in the subsequentprosecution; or
(c) Was terminated without the consent of the defendant after thedefendant had been placed in jeopardy, except where such terminationshall have occurred by reason of: (i) The illness or death of anindispensable party; or (ii) the inability of the jury to agree; or(iii) the impossibility of the jury arriving at a verdict. A defendantis in jeopardy when he or she is put on trial in a court of competentjurisdiction upon an indictment, information or complaint sufficient inform and substance to sustain a conviction, and in the case of trial byjury, when the jury has been impaneled and sworn, or where the case istried to the court without a jury, when the court has begun to hearevidence.
A conviction of an included offense is an acquittal of the offensecharged.
(2) A prosecution is barred if the defendant was formerly prosecutedfor a different crime, or for the same crime based upon different facts,if such former prosecution:
(a) Resulted in either a conviction or an acquittal and thesubsequent prosecution is for a crime or crimes of which evidence hasbeen admitted in the former prosecution and which might have beenincluded as other counts in the complaint, indictment or informationfiled in such former prosecution or upon which the state then might haveelected to rely; or was for a crime which involves the same conduct,unless each prosecution requires proof of a fact not required in theother prosecution, or the crime was not consummated when the formertrial began; or
(b) Was terminated by a final order or judgment, even if enteredbefore trial, which required a determination inconsistent with any factnecessary to a conviction in the subsequent prosecution; or
(c) Was terminated without the consent of the defendant after thedefendant had been placed in jeopardy, except where such terminationshall have occurred by reason of: (i) The illness or death of anindispensable party; or (ii) the inability of the jury to agree; or(iii) the impossibility of the jury arriving at a verdict, and thesubsequent prosecution is for an offense of which the defendant couldhave been convicted if the former prosecution had not been terminatedimproperly.
(3) A prosecution is barred if the defendant was formerly prosecutedin a district court of the United States or in a court of generaljurisdiction of a sister state or in the municipal court ofany city of this state for a crime which is within the concurrentjurisdiction of this state, if such former prosecution:
(a) Resulted in either a conviction or an acquittal, and thesubsequent prosecution is for the same conduct, unless each prosecutionrequires proof of a fact not required in the other prosecution, or theoffense was not consummated when the former trial began; or
(b) Was terminated by a final order or judgment, even if enteredbefore trial, which required a determination inconsistent with any factnecessary to a conviction in the prosecution in this state.
(4) A prosecution is not barred under this section:
(a) By a former prosecution before a court which lacked jurisdictionover the defendant or the offense; or
(b) By a former prosecution procured by the defendant without theknowledge of a prosecuting officer authorized to commence a prosecutionfor the maximum offense which might have been charged on the facts knownto the defendant, and with the purpose of avoiding the sentence whichotherwise might be imposed; or
(c) If subsequent proceedings resulted in the invalidation, settingaside, reversal or vacating of the conviction, unless the defendant wasadjudged not guilty.
(5) In no case where a conviction for a lesser included crime hasbeen invalidated, set aside, reversed or vacated shall the defendant besubsequently prosecuted for a higher degree of the crime for whichsuch defendant was originally convicted.
History: L. 1969, ch. 180, § 21-3108; L. 1970, ch. 124, § 1;L. 1977, ch. 105, § 8; July 1.
21-3108.Effect of former prosecution.(1) A prosecution is barred if the defendant was formerly prosecuted forthe same crime, based upon the same facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal or in adetermination that the evidence was insufficient to warrant aconviction; or
(b) Was terminated by a final order or judgment, even if enteredbefore trial, which required a determination inconsistent with any factor legal proposition necessary to a conviction in the subsequentprosecution; or
(c) Was terminated without the consent of the defendant after thedefendant had been placed in jeopardy, except where such terminationshall have occurred by reason of: (i) The illness or death of anindispensable party; or (ii) the inability of the jury to agree; or(iii) the impossibility of the jury arriving at a verdict. A defendantis in jeopardy when he or she is put on trial in a court of competentjurisdiction upon an indictment, information or complaint sufficient inform and substance to sustain a conviction, and in the case of trial byjury, when the jury has been impaneled and sworn, or where the case istried to the court without a jury, when the court has begun to hearevidence.
A conviction of an included offense is an acquittal of the offensecharged.
(2) A prosecution is barred if the defendant was formerly prosecutedfor a different crime, or for the same crime based upon different facts,if such former prosecution:
(a) Resulted in either a conviction or an acquittal and thesubsequent prosecution is for a crime or crimes of which evidence hasbeen admitted in the former prosecution and which might have beenincluded as other counts in the complaint, indictment or informationfiled in such former prosecution or upon which the state then might haveelected to rely; or was for a crime which involves the same conduct,unless each prosecution requires proof of a fact not required in theother prosecution, or the crime was not consummated when the formertrial began; or
(b) Was terminated by a final order or judgment, even if enteredbefore trial, which required a determination inconsistent with any factnecessary to a conviction in the subsequent prosecution; or
(c) Was terminated without the consent of the defendant after thedefendant had been placed in jeopardy, except where such terminationshall have occurred by reason of: (i) The illness or death of anindispensable party; or (ii) the inability of the jury to agree; or(iii) the impossibility of the jury arriving at a verdict, and thesubsequent prosecution is for an offense of which the defendant couldhave been convicted if the former prosecution had not been terminatedimproperly.
