Defendant entitled to lesser included misdemeanor instructions: COM V. OLIVER (SC 5/22/2008)

COM V. OLIVER
CRIMINAL:  Criminal – Lesser Included Instruction
2006-SC-000385-DG.pdf
PUBLISHED: AFFIRMING
OPINION BY ABRAMSON; CUNNINGHAM CONCURS IN RESULT ONLY BY SEPARATE OP W/NOBLE JOINING
COUNTY: MCCRACKEN
DATE RENDERED: 5/22/2008

This Court has never expressly addressed whether a criminal defendant is entitled to have the jury instructed on a lesser-included misdemeanor offense which is supported by the evidence but which was time-barred by KRS 500.050(2) at the time of indictment. We now hold that a defendant is entitled to the lesser-included offense instruction and, that by requesting jury consideration of an "expired" misdemeanor, the defendant waives his statute of limitations defense to any resulting conviction. Recognizing that this rule was unavailable at the time of Appellee Stewart Oliver’s trial and that the trial court and all parties misperceived the consequences of the defendant’s request for expired misdemeanor instructions, we affirm the Court of Appeals’ reversal of Stewart Oliver’s convictions, albeit on different grounds, and remand this case for a new trial.

Digested by Scott C. Byrd
Olgin and Byrd