Defendant was convicted for attempted first degree assault, a class B felony, and convicted to 15 years DOC. On appeal defendant argued that since he was convicted of an ‘attempted’ crime that his sentence should be within the range of punishment of a lower classification, namely a class C felony that would only allow a 7 year sentence. The southern district court of appeals affirmed the 15 year sentence.
Most of the time, an ‘attempted’ crime is sentenced to a lower classification pursuant to section 564.011. However some crimes within their statutory definition include both causing and attempted to cause. Assault in the 1st degree is one of those statutes. Section 565.050 defines that crime as causing or attempting to cause serious physical injury. And thus section 564.011 does not apply with assault in the 1st degree.
The humor in the decision was this quote: “While we must give Defendant credit for his creativity, the ‘attempt’ cannot succeed.”
Well, at least I found it funny…
State v. Shaw, SD34767, decided December 12, 2017.