When does jeopardy attach? ANd when does it reattach subjecting a defendant to double jeopardy?

Asked over 3 years ago - Jacksonville, FL

If a county court issue was dismissed, and the charges dropped, but the clerk made a mistake in recording the dispensation of that case and set it for a waiver trial, the judge, not remembering the defendant, issued an improper bench warrant, & the defendant was arrested on a dismissed case,...isn't htaqt double jeopardy? Jeopardy terminated when the case was dismissed,...but reattached either at the time the warrant was issued, or at the time the defendant was arrested. Is this correct?

Attorney answers (2)

  1. William James Rogers

    Contributor Level 13

    Answered . I assume based on your question that this is a criminal matter. In brief, jeopardy attaches during a jury trial when the jury is sworn, or during a bench trial when the first witness is sworn. In your case, it appears that jeopardy never attached (charges dropped, presumably before trial was set), so the constitutional prohibition against double jeopardy does not apply.
    It appears that the defendant suffered arrest and detainment arising out of a clerical mistake resulting in an improperly issued bench warrant. There may be a remedy available for this circumstance, but the remedy is unrelated to double jeopardy.

  2. Brian C. Pascale

    Pro

    Contributor Level 19

    Answered . Generally "Jeopardy" attaches during a jury trial when the jury is sworn, that, or during a bench trial when the first witness is sworn. Here it does not appear that "Jeopardy" attached because, based on your posting, the charges were dropped, so the constitutional prohibition against double jeopardy does not apply.

    Mr. Pascale is licensed to practice law in the State of New York. The response herein is not legal advice and does... more

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