Source or Prior Law:

21-104, 21-114, 21-115, 21-116, 62-1441, 62-1442, 62-1443, 62-1444, 65-2520.

Law Review and Bar Journal References:

Background and scope of section discussed in "The Effect of Former Prosecutions: Something Old and Something New Under Kan. Stat. Ann. Sec. 21-3108," Raymond L. Spring, 9 W.L.J. 179, 180, 181, 183, 184, 185, 186, 188, 189, 190, 191, 192 (1970).

Double jeopardy mentioned in an article on traffic cases and license problems, William M. Ferguson, 39 J.B.A.K. 351, 353 (1970).

Use of evidence of prior convictions, Wendell F. Cowan, Jr., 12 W.L.J. 111 (1972).

"The Doctrine of Lesser Included Offenses in Kansas," Kay Adam, Helen Packard Dupre, 15 W.L.J. 40, 54, 56, 57 (1976).

"Criminal Law: Reckless Driving Is Not Lesser Included Offense of Driving While Under the Influence of Alcohol," Katy Streepy Nitcher, 23 W.L.J. 421, 425, 434, 435 (1984).

"Criminal Procedure: Dual Sovereignty Exception Encompasses Successive Prosecutions by Two States [Heath v. Alabama, 106 S.Ct. 433 (1985)]," 26 W.L.J. 226 (1986).

"Solorio v. United States: The Supreme Court Reverses Direction on Jurisdiction Over Military Offenders in Civilian Communities," Major James Pottorff, Jr., 57 J.K.B.A. No. 8, 29, 32 (1988).

"Pretrial Proceedings," K.L.R., Criminal Procedure Edition, 9, 14, 19 (1988).

Survey of Recent Cases, 43 K.L.R. 987 (1995).

"Criminal Procedure Review: Survey of Recent Cases," 44 K.L.R. 895 (1996).

"The Decisive Blow to The Double Jeopardy Defense In Kansas Drunk Driving Prosecutions: State v. Mertz," Todd A. LaSala, 44 K.L.R. 1009 (1996).

Survey of Recent Cases, 45 K.L.R. 1373, 1375 (1997).

Survey of Recent Cases, 46 K.L.R. 888, 895, 923 (1998).

Criminal Procedure Edition, 47 K.L.R. 937 (1999).

"Criminal Procedure Survey of Recent Cases," 49 K.L.R. 937 (2001).

"Criminal Procedure Survey of Recent Cases," 50 K.L.R. 901 (2002).

"Criminal Procedure Survey of Recent Cases," 53 K.L.R. 983 (2005).

Attorney General's Opinions:

Penal ordinances; conflict with state law. 81-222.

Double jeopardy; effect of former prosecution. 86-4.

Breath test machine results log is criminal investigation record; not required to be disclosed to public. 87-63.

CASE ANNOTATIONS

1. Conviction of rape and assault and battery; offenses committed separately and at different times; not lesser included offenses. State v. James, 216 Kan. 235, 239, 531 P.2d 70.

2. Kansas criminal code does not preempt cities from enacting local legislation in the same field. City of Junction City v. Lee, 216 Kan. 495, 503, 532 P.2d 1292.

3. Defendant could not claim former jeopardy where conviction under federal law reversed and case dismissed; rights not denied. State v. Dolack, 216 Kan. 622, 623, 626, 628, 629, 630, 631, 632, 633, 533 P.2d 1282.

4. Paragraph (5) applied; amendment of information allowed after new trial granted; conviction upheld. State v. Osburn, 216 Kan. 638, 642, 533 P.2d 1229.

5. Jeopardy did not attach where mistrial properly declared; failure of jury to agree. State v. McKay, 217 Kan. 11, 13, 535 P.2d 945.

6. Prosecution by state not barred by prosecution in federal court; offenses not the same. State v. Worth, 217 Kan. 393, 398, 537 P.2d 191.

