371 P.3d 815
Idaho Ct. App.2016Background
- Defendant Toby Glenn Weatherly was charged with grand theft (I.C. §§ 18-2403(3), 18-2407(1)(b)(3)) and criminal possession of a financial transaction card (I.C. § 18-3125(1)); jury convicted on both counts and found two prior felonies.
- Sentences: concurrent five-year terms with one year determinate on each count.
- Weatherly argued on appeal that conviction for both offenses violated double jeopardy because possession of a financial transaction card is a lesser included offense of grand theft.
- Weatherly did not raise the double jeopardy issue below; the court therefore applied the Idaho Supreme Court’s Perry framework for unobjected-to constitutional error.
- The court examined the issue under both the statutory (elements/Blockburger) theory and the pleading theory (whether the information alleged the lesser offense as a means of the greater).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether criminal possession of a financial transaction card is a lesser included offense of grand theft | State: offenses are distinct; different intent elements; no double jeopardy bar | Weatherly: possession is a lesser included offense of grand theft, so convicting both violated double jeopardy | Court held not lesser included under statutory or pleading theories; no Perry relief |
Key Cases Cited
- State v. Perry, 150 Idaho 209 (Idaho 2010) (standard for reversing unobjected-to constitutional error)
- Blockburger v. United States, 284 U.S. 299 (1932) (test for whether offenses are the same under statutes/elements)
- State v. Thompson, 101 Idaho 430 (Idaho 1980) (statutory lesser-included-offense analysis)
- State v. McKinney, 153 Idaho 837 (Idaho 2013) (pleading-theory test for lesser included offenses)