Court of Appeals, State of Michigan

ORDER

People of MI v Latausha Simmons

Docket No. 349547

LC No. 2018-000127-AR

Jane M. Beckering

Presiding Judge

Karen M. Fort Hood

Michael J. Riordan

Judges

The motion for reconsideration is GRANTED. Upon further review, this Court's opinion 

issued April 29, 2021 is VACATED. A new authored majority and dissent are attached to this order. 

_______________________________

Presiding Judge

July 1, 2021
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

FOR PUBLICATION

July 1, 2021

9:10 a.m.

v No. 349547

Macomb Circuit Court

LATAUSHA SIMMONS, LC No. 2018-000127-AR

Defendant-Appellant.

ON RECONSIDERATION

Before: BECKERING, P.J., and FORT HOOD and RIORDAN, JJ.

RIORDAN, J.

Defendant appeals, as on leave granted from our Supreme Court,1the circuit court’s order 

reversing her conviction of resisting or obstructing a police officer, MCL 750.81d(1), and 

remanding to the district court for a new trial. Defendant argues that the circuit court had 

jurisdiction to enter its earlier order and judgment of acquittal, and further, that entry of the order 

precludes retrial under the Double Jeopardy Clause of the United States Constitution, US Const, 

Am V.2 We agree in both respects. Accordingly, we reverse the circuit court’s order and remand 

to that court for further proceedings consistent with this opinion.3

I. FACTS AND PROCEDURAL HISTORY

 

1 People v Simmons, 506 Mich 912 (2020).

2 As applied to the States through the Fourteenth Amendment of the United States Constitution, 

US Const, Am XIV, see Benton v Maryland, 395 US 784, 787; 89 S Ct 2056; 23 L Ed 2d 707 

(1969). See also Const 1963, art 1, § 15.

3 Our opinion on reconsideration is substantively identical to our original opinion, but for the 

addition of this footnote and footnote 11.
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This case arises out of the arrest of defendant for her failure to comply with the directives 

of Warren police officers. Officer Sullivan observed defendant exit a grocery store through an 

opening not typically used by the public and walk to a car parked in an alley next to the grocery 

store. Defendant entered the car, drove a few feet, exited the car next to a dumpster or shipping 

container that was in the alley, and peeked around the corner of the dumpster or shipping container 

at Officer Sullivan. Officer Sullivan found her behavior to be suspicious and approached her to 

investigate. He requested her identification numerous times. Defendant did not respond to Officer 

Sullivan and did not present her identification to him. Officer Horlocker and Officer Sciullo were 

then dispatched to assist Officer Sullivan. Officer Horlocker and Officer Sciullo independently 

spoke to defendant and requested her identification. Defendant did not respond to either officer 

and never produced her identification. She was ultimately arrested and charged with resisting or 

obstructing a police officer. 

Before trial, defendant filed a motion to dismiss and for an evidentiary hearing on the 

lawfulness of the officers’ conduct. After a hearing, the district court concluded that the officers’ 

conduct was lawful and the matter then proceeded to trial. On the first day of trial, before the jury 

was empaneled, the parties discussed the introduction of evidence regarding the lawfulness of the 

officers’ conduct and whether the jury was to be instructed that the lawfulness of the officers’ 

conduct was an element of resisting or obstructing a police officer. The district court ruled that it 

previously had determined that the officers’ conduct was lawful, that no evidence could be 

presented at trial regarding the lawfulness of the officers’ conduct or the legality of defendant’s 

arrest, and that the jury was not to be instructed that the lawfulness of the officers’ conduct was a 

factual issue for it to determine. Consequently, no evidence was presented at trial on the lawfulness 

of the officers’ conduct and the jury did not consider that as one of the elements of the criminal 

allegation before it. Thus, the jury did not consider the lawfulness of the police officers’ conduct 

and it then found defendant guilty of resisting or obstructing a police officer. 

Defendant appealed her conviction to the circuit court. The prosecution did not respond to 

her appeal or file an appearance. At the hearing on the appeal, the circuit court concluded that the 

district court erred by precluding the introduction of evidence on the lawfulness of the officers’ 

conduct but, nonetheless, ruled that defendant must be acquitted:

Even if the – somebody on behalf of the State of Michigan or the City of Warren 

did appear, on the merits, you win. This matter is reversed and a judgment of 

acquittal is entered in favor of the Defendant.

