Ark. Code Ann. § 5-1-113 (2026)
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:
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The former prosecution resulted in an acquittal or in a conviction as set out in § 5-1-112, and the subsequent prosecution is for:
- Any offense of which the defendant could have been convicted in the first prosecution; or
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An offense based on the same conduct, unless:
- 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
- The second offense was not consummated when the former trial began;
- 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
- 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.
History. Acts 1975, No. 280, § 107; A.S.A. 1947, § 41-107.
Research References
Ark. L. Rev.
The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.
U. Ark. Little Rock L.J.
Survey — Criminal Procedure, 11 U. Ark. Little Rock L.J. 187.
U. Ark. Little Rock. L. Rev.
Annual Survey of Case Law, Criminal Law, 28 U. Ark. Little Rock L. Rev. 690.
Case Notes
Conspiracy.
While in a sense both the offenses of possession of methamphetamine with intent to deliver and conspiracy to distribute methamphetamine may be based on the same conduct, the offense of possession with intent to deliver and the offense of conspiracy to distribute each requires proof of a fact not required by the other; therefore, the affirmative defense of this section does not apply. Williams v. State, 54 Ark. App. 271, 927 S.W.2d 812 (1996), superseded, 328 Ark. 487, 944 S.W.2d 822 (1997).
Conviction.
Double jeopardy does not attach where there is no possibility of conviction; therefore, a defendant was not entitled to have the charges dismissed on double jeopardy grounds merely because the victim had testified against the same defendant in a separate prosecution involving a different victim. Kellensworth v. State, 275 Ark. 252, 631 S.W.2d 1 (1982).
Different Degrees.
State was not prevented by collateral estoppel from subsequently retrying defendant for a lesser degree of the original offense charged where the first trial did not result in an acquittal and, although the charge at the first trial included a charge on the offense charged in the second trial, there was not a necessary determination of the defendant's guilt of the second offense in the finding of his guilt of the original charge. Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980).
Issue Preclusion.
As a consequence of defendant's acquittal of the possession of a firearm charge in the first case, the issue preclusion facet of res judicata and subdivision (2) of this section precluded the state from presenting evidence that defendant possessed a firearm during the battery crimes at the second trial. Mason v. State, 361 Ark. 357, 206 S.W.3d 869 (2005).
Court of Appeals lacked jurisdiction to consider defendant's interlocutory appeal because his notice of appeal was untimely; the circuit court's denial of defendant's motion to dismiss was necessarily a denial of his res judicata arguments, and thus, the dismissal order was the one from which defendant should have filed his notice of appeal. Shaver v. State, 2018 Ark. App. 242, 548 S.W.3d 222 (2018).
Offense Not Yet Consummated.
Where one victim was not dead at the time of the manslaughter conviction stemming from the death of another victim in the same incident, the subsequent prosecution was not barred; this “not yet consummated” exception to a defendant's right not to be tried twice for the same offense does not violate the principle of former jeopardy. Tackett v. State, 294 Ark. 609, 745 S.W.2d 625 (1988).
Separate Offenses.
Where offenses are separate, a defendant who had been convicted of one offense was not twice placed in jeopardy by being convicted of another offense. King v. State, 262 Ark. 342, 557 S.W.2d 386 (1977), overruled in part, State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004).
Defendant's convictions for incest in one county did not prevent his prosecution for incest in another county where the second prosecution was not for the same offense committed in first county and where the offenses in the second county were not based on the same conduct for which he was convicted in the first county. Fletcher v. State, 53 Ark. App. 135, 920 S.W.2d 42 (1996).
Where charges against defendant for alleging defrauding insurers were dismissed, this did not mandate a later dismissal of subsequently filed charges alleging Medicaid fraud under res judicata, issue preclusion, or § 5-1-113 because the crimes were not the same. Dilday v. State, 369 Ark. 1, 250 S.W.3d 217 (2007).
Cited: Basura v. City of Springdale, 47 Ark. App. 66, 884 S.W.2d 629 (1994); Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996).