OK, here goes.
You have a burglary indicted under two paragraphs as entering and "attempted to commit and committed assault" and "attempted to commit and committed agg. assault"
Is the agg. assault/assault a lesser included of the burglary if indicted as entering and "attempted to commit and committed assault/agg.assault"? If the defendant has previously been tried for the agg. assault, would jeopardy prohibit trying him for the burglary (by attempting to commit and commiting agg. assault/assault)?
The cases are pretty clear that you can prosecute both when you the burglary alleges INTENT to commit some offense, since "intending to commit" and "committing" are two seperate acts, thus different elements. Both the burglary and the agg assault can therefore be prosecuted.
But, what about when the burglary alleges entering and "attemted to commit and committed" agg. assault/assault, AND when the agg. assault has been tried already? Would it make a difference that at the defendant's trial for agg. assault, he was convicted, but the conviction was reversed/remanded and the State has PDR pending?
Thanks in advance
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