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Name: People v. Davidson
Case #: B197896
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 01/23/2008

The trial court may reinstate a previous attempted murder conviction without violating double jeopardy principles where the murder conviction is reversed and cannot be retried. Davidson was convicted of attempted murder of the victim. Following sentencing, the victim died, and Davidson was charged with first degree murder. Following his conviction for murder, the attempted murder conviction was dismissed. Davidson appealed the murder conviction, and the appellate court reversed it. On remand, the prosecutor was unable to proceed in a retrial of the murder case, and a motion to dismiss was granted. Over Davidson’s objection, the trial court reinstated the attempted murder conviction. On appeal, Davidson contended that the trial court lacked the authority to reinstate his earlier conviction for attempted murder, and that doing so violated the prohibition against double jeopardy. The appellate court rejected the argument and affirmed. When the trial court dismissed the attempted murder conviction, it made clear that its dismissal was based on the sentence imposed in the murder case, not because of insufficient evidence. Reversal of a greater offense on appeal may revive the lesser included offense by operation of law. Nor was there a violation of double jeopardy principles. There was only one trial on attempted murder. Dismissal of the charges was not an acquittal for purposes of double jeopardy.