A former prosecution is an affirmative defense to a subsequent prosecution for a different offense under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as set out in § 5-1-112, and the subsequent prosecution is for:
(A) Any offense of which the defendant could have been convicted in the first prosecution; or
(B) An offense based on the same conduct, unless:
(i) The offense of which the defendant was formerly convicted or acquitted and the offense for which he or she is subsequently prosecuted each requires proof of a fact not required by the other offense and the law defining each offense is intended to prevent a substantially different harm or evil; or
(ii) The second offense was not consummated when the former trial began;
(2) The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant that has not been set aside, reversed, or vacated and that necessarily required a determination inconsistent with a fact that must be established for conviction of the second offense; or
(3) The former prosecution was terminated under the circumstances described in § 5-1-112 and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been terminated.
Structure Arkansas Code
Subtitle 1 - General Provisions
Chapter 1 - General Provisions
§ 5-1-103. Applicability to offenses generally
§ 5-1-104. Territorial applicability
§ 5-1-105. Offenses — Court authority not limited
§ 5-1-109. Statute of limitations
§ 5-1-110. Conduct constituting more than one offense — Prosecution
§ 5-1-111. Burden of proof — Defenses and affirmative defenses — Presumption
§ 5-1-112. Affirmative defense — Former prosecution for same offense
§ 5-1-113. Affirmative defense — Former prosecution for different offense
§ 5-1-114. Affirmative defense — Former prosecution in another jurisdiction
§ 5-1-115. Former prosecutions that are not affirmative defenses