When vacating convictions, which charge is the “lesser offense”?

Imagine this scenario: A defendant is convicted of both Attempted Trafficking of Oxycodone and Possession of Oxycodone. He files an appeal arguing he should not have been convicted of both due to double jeopardy. The appellate court agrees but now has to decide WHICH count to vacate.

A case you will want to read for analysis is Aubuchon v. State (2D10-5745) decided March 8th, 2013.

The general rule is that when dual convictions are impermissible, the court should reverse the lesser offense conviction and affirm the greater.  In most cases, lesser offenses are those in which he elements of the lesser offense are subsumed within the greater.  But in Aubuchon’s factual scenario, neither offense is strictly consumed into the other.  Here’s the analysis the court used to determine which offense would be treated as the lesser:

…Aubuchon’s “possession” of the 39.5 pills was simply a small part of his larger attempt to obtain his full order of 400 pills.  Aubuchon  “ordered” 400 pills, he arrived at the designated location with payment for 400 pills, the “seller” accepted $1900 for the 400 pills but made only a partial delivery, and Aubuchon remained where he was, waiting for the remainder of his “order.”  Thus, his brief possession of the 39.5 pills was not a separate completed offense but was simply an intermediate part of the offense of attempting to possess all 400 pills.

In the end, the court vacated Aubuchon’s simple possession charge.

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This post is not intended as legal advice nor does it create an attorney-client relationship.

~At Matthews Law Firm, P.A., we practice criminal defense. Offices in Bartow, Florida.~

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