Indiana Code
Ind. Code § 35-41-4-3 (2026)
When prosecution barred for same offense
✓ current as of May 2026
Sec. 3. (a) A prosecution is barred if there was a former prosecution of the defendant based on the same facts and for commission of the same offense and if:
(1) the former prosecution resulted in an acquittal or a conviction of the defendant (A conviction of an included offense constitutes an acquittal of the greater offense, even if the conviction is subsequently set aside.); or
(2) the former prosecution was terminated after the jury was impaneled and sworn or, in a trial by the court without a jury, after the first witness was sworn, unless (i) the defendant consented to the termination or waived, by motion to dismiss or otherwise, his right to object to the termination, (ii) it was physically impossible to proceed with the trial in conformity with law, (iii) there was a legal defect in the proceedings that would make any judgment entered upon a verdict reversible as a matter of law, (iv) prejudicial conduct, in or outside the courtroom, made it impossible to proceed with the trial without injustice to either the defendant or the state, (v) the jury was unable to agree on a verdict, or (vi) false statements of a juror on voir dire prevented a fair trial.
(b) If the prosecuting authority brought about any of the circumstances in subdivisions (a)(2)(i) through (a)(2)(vi) of this section, with intent to cause termination of the trial, another prosecution is barred.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.18.
Notes of Decisions
Cited in 52
cases (8 in the last 5 years), 1979–2026 · leading case: Billy Luke v. State of Indiana, 51 N.E.3d 401 (Ind. Ct. App. 2016).
Billy Luke v. State of Indiana, 51 N.E.3d 401 (Ind. Ct. App. 2016). “[29] Based upon Ind. Code § 35-41-4-3 (a)(1), the proper remedy is to vacate Luke’s conviction for stalking.”
Jeffrey A. Cleary v. State of Indiana, 23 N.E.3d 664 (Ind. 2015). “Similarly, they *669 are not “conviction[s] of an included offense” such that the implied acquittal provision, by its terms, bars retrial on the greater offenses. Cleary seeks the protection of this section regardless of the distinction between convictions and verdicts, because…”
Hoover v. State, 918 N.E.2d 724 (Ind. Ct. App. 2009). “None of the foregoing cases, however, analyzed or even mentioned one of our own double jeopardy statutes, Indiana Code section 35-41-4-3. Section 35-41-4-3(a) provides that "[al prosecution is barred if there was a former prosecution of the defendant based on the same facts and…”
Richardson v. State, 717 N.E.2d 32 (Ind. 1999). “CODE § 35-41-4-3 (1998). There is only one such event in a single trial regardless of the number of counts.”
Haddix v. State, 827 N.E.2d 1160 (Ind. Ct. App. 2005). “The doctrine of "implied" acquittal and the principles of Green and Price essentially have been codified by Indiana Code Section 35-41-4-3(a). 4 This statute provides that a conviction for a lesser included offense absolutely bars any subsequent prosecution for the greater…”
Landon T. Harbert & Malcolm M. Smith v. State of Indiana, 51 N.E.3d 267 (Ind. Ct. App. 2016). “These rules have been codified at Indiana Code section 35-41-4-3, which provides as follows: (a) A prosecution is barred if there was a former prosecution of the defendant based on the same facts and for commission of the same offense and if: * * * (2) the former prosecution was…”
Nathan Brock v. State of Indiana, 955 N.E.2d 195 (Ind. 2011). “Brock also invokes Indiana Code section 35-41-4-3, which is simply a codification of the Fifth Amendment, at least with regard to the issues in this case.”
Cuto v. State, 709 N.E.2d 356 (Ind. Ct. App. 1999). “Does Ind.Code Ann. § 35-41-4-3 (West 1998), or do double jeopardy principles, bar reprosecution of the murder and felony murder charges? 3.”
State v. Nikolaenko, 687 N.E.2d 581 (Ind. Ct. App. 1997). “Both parties cite Indiana Code § 35-41-4-3 as being dispositive.”
Brand v. State, 766 N.E.2d 772 (Ind. Ct. App. 2002). “" The Indiana Constitution, Article 1, § 14 provides: "No person shall be put in jeopardy twice for the same offense.”
Butler v. State, 724 N.E.2d 600 (Ind. 2000). “Butler also cites Article I, § 14 of the Indiana Constitution and Indiana Code § 35-41-4-3. However, he provides no authority or independent analysis supporting a separate standard under the Indiana Constitution.”
Brown v. State, 703 N.E.2d 1010 (Ind. 1998). “CODE § 35-41-4-3 (1998). Here, Edwards declared his intent to be impartial in good faith but later, after further reflection, had a change of heart.”
