Criminal: DERRY V. COM. (COA; 2/3/2006)

DERRY V. COM.
CRIMINAL – Double Jeopardy
2004-CA-000959
PUBLISHED – AFFIRMING
TACKETT, J.
Date: Rendered 10/7/2005; Ordered Published on 2/3/2006

Held that double jeopardy did not attach when the defendant Derry requested a dismissal due to improper venue and, thus, affirmed the trial court.

The trial court found that there was a manifest necessity for a mistrial and that it was not caused by bad faith or prosecutorial misconduct; therefore, the charges were dismissed without prejudice.

Jeopardy attaches when the jury is empaneled and sworn; thus, there is no question that jeopardy had attached during Derry’s first trial. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978).

However, the United States Supreme Court has recognized an exception to the prohibition against double jeopardy where a trial ends in mistrial due to manifest necessity. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).

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