* * *

Congratulations and on behalf of the State of Michigan let me apologize to 

the Defendant for going through what you did go through. I mean, even if the 

instructions had been correct, I see no way that you could have been or should have

been convicted on this evidence.

* * *

You’re an innocent person. Finally the record caught up with that. Thank 

you. Okay. 
-3-

The circuit court accordingly entered an order and judgment of acquittal, which stated as follows:

For the reasons stated on the record, Defendant’s motion is GRANTED, 

Defendant’s conviction is reversed, and all arrest records and fingerprint cards shall 

be returned to Defendant forthwith. This order is a final order resolving all claims 

and closing the case.

Thirteen days later, the prosecution moved for reconsideration, asserting that it never was 

served with defendant’s claim of appeal or any of the documents filed thereafter, and that the 

proper remedy for the district court’s error was to remand to that court for a new trial, not to enter 

an order of acquittal.4 After reviewing the record, the circuit court concluded that the prosecution 

was not served with defendant’s claim of appeal or any of the documents filed thereafter and set 

aside the order of acquittal. Ultimately, the circuit court reversed itself by concluding that the 

district court erroneously removed the element of whether the officers acted lawfully from the 

province of the jury, and it remanded the matter to the district court so that defendant could be retried on the charge of resisting or obstructing a police officer. 

Defendant filed an application for leave to appeal in this Court, which was denied for lack 

of merit on the grounds presented. People v Simmons, unpublished order of the Court of Appeals, 

entered July 30, 2019 (Docket No. 349547). Defendant then filed an application for leave to appeal 

in our Supreme Court. In lieu of granting leave to appeal, our Supreme Court remanded the case 

to this Court for consideration as on leave granted. Simmons, 506 Mich 912. We now address the 

merits of her appeal.

II. JURISDICTION

Defendant first argues that the circuit court erred by finding that she did not properly serve 

her claim of appeal on the prosecution, and alternatively, even if the circuit court did not err by so 

finding, that the circuit court nonetheless possessed jurisdiction to enter the order of acquittal. We 

need not address the former argument because we conclude that the circuit court possessed 

jurisdiction over her appeal in either event. This Court reviews jurisdictional questions de novo. 

Teran v Rittley, 313 Mich App 197, 205; 882 NW2d 181 (2015). 

“To vest the circuit court with jurisdiction in an appeal of right, an appellant must file with 

the clerk of the circuit court within the time for taking an appeal: (1) the claim of appeal, and (2) 

the circuit court’s appeal fees, unless the appellant is indigent.” MCR 7.104(B). “An appeal of 

right to the circuit court must be taken within . . . . 21 days or the time allowed by statute after 

entry of the judgment, order, or decision appealed[.]” MCR 7.104(A)(1). “The time limit for an 

appeal of right is jurisdictional.” MCR 7.104(A). 

 

4 The prosecution conceded in both the circuit court and this Court that the district court erred by 

precluding the introduction of evidence on the lawfulness of the officers’ conduct and by 

refusing to instruct the jury concerning that element of the charged offense. See People v 

Moreno, 491 Mich 38, 52; 814 NW2d 624 (2012) (concluding that whether the officer acted 

lawfully is an element of the crime of resisting or obstructing a police officer).
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On June 26, 2018, defendant timely filed a claim of appeal with the clerk of the circuit 

court. In addition, defendant filed a request for a fee waiver with her claim of appeal. On July 9, 

2018, the circuit court waived her fees because of her indigency. Therefore, under MCR 

7.104(A)(1) and (B), jurisdiction was vested in the circuit court because defendant timely filed her 

claim of appeal and her fees were waived. This is true regardless of whether defendant properly 

served the prosecution with her claim of appeal because the service-of-process provisions 

contained in the court rules “are intended to satisfy the due process requirement that a defendant 

be informed of an action by the best means available under the circumstances. These rules are not 

intended to limit or expand the jurisdiction given the Michigan courts over a defendant.” MCR 

2.105(J)(1).

5

 Thus, even if defendant did not properly serve her claim of appeal on the prosecution, 

it did not divest the circuit court of jurisdiction to enter its judgment of acquittal.6 See MCL 

600.611 (“Circuit courts have jurisdiction and power to make any order proper to fully effectuate 

the circuit courts’ jurisdiction and judgments.”).

III. DOUBLE JEOPARDY

Defendant next argues that retrial would violate the Constitutional prohibition against 

double jeopardy. We agree. “A double jeopardy challenge involves a question of law that this 

Court reviews de novo.” People v Dillard, 246 Mich App 163, 165; 631 NW2d 755 (2001). 

