Mont. Code Ann. » TITLE 46. CRIMINAL PROCEDURE · CHAPTER 11. COMMENCEMENT OF PROSECUTION · Part 5. Effect of Former Prosecutions
Montana Code Annotated

Mont. Code Ann. § 46-11-503 (2026)

Prosecution Based On Same Transaction Barred By Former Prosecution

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 46
  3. CHAPTER 11
  4. Part 5
  5. 46-11-503 Prosecution based on same transaction barred by former prosecution

TITLE 46. CRIMINAL PROCEDURE

CHAPTER 11. COMMENCEMENT OF PROSECUTION

Part 5. Effect of Former Prosecutions

Prosecution Based On Same Transaction Barred By Former Prosecution

46-11-503. Prosecution based on same transaction barred by former prosecution. (1) When two or more offenses are known to the prosecutor, are supported by probable cause, and are consummated prior to the original charge and jurisdiction and venue of the offenses lie in a single court, a prosecution is barred if:

(a) the former prosecution resulted in an acquittal. There is an acquittal whenever the prosecution results in a finding of not guilty by the trier of fact or in a determination that there is insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense that is subsequently set aside is an acquittal of the greater offense that was charged.

(b) the former prosecution resulted in a conviction that has not been set aside, reversed, or vacated;

(c) after a charge had been filed, the prosecution was terminated by a final order or judgment for the defendant that has not been set aside, reversed, or vacated; or

(d) the former prosecution was terminated for reasons not amounting to an acquittal and takes place:

(i) in a jury trial, when the jury is impaneled and sworn; or

(ii) in a nonjury trial, after the first witness is sworn but before a judgment as to guilt or innocence is reached.

(2) A prosecution based upon the same transaction as a former prosecution is not barred under subsection (1)(d) when:

(a) the defendant consents to the termination or waives the right to object to the termination; or

(b) the trial court finds that the termination is necessary because:

(i) it is physically impossible to proceed with the trial in conformity with law;

(ii) there is a legal defect in the proceedings that would make any judgment entered upon a verdict reversible as a matter of law;

(iii) prejudicial conduct makes it impossible to proceed with the trial without manifest injustice to either the defendant or the state;

(iv) the jury is unable to agree upon a verdict; or

(v) false statements of a juror on voir dire prevent a fair trial.

History: En. 95-1711 by Sec. 6, Ch. 513, L. 1973; amd. Sec. 25, Ch. 184, L. 1977; R.C.M. 1947, 95-1711(3); amd. Sec. 121, Ch. 800, L. 1991; amd. Sec. 1, Ch. 110, L. 1999.

