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Criminal Jury Instructions

Criminal Jury Instructions Home

2.12-2 Subsequent Offenders

Revised to June 12, 2009  (modified May 20, 2011)

In the second part of the information, the defendant has been charged as a (second / third / subsequent) offender of the crime of <insert crime>. A person is guilty of being a (second / third / subsequent) offender of the crime of <insert crime> when that person stands convicted of <insert crime>, and has been, prior to the commission of that offense, convicted of that same crime on (a prior occasion / two or more separate prior occasions).

For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:

Element 1 - Current conviction
The first element is that the defendant has been convicted of <insert crime> in this case. The verdict you just rendered, finding the defendant guilty of <insert crime>, satisfies this element.

Element 2 - Prior conviction
The second element is that prior to <insert date the current crime was committed>, the defendant was convicted of <insert crime and number of convictions if applicable>. To be "convicted" of a crime means that a finding of guilty has been entered against a defendant in a criminal or motor vehicle case.

Conclusion

In summary, the state must prove beyond a reasonable doubt that the defendant has been convicted of <insert crime>, and that (he/she) had previously been convicted of <insert crime>. 

You will now return to the deliberation room to consider this question.  I am sending in with you a form on which to record your answer.  Your decision must be unanimous.  Your foreperson should check the appropriate answer and sign and date the form.  Refer back to and use the instructions I previously gave you on burden of proof, presumption of innocence, and reasonable doubt.

Commentary

Many offenses have sentence enhancers based on prior convictions for the same offense. These are noted in the commentaries to those offenses. When the state seeks an enhanced penalty due to a prior conviction, the offense must be charged in a two-part information. Practice Book 36-14. See the Introduction to Part B Informations.

It is recommended that the factual question of the defendants status as a subsequent offender be submitted to the jury by way of an interrogatory after it has rendered its verdict on Part A of the information.  Below is an example of the text of the interrogatory. 

INTERROGATORY 

Has the state proven to all of you unanimously beyond a reasonable doubt that the defendant is a (second / third / subsequent) offender? 

                                                                       Yes _____                             No _____ 

                                                          _________________________________________  

                                                          Foreperson                                                 Date 

N.B. Foreperson must sign and date in ink.      

Note that in Driving Under the Influence, 14-227a, and Driving Under the Influence, Under 21 Years Old, 14-227g, the statute distinguishes between a second and a third offense.  If the state offers evidence of two prior convictions, the jury is free to find only one of them proved.  This interrogatory should be adapted to allow the jury to find the defendant either a second or third offender.
 


 

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