7. Dismissal of information not bar to subsequent prosecution for same offense. State v. Fink, 217 Kan. 671, 675, 677, 538 P.2d 1390.

8. Paragraph (5) applied; convicted of involuntary manslaughter in prosecution for murder; new trial on manslaughter. State v. Gregory, 218 Kan. 180, 188, 542 P.2d 1051.

9. Fact defendant tried several times before conviction obtained did not constitute double jeopardy or cruel and unusual punishment. State v. Crowley, 220 Kan. 532, 535, 552 P.2d 971.

10. Applied; defendant entitled to new trial on charge of voluntary manslaughter; failure to instruct on lesser included offense. State v. Seelke, 221 Kan. 672, 683, 561 P.2d 869.

11. Defendant convicted of traffic offense could not be convicted of aggravated assault based upon identical conduct. State v. Becker, 1 Kan. App. 2d 671, 672, 573 P.2d 1096.

12. Defendant not subjected to double jeopardy where alternate juror substituted two days after original juror sworn. State v. Bircher, 2 Kan. App. 2d 15, 16, 573 P.2d 1128.

13. Conviction of perjury affirmed; prior prosecution under K.S.A. 75-4302 (d) did not constitute former jeopardy. State v. Edgington, 223 Kan. 413, 415, 416, 417, 573 P.2d 1059.

14. Subsection (1)(c) applied; question whether order dismissing information was judgment of acquittal (dissenting opinion). State v. Whorton, 225 Kan. 251, 258, 589 P.2d 610.

15. Double jeopardy; in balancing interests, defendant's valued right to trial versus manifest and imperious need to declare a mistrial weighed and held second trial was double jeopardy. State v. Bates, 226 Kan. 277, 280, 282, 283, 287, 597 P.2d 646.

16. No former jeopardy where felony murder charge amended after new trial granted to change underlying felony and include premeditated murder; gun involved in prior conviction no basis for finding former jeopardy. State v. McCowan, 226 Kan. 752, 762, 763, 764, 765, 602 P.2d 1363.

17. Construed and applied; habeas corpus proceeding; prosecution based on acts proved in former prosecution barred under subsection (2)(a); development of double jeopardy law discussed. In re Berkowitz, 3 Kan. App. 2d 726, 732, 741, 742, 744, 745, 748, 602 P.2d 99.

18. Paragraph (2) applied; prosecution under pending complaint not double jeopardy. Williams v. Darr, 4 Kan. App. 2d 178, 182, 603 P.2d 1021.

19. Double jeopardy not bar to theft retrial; burglary evidence admissible even though presented at original trial which resulted in burglary acquittal and theft mistrial. In re Shotwell & Grades, 4 Kan. App. 2d 382, 384, 385, 386, 387, 388, 607 P.2d 83.

20. A conviction of second degree murder in a first trial is tantamount to acquittal of original charge of first degree murder. State v. Carpenter, 228 Kan. 115, 118, 612 P.2d 163.

21. Defendant's conviction in Missouri for driving while under the influence of intoxicating liquor not a bar to a Kansas prosecution for same offense; judgment reversed. State v. Russell, 229 Kan. 124, 128, 129, 130, 131, 622 P.2d 658.

22. Attempted robbery and murder arose from same act; accused's election to testify on only some of charges not grounds for severance. State v. Shaffer, 229 Kan. 310, 313, 624 P.2d 440.

23. State may not file interlocutory appeal after criminal trial begun; question reserved may be appealed only after judgment; defendant discharged because once in jeopardy. State v. Hermes, 229 Kan. 531, 532, 625 P.2d 1137.

24. Arrest of judgment and dismissal is not an acquittal; second trial on same charge not double jeopardy. State v. Love, 5 Kan. App. 2d 768, 769, 770, 771, 625 P.2d 7.

25. Mistrial declared after 2 1 / 2 days of trial because of ineligible juror; double jeopardy did not attach. State v. Folkerts, 229 Kan. 608, 609, 614, 629 P.2d 173 (1981).

