In the event that a person who was convicted for murder by a jury but successfully appeals the decision based upon improper jury instructions where the appellate court remands the case back for a new trial, the prosecution could dismiss the charges and not elect to try the case a second time or try it.The is also the chance that the state may nor refile charges at all based upon what the prosecution believes the chances of success at trial. However, since there was a conviction by a jury, the chances of the charges not being refiled seems remote.