§701-113 - Former prosecution before court lacking jurisdiction or when fraudulently procured by the defendant.
§701-113 Former prosecution before court lacking jurisdiction or when fraudulently procured by the defendant. A prosecution is not a bar within the meaning of sections 701-110, 701-111, and 701-112 under any of the following circumstances:
(1) The former prosecution was before a court which lacked jurisdiction over the defendant or the offense.
(2) The former prosecution was procured by the defendant without the knowledge of the appropriate prosecuting officer and with the purpose of avoiding the sentence which might otherwise be imposed.
(3) The former prosecution resulted in a judgment of conviction which was held invalid on appeal or in a subsequent proceeding on a writ of habeas corpus, coram nobis, or similar process. [L 1972, c 9, pt of §1]
COMMENTARY ON §701-113
A subsequent prosecution should not be barred when the former prosecution was before a court lacking jurisdiction over the defendant or the offense. A prosecution by a court without jurisdiction is a nullity, and reprosecuting the defendant does not place the defendant twice in jeopardy because the defendant never in fact was in jeopardy. Likewise, if the defendant improperly procured the former prosecution without the knowledge of the appropriate prosecuting officer and with the intention of avoiding the sentence which might otherwise be imposed, the former prosecution is not a bar. Finally, if defendant succeeds in having the former proceeding held invalid by means of habeas corpus or coram nobis, a reprosecution should not be barred.