Notes of Decisions
Cited in 39 cases (6 in the last 5 years), 1979–2026 · leading case: State v. Hocevar, 2000 MT 157 (Mont. 2000).
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State v. Hocevar, 2000 MT 157 (Mont. 2000). · cites it 71× “Whether further prosecution of counts III, IV, and V is barred by § 46-11-503, MCA? Facts ¶14 On the afternoon of May 21, 1992, Susan was baking cookies at the Hocevar family file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-137%20Opinion.”
State Ex Rel. Booth v. Montana Twenty-First Jud. Dist., 1998 MT 344 (Mont. 1998). · cites it 84× “Did the District Court err in concluding that Booth's prosecution for negligent homicide is not barred by § 46-11-503, MCA? ¶ 8 2. Did the District Court err in concluding that Booth's prosecution for negligent homicide is not barred by § 46-11-504, MCA (1995)? ¶ 9 3.”
State v. Berger, 856 P.2d 552 (Mont. 1993). · cites it 64× “This is an appeal from the Twelfth Judicial District Court, Hill County, wherein the appellant, Richard Wayne Berger, pled guilty to the offense of criminal sale of dangerous drugs in violation of § 45-9-101, MCA, pursuant to a plea agreement under which he reserved his right to…”
State v. Waldrup, 872 P.2d 772 (Mont. 1994). · cites it 42× “The District Court dismissed the Information on the basis that § 46-11-503, MCA, is an absolute bar to prosecution of the offenses charged in the Information.”
State v. Cates, 2009 MT 94 (Mont. 2009). · cites it 11× “¶ 27 Additionally, the State argues that Cates can be retired for these offenses because he waived his right to object to the termination of the proceedings pursuant to § 46-11-503(2)(a), MCA. This statute states in pertinent part the following: (2) A prosecution based upon the…”
State v. Condo, 2008 MT 114 (Mont. 2008). · cites it 10× “The District Court explained that § 46-11-503, MCA, provides for protection against double jeopardy by barring prosecutions for two or more offenses based on the same transaction when both offenses “are known to the prosecutor, are supported by probable cause, and are…”
State v. Sharp, 702 P.2d 959 (Mont. 1985). · cites it 6× “Section 46-11-503, MCA. The offenses under §§ 61-8-401 (driving) and 61-8-406, MCA, (operation) were known to the attorney prosecuting the case in the justice court, were consummated prior to the original charge and jurisdiction and venue of both offenses lay in the justice…”
State v. Clawson, 781 P.2d 267 (Mont. 1989). · cites it 4× “As a result there is a failure to meet the definitional provision of § 46-11-503, MCA. We therefore conclude that under § 46-11-502, MCA, and Thornton , sexual intercourse without consent is not a lesser included offense of aggravated kidnapping.”
State v. Brian Schneider, 2008 MT 408 (Mont. 2008). · cites it 4× “Montana has adopted its own definitions of “included offense,” see § 46-1-202(9), MCA, 23 and “same transaction,” see § 46-1-202(23), MCA, and its own blackletter law governing prosecutions based on the same transaction, see § 46-11-503, MCA. Unless one or more of these statutes…”
Keating v. Sherlock, 924 P.2d 1297 (Mont. 1996). · cites it 4× “” (Emphasis added.) This provision is just as unconstitutional now as it was eighteen years ago.”
City of Helena v. WHITTINGHILL, 2009 MT 343 (Mont. 2009). · cites it 3× “3d 519 . The general rule is that when a defendant consents to termination of the prosecution, such as by successfully moving for a mistrial, double jeopardy does not bar retrial on the same charge.”
Demontiney v. Mt. Twelfth Jud. Dist. Court, 2002 MT 161 (Mont. 2002). · cites it 19× “¶ 40 Section 46-11-503, MCA, provides in relevant part: (1) When two or more offenses are known to the prosecutor, are supported by probable cause, and are consummated prior to the original charge and jurisdiction and venue of the offenses lie in a single court, a prosecution is…”
Show all 39 citing cases →
Mont. Code Ann. § 46-11-503(1): 8 cases
State Ex Rel. Booth v. Montana Twenty-First Jud. Dist., 1998 MT 344 (Mont. 1998). “Did the District Court err in concluding that Booth's prosecution for negligent homicide is not barred by § 46-11-503, MCA? ¶ 8 2. Did the District Court err in concluding that Booth's prosecution for negligent homicide is not barred by § 46-11-504, MCA (1995)? ¶ 9 3.”
State v. Berger, 856 P.2d 552 (Mont. 1993). “This is an appeal from the Twelfth Judicial District Court, Hill County, wherein the appellant, Richard Wayne Berger, pled guilty to the offense of criminal sale of dangerous drugs in violation of § 45-9-101, MCA, pursuant to a plea agreement under which he reserved his right to…”
