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When Criminal Conduct Merges for Purposes of Conviction and Sentencing

Under the traditional merger rule, a person engaged in conduct that constituted both a felony and a misdemeanor could not be convicted of both, because the misdemeanor was considered to have merged into the felony. Under this rule, the person would be convicted only of the felony.

However, the modern rule is that there is generally no merger for multiple criminal offenses. With some exceptions, this means that a person may be convicted of both a felony and a misdemeanor for engaging in conduct that constitutes both.

Merger of Solicitation or Attempt into Completed CrimeWhile the general rule under modern law is that two crimes do not merge, the law has made an exception for the merger of solicitation or attempt into the completed crime. Most states consider both solicitation and attempt to be complete offenses in themselves, despite the fact that both are “inchoate” offenses (committed prior to, or in preparation for, a more serious offense). Generally, the crime of solicitation involves inducing or urging another person to commit a felony with the specific intent that the person actually commits the crime. In contrast, the crime of attempt consists of making a substantial step toward the commission of a crime.

Allowing for the merger of solicitation and the completed crime, a person may not be convicted for both if the person solicited does complete the crime. Likewise, a person may not be convicted for both attempt and the completed crime, if they complete the crime after attempting it.

Merger of Lesser Included Offenses into Greater Offenses

Another exception to the general “no merger rule” is for the merger of lesser included offenses into greater offenses. A lesser included offense is one that consists of some of the same elements of the greater crime, but not all of the elements of the greater crime.

For example, the U.S. Supreme Court has held that a defendant convicted of felony murder based on a killing that occurred during an armed robbery may not subsequently be convicted of the armed robbery (the underlying felony), because it is a lesser included offense of the felony murder.

Rules Against Multiple Convictions for Parts of Same Transaction

In addition, many states have adopted a rule of merger to prohibit convicting a defendant for multiple offenses that were all part of the same transaction. In these cases, merger works like the rule against double jeopardy to prevent multiple punishments for the same offense.

Merger of Convictions for Sentencing Purposes

In rejection of the notion that multiple convictions arising from the same conduct should merge for sentencing purposes, some states have held that defendants who are properly charged and convicted on two counts of the same crime may properly be sentenced twice.

For example, an Oregon court of appeals affirmed the conviction of a man on two counts of fourth-degree assault, where the man committed the assault in the presence of two minor victims. Because the defendant in that case violated Oregon law by engaging in conduct prohibited by statute in the presence of two children, the court concluded that he was properly charged and convicted on two counts of fourth-degree felony assault. As such, the court upheld the trial court’s decision to sentence the defendant separately on each count, even though both convictions arose from the same criminal conduct.

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