a charge to the court on a lesser, included offense causing double jeopardy harm, what is the remedy?
You can be convicted of a lesser count and acquitted on the top count. Double jeopardy isn't an issue in that situation.
This question is labeled "criminal defense" but at this point the label of "appeals" is probably more appropriate.
Your best bet may be to investigate whether the lesser included is not REALLY a lesser included. For example, consider Assault Causing Bodily Injury. Is that a lesser included of Aggravated Assault / Deadly Weapon? It is possible to commit the latter offense by merely brandishing a DW while making a threat or offensive contact, no bodily injury is required. This is why you should consult an attorney that focuses on criminal appeals.
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At this point, this is more of an appellate question since a verdict has been found but typically the trial attorney will ask for a "lesser included" instruction in the Jury Charge based upon testimony that has been given at trial. If that is what occurred here, the state never needed to charge the lesser included offense for the defendant to have been found guilty of the lesser included offense nor were the principles of double jeopardy violated.
However, sometimes there is good case-law history that will allow a savvy appellate lawyer to appeal that it is not, in fact, a lesser included offense of which the defendant was found guilty, etc.
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