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The post below was published on Friday, February 18th, 2011 at 7:23 AM.

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Second District: You Can’t Do That

A defendant in a criminal case requests an instruction on a lesser-included offense, is convicted of the lesser-included offense, and then contends that the evidence was insufficient to support that conviction. Can you do that?

It was tried in this case, where the Second District explained that, under such circumstances, the conviction for the lesser-included offense is valid if the evidence supported the greater offense. Any argument on the evidence as to the lesser-included offense is waived in exchange for giving the jury an opportunity to exercise its pardon power.