26. Prosecution based on act proved in former prosecution barred under subsection (2)(a). State v. Mahlandt, 231 Kan. 665, 667, 668, 669, 670, 647 P.2d 1307 (1982).

27. Acquittal judgments not appealable; appeals on questions reserved if of statewide interest and answers vital to administration of criminal law. State v. Martin, 232 Kan. 778, 779, 658 P.2d 1024 (1983).

28. Guilty pleas to traffic violations did not bar subsequent prosecution of criminal charges pending against defendant. State v. Fisher, 233 Kan. 29, 30, 32, 33, 34, 36, 661 P.2d 791 (1983).

29. Statement by prosecution of factual basis for appellant's plea of nolo contendere not sufficient to invoke double jeopardy; crime committed in another county could not have been included in charge. State v. Calderon, 233 Kan. 87, 88, 90, 92, 93, 661 P.2d 781 (1983).

30. No reasonable doubt that defendant was found guilty of more serious crime; conviction of lesser included offense set aside. State v. Coberly, 233 Kan. 100, 108, 661 P.2d 383 (1983).

31. Prosecution for driving under influence of alcohol or drugs not barred by prior reckless driving conviction arising from same conduct. State v. Mourning, 233 Kan. 678, 684, 664 P.2d 857 (1983).

32. State cannot appeal dismissal of some counts of multiple count complaint, information or indictment while other counts still pending. State v. Freeman, 234 Kan. 278, 279, 670 P.2d 1365 (1983).

33. Cited in holding state has no right to appeal partial dismissal of complaint while remainder pending. State v. Bickford, 234 Kan. 507, 510, 672 P.2d 607 (1983).

34. Double jeopardy does not attach in municipal court where no termination of one trial and commencement of another. City of Overland Park v. Barron, 234 Kan. 522, 528, 672 P.2d 1100 (1983).

35. Federal prosecution no bar to subsequent state prosecution. Smith v. Atkins, 565 F. Supp. 721, 732 (1983).

36. Use of same evidence and charge which could have been filed must be present to bar later prosecution. State v. Freeman, 236 Kan. 274, 282, 286, 689 P.2d 885 (1984).

37. Third trial following mistrial and setting aside of guilty verdict not double jeopardy. State v. Hanks, 236 Kan. 524, 535, 694 P.2d 407 (1985).

38. Double jeopardy attached where court incorrectly dismissed charge because defendant not advised of outstanding arrest warrant. City of Bonner Springs v. Bey, 236 Kan. 661, 663, 694 P.2d 477 (1985).

39. Dismissal after jeopardy attached; discretion abused when refusal of subpoenaed key witness to appear not known until trial. State v. Corby, 237 Kan. 387, 699 P.2d 51 (1985).

40. DUI (K.S.A. 8-1567) dismissal reviewed; identity of elements rule and compulsory joinder rule of section (2)(a) discussed. State v. Brueninger, 238 Kan. 429, 710 P.2d 1325 (1985).

41. State appeal from dismissal of marijuana charge (K.S.A. 65-4105(d)(13), 65-4127b(b)(3)) before jury impaneled; no double jeopardy. State v. Schilling, 238 Kan. 593, 602, 712 P.2d 1233 (1986).

42. Where proceedings recessed overnight, no double jeopardy when court reversed previous dismissal ruling on companion charge. State v. Lowe, 238 Kan. 755, 762, 763, 715 P.2d 404 (1986); reversed, Lowe v. State, 242 Kan. 64, 744 P.2d 856 (1987).

43. Cited; inherent power of court to declare mistrial when justice requires and manifest necessity exists examined. State v. Burnett, 13 Kan. App. 2d 60, 64, 762 P.2d 192 (1988).

44. Prosecution for theft (K.S.A. 21-3701) barred in Kansas where defendant previously convicted elsewhere of receiving same stolen property. State v. Henwood, 243 Kan. 326, 332, 756 P.2d 1087 (1988).

