

     § 109.  When prosecution barred by former prosecution for the
                same offense.
        When a prosecution is for a violation of the same provision
     of the statutes and is based upon the same facts as a former
     prosecution, it is barred by such former prosecution under the
     following circumstances:
            (1)  The former prosecution resulted in an acquittal.
        There is an acquittal if the prosecution resulted in a
        finding of not guilty by the trier of fact or in a
        determination 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.
            (2)  The former prosecution was terminated, after the
        indictment had been 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 accepted by the court. In the latter two cases failure
        to enter judgment must be for a reason other than a motion of
        the defendant.
            (4)  The former prosecution was improperly terminated
        after the first witness was sworn but before a verdict, or
        after a plea of guilty was accepted by the court.

        Cross References.  Section 109 is referred to in sections
     110, 111, 112 of this title.

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Last modified: November 27, 2007