A criminal defendant's mere presence in court does not provide a court with personal jurisdiction over the defendant. The court must acquire personal jurisdiction over the defendant by a charging or an accusatory instrument, such as an indictment, an information, or a complaint.

A court acquires subject-matter jurisdiction over a criminal case when a charging or an accusatory instrument is filed against a defendant. The fact that the charging or the accusatory instrument may be defective does not deprive the court of jurisdiction. As long as the charging or the accusatory instrument sets forth the basis for the court's subject-matter jurisdiction, that is, the type of offense and the statutory penalty for the offense, the court acquires subject-matter jurisdiction over the case.

If a charging or an accusatory instrument is defective as far as its form or its substance, a defendant may challenge the charging or the accusatory instrument by filing a motion to quash. If a court finds that the charging or the accusatory instrument is defective, the court may set aside, quash, or even dismiss the charging or the accusatory instrument. However, the court may not dismiss the charging or the accusatory instrument with prejudice. In other words, the court may not preclude the prosecution from proceeding with future charges against the defendant. The prosecution is entitled to initiate a new proceeding against the defendant, as long as the proceeding is not barred by a statute of limitations.

A defendant's challenge to a court's jurisdiction is a challenge to the court's power to hear and to determine an offense by the defendant. If the defendant is challenging the location of his or her trial in a certain county, the challenge is a challenge as to venue and not as to jurisdiction.

If a court lacks personal or subject-matter jurisdiction over a defendant, the court lacks authority to hear and to decide the case. Any action by the court would be void.

Copyright 2010 LexisNexis, a division of Reed Elsevier Inc.