What are Lesser Included Offenses?

May 25, 2015

Many criminal charges have less serious charges contained within them; often, a misdemeanor is contained within a felony. These less serious charges are known as lesser included offenses. A person may be charged with both the greater charge and the lesser included offense. If a jury does not find that the greater charge has been committed, it has the option to find the defendant guilty of the lesser included offense.

For example, in Florida, theft charges are contained within robbery charges. Theft means knowingly obtaining or using another’s property with the intent to deprive the owner of the use of or right to the property. Robbery means theft plus the theft is from the person or custody of another and the offender uses force, threat, violence, or assault.

Robbery is a second degree felony, whereas theft is, depending on the value of the property that is stolen, sometimes only a misdemeanor. A jury can find that an offender stole an item, but that it was not taken from the person of another. The offender would then be convicted of theft, but not of the more serious crime of robbery and would avoid the more serious legal penalties that result from a robbery conviction.

Mandatory and Discretionary Offenses

There are two types of lesser included offense in Florida: mandatory and discretionary. Instructions regarding mandatory lesser offenses must be given to the jury. The court is required to give instructions regarding discretionary lesser offenses only if the essential elements of the offense are alleged by the facts and one party requests the inclusion.

Double Jeopardy

The Fifth Amendment states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” This is what is known as double jeopardy—the state cannot charge a person more than once for the same crime. The complex part is determining what constitutes the “same offense.”

The “same offense” includes lesser included offenses. Double jeopardy means that a person cannot be convicted of both the greater and the lesser included offense. For example, the court cannot convict an offender of both theft and robbery because the offense of theft is wholly included within the robbery offense.

However, the state can prosecute two or more charges arising from the same event only if each charge requires proving something that the other does not require. Thus, if the two charges have at least one mutually exclusive element, an offender can be convicted of both.

For example, if a person robbed someone while publicly intoxicated, the offender could be convicted of both robbery and disorderly intoxication. This is true even though the charges arose from the same event and the robbery would be evidence of endangering others or their property, which is a requirement of disorderly intoxication. This is because disorderly intoxication, unlike robbery, requires drunkenness, while robbery, unlike disorderly intoxication, requires stealing something.

If you have been charged with a serious crime in Florida, it is likely that you have also been charged with a lesser included offense. An experienced attorney can work to get your charges reduced and perhaps avoid a conviction for the greater offense. Please contact West Palm Beach criminal defense attorney William Wallshein for a free initial consultation.