Merger

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swtlilsoni

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Merger

Post by swtlilsoni » Fri Feb 19, 2016 1:29 pm

Robbery merges with larceny as a lesser included offense.
One of the questions I got said the person can be charged with burglary and attempted larceny. Do those two not merge?

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rinkrat19

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Re: Merger

Post by rinkrat19 » Fri Feb 19, 2016 1:44 pm

Burglary has totally different elements that don't match up with larceny/attempted larceny. "Breaking into" and "intent to commit felony" (and "dwelling at night" if we're using common law burglary).

The elements that make up attempted larceny, on the other hand, are entirely contained within robbery.

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swtlilsoni

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Re: Merger

Post by swtlilsoni » Fri Feb 19, 2016 2:33 pm

rinkrat19 wrote:Burglary has totally different elements that don't match up with larceny/attempted larceny. "Breaking into" and "intent to commit felony" (and "dwelling at night" if we're using common law burglary).

The elements that make up attempted larceny, on the other hand, are entirely contained within robbery.
But if the larceny is the felony element of the burglary than that would be a lesser included offense because the entire larceny is included in one of the burglary elements...? It seems like a double jeopardy issue to me, doesn't seem fair

THE_U

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Re: Merger

Post by THE_U » Fri Feb 19, 2016 3:02 pm

swtlilsoni wrote:
rinkrat19 wrote:Burglary has totally different elements that don't match up with larceny/attempted larceny. "Breaking into" and "intent to commit felony" (and "dwelling at night" if we're using common law burglary).

The elements that make up attempted larceny, on the other hand, are entirely contained within robbery.
But if the larceny is the felony element of the burglary than that would be a lesser included offense because the entire larceny is included in one of the burglary elements...? It seems like a double jeopardy issue to me, doesn't seem fair
No, I think you are mixing up what a lesser-included offense is.

"Lesser-included offense" = offense that consists of some but not all elements of the greater crime

Larceny being the felony in a burglary ≠ a lesser included. It's just makes up an element in the burglary charge itself.

The two crimes share ZERO elements. One is a trespassory taking of property, with intent to permanently deprive. The other is the breaking/entering of a dwelling, at night, with intent to commit a felony therein. Totally completely distinct crimes.

Larceny would be a lesser-included for the crime of robbery, however, because robbery requires the same elements of larceny PLUS use of force/intimidation.

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