Kentucky Revised Statutes

Ky. Rev. Stat. § 505.030 (2026)

Effect of former prosecution for same offense

✓ current as of May 2026

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When a prosecution is for a violation of the same statutory provision and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances: (1) The former prosecution resulted in: (a) An acquittal, or (b) A conviction which has not subsequently been set aside; or (2) The former prosecution resulted in a determination by the court that there was insufficient evidence to warrant a conviction; or (3) The former prosecution was terminated by a final order or judgment, which has not subsequently been set aside, and which required a determination inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution; or (4) The former prosecution was improperly terminated after the first witness was sworn but before findings were rendered by a trier of fact. Termination under either of the following circumstances is not improper: (a) The defendant expressly consents to the termination or by motion for mistrial or in some other manner waives his right to object to the termination; or (b) The trial court, in exercise of its discretion, finds that the termination is manifestly necessary. Effective: January 1, 1975 History: Created 1974 Ky. Acts ch. 406, sec. 45, effective January 1, 1975.

Notes of Decisions

Cited in 35 cases (1 in the last 5 years), 1976–2021 · leading case: Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009).

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Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009). · cites it 18× “However, in 1975, the General Assembly enacted KRS 505.030(4), which states that jeopardy attaches "after the first witness [i]s sworn.”

Commonwealth v. Stephenson, 82 S.W.3d 876 (Ky. 2002). · cites it 8× “KRS 505.030 outlines statutory double jeopardy protections “in the narrowest sense, i.”

Gibson v. Commonwealth, 291 S.W.3d 686 (Ky. 2009). · cites it 8× “Our decision in Berry , however, was founded upon KRS 505.030 and double jeopardy considerations, and should not be construed as authority for the application of CR 41.”

Grimes v. McAnulty, 957 S.W.2d 223 (Ky. 1997). · cites it 6× “KRS 505.030(1). If, as here, the former prosecution was terminated by mistrial after the first witness was sworn and before the verdict was rendered, a retrial is precluded if the mistrial was granted without the defendant's consent and in the absence of a manifest necessity to…”

Radford v. Lovelace, 212 S.W.3d 72 (Ky. 2006). · cites it 4× “"Once jeopardy attaches, prosecution of a defendant before a jury other than the original jury, or contemporaneously-impaneled alternates, is barred unless 1) there is a `manifest necessity' for a mistrial or 2) the defendant either requests or consents to a mistrial.”

Commonwealth v. Bailey, 71 S.W.3d 73 (Ky. 2002). · cites it 4× “See KRS 505.030(1)(a). This Court has defined an appealable order as "one which `operates to divest some right in such a manner as to put it out of the power of the court making the order .”

Keeling v. Commonwealth, 381 S.W.3d 248 (Ky. 2012). · cites it 3× “By enacting KRS 505.030, the legislature has defined certain circumstances in which a prosecution for an offense is barred ' by a previous prosecution for that same offense.”

Eldred v. Commonwealth, 906 S.W.2d 694 (Ky. 1995). · cites it 2× “020); former prosecutions for the same offense (KRS 505.030); former prosecutions for different offenses (KRS 505.”

Holbrooks v. Commonwealth, 85 S.W.3d 563 (Ky. 2002). · cites it 4× “8 The Commentary to KRS 505.030, however, indicates that “[t]he existence of an ‘acquittal’ or a ‘conviction’, for purposes of this statute, should not be made to depend at all upon the formal entry of a judgment or order.”

Walker v. Commonwealth, 288 S.W.3d 729 (Ky. 2009). · cites it 2× “2d 164 (1984)); KRS 505.030(1)(a). The established test for determining whether a trial court’s ruling constitutes an acquittal depends on “whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual…”

Johnson v. Commonwealth, 12 S.W.3d 258 (Ky. 1999). · cites it 2× “Smock's testimony was critical to the Commonwealth's case, the judge discharged the jury and granted a continuance until April 16, 1996, at which time a new jury was selected and the case was tried to a conclusion. Appellant first claims that to grant a mistrial over his…”

Commonwealth v. Scott, 12 S.W.3d 682 (Ky. 2000). · cites it 2× “[2] KRS 505.030(4)(b); Grimes v. McAnulty, Ky.”

Show all 35 citing cases →

— Ky. Rev. Stat. § 505.030(1) — 2 cases

Grimes v. McAnulty, 957 S.W.2d 223 (Ky. 1997). “KRS 505.030(1). If, as here, the former prosecution was terminated by mistrial after the first witness was sworn and before the verdict was rendered, a retrial is precluded if the mistrial was granted without the defendant's consent and in the absence of a manifest necessity to…”

Holbrooks v. Commonwealth, 85 S.W.3d 563 (Ky. 2002). “8 The Commentary to KRS 505.030, however, indicates that “[t]he existence of an ‘acquittal’ or a ‘conviction’, for purposes of this statute, should not be made to depend at all upon the formal entry of a judgment or order.”

— Ky. Rev. Stat. § 505.030(1)(a) — 2 cases

Commonwealth v. Bailey, 71 S.W.3d 73 (Ky. 2002). “See KRS 505.030(1)(a). This Court has defined an appealable order as "one which `operates to divest some right in such a manner as to put it out of the power of the court making the order .”

Walker v. Commonwealth, 288 S.W.3d 729 (Ky. 2009). “2d 164 (1984)); KRS 505.030(1)(a). The established test for determining whether a trial court’s ruling constitutes an acquittal depends on “whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual…”

— Ky. Rev. Stat. § 505.030(4) — 12 cases

Cardine v. Commonwealth, 283 S.W.3d 641 (Ky. 2009). “However, in 1975, the General Assembly enacted KRS 505.030(4), which states that jeopardy attaches "after the first witness [i]s sworn.”

Radford v. Lovelace, 212 S.W.3d 72 (Ky. 2006). “"Once jeopardy attaches, prosecution of a defendant before a jury other than the original jury, or contemporaneously-impaneled alternates, is barred unless 1) there is a `manifest necessity' for a mistrial or 2) the defendant either requests or consents to a mistrial.”

Johnson v. Commonwealth, 12 S.W.3d 258 (Ky. 1999). “Smock's testimony was critical to the Commonwealth's case, the judge discharged the jury and granted a continuance until April 16, 1996, at which time a new jury was selected and the case was tried to a conclusion. Appellant first claims that to grant a mistrial over his…”

Keeling v. Commonwealth, 381 S.W.3d 248 (Ky. 2012). “By enacting KRS 505.030, the legislature has defined certain circumstances in which a prosecution for an offense is barred ' by a previous prosecution for that same offense.”

— Ky. Rev. Stat. § 505.030(4)(b) — 2 cases

Commonwealth v. Scott, 12 S.W.3d 682 (Ky. 2000). “[2] KRS 505.030(4)(b); Grimes v. McAnulty, Ky.”

Tinsley v. Jackson, 771 S.W.2d 331 (Ky. 1989).

— Ky. Rev. Stat. § 505.030(l)(a) — 1 case

— Ky. Rev. Stat. § 505.030(l)(b) — 1 case

Foley v. Commonwealth, 233 S.W.3d 734 (Ky. Ct. App. 2007).

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