State Ex Rel. Kincaid v. Spillers

Harshbarger, Justice:

David Kincaid was indicted for burglary by an Ohio County grand jury, was tried, and was convicted on March 9, 1979. After his motion for a new trial was granted, he was retried and reconvicted on July 25, 1979. He then moved for a judgment of acquittal because of a fatal variance between the indictment and the proof. The motion was granted, and on August 29, 1979, the court entered the judgment; but after reconsidering, the trial court overruled the August 29 order and sentenced him.

Petitioner contends that the revocation of the August 29 order which acquitted him…