Likewise, “[t]his Court reviews de novo claims of instructional error.” People v Dupree, 284 Mich 

App 89, 97; 771 NW2d 470 (2009).

“The United States and the Michigan Constitutions protect a person from being twice 

placed in jeopardy for the same offense.” People v Parker, 230 Mich App 337, 342; 584 NW2d 

336 (1998), citing US Const, Am V; Const 1963, art 1, § 15. “The prohibition against double 

jeopardy provides three related protections: (1) it protects against a second prosecution for the 

same offense after acquittal; (2) it protects against a second prosecution for the same offense after 

conviction; and (3) it protects against multiple punishments for the same offense.” People v Nutt, 

469 Mich 565, 574; 677 NW2d 1 (2004). 

With regard to the first protection, “the Double Jeopardy Clause by its terms applies only 

if there has been some event, such as an acquittal, which terminates the original jeopardy.” 

Richardson v United States, 468 US 317, 325; 104 S Ct 3081; 82 L Ed 2d 242 (1984). Thus, “a 

verdict of acquittal, although not followed by any judgment, is a bar to a subsequent prosecution 

 

5 At most, the alleged failure to properly serve the claim of appeal would perhaps result in a lack 

of personal jurisdiction over the prosecution. See In re Koss Estate, 340 Mich 185, 190; 65 

NW2d 316 (1954) (“[S]ervice of the notice of claim of appeal is the means whereby the circuit 

court attains jurisdiction over the parties to the appeal (although filing claim of appeal vests 

jurisdiction of the subject matter in the circuit court)[.]”). But see Mich Emp Sec Comm’n v 

Wayne State Univ, 66 Mich App 26, 30-31; 238 NW2d 191 (1975) (limiting In re Koss Estate to 

the court rule in effect when that case was decided). Regardless, the prosecution does not raise 

any personal-jurisdiction argument. 

6 We note that the prosecution concedes this point as well.
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for the same offense.” Ball v United States, 163 US 662, 671; 16 S Ct 1192; 41 L Ed 300 (1896). 

Similarly, “the Double Jeopardy Clause bars retrial following a court-decreed acquittal, even if the 

acquittal is ‘based upon an egregiously erroneous foundation.’ ” Evans v Michigan, 568 US 313, 

318; 133 S Ct 1069; 185 L Ed 2d 124 (2013), quoting Fong Foo v United States, 369 US 141, 143; 

82 S Ct 671; 7 L Ed 2d 629 (1962). “[A]n acquittal precludes retrial even if it is premised upon 

an erroneous decision to exclude evidence, a mistaken understanding of what evidence would 

suffice to sustain a conviction, or a ‘misconstruction of the statute’ defining the requirements to 

convict.” Evans, 568 US at 318 (citations omitted).7 Consequently, “an acquittal is final even if 

it is based on an erroneous evidentiary ruling that precluded the prosecution from introducing 

evidence that would have been sufficient to convict the defendant.” People v Szalma, 487 Mich 

708, 717-718; 790 NW2d 662 (2010) (emphasis in original). See also Webster v Duckworth, 767 

F2d 1206, 1214 (CA 7, 1985) (“The absence of competent substantive evidence to support a verdict 

of guilty beyond a reasonable doubt, whether the result of prosecutorial inability, judicial error or 

a recalcitrant witness, requires an acquittal either at trial or on appeal.”).

The United States Supreme Court has “defined an acquittal to encompass any ruling that 

the prosecution’s proof is insufficient to establish criminal liability for an offense.” Evans, 568 

US at 318. “Thus, an acquittal includes a ruling by the court that the evidence is insufficient to 

convict, a factual finding that necessarily establishes the criminal defendant’s lack of criminal 

culpability, and any other ruling which relates to the ultimate question of guilt or innocence.” Id. 

at 319 (cleaned up). On the other hand, “a defendant who has been released by a court for reasons 

required by the Constitution or laws, but which are unrelated to factual guilt or innocence, has not 

been determined to be innocent in any sense of that word, absolute or otherwise.” United States v 

Scott, 437 US 82, 98 n 11; 98 S Ct 2187; 57 L Ed 2d 65 (1978). In these scenarios, the Double 

Jeopardy Clause generally does not bar retrial following such “procedural dismissals.” See Evans, 

568 US at 319.

“Whether a judgment of a lower court is an acquittal for purposes of double jeopardy ‘is 

not to be controlled by the form of the judge’s action.’ ” Szalma, 487 Mich at 721, quoting United 

States v Martin Linen Supply Co, 430 US 564, 571; 97 S Ct 1349; 51 L Ed 2d 642 (1977). “Rather, 

an appellate court ‘must determine whether the ruling of the judge, whatever its label, actually 

represents a resolution, correct or not, of some or all of the factual elements of the offense charged.’ 