45. Second trial barred where no manifest necessity for mistrial exists. In re Habeas Corpus Petition of Mason, 245 Kan. 111, 114, 115, 775 P.2d 179 (1989).

46. Manifest necessity in declaring mistrial second trial as not constituting double jeopardy examined. In re Habeas Corpus Petition of Hoang, 245 Kan. 560, 567, 781 P.2d 731 (1989).

47. Bar of further prosecution where defendant charged with wrong crime examined. State v. Moppin, 245 Kan. 639, 645, 783 P.2d 878 (1989).

48. Reversal of felony murder conviction where child abuse underlying felony does not bar retrial on second-degree murder charge. In re Habeas Corpus Petition of Lucas, 246 Kan. 486, 489, 789 P.2d 1157 (1990).

49. Phrase "brought to trial" in K.S.A. 22-3402 distinguished from date defendant placed in jeopardy; speedy trial time period examined. State v. Bierman, 248 Kan. 80, 805 P.2d 25 (1991).

50. Double jeopardy as not attaching where arson conviction followed prior drug conviction; two separate acts in two proceedings noted. State v. Dunn, 249 Kan. 488, 495, 820 P.2d 412 (1991).

51. In the absence of evidence to the contrary, defendant is presumed to have consented to mistrial requested by attorney. State v. Smith, 16 Kan. App. 2d 478, 479, 480, 825 P.2d 541 (1992).

52. Jurisdiction to try juvenile as adult (K.S.A. 38-1636) on C and D felony charges examined; double jeopardy question discussed. State v. Hooks, 251 Kan. 755, 761, 840 P.2d 483 (1992).

53. Whether nolo contendere plea waives defendant's right to claim double jeopardy examined. In re Habeas Corpus Application of Coulter, 18 Kan. App. 2d 795, 800, 860 P.2d 51 (1993).

54. Whether prosecution provoked defendant's requests for mistrial in first trial as bar to retrial on double jeopardy grounds examined. State v. Cady 254 Kan. 393, 397, 867 P.2d 270 (1994).

55. Whether offenses committed in two counties should have been prosecuted in single county examined. State v. Baker, 255 Kan. 680, 685, 877 P.2d 946 (1994).

56. Whether court's statement agreed stipulation of facts insufficient to convict in retrial subjected defendant to double jeopardy examined. Gooding v. Stotts, 856 F. Supp. 1504, 1507 (1994).

57. Defendant's double jeopardy rights violated by prosecutor's intentional conduct forcing defendant to request mistrial. State v. McClanahan, 259 Kan. 86, 101, 910 P.2d 193 (1996).

58. Double jeopardy precluded retrial after magistrate abused discretion by granting mistrial on forum non conveniens grounds. State v. Johnson, 261 Kan. 496, 498, 932 P.2d 380 (1997).

59. Retrial after mistrial based on jury's failure to agree on verdict did not violate double jeopardy. State v. Burns, 23 Kan. App. 2d 352, 355, 931 P.2d 1258 (1997).

60. Subsequent prosecution following dismissal not barred as double jeopardy; no evidence heard by trial court in dismissed case. State v. Beerbower, 262 Kan. 248, 936 P.2d 248 (1997).

61. District court's findings inadequate for review of prosecutorial misconduct/double jeopardy issue in mistrial; case remanded. State v. Muck, 262 Kan. 459, 466, 939 P.2d 896 (1997).

62. K.S.A. 21-4614 controls over section on issue regarding jail time credit for charges subsequently dismissed. State v. Wheeler, 24 Kan. App. 2d 616, 619, 949 P.2d 634 (1997).

63. Neighbor state did not have jurisdiction to try defendant for crimes charged in state. State v. Speed, 265 Kan. 26, 49, 961 P.2d 13 (1998).

64. Single continuing conspiracy cannot support multiple prosecutions; separate conspiracies must be based on more than one agreement. State v. Mincey, 265 Kan. 257, 260, 963 P.2d 403 (1998).

