Law Offices of Kim W. Burgess
Free Initial Consultation 925-828-3008 6990 Village Parkway, #208, Dublin, CA 94568
Emphasizing DUIs
& MISDEMEANORS

Criminal Law Newsletter

Merger Rule to Prevent Multiple Convictions for the Same Act

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.

  • Reducing the Severity of the Crime
    If you are unable to successfully raise a defense to a crime, you may still have the crime reduced to a lesser included offense or have the punishment decreased. Surprisingly, courts are usually quite receptive to mitigating... Read more.
  • Understanding Foreign Drug Laws
    United States citizens frequently believe they will not be subject to foreign laws for crimes committed abroad since they are U.S. citizens. This is not the case. In fact, the consequences for crimes committed abroad, especially drug... Read more.
  • Criminal Remedies for Victims of Stalking
    Most states recognize the crime of stalking as “a clear pattern of conduct in which the offender follows, harasses, or threatens another person, putting that person in fear for his or her safety.” Depending on the... Read more.
  • Constitutionality of New Arizona Law Challenged
    An immigration bill signed by Arizona Governor Jan Brewer on April 23, 2010 was to be challenged in court, according to the Los Angeles... Read more.
Criminal Law News Links
Share This Page:

Kim W. Burgess is located in Dublin, CA and serves clients in and around Dublin, Piedmont, Livermore, Richmond, Pleasanton, San Ramon, Danville, Castro Valley, Sunol, Diablo, Union City, Fremont, San Lorenzo, Moraga, San Leandro, Newark, Brentwood, Walnut Creek, Clayton and Antioch.

Designed and Powered by NextClient

© 2015 - 2019 Law Offices of Kim W. Burgess. All rights reserved.
Custom WebExpress™ attorney website design by NextClient.com.

Contact Form Tab