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

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?

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Attorney answers 2

Posted

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.

Posted

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 not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and time-lines that, if known, could significantly change the reply and make it unsuitable. Mr. Pascale strongly advises the questioner to confer with an attorney in their state in order to insure proper advice is received.