dissenting.
The majority reverses the trial court’s denial of appellants’ motions in autrefois acquit and their pleas of double jeopardy after concluding that the evidence at appellants’ first trial was insufficient to authorize their convictions for felony murder and that such insufficiency bars their retrial for felony murder. While I agree that the State did not present sufficient evidence to warrant the jury’s conclusion that appellants were guilty of felony murder with armed robbery as the underlying felony, I must respectfully dissent because I believe that there is sufficient evidence to authorize appellants’ convictions for felony murder with attempted armed robbery as the underlying felony. Accordingly, I would affirm the trial court’s denial of appellants’ motions. However, I do not believe appellants are entitled to a new trial, but that judgment of conviction on felony murder/ armed robbery should be vacated and that judgment of conviction on the “included” felony murder of felony murder/criminal attempt should be entered against appellants.
Appellants were indicted for felony murder, with the underlying felony being armed robbery, in connection with the death of Jonathan Tripp and the wounding of Kyle Parenteau. Since the underlying felony of a felony murder charge is an offense included in the crime of felony murder (Fallings v. State, 232 Ga. 798 (3) (209 SE2d 151) (1974)), the failure to prove an armed robbery means that a felony murder conviction based on the commission of an armed robbery cannot stand. All parties agree that the transcript of appellants’ trial reflects no evidence that the assailants took money or items from the restaurant or its employees at the time the victims were shot. Since a taking, an essential element of the underlying felony of armed robbery, was not established, the felony murder convictions based on armed robbery cannot stand. The inquiry does not, however, end with that determination. Where, as here, the evidence presented at trial is sufficient to support a felony murder conviction based on the lesser included offense of criminal attempt to commit armed robbery, a judgment of conviction for felony murder and a sentence based thereon should be entered in lieu of the vacated judgment and sentence entered on the felony murder/armed robbery guilty verdict. See In the Interest of A. F., 236 Ga. App. 60 (2) (510 SE2d 910) (1999); Donaldson v. State, 222 Ga. App. 532 (474 SE2d 722) (1996); Anderson v. State, 215 Ga. App. 426 (451 SE2d 103) (1994); Barnett v. State, 204 Ga. App. 491 (420 SE2d 43) (1992); Hogan v. State, 193 Ga. App. 543 (1) (388 SE2d 532) (1989); Choate v. State, 158 Ga. App. 8 (279 SE2d 459) (1981). See also Platt v. State, *484200 Ga. App. 784 (2) (409 SE2d 878) (1991).27
Supporting what I believe to be the proper resolution of this case is Dillard v. State, 251 Ga. 858 (310 SE2d 518) (1984), the case upon which the majority heavily relies in support of its determination that the lack of evidence of a taking is fatal to appellants’ murder convictions. In Dillard, this Court determined that the jury’s guilty verdict on felony murder was not vitiated by the Court vacating the armed robbery conviction for lack of evidence. The Dillard Court noted that the evidence was sufficient to prove the included felony of criminal attempt to commit armed robbery, and that “[i]n returning the guilty verdict on the armed robbery count, the jury necessarily found all the elements of criminal attempt to commit armed robbery.” Id. at 859. After observing that the trial court had given instructions on criminal attempt, the Court affirmed Dillard’s felony murder conviction.
The point at which the majority and I part ways is where the majority unhesitatingly relies on Dillard’s pronouncement that a jury must be instructed on the essential elements of the included felony before a conviction for felony murder based on the included felony may be upheld. I believe the rationale used in Dillard to reach the pronouncement is flawed and resulted in a conclusion that does not stand up to close scrutiny. In Dillard, this Court re-affirmed this Court’s prior holdings that one charged with malice murder and armed robbery could be convicted of felony murder if the jury were charged on the law of felony murder and apprised of the essential elements of the felony supporting felony murder. See Edwards v. State, 233 Ga. 625 (1) (212 SE2d 802) (1975). The Court then went on to state as “[t]he obverse of [the above] proposition,” that a jury had to be informed of the essential elements of a felony included in the underlying felony if the included felony were to serve as the underlying felony of felony murder. Dillard v. State at 859.1 have no quarrel with the initial proposition regarding malice murder and felony murder, as the additional instructions on felony murder and the underlying felony are necessary where the indicted crime was malice murder because felony murder is not a crime included in malice murder as a matter of law. Compare OCGA § 16-5-1 (a) with § 16-5-1 (c). Having introduced felony murder into a malice murder case as a new theory of possible guilt, it is necessary to instruct the jury on the essential elements of the underlying felony since the underlying felony is an *485essential element of felony murder and the jury must have guidelines by which it can determine whether the elements of felony murder are present. Teal v. State, 122 Ga. App. 532 (2) (177 SE2d 532) (1970).
