» Arizona Cases, Arizona Statutes » My Last Post on Lesser Included Offenses

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 time. He would have a good chance of being convicted of a far less serious crime.

On the other hand, he may have a good issue to bring up later. Due process prevents someone from being convicted of a crime not listed in the indictment. You need to have notice of the charges. You have notice of a lesser included offense because it is part of the listed offense. However, if you get an improper lesser included offense instruction, you could at the very least argue your lawyer was ineffective because he let you get convicted of a crime of which you had no notice you were being charged.

I haven’t done a great deal of research on it, but I am not aware of any Arizona case dealing with that particular issue. I’d be curious to know if courts would be receptive to that argument. A defense attorney might have to balance a client’s well-established constitutional rights with something that might result in a much better result at trial. If the defense attorney chooses to get the instruction, it might violate due process, and if the attorney doesn’t, he or she might be ineffective for failing to save the client a lot of prison time. It can create a real predicament.

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