(1) A former prosecution is not a bar within the meaning of sections 18-1-301 to 18-1-303, if the former prosecution:
(a) Was before a court that lacked jurisdiction over the defendant or the offense; or
(b) Was procured by the defendant without the knowledge of the appropriate prosecuting official and with the intent to avoid the sentence that otherwise might be imposed; or
(c) Resulted in a judgment of conviction that was set aside, reversed, or vacated upon appeal or in any other subsequent judicial proceeding.
Source: L. 71: R&RE, p. 398, § 1. C.R.S. 1963: § 40-1-404.
ANNOTATION
A defendant is not in double jeopardy when a conviction is overturned on appeal and remanded for a retrial. If the first conviction was overturned because the defendant was convicted through a defective judicial process, the defendant's guilt or innocence has not been adjudicated. Therefore, the new trial on remand does not violate the state and federal double jeopardy clauses. People v. Viburg, 2021 CO 81M, 500 P.3d 1123.
Defendant's arrest in stolen car in California and subsequent California prosecution does not amount to procuring prosecution in California for purposes of the exception. California law enforcement pulled over and arrested defendant for unlawful driving or taking of a vehicle because stolen Colorado vehicle contained antitheft transmitter. Merely being present in California with a stolen car stops short of procuring a prosecution under this section. The fact that defendant accepted California plea based on lawyer's advice that it would allow him to avoid prosecution in Colorado does not affect analysis because his decision to take the plea occurred after his prosecution began and did not bring about the prosecution. People v. Giem, 2015 COA 176, 378 P.3d 809.