» Entries tagged with "instruction"
My Last Post on Lesser Included Offenses
Okay, I promise this will be the last post I’ll put up on the subject of lesser included offenses. It’s an interesting area to me not only because of cases like this and this, or because and the rule in Arizona is frustrating in general, but also because it can create a strange situation for a defense attorney. Here’s the dilemma: imagine a burglary case where intent is the only real issue. It’s clear the defendant shouldn’t have been there, but it’s tough to know whether he entered or remained unlawfully with the intent to commit a felony or any theft. If the defense attorney gets a lesser included offense instruction on criminal trespass despite the relevant case law, the defendant could be spared a lot of prison … Read entire article »
Filed under: Arizona Cases, Arizona Statutes
Another Irritating Non-Lesser Included Offense
Felony flight isn’t the only crime with an irritating non-lesser included offense. In State v. Malloy, the Supreme Court of Arizona decided criminal trespass was not a lesser included offense of burglary. Burglary requires entering or remaining unlawfully with the intent to commit any theft or a felony, and criminal trespass just requires knowingly entering or remaining unlawfully. Although criminal trespass does contain the additional element “knowingly,” the Court in Malloy noted that “knowledge in the sense that the criminal act must have been voluntary” is implicit in all criminal offenses. However, the Court thought the word knowingly in the criminal trespass statute “must have some additional meaning” and decided that, in order to convict someone of criminal trespass, “the prosecution must prove not only that the defendant … Read entire article »
Filed under: Arizona Cases, Arizona Statutes
An Irritating Non-Lesser Included Offense
I recently discussed lesser included offenses. Although Arizona’s practice of looking to the statute instead of the facts is frustrating enough in principle alone, there are some instances where I am particularly bothered by what a defendant can’t get as a lesser included offense. One instance involves felony flight. In an unpublished decision released this past September, Arizona’s Division One Court of Appeals looked at whether someone accused of felony flight could request a lesser included instruction for failure to stop. The felony flight statute applies to a driver who wilfully flees or attempts to elude a police vehicle with lights and sirens, and the failure to stop statute applies to a driver who knowingly fails or refuses to bring his or her vehicle to a stop after … Read entire article »
Filed under: Arizona Cases, Arizona Statutes
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