— Ind. Code § 35-41-4-3(a) — 10 cases
Jeffrey A. Cleary v. State of Indiana, 23 N.E.3d 664 (Ind. 2015). “Similarly, they *669 are not “conviction[s] of an included offense” such that the implied acquittal provision, by its terms, bars retrial on the greater offenses. Cleary seeks the protection of this section regardless of the distinction between convictions and verdicts, because…”
Haddix v. State, 827 N.E.2d 1160 (Ind. Ct. App. 2005). “The doctrine of "implied" acquittal and the principles of Green and Price essentially have been codified by Indiana Code Section 35-41-4-3(a). 4 This statute provides that a conviction for a lesser included offense absolutely bars any subsequent prosecution for the greater…”
Hoover v. State, 918 N.E.2d 724 (Ind. Ct. App. 2009). “None of the foregoing cases, however, analyzed or even mentioned one of our own double jeopardy statutes, Indiana Code section 35-41-4-3. Section 35-41-4-3(a) provides that "[al prosecution is barred if there was a former prosecution of the defendant based on the same facts and…”
Billy Luke v. State of Indiana, 51 N.E.3d 401 (Ind. Ct. App. 2016). “[29] Based upon Ind. Code § 35-41-4-3 (a)(1), the proper remedy is to vacate Luke’s conviction for stalking.”
Anderson v. State, 674 N.E.2d 184 (Ind. Ct. App. 1996).
— Ind. Code § 35-41-4-3(a)(1) — 2 cases
Jeffrey A. Cleary v. State of Indiana, 23 N.E.3d 664 (Ind. 2015). “Similarly, they *669 are not “conviction[s] of an included offense” such that the implied acquittal provision, by its terms, bars retrial on the greater offenses. Cleary seeks the protection of this section regardless of the distinction between convictions and verdicts, because…”
Corey Bullock v. State of Indiana, 106 N.E.3d 531 (Ind. Ct. App. 2018).
— Ind. Code § 35-41-4-3(a)(2) — 4 cases
Jeffrey A. Cleary v. State of Indiana, 23 N.E.3d 664 (Ind. 2015). “Similarly, they *669 are not “conviction[s] of an included offense” such that the implied acquittal provision, by its terms, bars retrial on the greater offenses. Cleary seeks the protection of this section regardless of the distinction between convictions and verdicts, because…”
Emmons v. State, 847 N.E.2d 1035 (Ind. Ct. App. 2006).
State of Indiana v. David Brown (mem. dec.) (Ind. Ct. App. 2016).
Hakim Zamir Lamar Qualls v. State of Indiana (Ind. Ct. App. 2025).
— Ind. Code § 35-41-4-3(a)(2)(i) — 1 case
Nathan Brock v. State of Indiana, 955 N.E.2d 195 (Ind. 2011). “Brock also invokes Indiana Code section 35-41-4-3, which is simply a codification of the Fifth Amendment, at least with regard to the issues in this case.”
— Ind. Code § 35-41-4-3(a)(2)(iv) — 2 cases
Akeem Eichelburger v. State of Indiana (Ind. Ct. App. 2025).
Hakim Zamir Lamar Qualls v. State of Indiana (Ind. Ct. App. 2025).
— Ind. Code § 35-41-4-3(a)(Z) — 2 cases
Billy Luke v. State of Indiana, 51 N.E.3d 401 (Ind. Ct. App. 2016). “[29] Based upon Ind. Code § 35-41-4-3 (a)(1), the proper remedy is to vacate Luke’s conviction for stalking.”
Jeffrey A. Cleary v. State of Indiana, 23 N.E.3d 664 (Ind. 2015). “Similarly, they *669 are not “conviction[s] of an included offense” such that the implied acquittal provision, by its terms, bars retrial on the greater offenses. Cleary seeks the protection of this section regardless of the distinction between convictions and verdicts, because…”
— Ind. Code § 35-41-4-3(a)(l) — 1 case
Billy Luke v. State of Indiana, 51 N.E.3d 401 (Ind. Ct. App. 2016). “[29] Based upon Ind. Code § 35-41-4-3 (a)(1), the proper remedy is to vacate Luke’s conviction for stalking.”
— Ind. Code § 35-41-4-3(a2) — 1 case
Haddix v. State, 827 N.E.2d 1160 (Ind. Ct. App. 2005). “The doctrine of "implied" acquittal and the principles of Green and Price essentially have been codified by Indiana Code Section 35-41-4-3(a). 4 This statute provides that a conviction for a lesser included offense absolutely bars any subsequent prosecution for the greater…”
— Ind. Code § 35-41-4-3(b) — 4 cases
State v. Nikolaenko, 687 N.E.2d 581 (Ind. Ct. App. 1997). “Both parties cite Indiana Code § 35-41-4-3 as being dispositive.”
Brown v. State, 703 N.E.2d 1010 (Ind. 1998). “CODE § 35-41-4-3 (1998). Here, Edwards declared his intent to be impartial in good faith but later, after further reflection, had a change of heart.”
Hakim Zamir Lamar Qualls v. State of Indiana (Ind. Ct. App. 2025).
Diaz v. State, 524 N.E.2d 1283 (Ind. 1988).
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