76-1-402 - Separate offenses arising out of single criminal episode -- Included offenses.
76-1-402. Separate offenses arising out of single criminal episode -- Includedoffenses.
(1) A defendant may be prosecuted in a single criminal action for all separate offensesarising out of a single criminal episode; however, when the same act of a defendant under a singlecriminal episode shall establish offenses which may be punished in different ways under differentprovisions of this code, the act shall be punishable under only one such provision; an acquittal orconviction and sentence under any such provision bars a prosecution under any other suchprovision.
(2) Whenever conduct may establish separate offenses under a single criminal episode,unless the court otherwise orders to promote justice, a defendant shall not be subject to separatetrials for multiple offenses when:
(a) The offenses are within the jurisdiction of a single court; and
(b) The offenses are known to the prosecuting attorney at the time the defendant isarraigned on the first information or indictment.
(3) A defendant may be convicted of an offense included in the offense charged but maynot be convicted of both the offense charged and the included offense. An offense is so includedwhen:
(a) It is established by proof of the same or less than all the facts required to establish thecommission of the offense charged; or
(b) It constitutes an attempt, solicitation, conspiracy, or form of preparation to commit theoffense charged or an offense otherwise included therein; or
(c) It is specifically designated by a statute as a lesser included offense.
(4) The court shall not be obligated to charge the jury with respect to an included offenseunless there is a rational basis for a verdict acquitting the defendant of the offense charged andconvicting him of the included offense.
(5) If the district court on motion after verdict or judgment, or an appellate court onappeal or certiorari, shall determine that there is insufficient evidence to support a conviction forthe offense charged but that there is sufficient evidence to support a conviction for an includedoffense and the trier of fact necessarily found every fact required for conviction of that includedoffense, the verdict or judgment of conviction may be set aside or reversed and a judgment ofconviction entered for the included offense, without necessity of a new trial, if such relief issought by the defendant.
Amended by Chapter 32, 1974 General Session