65. Prosecution of charges defendant acquitted of by magistrate court in de novo appeal to district court violates due process and double jeopardy. State v. Derusseau, 25 Kan. App. 2d 544, 545, 966 P.2d 694 (1998).

66. Evidence of present crime introduced under K.S.A. 60-455 in prior prosecution; dismissal on double jeopardy grounds under (2)(a) upheld. State v. Barnhart, 266 Kan. 541, 972 P.2d 1106 (1999).

67. No double jeopardy violation where court declared mistrial but after conviction in second trial defendant claims mistrial in first trial should have been granted on other issues raised by defendant. State v. Williams, 268 Kan. 1, 7, 988 P.2d 722 (1999).

68. In double jeopardy issue, question is whether the second crime was proved by admission of evidence of second crime in first trial. State v. Wilkins, 269 Kan. 256, 7 P.3d 252 (2000).

69. Where no manifest necessity for a mistrial exists and such is granted, bar against double jeopardy applies. In re Habeas Corpus Petition of Minnis, 29 Kan. App. 2d 644, 29 P.3d 462 (2001).

70. No double jeopardy involved; defendant was charged with same offenses earlier dismissed for lacking all elements of offense. State v. Weller, 30 Kan. App. 2d 957, 52 P.3d 368 (2002).

71. Jeopardy does not attach when court dismissed charges without prejudice. City of Salina v. Amador, 32 Kan. App. 2d 548, 85 P.3d 724 (2004).

72. Section barred prosecution in Saline County as defendant had earlier been acquitted in Norton County "on other charges resulting in determination inconsistent with fact necessary to convict" in current prosecution. State v. Schroeder, 279 Kan. 104, 105 P.3d 1237 (2005).

73. Motion for judgment of acquittal to be denied if court concludes that a reasonable mind might find defendant guilty beyond a reasonable doubt; however, double jeopardy prevents further prosecution. State v. Coppage, 34 Kan. App. 2d 776, 124 P.3d 511 (2005).

74. Improper conviction of a crime on a single theory does not bar retrial under the remaining alternate theories. State v. Rogers, 282 Kan. 218, 226, 144 P.3d 625 (2006).

75. Prosecutorial statement not such as to bar retrial under double jeopardy grounds. State v. Morton, 283 Kan. 464, 471, 153 P.3d 532 (2007).

76. Retrial when conviction is set aside does not offend double jeopardy principles, exception discussed. State v. Wade, 284 Kan. 527, 543, 161 P.3d 704 (2007).

77. Section excepts the termination of prosecution because of "inability of the jury to agree" from the bar on a second prosecution. State v. Hawkins, 285 Kan. 842, 847, 176 P.3d 174 (2008).

78. Cited; supreme court sets forth procedure district courts to follow regarding grand jury subpoenas. Tiller v. Corrigan, 286 Kan. 30, 43, 182 P.3d 719 (2008).

79. Cited; person required to register under Kansas offender registration act criminally liable even though sheriff failed certain duties. State v. Anderson, 40 Kan. App. 2d 69, 73, 188 P.3d 38 (2008).

80. Error in omission of defendant's age in charging document harmless error and did not preclude retrial on more serious off-grid version of the offense. State v. Kemble, 291 Kan. 109, 238 P.3d 251 (2010).

81. State prosecution not barred; necessary elements of federal and state convictions not identical. State v. Fillman, 43 Kan. App. 2d 244, 223 P.3d 827 (2010).

82. State is not precluded from appealing an order of dismissal if the appeal is not otherwise barred. State v. Roberts, 293 Kan. 29, 259 P.3d 691 (2011).

83. Defendant not entitled to protection of compulsory joinder rule where evidence presented in earlier prosecution is insufficient to convict for the crime charged in the second prosecution. State v. Jordan, 303 Kan. 1017, 1022, 370 P.3d 417 (2016).

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