” Szalma, 487 Mich at 721, quoting Martin Linen, 430 US at 571. That is, “[t]here is an acquittal 

and retrial is impermissible when the judge ‘evaluated the government’s evidence and determined 

 

7 The United States Supreme Court has “made a single exception to the principle that acquittal by 

judge precludes reexamination of guilt no less than acquittal by jury: When a jury returns a 

verdict of guilty and a trial judge (or an appellate court) sets aside that verdict and enters a 

judgment of acquittal, the Double Jeopardy Clause does not preclude a prosecution appeal to 

reinstate the jury verdict of guilty.” Smith v Massachusetts, 543 US 462, 467; 125 S Ct 1129; 

160 L Ed 2d 914 (2005). See also People v Jones, 203 Mich App 74, 79 n 1; 512 NW2d 26 

(1993) (“Although retrial following acquittal is barred under the Double Jeopardy Clause, the 

government may appeal if reinstatement of the jury’s verdict of conviction, rather than retrial, is 

sought.”).
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that it was legally insufficient to sustain a conviction.’ ” People v Anderson, 409 Mich 474, 486; 

295 NW2d 482 (1980), quoting Martin Linen, 430 US at 572.

Two cases illustrate the opposite ends of the spectrum of the Double Jeopardy issue before 

us. In Sanabria v United States, 437 US 54; 98 S Ct 2170; 57 L Ed 2d 43 (1978), the petitioner 

was charged in federal district court with violating 18 USC 1955, a statute that prohibits operating 

an “illegal gambling business” in violation of state law. Id. at 56. The federal district court 

originally allowed the Government to introduce evidence of both “numbers betting” and “horse 

betting,” but subsequently struck all evidence of numbers betting near the end of trial “because it 

believed such action to be required by the indictment’s failure to set forth the proper section.” Id. 

at 58-59. The federal district court then entered a judgment of acquittal in favor of the petitioner 

on the basis that the Government failed to introduce sufficient proof that the petitioner was 

connected to the “horse-betting activities.” Id. at 59. Thereafter, the Government sought to retry 

the petitioner for numbers betting alone. Id. at 60-61. The United States Supreme Court ruled that 

the Double Jeopardy Clause barred retrial notwithstanding the federal district court’s presumably 

erroneous interpretation of the indictment and accompanying decision to exclude evidence:

We must assume that the trial court’s interpretation of the indictment was 

erroneous. But not every erroneous interpretation of an indictment for purposes of 

deciding what evidence is admissible can be regarded as a “dismissal.” Here the 

District Court did not find that the count failed to charge a necessary element of the 

offense; rather, it found the indictment’s description of the offense too narrow to 

warrant the admission of certain evidence. To this extent, we believe the ruling 

below is properly to be characterized as an erroneous evidentiary ruling, which led 

to an acquittal for insufficient evidence. That judgment of acquittal, however 

erroneous, bars further prosecution on any aspect of the count and hence bars 

appellate review of the trial court’s error. [Id. at 68-69 (citations omitted).]

In United States v Houston, 792 F3d 663 (CA 6, 2015), the defendant was charged in 

federal district court with violating 18 USC 875(c), a statute prohibiting the transmittal of a threat 

in interstate commerce. Id. at 665. The federal district court instructed the jury that “ ‘[a] statement 

is a true threat if it was made under such circumstances that a reasonable person hearing the 

statement would understand it as a serious expression of intent to inflict injury.’ ” Id. at 666. The 

United States Court of Appeals for the Sixth Circuit reversed the defendant’s conviction and 

remanded the matter to the federal district court for a new trial, explaining that the instruction was 

erroneous because “[i]t permitted the jury to return a criminal conviction based on a negligent state 

of mind[.]” Id. at 667. The Court then addressed his sufficiency-of-the-evidence challenge, stating 

as follows:

Before addressing this argument, a brief digression is in order. Do we 

measure the sufficiency of the evidence to convict Houston under the wrong

instruction (what was given) or the right one (what would otherwise be given on 

remand)? Oddly enough, it is the wrong instruction, at least when the instructions 

omit or inaccurately describe an element of the offense and the defendant fails to 

object—as here. Otherwise, we would be forced to measure the evidence 

introduced by the government against a standard it did not know it had to satisfy 

and potentially prevent it from ever introducing evidence on that element. Nor does 
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this approach create Double Jeopardy problems. Consider this case: If we think 

about the sufficiency of the evidence with respect to correct jury instructions, the 

government would not be seeking a second bite at the apple but a first bite under 

the right legal test. . . . Other appellate courts have reached the same conclusion. 

