Charging Greater and Lesser-Included Offenses Separately

Is it proper to charge a defendant separately with a greater offense and with a lesser-included offense? For example, is it proper to charge a defendant with robbery and with larceny arising out of the same taking, even though larceny is a lesser-included offense of robbery?

Synthesizing the authorities I could locate on point, it seems that (1) it isn’t necessary to charge in that way, (2) as a general rule, charging in that way is to be avoided, but (3) charging in that way doesn’t create a fatal defect in a pleading.

Read on for details, and for my request for information about when this happens in practice.

It’s not necessary. “When a defendant is indicted for a criminal offense, he may be convicted of the charged offense or a lesser included offense.” State v. Hudson, 345 N.C. 729 (1997). In other words, charging the greater offense effectively charges the lesser-included offense as well, and it’s not necessary to charge the lesser-included offense separately.

It’s to be avoided. Courts have recognized that a charging document that alleges both a greater and a lesser-included offense is multiplicitous, meaning that several counts charge what amounts to the same offense, as measured by the Blockburger test. See, e.g., United States v. Ganadonegro, 854 F.Supp.2d 1088 (D. N.M. 2012) (ruling that “Count 1, charging second-degree murder, and Count 2, charging voluntary manslaughter, are multiplicitous” because “voluntary manslaughter is a lesser included offense of second-degree murder”); Merlina v. Jejna, 90 P.3d 202 (Ariz. Ct. App. Div. 1 2004) (ruling that separate charges of DWI >.08 and DWI >.15 were multiplicitous because the former is a lesser-included offense of the latter).

Courts and commentators generally discourage multiplicity in charging. It creates an artificially large array of charges, and that can impact the pretrial release conditions that are imposed on a defendant. Also, if the multiplicity isn’t addressed at some point along the way, it can result in multiple sentences being imposed for the same offense, which generally violates the Double Jeopardy Clause.

It isn’t fatal. Nonetheless, most authorities hold that multiplicity in charging isn’t fatal. Rather, the defendant may ask the court to require the prosecution to simplify the charges. See generally 41 Am. Jur. 2d Indictments and Informations § 197 (noting that “[r]emedies for multiplicity include an election of counts by the prosecutor prior to trial and the use of appropriate jury instructions”); 42 C.J.S. Indictments § 214 (noting that multiplicity isn’t a fatal defect, though courts have deemed it “discouraged” and “improper”); Georgetown Law Journal Annual Review of Criminal Procedure, Indictments, 45 Geo. L.J. Ann. Rev. Crim. Proc. 323 (2016) (stating that multiplicity is “generally improper” but “not fatal,” and that remedies include election of counts by the prosecution or consolidation of counts by the court); Merlina, supra (stating that while multiplicitous charges may be “defective,” they are not fatally so). As it pertains to greater and lesser-included offenses, it makes senses that multiplicity isn’t fatal. The potential prejudice to the defendant is limited in light of the fact that, even if the defendant were charged only with the greater offense, the lesser-included offense would still be implicated as described above.

Perhaps there are some circumstances in which multiplicity is justified, as when it isn’t clear whether one offense is a lesser-included offense of another, or when it alleging both the greater and the lesser offenses results in a clearer presentation of the charges. Possibly in recognition of this, an often-quoted Ninth Circuit case states that “[p]rosecutors should not be discouraged from charging defendants with greater and lesser included offenses in separate counts under the same indictment.” United States v. Jose, 425 F.3d 1237 (9th Cir. 2005). But see United States v. Favors, 48 C.M.R. 873 (U.S. Army Ct. Mil. Rvw. 1974) (stating, in a case involving charges of simple assault and assault inflicting grievous bodily harm based on the same conduct, that “Specification 1 merely alleges a lesser included offense of Specification 2,” and that “[a]lleging both specifications did not contribute anything to the Government’s meeting the exigencies of proof and we are unable to conceive any rationale for these multiplicious pleadings”).

What’s happening out there? I’m interested in hearing others’ thoughts about the legal issues and about the practice out there. Are there circumstances under which it makes sense to charge both a greater and a lesser-included offense separately? If so, what are those circumstances? Are there lesser-included offenses that are routinely charged separately, even if it may not make sense to do so? I’d be very appreciative of whatever information and experiences readers are able to share.

3 thoughts on “Charging Greater and Lesser-Included Offenses Separately”

  1. This is interesting, I’ve always assumed you wouldn’t charge a lesser included offense because it would just be dismissed at the end anyways. Not to mention, if the defendant took a plea, then the DA’s office would reduce the charge to whatever the plea agreement was.

  2. One related situation is where the defendant is indicted with both PWISD Marijuana (no weight alleged in this count only) and Felony Possession of Marijuana (by weight) for the same marijuana. The defendant could be convicted of two lesser-included Simple Possession of Marijuana counts for the same contraband. Could come across the same issue with trafficking and PWISD charges. Court would probably arrest judgment on one of the counts.

  3. I had been charged with trafficking due to picking someone up on the highway and pulled 3 miles later ! 27.16 g. Of meth passenger put it between the passenger seat and the console. Told officer I threw it on him ! Come to find out he has many priors and I’ve only ever had one drug charge on 8/26/13 . 2 weeks after I bonded out and was charged with trafficking and I was in prison already serving a parole violation due to the charges of trafficking , conspiracy to traffic and maintaining a vehicle and 2 probation violations . The vehicle was not mine it’s my boyfriends. When the lab said the weight was only 27.16 the trafficking was dropped and I was indicted on PWISD conspiracy maintains and habitual and the oldest charge on the habitual charge is to be 1O yrs old on 8/26/23 . The DA wants me to accept plea of 15-20 something months box carded x2 I’m a level 5 only because I’ve always been scared to take anything to trial took plead and probation and now I’m in this system I can’t shake like they are purposely trying to put me away ! If I take it to trial I’m looking at 18 years! I’m a 48 yr female just had my 5 grandchild and always end up on the bad side by thinking I’m simply helping someone and something like this happens ! The arrest shit says the warrants were issued on 1/23/23 on 3 of the 4 charges I was not even pulled over by reason of my tint to dark on the car untill 1/27/23 I bonded out at 0n 1/23/23 which I wrong also the passengers arrest sheet is correct except the bond park my also and it was at 18:53 at night how can they tell how dark my tint is he was sitting perpendicular to traffic high beeming cars that exited the high way and the other officer said they pulled up to assist at 14:45 and the evidence sheet said they submitted the evidence at 19;01 I was pulled at exit 106 transcript says 107! There is audio but was not received when request for discovery was granted ! I’ve only been to court I sign waver stating that I hired a attorney. That’s the only court date I’ve appeared on or anything and I’m being fired to take a plea for 15 months minimum x2 or go to trial loose and far 18 years ! Something is not fair here ! Now a days I stay home do help anyone unless it’s family so I’m not being taking for my kindness. How come the system can change their info when the mess up and the officers can lie on the transcript saying people say things they don’t and even charge 2 people when clearly the evidence shows it was the passengers drugs ! But force me to quickly plea not them and how wierd it be the day before the drug charge of mine in the past turns 10 yrs old from date of conviction that’s being used towards my habitual ! Do you have any advice for me and is all of this stuff legal ?


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