§ 18-1-301 — Second trial barred by former prosecution for same offense

Colorado § 18-1-301

• Jurisdiction: Colorado
• Title 18: Criminal
• Art.: Provisions Applicable to

Text

(1) If
a prosecution is for a violation of the same provision of law and is based upon the
same facts as a former prosecution, it is barred by the former prosecution under the
following circumstances:

(a) 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 even though the conviction is subsequently set aside.

(b) The former prosecution was terminated 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 or a legal proposition
that must be established for conviction of the offense.

(c) The former prosecution resulted in a conviction. There is a conviction if
the prosecution resulted in a judgment of conviction that has not been reversed or
vacated, a verdict of guilty that has not been set aside and that is capable of
supporting a judgment, or a plea of guilty accepted by the court. In the latter two
instances, failure to enter judgment must be for a reason other than a motion of the
defendant.

(d) The former prosecution was improperly terminated. Except as otherwise
provided in subsection (2) of this section, 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 jury is sworn if the case is tried by a jury or after the first
prosecution witness is sworn if trial is by court following waiver of jury trial.

(2) Termination is not improper under any of the following circumstances:

(a) The defendant consents to the termination or waives his right to object to
the termination. The defendant is deemed to have waived all objections to a
termination of the trial unless his objections to the order of termination are made of
record at the time of the entry thereof.

(b) The trial court finds that:

(I) The termination is necessary because it is physically impossible to
proceed with the trial in conformity with the law; or

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

(III) Prejudicial conduct has occurred in or outside the courtroom making it
unjust either to the defendant or to the state to proceed with the trial; or

(IV) The jury is unable to agree upon a verdict; or

(V) False statements of a juror on voir dire prevent a fair trial.

Legislative History

Source: L. 71: R&RE, p. 396, � 1. C.R.S. 1963: � 40-1-401.