Here's the hypo:

Def is charged with continuous family violence (2 acbi-fv within 1 month) and is double enhanced (1 w/ a robbery and the other with a prior felony acbi-fv).

What happens if the jury doesn't find Def guilty of the continuous, but only guilty of 1 of the acbi-fv?

In other words, he's found guilty of the class A acbi-fv.

Can we prove up the prior felony acbi-fv in punishment to get it to a 3rd degree?

Or are we out of luck because the prior acbi-fv was a jurisdictional element for guilt and we didn't prove it up in guilt?

I'm thinking you're out of luck because its a jurisdictional allegation.

Can you obtain a superseding indictment to allege two counts of 3rd Degree ACBI-FV with a prior ACBI-FV (using the misdemeanor associated with the prior felony ACBI-FV)? That would give you two counts (each habitual) and allow you to get into evidence at guilt/innocence the fact that he has a prior ACBI-FV conviction.

Thanks Robert.
I was thinking the same thing.

I'll ask the trial ADAs if they've got time to re-indict.