When to Strike

A double jeopardy issues becomes ripe for review when the Commonwealth decides to undertake reprosecution and the issue is properly raised by a motion to dismiss filed prior to retrial.  

In Daidone, the Appellants' convictions of first degree murder were overturned on direct appeal. Appellants sought to have the charges dismissed upon retrial for violation of double jeopardy, and the trial court denied the motions. Appellants challenged, contending that retrial would constitute double jeopardy. The court reversed and discharged appellants. The court held that retrial was barred by double jeopardy because the prosecutor's misconduct evidenced an intent to prejudice appellants so as to deny them a fair trial.  Commonwealth v. Daidone, 453 Pa. Super. 550 (Pa. Super. Ct. 1996).

The proper procedure for raising a bar to prosecution, such as a former acquittal or conviction, is a written pretrial motion, contained within the omnibus pretrial motion.  Double jeopardy issues may be waived if not properly raised prior to trial.  However, a claim raising the double jeopardy prohibition against multiple punishments is a challenge to the legality of a sentence and as such, may be raised at any time.  

The point is this -- if your Bucks County criminal lawyer gets a case dismissed and the government refiles, you must be ready to file a motion to dismiss the case.  This will preserve your rights and is the proper timing to prevent future harassment.