State v. Mitchell

Defendant’s first assignment of error is that the court erred in overruling defendant’s plea of former jeopardy. This assignment is without merit. We have repeatedly held:

“When, in either a post-conviction hearing or a habeas corpus proceeding, at the prisoner's request, the court vacates a judgment against him and directs a new trial, the prisoner waives his constitutional protection against double jeopardy, and he may be tried anew on the same indictment for the same offense. In such case, a plea of former jeopardy will avail him nothing. State v. Hollars, 266 N.C. 45, 145 S.E. 2d 309;…