Prater v. State; Thomas v. State; Tomlinson v. State, 273 Ga. 477

Summary

The Supreme Court of Georgia held that the evidence was insufficient to support the appellants' felony-murder convictions predicated on armed robbery because there was no evidence of a taking. The court further held that attempted armed robbery could not serve as the predicate felony because the jury was not properly instructed on that offense and the State waived any claim concerning the omitted instruction. The court concluded that statutory and constitutional double-jeopardy protections barred retrial and reversed the trial court's denial of the appellants' motions in autrefois acquit and pleas of double jeopardy.

Holdings

1. The evidence was insufficient to support the defendants' felony-murder convictions predicated on armed robbery because the State presented no evidence of the essential taking or theft element of armed robbery.
2. Attempted armed robbery could not support the felony-murder convictions in this case because the jury was not given a correct instruction identifying criminal attempt as a felony and explaining its essential elements.
3. The State waived appellate claims concerning the omission of an attempted-armed-robbery instruction by failing to submit a timely written request for an adequate instruction after withdrawing its request for the charge.
4. Double jeopardy barred retrial of the defendants for felony murder predicated on armed robbery and for felony murder predicated on attempted armed robbery.
5. The appellate court could not direct the trial court to enter convictions and sentences for felony murder predicated on attempted armed robbery without a retrial because that predicate was not charged to the jury and no verdict was rendered on it.

Questions Presented

1. Whether the evidence was sufficient to support felony-murder convictions predicated on armed robbery when no taking or theft occurred.
2. Whether attempted armed robbery could serve as the underlying felony for the felony-murder convictions despite the absence of an adequate jury instruction on criminal attempt.
3. Whether the State waived any appellate claim concerning the omitted attempted-armed-robbery instruction by withdrawing its request for that charge.
4. Whether double jeopardy barred retrial for felony murder predicated on armed robbery or attempted armed robbery after reversal for insufficient evidence.
5. Whether the appellate court could order entry of convictions for felony murder predicated on attempted armed robbery without a retrial.

Disposition

reversed