Ky. Rev. Stat. » Chapter 505
Kentucky Revised Statutes

Ky. Rev. Stat. § 505.040 (2026)

Effects of former prosecution for different offenses

✓ current as of May 2026
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Although a prosecution is for a violation of a different statutory provision from a former prosecution or for a violation of the same provision but based on different facts, it is barred by the former prosecution under the following circumstances:

(1) The former prosecution resulted in an acquittal, a conviction which has not subsequently been set aside, or a determination that there was insufficient evidence to warrant a conviction, and the subsequent prosecution is for:

(a) An offense of which the defendant could have been convicted at the first prosecution; or

(b) An offense involving the same conduct as the first prosecution, unless each prosecution requires proof of a fact not required in the other prosecution or unless the offense was not consummated when the former prosecution began; or

(2) 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 necessary to a conviction in the subsequent prosecution; or

(3) The former prosecution was improperly terminated, as that term is used in subsection (4) of KRS 505.030, and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated. Effective: January 1, 1975 History: Created 1974 Ky. Acts ch. 406, sec. 46, effective January 1, 1975.

Notes of Decisions
Cited in 19 cases (5 in the last 5 years), 1977–2025 · leading case: Parks v. Commonwealth, 192 S.W.3d 318 (Ky. 2006).
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Parks v. Commonwealth, 192 S.W.3d 318 (Ky. 2006). · cites it 6× “KRS 505.040(1)(a), viz: Although a prosecution is for a violation of a different statutory provision from a former prosecution .”
Combs v. Commonwealth, 198 S.W.3d 574 (Ky. 2006). · cites it 2× “KRS 505.040(l)(a) provides: Although a prosecution is for a violation of a different statutory provision from a former prosecution .”
Yates v. Commonwealth, 430 S.W.3d 883 (Ky. 2014). · cites it 2× “, and KRS 505.040, which states in relevant part: Although a prosecution is for a violation of a different statutory provision from a former prosecution, it is barred by the former prosecution under the following circumstances: (1) .”
Eldred v. Commonwealth, 906 S.W.2d 694 (Ky. 1995). · cites it 2× “030); former prosecutions for different offenses (KRS 505.040); and former prosecutions in other jurisdictions (KRS 505.”
Ordway v. Commonwealth, 352 S.W.3d 584 (Ky. 2011). · cites it 2× “See also KRS 505.040(2) (codifying principle of collateral estoppel).”
Benton v. Crittenden, 14 S.W.3d 1 (Ky. 1999). · cites it 4× “[1] This holding is in accord with KRS 505.040(2) and KRS 505.050(2), which contain identical language barring a subsequent prosecution following an acquittal in a former prosecution of a different offense: [2] The former prosecution was terminated by [in] a final order or…”
Ignatow v. Ryan, 40 S.W.3d 861 (Ky. 2001). · cites it 4× “The Commentary to KRS 505.040(1) is helpful to an understanding of this provision, explaining that Under this provision, an acquittal or conviction for murder would bar a subsequent prosecution for attempted murder, manslaughter or assault.”
White v. Commonwealth, 770 S.W.2d 222 (Ky. 1989). · cites it 2× “Kentucky Constitution Section 13 and KRS 505.040(1)(a) both relate to an offense before double jeopardy is activated.”
Kruse v. Commonwealth, 704 S.W.2d 190 (Ky. 1985). · cites it 2× “KRS 505.040, styled “Effect of former prosecution for different offenses,” provides: “Although a prosecution is for a violation of a different statutory provision from a former prosecution .”
Commonwealth v. Varney, 690 S.W.2d 758 (Ky. 1985). “030 bars a second prosecution for the same offense under certain circumstances, none of which apply here, and KRS 505.040 bars a second trial for a different offense based on the same facts under certain circumstances none of which apply here.”
Commonwealth v. Barnhill, 552 S.W.2d 241 (Ky. Ct. App. 1977). “Although neither the appellant nor the appellee has cited KRS 505.040 we believe it is controlling here.”
Foley v. Commonwealth, 233 S.W.3d 734 (Ky. Ct. App. 2007). “In its order denying the motion to dismiss, the trial court herein framed the question as whether Appellant was facing prosecution in Hardin County for the same offense that he pled guilty to in Bullitt County.”
Show all 19 citing cases →
— Ky. Rev. Stat. § 505.040(1) — 2 cases
Ignatow v. Ryan, 40 S.W.3d 861 (Ky. 2001). “The Commentary to KRS 505.040(1) is helpful to an understanding of this provision, explaining that Under this provision, an acquittal or conviction for murder would bar a subsequent prosecution for attempted murder, manslaughter or assault.”
C.S., a Child Under Eighteen v. Commonwealth of Kentucky (Ky. Ct. App. 2021).
— Ky. Rev. Stat. § 505.040(1)(a) — 6 cases
Parks v. Commonwealth, 192 S.W.3d 318 (Ky. 2006). “KRS 505.040(1)(a), viz: Although a prosecution is for a violation of a different statutory provision from a former prosecution .”
Ignatow v. Ryan, 40 S.W.3d 861 (Ky. 2001). “The Commentary to KRS 505.040(1) is helpful to an understanding of this provision, explaining that Under this provision, an acquittal or conviction for murder would bar a subsequent prosecution for attempted murder, manslaughter or assault.”
White v. Commonwealth, 770 S.W.2d 222 (Ky. 1989). “Kentucky Constitution Section 13 and KRS 505.040(1)(a) both relate to an offense before double jeopardy is activated.”
C.S., a Child Under Eighteen v. Commonwealth of Kentucky (Ky. Ct. App. 2021).
Destinee Rice v. Commonwealth of Kentucky (Ky. Ct. App. 2025).
— Ky. Rev. Stat. § 505.040(2) — 5 cases
Ordway v. Commonwealth, 352 S.W.3d 584 (Ky. 2011). “See also KRS 505.040(2) (codifying principle of collateral estoppel).”
Benton v. Crittenden, 14 S.W.3d 1 (Ky. 1999). “[1] This holding is in accord with KRS 505.040(2) and KRS 505.050(2), which contain identical language barring a subsequent prosecution following an acquittal in a former prosecution of a different offense: [2] The former prosecution was terminated by [in] a final order or…”
Ignatow v. Ryan, 40 S.W.3d 861 (Ky. 2001). “The Commentary to KRS 505.040(1) is helpful to an understanding of this provision, explaining that Under this provision, an acquittal or conviction for murder would bar a subsequent prosecution for attempted murder, manslaughter or assault.”
C.S., a Child Under Eighteen v. Commonwealth of Kentucky (Ky. Ct. App. 2021).
Harold E. Turner v. Timothy A. Langford (Ky. 2025).
— Ky. Rev. Stat. § 505.040(l)(a) — 3 cases
Parks v. Commonwealth, 192 S.W.3d 318 (Ky. 2006). “KRS 505.040(1)(a), viz: Although a prosecution is for a violation of a different statutory provision from a former prosecution .”
Combs v. Commonwealth, 198 S.W.3d 574 (Ky. 2006). “KRS 505.040(l)(a) provides: Although a prosecution is for a violation of a different statutory provision from a former prosecution .”
White v. Commonwealth, 770 S.W.2d 222 (Ky. 1989). “Kentucky Constitution Section 13 and KRS 505.040(1)(a) both relate to an offense before double jeopardy is activated.”
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