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2.12-1 Persistent Offenders -- § 53a-40, § 53a- 40a, § 53a-40d and § 53a-40f
New, June 13, 2008
In the second part of the information, the defendant has been charged with being a <insert appropriate statute and subsection:>
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§ 53a-40 (a): persistent dangerous felony offender.
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§ 53a-40 (b): persistent dangerous sexual offender.
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§ 53a-40 (c): persistent serious felony offender.
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§ 53a-40 (d): persistent serious sexual offender.
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§ 53a-40 (e): persistent larceny offender.
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§ 53a-40 (f): persistent felony offender.
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§ 53a-40a (a): persistent offender of crimes involving bigotry or bias.
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§ 53a-40d (a): persistent offender of crimes involving (assault / stalking / trespass / threatening / harassment / criminal violation of a protective order / criminal violation of a restraining order.
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§ 53a-40f (a): persistent operating while under the influence felony offender.
A person is guilty of being a <insert type of persistent offender charged> when that person stands convicted of <insert crime>, and has been, prior to the commission of that offense, convicted of <insert prior crime[s]> [and imprisoned under a sentence to a term of imprisonment of more than one year or death in (this state / any other state / a federal correctional institution)].1
For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:
Element 1 - Current conviction
The first element is that the
defendant stands convicted of <insert crime>. The verdict you just
rendered, finding the defendant guilty of <insert crime>, satisfies this
element.
Element 2 - Prior conviction
The second element
that
[within five years]2
is that prior to <insert
date the current crime was committed>, the defendant was convicted of <insert
prior crime> [and imprisoned under a sentence to a term of imprisonment of
more than one year or death in (this state / any other state / a federal
correctional institution).] To be "convicted" of a crime means that a finding
of guilty has been entered against a defendant in a criminal or motor vehicle
case. A certified copy of a court record indicating a verdict or finding of
guilty is sufficient evidence, either standing alone or with other evidence, to
prove a "conviction" of a crime. <Describe the evidence presented.>
[<If applicable; see note 1.> The state need only prove that the defendant served some amount of time in confinement under a sentence having a term that exceeded one year. The crucial element of the statute is that the imposed term exceeded one year; however, the defendant is not required to actually serve one year in prison but is only required to have been imprisoned.3]
Conclusion
In summary, the state must prove beyond a reasonable doubt that the defendant has been convicted of <insert crime>, and that (he/she) had previously been convicted of <insert crime> [and imprisoned under a sentence to a term of imprisonment of more than one year or death in (this state / any other state / a federal correctional institution)].
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of being a <insert
type of persistent offender charged>, then you shall find the defendant
guilty. On the other hand, if you unanimously find that the state has failed to
prove beyond a reasonable doubt any of the elements, you shall then find the
defendant not guilty.
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1 The requirement of imprisonment applies only to § 53a-40 (a), (b), (c), and (d).
2 The requirement that the prior conviction be within five years applies only to § 53a-40d.
3 State v. Milardo, 224 Conn. 397, 419 (1993).
Commentary
In State v. Ledbetter, 240
Conn. 317, 321 (1997), the Supreme Court "interpret[ed] the language of § 53a-40
(d) and its legislative purpose to require a sequence of offense, conviction and
punishment for each prior felony before a defendant may be subject to an
enhanced penalty as a persistent offender." This presumably applies to the
other persistent offender statutes.