State v. Condo, 2008 MT 114 (Mont. 2008). “The District Court explained that § 46-11-503, MCA, provides for protection against double jeopardy by barring prosecutions for two or more offenses based on the same transaction when both offenses “are known to the prosecutor, are supported by probable cause, and are…”
State v. Waldrup, 872 P.2d 772 (Mont. 1994). “The District Court dismissed the Information on the basis that § 46-11-503, MCA, is an absolute bar to prosecution of the offenses charged in the Information.”
State v. Kopp, 2011 MT 125 (Mont. 2011).
Mont. Code Ann. § 46-11-503(1)(a): 3 cases
Demontiney v. Mt. Twelfth Jud. Dist. Court, 2002 MT 161 (Mont. 2002). “¶ 40 Section 46-11-503, MCA, provides in relevant part: (1) When two or more offenses are known to the prosecutor, are supported by probable cause, and are consummated prior to the original charge and jurisdiction and venue of the offenses lie in a single court, a prosecution is…”
D. Wood v. 20th Jud. Dist. Court, 2025 MT 163 (Mont. 2025).
State v. Ditton, 213 P.3d 787 (Mont. 2009).
Mont. Code Ann. § 46-11-503(1)(b): 6 cases
State v. Hocevar, 2000 MT 157 (Mont. 2000). “Whether further prosecution of counts III, IV, and V is barred by § 46-11-503, MCA? Facts ¶14 On the afternoon of May 21, 1992, Susan was baking cookies at the Hocevar family file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/97-137%20Opinion.”
State Ex Rel. Booth v. Montana Twenty-First Jud. Dist., 1998 MT 344 (Mont. 1998). “Did the District Court err in concluding that Booth's prosecution for negligent homicide is not barred by § 46-11-503, MCA? ¶ 8 2. Did the District Court err in concluding that Booth's prosecution for negligent homicide is not barred by § 46-11-504, MCA (1995)? ¶ 9 3.”
State v. Berger, 856 P.2d 552 (Mont. 1993). “This is an appeal from the Twelfth Judicial District Court, Hill County, wherein the appellant, Richard Wayne Berger, pled guilty to the offense of criminal sale of dangerous drugs in violation of § 45-9-101, MCA, pursuant to a plea agreement under which he reserved his right to…”
State v. Kopp, 2011 MT 125 (Mont. 2011).
State v. J. Standifur, 2026 MT 49 (Mont. 2026).
Mont. Code Ann. § 46-11-503(1)(c): 1 case
D. Wood v. 20th Jud. Dist. Court, 2025 MT 163 (Mont. 2025).
Mont. Code Ann. § 46-11-503(1)(d)(i): 1 case
Keating v. Sherlock, 924 P.2d 1297 (Mont. 1996). “” (Emphasis added.) This provision is just as unconstitutional now as it was eighteen years ago.”
Mont. Code Ann. § 46-11-503(2): 5 cases
City of Helena v. WHITTINGHILL, 2009 MT 343 (Mont. 2009). “3d 519 . The general rule is that when a defendant consents to termination of the prosecution, such as by successfully moving for a mistrial, double jeopardy does not bar retrial on the same charge.”
State v. Matthews, 600 P.2d 188 (Mont. 1979).
State v. Stringer, 868 P.2d 588 (Mont. 1994).
State v. Strizich, 2016 MT 36N (Mont. 2016).
State v. E. Dion, 2022 MT 118N (Mont. 2022).
Mont. Code Ann. § 46-11-503(2)(a): 3 cases
State v. Cates, 2009 MT 94 (Mont. 2009). “¶ 27 Additionally, the State argues that Cates can be retired for these offenses because he waived his right to object to the termination of the proceedings pursuant to § 46-11-503(2)(a), MCA. This statute states in pertinent part the following: (2) A prosecution based upon the…”
Keating v. Sherlock, 924 P.2d 1297 (Mont. 1996). “” (Emphasis added.) This provision is just as unconstitutional now as it was eighteen years ago.”
State v. E. Dion, 2022 MT 118N (Mont. 2022).
Mont. Code Ann. § 46-11-503(2)(b)(ii): 1 case
State v. Stringer, 868 P.2d 588 (Mont. 1994).
Mont. Code Ann. § 46-11-503(3)(c): 2 cases
State v. Pierce, 647 P.2d 847 (Mont. 1982).
State v. Pierce, 647 P.2d 847 (Mont. 1982).
Mont. Code Ann. § 46-11-503(4): 1 case
State v. Clawson, 781 P.2d 267 (Mont. 1989). “As a result there is a failure to meet the definitional provision of § 46-11-503, MCA. We therefore conclude that under § 46-11-502, MCA, and Thornton , sexual intercourse without consent is not a lesser included offense of aggravated kidnapping.”
Mont. Code Ann. § 46-11-503(l)(a): 1 case
Demontiney v. Montana Twelfth Jud. Dist. Court, 2002 MT 161 (Mont. 2002).
Mont. Code Ann. § 46-11-503(l)(d)(ii): 1 case
State v. Stringer, 868 P.2d 588 (Mont. 1994).
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.