(3) A prosecution is barred if the defendant was formerly prosecutedin a district court of the United States or in a court of generaljurisdiction of a sister state or in the municipal court ofany city of this state for a crime which is within the concurrentjurisdiction of this state, if such former prosecution:
(a) Resulted in either a conviction or an acquittal, and thesubsequent prosecution is for the same conduct, unless each prosecutionrequires proof of a fact not required in the other prosecution, or theoffense was not consummated when the former trial began; or
(b) Was terminated by a final order or judgment, even if enteredbefore trial, which required a determination inconsistent with any factnecessary to a conviction in the prosecution in this state.
(4) A prosecution is not barred under this section:
(a) By a former prosecution before a court which lacked jurisdictionover the defendant or the offense; or
(b) By a former prosecution procured by the defendant without theknowledge of a prosecuting officer authorized to commence a prosecutionfor the maximum offense which might have been charged on the facts knownto the defendant, and with the purpose of avoiding the sentence whichotherwise might be imposed; or
(c) If subsequent proceedings resulted in the invalidation, settingaside, reversal or vacating of the conviction, unless the defendant wasadjudged not guilty.
(5) In no case where a conviction for a lesser included crime hasbeen invalidated, set aside, reversed or vacated shall the defendant besubsequently prosecuted for a higher degree of the crime for whichsuch defendant was originally convicted.
History: L. 1969, ch. 180, § 21-3108; L. 1970, ch. 124, § 1;L. 1977, ch. 105, § 8; July 1.
21-3108.Effect of former prosecution.(1) A prosecution is barred if the defendant was formerly prosecuted forthe same crime, based upon the same facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal or in adetermination that the evidence was insufficient to warrant aconviction; or
(b) Was terminated by a final order or judgment, even if enteredbefore trial, which required a determination inconsistent with any factor legal proposition necessary to a conviction in the subsequentprosecution; or
(c) Was terminated without the consent of the defendant after thedefendant had been placed in jeopardy, except where such terminationshall have occurred by reason of: (i) The illness or death of anindispensable party; or (ii) the inability of the jury to agree; or(iii) the impossibility of the jury arriving at a verdict. A defendantis in jeopardy when he or she is put on trial in a court of competentjurisdiction upon an indictment, information or complaint sufficient inform and substance to sustain a conviction, and in the case of trial byjury, when the jury has been impaneled and sworn, or where the case istried to the court without a jury, when the court has begun to hearevidence.
A conviction of an included offense is an acquittal of the offensecharged.
(2) A prosecution is barred if the defendant was formerly prosecutedfor a different crime, or for the same crime based upon different facts,if such former prosecution:
(a) Resulted in either a conviction or an acquittal and thesubsequent prosecution is for a crime or crimes of which evidence hasbeen admitted in the former prosecution and which might have beenincluded as other counts in the complaint, indictment or informationfiled in such former prosecution or upon which the state then might haveelected to rely; or was for a crime which involves the same conduct,unless each prosecution requires proof of a fact not required in theother prosecution, or the crime was not consummated when the formertrial began; or
(b) Was terminated by a final order or judgment, even if enteredbefore trial, which required a determination inconsistent with any factnecessary to a conviction in the subsequent prosecution; or
(c) Was terminated without the consent of the defendant after thedefendant had been placed in jeopardy, except where such terminationshall have occurred by reason of: (i) The illness or death of anindispensable party; or (ii) the inability of the jury to agree; or(iii) the impossibility of the jury arriving at a verdict, and thesubsequent prosecution is for an offense of which the defendant couldhave been convicted if the former prosecution had not been terminatedimproperly.
(3) A prosecution is barred if the defendant was formerly prosecutedin a district court of the United States or in a court of generaljurisdiction of a sister state or in the municipal court ofany city of this state for a crime which is within the concurrentjurisdiction of this state, if such former prosecution:
(a) Resulted in either a conviction or an acquittal, and thesubsequent prosecution is for the same conduct, unless each prosecutionrequires proof of a fact not required in the other prosecution, or theoffense was not consummated when the former trial began; or
(b) Was terminated by a final order or judgment, even if enteredbefore trial, which required a determination inconsistent with any factnecessary to a conviction in the prosecution in this state.
(4) A prosecution is not barred under this section:
(a) By a former prosecution before a court which lacked jurisdictionover the defendant or the offense; or
(b) By a former prosecution procured by the defendant without theknowledge of a prosecuting officer authorized to commence a prosecutionfor the maximum offense which might have been charged on the facts knownto the defendant, and with the purpose of avoiding the sentence whichotherwise might be imposed; or
(c) If subsequent proceedings resulted in the invalidation, settingaside, reversal or vacating of the conviction, unless the defendant wasadjudged not guilty.
(5) In no case where a conviction for a lesser included crime hasbeen invalidated, set aside, reversed or vacated shall the defendant besubsequently prosecuted for a higher degree of the crime for whichsuch defendant was originally convicted.
History: L. 1969, ch. 180, § 21-3108; L. 1970, ch. 124, § 1;L. 1977, ch. 105, § 8; July 1.
