ICJI 1601

ICJI 1601 PERSISTENT VIOLATOR

Having found the defendant guilty of _______ , you must next consider whether the defendant has been convicted on [at least] two prior occasions of felony offenses.

The state alleges the defendant has prior convictions as follows:

1. On or about the _______ day of _______ , 200 ____ , the defendant was convicted of _______ , and

2. On or about the ____ day of _______ , 200 ____ , the defendant was convicted of _______ [.] [and]

[3. (Add any other alleged prior convictions).]

The existence of a prior conviction must be proved beyond a reasonable doubt and your decision must be unanimous.

Comment

State v. Johnson, 86 Idaho 51, 383 P2d 326 (1963), held that a persistent violator charge should be stated in a two-part information. The first part should state the particular offense with which the defendant is charged, and be signed at the end of the page by the prosecutor. The second part, or page, should allege former convictions, and be separable from the first part. It should be signed separately by the prosecutor. The entire information should be read to the accused at arraignment. However, when the jury is informed of the charge only the first part is read, then, after, and depending upon the verdict on part one, the second part is read, and the jury deliberates further.

Additional instruction on persistent violator and suitable verdict forms -- for findings by the jury on each alleged prior conviction -- should be given upon sending the jury back to deliberate further.