Minnesota Statutes
Minn. Stat. § 609.04 (2026)
Conviction Of Lesser Offense
✓ current as of May 2026
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§
Subdivision 1.Lesser offense prosecution.
Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both. An included offense may be any of the following:
(1) a lesser degree of the same crime; or
(2) an attempt to commit the crime charged; or
(3) an attempt to commit a lesser degree of the same crime; or
(4) a crime necessarily proved if the crime charged were proved; or
(5) a petty misdemeanor necessarily proved if the misdemeanor charge were proved.
§
Subd. 2.Conviction; bar to prosecution.
A conviction or acquittal of a crime is a bar to further prosecution of any included offense, or other degree of the same crime.
Notes of Decisions
Cited in 360
cases (32 in the last 5 years), 1964–2035 · leading case: State v. Bertsch, 707 N.W.2d 660 (Minn. 2006).
State v. Bertsch, 707 N.W.2d 660 (Minn. 2006). “We hold that Bertsch’s convictions and sentences for possession of child pornography must be vacated under Minn.Stat. § 609.04 (2004) as included offenses, that the district court did not abuse its discretion in its assignment of a severity level to the dissemination offense,…”
State v. Pflepsen, 590 N.W.2d 759 (Minn. 1999). “Minn.Stat. § 609.04, subd. 1 (1998). The statutory definition of included offenses includes “[a] crime necessarily proved if the crime charged were proved.”
State v. Osborne, 715 N.W.2d 436 (Minn. 2006). “See Minn.Stat. § 609.04, subd. 1(4) (2004). A defendant may not be convicted of both the charged offense and a lesser-included offense for the same criminal act.”
State v. Johnson, 616 N.W.2d 720 (Minn. 2000). “Minn.Stat. § 609.04 (1998) prevents multiple convictions based on the same conduct committed against the same victim.”
State v. Richardson, 670 N.W.2d 267 (Minn. 2003). “Richardson made a timely request for jury instructions on the lesser offenses, which the trial court denied.”
State v. Chavarria-Cruz, 839 N.W.2d 515 (Minn. 2013). “Under our jurisprudence, the court should have addressed Chavarria-Cruz’s claims under Minn.Stat. § 609.04 (2012) and Minn.Stat.”
Spann v. State, 740 N.W.2d 570 (Minn. 2007). “We affirm the postconviction court’s denial of relief with respect to Spann’s conviction for first-degree murder in violation of Minn.”
Walker v. State, 394 N.W.2d 192 (Minn. Ct. App. 1986). “Burglary Counts Walker argues that under Minn. Stat. § 609.04 all of his burglary convictions must be vacated because they are lesser included offenses of the felony murder conviction.”
State v. Holmes, 778 N.W.2d 336 (Minn. 2010). “Minn.Stat. § 609.04, subd. 1 (“Upon prosecution for a crime, the actor may be convicted of either the crime charged or an included offense, but not both.”
State of Minnesota v. Ian Christopher Mitchell, 881 N.W.2d 558 (Minn. Ct. App. 2016). “”, Minn.Stat. § 609.04, subd. 1. “A crime necessarily proved if the crime charged were proved” is an “included offense.”
State v. Lindsey, 632 N.W.2d 652 (Minn. 2001). “In this court, in addition to the issues raised before the postconviction court, Lindsey argues that two of his convictions must be vacated under Minn.Stat. § 609.04, subd. 1(1) (2000). We affirm in part and remand for a determination of whether restitution to the murder…”
Riley v. State, 792 N.W.2d 831 (Minn. 2011). “nial of his petition, arguing that he is entitled to postconviction relief because: 1) the jury instruction stating that the jury could convict on both first-degree murder and second-degree murder was erroneous; 2) the jury verdicts were inconsistent; 3) the indictment violated…”
— Minn. Stat. § 609.04(1996) — 1 case
State v. Whittaker, 568 N.W.2d 440 (Minn. 1997).
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