§ 5-1-113 — Affirmative defense - Former prosecution for different offense

A former prosecution is an affirmative defense to a subsequent prosecution for a different offense under the following circumstances: (1) The former prosecution resulted in an acquittal or in a conviction as set out in § 5-1-112 , and the subsequent prosecution is for: (A) Any offense of which the defendant could have been convicted in the first prosecution; or (B) An offense based on the same conduct, unless: (i) The offense of which the defendant was formerly convicted or acquitted and the offense for which he or she is subsequently prosecuted each requires proof of a fact not required by the other offense and the law defining each offense is intended to prevent a substantially different harm or evil; or (ii) The second offense was not consummated when the former trial began; (2) The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant that has not been set aside, reversed, or vacated and that necessarily required a determination inconsistent with a fact that must be established for conviction of the second offense; or (3) The former prosecution was terminated under the circumstances described in § 5-1-112 and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been terminated.

Legislative History

Acts 1975, No. 280, § 107; A.S.A. 1947, § 41-107.