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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.

Source or Prior Law:



1. Statutory amendment to felony murder rule was substantive rather than procedural, so that the amendment was not to be applied retroactively. State v. Wells, 297 Kan. 741, 305 P.3d 568 (2013).

2. The legislature has made clear that felony murder has no lesser included offenses and this rule applies retroactively to all cases pending. State v. Dupree, 304 Kan. 377, 400, 373 P.3d 811 (2016).

3. Intentional and reckless second degree murder are both lesser included offenses of first degree murder and it was legally appropriate to instruct the jury on both theories of second degree murder; however, reckless second degree murder is not a lesser included offense of intentional second degree murder. State v. Bernhardt, 304 Kan. 460, 473, 372 P.3d 1161 (2016).

4. Neither the double jeopardy clause nor K.S.A. 21-5109 prohibit cumulative punishment for felony murder and criminal discharge of a firearm that results in great bodily harm; legislature expressed intent to allow cumulative punishments for felony murder and those underlying felonies that do not merge with the homicide. State v. Pattillo, 311 Kan. 995, 1011-13, 469 P.3d 1250 (2020).

5. Convictions for two counts of aggravated robbery were not multiplicitous even though they arose from one transaction that constituted unitary conduct where defendants, while armed, took property in the possession or control of two individuals by force directed at both. State v. Dale, 312 Kan. 174, 184, 474 P.3d 291 (2020).

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