Doctrine of Merger in Criminal Sentencing
What is the Doctrine of Merger?
The doctrine of merger applies in a criminal setting where the defendant committed two or more crimes in a single act, but is only charged with one crime. The multiple crimes are considered by a judge to be “merged” or combined into a single charge. Thus, according to the merger doctrine, a defendant may sometimes serve a criminal sentence for only one crime instead of two.
A defendant may not be tried, convicted, and sentenced for the same crime twice. Being convicted of the same crime twice is known as “double jeopardy” and is prohibited according to the 5th Amendment to the U.S. Constitution. Therefore, the merger doctrine was instituted as a way to help avoid the problem of double jeopardy.
What types of Crimes may be Merged?
The rules governing merger vary according to the criminal laws of each state, and also according to federal violations. However, in general the following principles apply with regards to merged crimes:
- Lesser Included Offenses: Merger usually applies when one crime is considered to be a “lesser included offense” of a more serious crime. For example, larceny (theft) is a simple crime involving the unauthorized taking of another’s property. Robbery also includes such actions of theft, except that it involves a theft by the use of force or intimidation. Theft is therefore considered to be a “lesser included offense” of robbery. Thus, if a person steals a wallet at gunpoint, they cannot be convicted of both larceny and robbery, as the larceny charges will merge into the robbery charges.
- Elements of Proof: Merger does NOT apply when each crime has different elements of proof, or if the prosecution requires different evidence to prove each crime. An example of this is aggravated assault and aggravated battery. Aggravated battery may require proof that the victim lost a body part, whereas aggravated assault does not contain this element. Thus, aggravated assault and aggravated battery often do not merge due to the different elements for proof.
- Timing of the Crimes: Two crimes will NOT merge if one of them was completed before the other crime. For example, if the defendant had robs a person at gunpoint, then takes their wallet, and afterwards strikes them with the gun, they may be guilty of both robbery and aggravated assault with the gun.
- Attempted Crimes: Attempted crimes do merge with the actual crime, once the actual crime is completed. For example, some states do not try defendants for both attempted burglary and actual burglary. If the person actually completed the burglary, any attempted burglary charges will merge with the actual burglary charges.
- Conspiracy: Conspiracy charges normally will NOT merge with the completed crime. For example, if a person participates in a plan to rob a bank with others, and then they actually rob the bank, the participant can be charged with both conspiracy and robbery.
So, whether a crime merges with another crime depends largely on the type of crime that is involved. The merger doctrine is most commonly applied to situations where a lesser included offense is merged with a more serious offense.
How does the Merger Doctrine affect Sentencing?
The doctrine of merger allows the defendant to receive a fewer number of charges on their criminal record. So instead of being charged with more than one crime, the defendant will only be convicted of one crime.
The merger doctrine may also result in a less severe sentence for the defendant than if they were to be charged with each separate crime. In instances where a lesser crime merges with a more serious crime, the defendant will often have to serve the criminal punishments for the more serious crime. The penalties for the lesser crime will not be enforced.
However, in some situations the defendant may still have to serve an extended jail sentence if multiple charges were initially involved. This is true for criminal trials that involve a long string of crimes in a single incident, where some of the crimes did not merge.
Do I need a Lawyer for the Merger Doctrine during Criminal Sentencing?
If you are facing criminal charges for more than one crime, you may wish to consult with a criminal lawyer for advice. An experienced attorney can help determine whether any of your charges will merge with another, which will likely result in a reduced sentence. Also, if you feel that a lower court has made a mistake by trying you for two crimes that should have been merged, you may be entitled to an appeal.
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Last Modified: 05-06-2011 01:04 PM PDT
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