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Can't convict of a crime not charged [NOT FINAL]

Meryl Carver-Allmond won in State v. Betts, No. 100,887 (Aug. 28, 2009)(unpublished), reversing two counts of sale and two counts of unlawful use of a communication facility in a Seward County drug case. The state unambiguously charged two counts of possession with intent to sell.

But for reasons that are unexplained in the record on appeal, the district court changed its description and said sales of cocaine were the charged crimes. We find no motion to amend charges in the record, nor do we find any order modifying the original charges. Then, without objection, the district court instructed the jury on the crimes of "unlawfully selling cocaine."

The COA rejected the state's claim that this was merely instructional error but held that failure to charge a particular crime leaves the district court without jurisdiction to convict of that particular crime.

The COA also held that because Ms. Betts was charged with unlawful use of a communication facility to facilitate a drug offense and because the state failed to prove a drug offense, those convictions also had to be reversed. Two counts of no tax stamp were not challenged on appeal.

Full post as published by Kansas Defenders on August 31, 2009 (boomark / email).