[Id. at 669-670 (emphasis in original).]

In this case, the order of acquittal provided that it was granted “[f]or the reasons stated on 

the record.” And the circuit court stated on the record that “even if the instructions had been 

correct, I see no way that [defendant] could have been or should have been convicted on this 

evidence.” This was an unequivocal determination that the evidence was insufficient to establish 

all of the elements of resisting or obstructing a police officer beyond a reasonable doubt and 

therefore the circuit court’s action constituted an acquittal. See Anderson, 409 Mich at 486, 

quoting Martin Linen, 430 US at 572 (explaining that an acquittal occurs “when the judge 

‘evaluated the government’s evidence and determined that it was legally insufficient to sustain a 

conviction’ ”). Further, the circuit court also stated that defendant was “an innocent person.” Such 

an express finding of innocence also constitutes an acquittal. See Evans, 568 US at 319. Simply 

put, the circuit court’s statements on the record may only be reasonably understood to be an 

acquittal for the purposes of the Double Jeopardy Clause.8

Having concluded that the order of acquittal was an “acquittal” for the purposes of the 

Double Jeopardy Clause, retrial is barred. See Fong Foo, 369 US at 143; Szalma, 487 Mich at 

717-718. The order of acquittal “precludes reexamination of guilt” in all cases except “a 

prosecution appeal to reinstate the . . . verdict of guilty.” Smith, 543 US at 467. Here, however, 

the prosecution does not seek to reinstate the jury’s guilty verdict because it has acknowledged, as 

it must under the factual and procedural history here, that the underlying instructional error would 

require a new trial, not the reinstatement of a guilty verdict. Thus, the Fifth Amendment’s Double 

Jeopardy Clause applies here and bars defendant’s retrial as the prosecution seeks to do.9 

Lastly, we acknowledge that the circuit court, on reconsideration, set aside its order of 

acquittal and instead remanded to the district court for a new trial on the basis that the error in the 

 

8 By analogy, MCR 6.419(A) provides that during a jury trial, at the close of the prosecution’s 

case-in-chief or the close of evidence, “the court on the defendant’s motion must direct a verdict 

of acquittal on any charged offense for which the evidence is insufficient to sustain a conviction. 

The court may on its own consider whether the evidence is insufficient to sustain a conviction.” 

The finding of evidentiary insufficiency in this case is akin to such a finding in a directed verdict 

of acquittal. 

9 We do not find the prosecution’s citation to People v Reed, unpublished per curiam opinion of 

the Court of Appeals, issued November 21, 2013 (Docket No. 311067), persuasive. 

Notwithstanding that it is unpublished and therefore not precedentially binding, see MCR 

7.215(C)(1), there is nothing in Reed to suggest that the jury had already been selected and sworn 

when the trial court dismissed the case “[o]n the day of defendant’s trial.” “Jeopardy attaches 

when a jury is selected and sworn . . . .” People v Grace, 258 Mich App 274, 279; 671 NW2d 

554 (2003).
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original trial was merely instructional.10 Such reasoning is not without force. As Houston

explains, when a trial court fails to instruct a jury on a particular element of the crime, a 

sufficiency-of-the-evidence challenge should be reviewed on the basis of the wrong instructions. 

See Houston, 792 F3d at 669-670. And although the question is not before us today, we 

acknowledge that it is at least arguable that there was sufficient evidence to sustain defendant’s 

conviction under the wrong instructions given to the jury. Nonetheless, the key factor which 

distinguishes the matter here from cases such as Houston, and brings it within the realm of cases 

such as Sanabria, is that the circuit court entered a judgment and order of acquittal.11 While the 

same circuit court later tried to reverse course, we conclude that its ruling on reconsideration 

cannot supersede its earlier order of acquittal for the purposes of the Double Jeopardy Clause 

because that earlier order, as evidenced by its unequivocal language, was not tentative in any 

respect. See United States v Blount, 34 F3d 865, 868 (CA 9, 1994) (holding that the federal district 

 

10 Defendant argues that the circuit court did not possess jurisdiction to grant the prosecution’s 

motion for reconsideration because the motion was filed more than 21 days after the order of 

acquittal was entered. See MCR 2.119(F)(1). The record, however, indicates that the motion 

was filed on January 10, 2019, only 13 days after the order of acquittal was entered. 

