21-5109.
Multiple prosecutions for same act; lesser included crimes.
(a) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
(b) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:
(1) A lesser degree of the same crime, except that there are no lesser degrees of murder in the first degree under subsection (a)(2) of K.S.A. 21-5402, and amendments thereto;
(2) a crime where all elements of the lesser crime are identical to some of the elements of the crime charged;
(3) an attempt to commit the crime charged; or
(4) an attempt to commit a crime defined under paragraph (1) or (2).
(c) Whenever charges are filed against a person, accusing the person of a crime which includes another crime of which the person has been convicted, the conviction of the lesser included crime shall not bar prosecution or conviction of the crime charged if the crime charged was not consummated at the time of conviction of the lesser included crime, but the conviction of the lesser included crime shall be annulled upon the filing of such charges. Evidence of the person's plea or any admission or statement made by the person in connection therewith in any of the proceedings which resulted in the person's conviction of the lesser included crime shall not be admissible at the trial of the crime charged. If the person is convicted of the crime charged, or of a lesser included crime, the person so convicted shall receive credit against any prison sentence imposed or fine to be paid for the period of confinement actually served or the amount of any fine actually paid under the sentence imposed for the annulled conviction.
(d) Unless otherwise provided by law, when crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct, the defendant:
(1) May not be convicted of the two crimes based upon the same conduct; and
(2) shall be sentenced according to the terms of the more specific crime.
(e) A defendant may not be convicted of identical offenses based upon the same conduct. The prosecution may choose which such offense to charge and, upon conviction, the defendant shall be sentenced according to the terms of that offense.
History:
L. 2010, ch. 136, § 9; L. 2012, ch. 157, § 2; L. 2013, ch. 133, § 3; July 1.
Notes of Decisions
Cited in
113
cases (
60 in the last 5 years), 2012–2026 · leading case:
State v. Martin, 544 P.3d 820 (Kan. 2024).
State v. Martin, 544 P.3d 820 (Kan. 2024).
· cites it 40× “The Legislature enacted K.S.A. 2019 Supp. 21-5109 to identify some situations in which it does not intend to impose multiple punishments for the same conduct.”
State v. Aguirre, 485 P.3d 576 (Kan. 2021).
· cites it 5× “Discussion Aguirre's argument invokes the plain language of K.S.A. 2020 Supp. 21-5109(b), which provides, in relevant part, "Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both.”
State v. Bernhardt, 372 P.3d 1161 (Kan. 2016).
· cites it 6× “Under K.S.A. 2015 Supp. 21-5109(b), a lesser included crime is: "(1) A lesser degree of the same crime, except that there are no lesser degrees of murder in the first degree under subsection (a)(2) [felony murder] of K.”
State v. Pattillo, 469 P.3d 1250 (Kan. 2020).
· cites it 3× “The Legislature made clear that the provision Pattillo cites does not apply to felony murder. His argument thus fails. Cumulative punishments for both criminal discharge of a firearm and felony murder violate neither the Double Jeopardy Clause nor K.”
State v. Gentry, 449 P.3d 429 (Kan. 2019).
· cites it 2× “22-3414 provides that, "[i]n cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (b) of K.S.A. 2018 Supp. 21-5109, and amendments thereto, the judge shall instruct the jury as to the crime charged…”
State v. Green, 419 P.3d 83 (Kan. Ct. App. 2018).
· cites it 4× “22-3414(3) : "In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (b) of K.S.A. 2017 Supp. 21-5109, and amendments thereto, the judge shall instruct the jury as to the crime charged and any…”
State v. Longoria, 343 P.3d 1128 (Kan. 2015).
· cites it 3× “3d 1007 (2012) ("felony murder is a lesser included crime of capital murder" under K.S.A. 2011 Supp. 21-5109[b][1] because felony murder is a lesser degree of homicide than capital murder), vacated on other grounds and remanded 571 U.”
State v. Johnson – Hill, 391 P.3d 711 (Kan. Ct. App. 2017).
· cites it 5× “Lesser included offense instructions must be given if "there is some evidence which would reasonably justify a conviction of some lesser included crime" as defined in K.S.A. 2013 Supp. 21-5109(b). K.S.A. 2013 Supp.”
State v. Daws, 368 P.3d 1074 (Kan. 2016).
· cites it 2× “3d 202 (2012): (1) Daws preserved this issue by requesting the instruction during the jury instruction conference, and (2) an instruction on burglary is legally appropriate as a lesser included offense of aggravated burglary, see K.S.A. 2015 Supp. 21-5109(b)(1) (defining lesser…”
State v. Dupree, 373 P.3d 811 (Kan. 2016).
· cites it 2× “See K.S.A. 2013 Supp. 21-5109; L. 2012, ch. 157, sec.”
State v. Wells, 305 P.3d 568 (Kan. 2013).
· cites it 3× “” K.S.A. 2012 Supp. 21-5109; L. 2012, ch. 157, sec.”