The same rationale does not support the Dillard Court’s “obverse proposition.” When the elements of the felony indicted as the underlying felony are charged to the jury, using as the underlying felony a felony included in the indicted felony does not carry with it the problem of using felony murder as an alternative when malice murder is charged. The included felony is, by definition, included in the underlying felony, and the jury, having been instructed on the elements of the greater offense, has been given guidelines by which it can decide whether the elements of felony murder are present. To insist on a separate jury instruction on each included offense misses the forest for the trees and results in the anomaly with which we Eire faced — the jury verdict which found that appellants had killed Jonathan Tripp as they carried out their plan to rob the restaurant where he worked, which verdict “necessarily found all the elements of criminal attempt to commit armed robbery,” (Dillard v. State, supra), is wiped out by the lack of evidence of a completed armed robbery and the lack of an instruction to the jury that attempting to commit armed robbery is an offense included in armed robbery. Since it was not appropriate in Dillard and is not appropriate now to hold that a jury must be given separate instructions on the felonies included within the underlying felony of felony murder before the jury may return a verdict based on any of the included offenses, I would hold that the jury’s guilty verdict on felony murder/armed robbery necessarily included a guilty verdict on felony murder/attempted armed robbery and would affirm the judgment of conviction entered thereon. But see State v. Freeman, 264 Ga. 276 (444 SE2d 80) (1994), where this Court held, that a jury could not return a verdict on an included offense on which it had not been instructed. Such a result is not a violation of due process since appellants were put on notice by the law that they “may be convicted of a crime included in a crime charged in the indictment or accusation. . . .” OCGA § 16-1-6; McCrary v. State, 252 Ga. 521, 524 (314 SE2d 662) (1984); In the Interest of A. F., supra, 236 Ga. App. 60 (2).
Even if one were to insist that the jury must be specifically apprised of the “felony within the felony” before the included felony may serve as the felony for felony murder, I would suggest that the jury in the case at bar was given sufficient instruction to authorize their consideration of criminal attempt to commit armed robbery as the underlying felony of felony murder. Criminal attempt is committed when one, “with intent to commit a specific crime, . . . performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. The trial court instructed the jury *486that felony murder resulted when a person’s homicide was caused by the defendant while committing a felony; that the homicide had to occur before the felony was completed; that the homicide must have been done in carrying out the felony; and that a homicide was “committed in the carrying out of [the] felony when it is committed by the accused while engaged in the performance of any act required for the full execution of the felony.” While the instruction given does not clearly set forth that its subject matter is criminal attempt to commit armed robbery, it substantially covers (see Carter v. State, 263 Ga. 401 (4) (435 SE2d 42) (1993)) the principle of felony murder based on criminal attempt being the underlying felony — one may be convicted of felony murder if, while engaged in the performance of an act required to commit armed robbery, one caused the death of another person. Accordingly, I also disagree with the majority’s conclusion in Division 2 that the jury was not given a charge from which they could return a guilty verdict on felony murder/criminal attempt to commit armed robbery.
I wish to clarify a point the majority attempts to mate with regard to these cases. In footnote 24 of the majority opinion, the majority states: “The available records in the other cases show that in those cases, the juries involved were charged on, and hence authorized to convict on, the lesser included offenses!,]” and cites six of the seven cases cited herein. In order to avoid confusion on this issue, let me point out that the appellate records in all of the cases except Choate v. State and Hogan v. State have been destroyed and consequently were not available for appellate review.