11 We agree with the dissent that the circuit court’s order of acquittal was not “final” in the sense 

that it was subject to being set aside on reconsideration or on appeal to a higher court. However, 

we conclude that it was only subject to being set aside to the extent that doing so would not 

result in a second trial. That is, the prosecution was permitted to challenge the order of acquittal 

below and in this Court, and it may do so by seeking leave to appeal in our Supreme Court, but 

only to the extent that a successful challenge would reinstate the guilty verdict. This conclusion, 

in our view, is consistent with the decisions of the United States Supreme Court on the matter. 

See, e.g., Burks v United States, 437 US 1, 18; 98 S Ct 2141; 57 L Ed 2d 1 (1978) (“[T]he 

Double Jeopardy Clause precludes a second trial once the reviewing court has found the 

evidence legally insufficient . . . .”); Tibbs v Florida, 457 US 31, 41; 102 S Ct 2211; 72 L Ed 2d 

652 (1982) (“A verdict of not guilty, whether rendered by the jury or directed by the trial judge, 

absolutely shields the defendant from retrial. A reversal based on the insufficiency of the 

evidence has the same effect because it means that no rational factfinder could have voted to 

convict the defendant.”) (footnote omitted); Lockhart v Nelson, 488 US 33, 39; 109 S Ct 285; 

102 L Ed 2d 265 (1988) (“Because the Double Jeopardy Clause affords the defendant who 

obtains a judgment of acquittal at the trial level absolute immunity from further prosecution for 

the same offense, it ought to do the same for the defendant who obtains an appellate 

determination that the trial court should have entered a judgment of acquittal.”) (emphasis in 

original); Monge v California, 524 US 721, 729; 118 S Ct 2246; 141 L Ed 2d 615 (1998) (“We 

have held that where an appeals court overturns a conviction on the ground that the prosecution 

proffered insufficient evidence of guilt, that finding is comparable to an acquittal, and the Double 

Jeopardy Clause precludes a second trial.”); Bravo-Fernandez v United States,__US__,__; 137 S 

Ct 352, 364; 196 L Ed 2d 242 (2016) (“Bravo and Martínez could not be retried on the bribery 

counts, of course, if the Court of Appeals had vacated their § 666 convictions because there was 

insufficient evidence to support those convictions. For double jeopardy purposes, a court’s 

evaluation of the evidence as insufficient to convict is equivalent to an acquittal and therefore 

bars a second prosecution for the same offense.”).
-9-

court could not reverse its earlier ruling of acquittal because “there is no suggestion in this case 

that the district court’s oral grant of the motion for acquittal was tentative or subject to 

reconsideration”); United States v Thompson, 690 F3d 977, 996 (CA 8, 2012) (“When the district 

court initially granted Thompson’s motion for judgment of acquittal, it did so unequivocally, 

without making any indication of any availability of reconsideration . . . . Once Thompson had 

rested his case, relying at least in part on the district court’s judgment of acquittal, double jeopardy 

attached and the reversal of that judgment was a constitutional violation.”).12

IV. CONCLUSION

We conclude that the circuit court had jurisdiction to enter the order of acquittal and that 

the Double Jeopardy Clause bars defendant’s retrial on the charge of resisting or obstructing a 

police officer, MCL 750.81d(1). Accordingly, we reverse the circuit court’s order remanding to 

the district court for a new trial, and remand to the circuit court for further proceedings consistent 

with this opinion. We do not retain jurisdiction. 

/s/ Michael J. Riordan

/s/ Karen M. Fort Hood

 

12 We acknowledge that these cases concerned mid-trial judgments of acquittal, whereas this case 

concerns a post-trial order of acquittal. We nonetheless find them persuasive and believe that 

barring retrial here is consistent with the overarching general rule that acquittals cannot be set 

aside unless the fact-finder has already returned a verdict of guilty and the prosecution simply 

seeks to have that verdict reinstated. See Smith, 543 US at 467. Indeed, it would be a peculiar 

outcome if a judgment and order of acquittal as a result of a trial could not be set aside by a 

higher court on appeal, but an order and judgment of acquittal could be set aside on 

reconsideration by the same court which issued it.