What Does ''Redundant Convictions'' Mean ?
Court's decisions in Albitre v. State, 103 Nev (1995):
Albitre was this court's first foray into the concept of redundant convictions. Albitre was an intoxicated driver who caused the deaths of two people in a traffic accident.
A jury convicted Albitre of two counts each of felony driving under the influence in violation of NRS 484.3795, involuntary manslaughter and felony reckless driving. Albitre, 103 Nev. at 282, 738 P.2d at 1308.
This court reversed four of the convictions, concluding that Albitre was "entitled to relief from redundant convictions that do not comport with legislative intent." Id. at 283, 738 P.2d at 1309. We reasoned that:
The gravamen of all the charges is that Albitre proximately caused the death of two persons by operating a vehicle in a reckless and unsafe manner due to her intoxication.
The State has simply compounded the convictions by eliminating the aspect of alcohol from the four counts under question.
We are convinced that the Legislature never intended to permit the State to proliferate charges as to one course of conduct by adorning it with chameleonic attire.
Although charging to the limit may be justified to cover developing nuances of proof, the jury should have received an instruction limiting the number of conviction alternatives. the failure to do so was error. Id. at 284, 738 P.2d at 1309.
The issue under Albitre is whether the gravamen of the charged offenses is the same such that it can be said that the legislature did not intend multiple convictions. "Redundancy does not, of necessity, arise when a defendant is convicted of numerous charges arising from a single act." Skiba v. State, 114 Nev. 612, 616 n.4, 959 P.2d 959, 961 n.4 (1998).
The question is whether the material or significant part of each charge is the same even if the offenses are not the same. Thus, where a defendant is convicted of two offenses that, as charged, punish the exact same illegal act, the convictions are redundant.
For example, in Skiba, the gravamen of the charges, battery with the use of a deadly weapon and battery causing substantial bodily harm, was that the defendant hit the victim with a broken beer bottle. Accordingly, conviction for both charges was redundant. Skiba, 114 Nev. at 612, 959 P.2d at 959;
see also Dossey v. State, 114 Nev. 904, 964 P.2d 782 (1998) (gravamen of charges (driving under the influence, driving while having 0.10 percent or more by weight of alcohol in the blood and having a blood alcohol content of 0.10 percent or more by weight of alcohol in the blood within two hours of driving) was that defendant was driving while intoxicated); State v. Koseck, 113 Nev. 477, 936 P.2d 836 (1997) (gravamen of charges (lewdness and sexual assault) was that defendant had unlawful sexual intercourse with victim).
The real parties in interest assert that our opinion in Donahue necessitates the conclusion that the gravamen of the offenses at issue is the same. We disagree.
In Donahue, this court briefly addressed Albitre where the defendant had been charged with violating three city ordinances: driving under the influence, careless driving and failure to decrease speed. 111 Nev. at 1282, 903 P.2d at 226.
The issue of redundant convictions was not specifically before this court in Donahue. However, to avoid ruling on a constitutional issue presented by Donahue, this court stated:
The City conceded at oral argument that under Albitre v. State, 103 Nev. 281, 738 P.2d 1307 (1987), Donahue could not be convicted and sentenced for all three charges because two of the charges are redundant.
Thus, Donahue does not face a sentence in excess of six months' imprisonment. Accordingly, we need not reach Donahue's aggregation argument. Id. at 1283, 903 P.2d at 226-27.
However, in a footnote, this court observed that "situations may arise in the future where the law announced in Albitre will not prevent consecutive sentences on multiple charges." Id. at 1283 n.2, 903 P.2d at 227 n.2.