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Commonwealth v. Greenwood6/17/2005
1 (Ky. 1992) as supporting that assertion. Greenwood claims that the stress and expense of two trials on the same issue is a harm that cannot be remedied on appeal. A writ of prohibition is necessary when an accused is in danger of being tried twice when jeopardy should have attached after the initial case. Macklin v. Ryan, 672 S.W.2d 60 (Ky. 1984). In that case, the court held that "since a mistrial, by definition, does not dispose of the merits of a case or necessarily preclude future litigation, the appellant did not have an adequate remedy by appeal from the mistrial order." Id., at 61. A claim of double jeopardy has been ruled an appropriate subject for a writ of prohibition or mandamus. St. Clair v. Roark, 10 S.W.3d 482, 485 (Ky. 2000).
There is no reversible error in Greenwood's request for a writ of prohibition or mandamus.
Kentucky law permits retrial of a criminal matter following grant of a mistrial only where manifest necessity is shown for the granting of a mistrial:
he principle of double jeopardy does not prevent retrial if the proceedings are terminated because the trial court, in exercise of its discretion, finds that the termination is manifestly necessary. As stated, a finding of manifest necessity is a matter left to the sound discretion of the trial court. Thus, a trial court's grant of a mistrial will be overturned only if it is clearly erroneous or constitutes an abuse of discretion.
Commonwealth v. Scott, 12 S.W.3d 682, 684 (Ky. 2000). The Commonwealth asserts that "the actions of petitioner's attorney caused the mistrial" and that manifest necessity was shown for the grant of mistrial. The record does not support these contentions.
The trial court must properly exercise its discretion in granting or denying a request for a writ of mandamus or prohibition. Rowley v. Lampe, 331 S.W.2d 887 (Ky. 1960). That determination will not be reversed on appeal absent a clear showing of an abuse of discretion on the part of the circuit court. Peterson v. Shake, 120 S.W.3d 707, 713 fn. 2 (Ky. 2003). Abuse of discretion has not been shown in the present case. For this reason, the circuit court's determination is affirmed.
ALL CONCUR.
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