State v. Myers, 509 P.3d 563 (Kan. Ct. App. 2022).
· cites it 4× “" K.S.A. 2020 Supp. 21-5109(b). The statute then defines a lesser included crime as "a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.”
— K.S.A. § 21-5109(a) — 6 cases
State v. Martin, 544 P.3d 820 (Kan. 2024).
“The Legislature enacted K.S.A. 2019 Supp. 21-5109 to identify some situations in which it does not intend to impose multiple punishments for the same conduct.”
— K.S.A. § 21-5109(b) — 33 cases
State v. Aguirre, 485 P.3d 576 (Kan. 2021).
“Discussion Aguirre's argument invokes the plain language of K.S.A. 2020 Supp. 21-5109(b), which provides, in relevant part, "Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both.”
State v. Bernhardt, 372 P.3d 1161 (Kan. 2016).
“Under K.S.A. 2015 Supp. 21-5109(b), a lesser included crime is: "(1) A lesser degree of the same crime, except that there are no lesser degrees of murder in the first degree under subsection (a)(2) [felony murder] of K.”
State v. Johnson – Hill, 391 P.3d 711 (Kan. Ct. App. 2017).
“Lesser included offense instructions must be given if "there is some evidence which would reasonably justify a conviction of some lesser included crime" as defined in K.S.A. 2013 Supp. 21-5109(b). K.S.A. 2013 Supp.”
State v. Martin, 544 P.3d 820 (Kan. 2024).
“The Legislature enacted K.S.A. 2019 Supp. 21-5109 to identify some situations in which it does not intend to impose multiple punishments for the same conduct.”
— K.S.A. § 21-5109(b)(1) — 45 cases
State v. Bernhardt, 372 P.3d 1161 (Kan. 2016).
“Under K.S.A. 2015 Supp. 21-5109(b), a lesser included crime is: "(1) A lesser degree of the same crime, except that there are no lesser degrees of murder in the first degree under subsection (a)(2) [felony murder] of K.”
State v. Gentry, 449 P.3d 429 (Kan. 2019).
“22-3414 provides that, "[i]n cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (b) of K.S.A. 2018 Supp. 21-5109, and amendments thereto, the judge shall instruct the jury as to the crime charged…”
State v. Green, 419 P.3d 83 (Kan. Ct. App. 2018).
“22-3414(3) : "In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (b) of K.S.A. 2017 Supp. 21-5109, and amendments thereto, the judge shall instruct the jury as to the crime charged and any…”
— K.S.A. § 21-5109(b)(2) — 20 cases
State v. Martin, 544 P.3d 820 (Kan. 2024).
“The Legislature enacted K.S.A. 2019 Supp. 21-5109 to identify some situations in which it does not intend to impose multiple punishments for the same conduct.”
State v. Bernhardt, 372 P.3d 1161 (Kan. 2016).
“Under K.S.A. 2015 Supp. 21-5109(b), a lesser included crime is: "(1) A lesser degree of the same crime, except that there are no lesser degrees of murder in the first degree under subsection (a)(2) [felony murder] of K.”
State v. Myers, 509 P.3d 563 (Kan. Ct. App. 2022).
“" K.S.A. 2020 Supp. 21-5109(b). The statute then defines a lesser included crime as "a crime where all elements of the lesser crime are identical to some of the elements of the crime charged.”
State v. Green, 419 P.3d 83 (Kan. Ct. App. 2018).
“22-3414(3) : "In cases where there is some evidence which would reasonably justify a conviction of some lesser included crime as provided in subsection (b) of K.S.A. 2017 Supp. 21-5109, and amendments thereto, the judge shall instruct the jury as to the crime charged and any…”
— K.S.A. § 21-5109(b)(3) — 5 cases
— K.S.A. § 21-5109(b)(4) — 1 case
— K.S.A. § 21-5109(b)(l) — 9 cases
State v. Wells, 305 P.3d 568 (Kan. 2013).
“” K.S.A. 2012 Supp. 21-5109; L. 2012, ch. 157, sec.”
State v. Daws, 368 P.3d 1074 (Kan. 2016).
“3d 202 (2012): (1) Daws preserved this issue by requesting the instruction during the jury instruction conference, and (2) an instruction on burglary is legally appropriate as a lesser included offense of aggravated burglary, see K.S.A. 2015 Supp. 21-5109(b)(1) (defining lesser…”
State v. Longoria, 343 P.3d 1128 (Kan. 2015).
“3d 1007 (2012) ("felony murder is a lesser included crime of capital murder" under K.S.A. 2011 Supp. 21-5109[b][1] because felony murder is a lesser degree of homicide than capital murder), vacated on other grounds and remanded 571 U.”
— K.S.A. § 21-5109(c) — 1 case
— K.S.A. § 21-5109(d) — 9 cases
— K.S.A. § 21-5109(d)(2) — 3 cases
— K.S.A. § 21-5109(e) — 2 cases
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