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Merger in Oklahoma Criminal Law
Title 21 O.S. § 11 and the Double Jeopardy provisions of the Oklahoma Constitution, Article 2 § 21, and United States Constitution, Fifth Amendment, make it unlawful to convict the Appellant of two crimes based upon the same act. This is referred to in Oklahoma law as "merger". Title 21 O.S. § 11 provides in relevant part;
..but in no case can a criminal act or omission be punished under more than one section of the law;….
This Court has called §11 “the statutory prohibition against multiple punishment.” Hale v. State, 1995 OK CR 7, 888 P.2d 1027, paragraph 3 (Okl. Crim. 1995) The appropriate analysis of whether §11 has been violated is “whether, taken as a whole, a defendant has been punished twice for one criminal course of conduct where his offenses were incident to one objective.” Hale v. State, 1995 OK CR 7, 888 P.2d 1027, paragraph 3 (Okl. Crim. 1995).
This issue comes up from time to time in cases. The law prevents double punishment. This is really a sentencing issue. Often times it will be raised before trial and the typical response from a judge is that is something to be taken up at sentencing.