Indiana Code
Ind. Code § 35-41-4-4 (2026)
When prosecution barred for different offense
✓ current as of May 2026
Sec. 4. (a) A prosecution is barred if all of the following exist:
(1) There was a former prosecution of the defendant for a different offense or for the same offense based on different facts.
(2) The former prosecution resulted in an acquittal or a conviction of the defendant or in an improper termination under section 3 of this chapter.
(3) The instant prosecution is for an offense with which the defendant should have been charged in the former prosecution.
(b) A prosecution is not barred under this section if the offense on which it is based was not consummated when the trial under the former prosecution began.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.19.
Notes of Decisions
Cited in 33
cases (2 in the last 5 years), 1991–2023 · 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). “” 2 Luke further raises the issue of whether the prosecution for stalking was barred by Ind. Code § 35-41-4-4 (a), which prohibits successive prosecutions.”
Thompson v. State, 966 N.E.2d 112 (Ind. Ct. App. 2012). “On January 24, 2011, Thompson filed a motion to dismiss the charges against him in FA-23467 under Indiana’s successive prosecution statute, Indiana Code section 35-41-4-4. The trial court demed the motion on January 28, 2011.”
Richardson v. State, 800 N.E.2d 639 (Ind. Ct. App. 2003). “Ind.Code § 35-41-4-4(a) (1998) provides: A prosecution is barred if all of the following exist: (1) There was a former prosecution of the defendant for a different offense or for the same offense based upon different facts.”
State v. Dixon, 924 N.E.2d 1270 (Ind. Ct. App. 2010). “, his motion to dismiss a criminal recklessness indictment on the grounds that it was barred under Indiana's successive prosecution statute, Indiana Code section 35-41-4-4 (2008). Upon appeal, the State argues that section 35-41-4-4 does not operate to bar prosecution under…”
Timothy L. Hahn v. State of Indiana, 67 N.E.3d 1071 (Ind. Ct. App. 2016). “Code 35-34-1-9,” and that prosecution in this case was barred by Ind.Code § 35-41-4-4. Id. at 151. The prosecutor argued: [S]imply because the OWI was separated out and went to City Court, doesn’t mean the other two (2) cases, other two (2) charges can’t continue.”
Williams v. State, 762 N.E.2d 1216 (Ind. 2002). “Code § 35-34-1-10(c) and § 35-41-4-4. Id. at 1287. We held that these four events were sufficiently separated by time and place that joinder was not required and subsequent prosecutions were thus permissible.”
Estrada v. State, 969 N.E.2d 1032 (Ind. Ct. App. 2012). “Estrada contends that the trial court should have granted her motion to dismiss because the charges were barred by Indiana Code section 35-41-4-4 (1977), the successive prosecution statute, which provides in relevant part: (a) A prosecution is barred if all of the following…”
Haywood v. State, 875 N.E.2d 770 (Ind. Ct. App. 2007). “I.C. § 35-41-4-4. In construing this statute, we note that the language “should have been charged,” *773 set forth in subsection (a)(3), must be read in conjunction with the statutes governing joinder of offenses and dismissal of offenses joinable for trial.”
Salter v. State, 906 N.E.2d 212 (Ind. Ct. App. 2009). “See I.C. § 35-41-4-4; see also Williams v. State, 762 N.”
Johann Schmidt v. State of Indiana, 986 N.E.2d 857 (Ind. Ct. App. 2013). “Thus, Schmidt maintains that the Howard County charges must be dismissed in accordance with the Successive Prosecution Statute, Indiana Code section 35-41-4-4. The record shows that the Howard County prosecutor properly filed charges against Schmidt as to the offenses that were,…”
Johnson v. State, 774 N.E.2d 1012 (Ind. Ct. App. 2002). “Ind.Code § 35-41-4-4. In this case, the offenses that serve as the basis for the Madison County charges should not, and could not, have been charged in the Hamilton County prosecution.”
Haddix v. State, 827 N.E.2d 1160 (Ind. Ct. App. 2005). “The State does not directly address this statute in its brief, but rather discusses Indiana Code Section 35-41-4-4. 5 . One exception to this rule is that a trial court cannot enter judgment on both a greater and a lesser included offense.”
Ind. Code § 35-41-4-4(2): 1 case
Hamer v. State, 771 N.E.2d 109 (Ind. Ct. App. 2002).
Ind. Code § 35-41-4-4(a): 12 cases
Richardson v. State, 800 N.E.2d 639 (Ind. Ct. App. 2003). “Ind.Code § 35-41-4-4(a) (1998) provides: A prosecution is barred if all of the following exist: (1) There was a former prosecution of the defendant for a different offense or for the same offense based upon different facts.”
Williams v. State, 762 N.E.2d 1216 (Ind. 2002). “Code § 35-34-1-10(c) and § 35-41-4-4. Id. at 1287. We held that these four events were sufficiently separated by time and place that joinder was not required and subsequent prosecutions were thus permissible.”
Thompson v. State, 966 N.E.2d 112 (Ind. Ct. App. 2012). “On January 24, 2011, Thompson filed a motion to dismiss the charges against him in FA-23467 under Indiana’s successive prosecution statute, Indiana Code section 35-41-4-4. The trial court demed the motion on January 28, 2011.”
Baker v. State, 922 N.E.2d 723 (Ind. Ct. App. 2010).
Hamer v. State, 771 N.E.2d 109 (Ind. Ct. App. 2002).
Ind. Code § 35-41-4-4(a)(1): 2 cases
Thompson v. State, 966 N.E.2d 112 (Ind. Ct. App. 2012). “On January 24, 2011, Thompson filed a motion to dismiss the charges against him in FA-23467 under Indiana’s successive prosecution statute, Indiana Code section 35-41-4-4. The trial court demed the motion on January 28, 2011.”
Ronyai Thompson v. State of Indiana (Ind. Ct. App. 2012).
Ind. Code § 35-41-4-4(a)(3): 3 cases
Moore v. State, 697 N.E.2d 1268 (Ind. Ct. App. 1998).
Brian E. Graves v. State of Indiana (mem. dec.) (Ind. Ct. App. 2017).
Bryant Dowdy v. State of Indiana (mem. dec.) (Ind. Ct. App. 2020).
Ind. Code § 35-41-4-4(a)(8): 2 cases
Sharp v. State, 569 N.E.2d 962 (Ind. Ct. App. 1991).
Gregory v. State, 596 N.E.2d 270 (Ind. Ct. App. 1992).
Ind. Code § 35-41-4-4(b): 1 case
Johann Schmidt v. State of Indiana, 986 N.E.2d 857 (Ind. Ct. App. 2013). “Thus, Schmidt maintains that the Howard County charges must be dismissed in accordance with the Successive Prosecution Statute, Indiana Code section 35-41-4-4. The record shows that the Howard County prosecutor properly filed charges against Schmidt as to the offenses that were,…”
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