§701-110  When prosecution is barred by former prosecution for the same offense.  When a prosecution is for an offense under the same statutory provision and is based on the same facts as a former prosecution, it is barred by the former prosecution under any of the following circumstances:

     (1)  The former prosecution resulted in an acquittal which has not subsequently been set aside.  There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination by the court that there was insufficient evidence to warrant a conviction.  A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense, although the conviction is subsequently set aside on appeal by the defendant.

     (2)  The former prosecution was terminated, after the information had been filed or the indictment found, by a final order or judgment for the defendant, which has not been set aside, reversed, or vacated and which necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense.

     (3)  The former prosecution resulted in a conviction.  There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty or nolo contendere accepted by the court.

     (4)  The former prosecution was improperly terminated.  Except as provided in this subsection, there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the first witness is sworn but before verdict.  Termination under any of the following circumstances is not improper:

          (a)  The defendant consents to the termination or waives, by motion to dismiss or otherwise, the defendant's right to object to the termination.

          (b)  The trial court finds the termination is necessary because:

              (i)  It is physically impossible to proceed with the trial in conformity with law;

             (ii)  There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;

            (iii)  Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the State;

             (iv)  The jury is unable to agree on a verdict; or

              (v)  False statements of a juror on voir dire prevent a fair trial. [L 1972, c 9, pt of §1; gen ch 1993]


Revision Note


  In paragraph (4)(b)(i), (ii), and (iii), "or" deleted pursuant to §23G-15.




  Section 701-110 bars a new prosecution for an offense under the same statutory provision and based upon the same facts as a former prosecution when there is an acquittal, when there is an unreversed conviction, or when there is a termination by final order or judgment for the defendant which is necessarily conclusive of a fact which must be established for conviction.  An improper termination is also conclusive, because the defendant has a right not to be harassed by repeated prosecutions.  Subsection (4) sets forth the circumstances under which a termination is not improper.  These are the situations in which the defendant consents to termination or in which under preexisting law the court would declare a mistrial.  Subsection (1) is written to reflect the possibility that the legislature may give certain appeal rights to the prosecution as part of a revision of penal procedural law.

  Subsection (1) states an important rule as to which there is some variance of opinion among the states.  If the accused is found guilty of a lesser included offense, that is an automatic acquittal on the greater inclusive offense, and the accused may not later be tried or convicted for that greater offense, despite reversal of the accused's conviction for the lesser offense.[1]  This seems to follow from the fact that the jury has been unable to agree, for whatever reason, on the defendant's guilt of the more serious offense.  At that point, the defendant should be free from the threat of a renewed prosecution for that offense.  If the defendant faces reprosecution for an offense of which the defendant has been acquitted, the defendant may be unfairly hampered in the defendant's decision about whether to contest the validity of the conviction for the lesser offense.  An appeal by the State, if permissible, may of course have the effect of reversing this rule in individual cases.


Case Notes


  Declaration of mistrial--when a bar to retrial.  58 H. 377, 569 P.2d 900 (1977); 62 H. 108, 612 P.2d 107 (1980).

  Upon reversal of conviction of reckless endangering, a lesser included offense, defendant may not be retried for attempted murder, the greater charge.  62 H. 637, 618 P.2d 306 (1980).

  Where defendant's conviction on non-existent attempted reckless manslaughter charge vacated, remand for retrial on original charge of attempted first degree murder unconstitutional and also violation of paragraph (1).  83 H. 335, 926 P.2d 1258 (1996).

  A nonjudicial punishment resulting from a Uniform Code of Military Justice Article 15 proceeding is not a criminal conviction within the meaning of paragraph (3).  100 H. 132, 58 P.3d 643 (2002).

  A Uniform Code of Military Justice Article 15 nonjudicial proceeding does not amount to a criminal prosecution, and thus, could not result in a "judgment of conviction" pursuant to paragraph (3); thus, none of the circumstances barring state prosecution outlined in §701-112 were met.  100 H. 132, 58 P.3d 643 (2002).

  Section does not bar court from vacating an erroneously accepted plea of guilty.  4 H. App. 566, 670 P.2d 834 (1983).

  Where district court's dismissal of the charges against defendant did not constitute an acquittal under subsection (1), there was no statutory bar to the district court granting the State's motion for reconsideration.  128 H. 449 (App.), 290 P.3d 519 (2012).



§701-110 Commentary:


1.  A rule similar to that proposed in subsection (1) obtains both in Pennsylvania and in New York.  See People v. Ressler, 17 N.Y.2d 174, 216 N.E.2d 582 (Ct. App. 1966); cf. Commonwealth v. Frazier, 216 A.2d 337 (Pa. Sup. Ct. 1966).  A contrary rule previously obtained in Hawaii, but the matter is now before the U.S. Supreme Court in a case arising in another jurisdiction.  For the former rule, see Territory v. Gamaya, 25 Haw. 581 (1920).