SAN DIEGO -- A woman whose conviction for poisoning her Marine husband was overturned will have to wait until November before a hearing can be set on her request to have the case dismissed in such a way that prosecutors won't be able to file charges again.

Cynthia Sommer, 34, was convicted in January 2007 of first-degree murder in connection with the death five years earlier of 23-year-old Sgt. Todd Sommer, but Judge Peter Deddeh granted her a new trial last year, saying her attorney was ineffective.

Sommer was accused of giving her husband a fatal dose of arsenic so she could collect $250,000 in life insurance.

The case was assigned to Judge John Einhorn, and in April, he granted a District Attorney's Office motion to dismiss the case without prejudice. Prosecutors said tests on additional tissue samples from the victim showed no arsenic.

Today, Einhorn put the case on hold until the California Supreme Court decides whether to hear a motion from the District Attorney's Office that Einhorn has no jurisdiction to decide if the case against Sommer should be dismissed with prejudice.

Sommer, a mother of four who now lives in Michigan, said she will keep coming to court in an effort to clear her name.

"I will never give up. I won't give up," Sommer said outside court. "I think it's important for me not to give up and give other people hope to not give up also."

Einhorn ruled earlier this year that he has the authority to dismiss the case with prejudice, but said California law dictates that he can only hold a hearing if the defense theory to dismiss is based on outrageous government misconduct.

If the defense theory is based on the legal insufficiency of the evidence, Einhorn said he would consider asking the trial judge, Deddeh, to hold the hearing on the motion to dismiss with prejudice.

Today, Einhorn questioned the validity of a motion to dismiss based on the insufficiency of the evidence because Deddeh already denied a similar motion during the trial.

Deputy District Attorney Richard Armstrong said the additional testing that revealed no arsenic in Todd Sommer's tissues is "problematic" but does not exonerate his wife.

Sommer's current attorney, Allen Bloom, accused prosecutors of delaying the case needlessly.

He said having the case over Sommer's head is affecting her efforts to regain custody of her children.

Another hearing is set for Nov. 14.