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