dissenting.
The Court correctly holds that the evidence is not sufficient to support the appellants’ convictions for felony murder based upon armed robbery and that the trial court failed to give an adequate charge on attempted armed robbery. Therefore, Dillard v. State, 251 Ga. 858, 859 (2) (310 SE2d 518) (1984) compels reversal of the conviction for felony murder. However, the majority also prohibits a retrial of all defendants for felony murder while in the commission of attempted armed robbery, even though there clearly was sufficient evidence of that lesser included underlying felony. In my opinion, such a retrial would not constitute a violation of either constitutional or statutory double jeopardy protections. Accordingly, I concur in this Court’s judgment of reversal, but I dissent to the failure to remand these cases for retrial.
I agree with Chief Justice Benham’s dissent to the extent that he finds sufficient evidence of attempted armed robbery and concludes that double jeopardy does not preclude a conviction for felony murder based upon this lesser included offense. However, I cannot join his dissent because I do not agree either that the trial court gave an adequate charge on attempted armed robbery or that any such charge is unnecessary in order to uphold a felony murder conviction based upon that underlying felony. Dillard v. State, supra at 859 (2), is controlling Georgia authority to the contrary and should not be overruled or disapproved. Dillard is not an aberration, but is consistent with the law of other jurisdictions. United States v. Dinkane, 17 F3d 1192, 1198 (II) (B) (9th Cir. 1994); Collier v. State, 999 SW2d 779 (Tex. Crim. App. 1999); Ex parte Roberts, 662 S2d 229, 232 (Ala. *4871995); State v. Holley, 604 A2d 772, 775-776 (R.I. 1992); State v. Myers, 461 NW2d 777 (Wisc. 1990).
In Division 4, the majority erroneously indicates that any retrial would run afoul of the state and federal constitutional double jeopardy provisions, as extended by the Official Code of Georgia Annotated. The opinion correctly recognizes that where the evidence is insufficient, double jeopardy bars a second prosecution for the same offense. However, both the Supreme Court of the United States and the great majority of state jurisdictions have concluded that, if an appellate court deems the evidence insufficient to support a “guilty verdict on a greater offense but finds the evidence sufficient to support a conviction on a lesser included offense, it may enter a judgment of conviction on that lesser included offense,” even in the absence of a verdict of guilt thereon. (Emphasis supplied.) State v. Malufau, 906 P2d 612, 621 (I) (Haw. 1995). See also Morris v. Mathews, 475 U. S. 237 (106 SC 1032, 89 LE2d 187) (1986); 5 LaFave, Israel & King, Criminal Procedure, § 25.4 (b), pp. 679-680 (2nd ed. 1999). Moreover, double jeopardy will not preclude retrial after a conviction is reversed for trial error, even though the evidence is sufficient only because erroneously admitted evidence is considered. Lockhart v. Nelson, 488 U. S. 33 (109 SC 285, 102 LE2d 265) (1988); Maxwell v. State, 262 Ga. 73, 74 (1) (414 SE2d 470) (1992), overruled on other grounds, Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998); State v. Malufau, supra at 622 (I). The application of both of these principles seeks to place the defendant in the position that he would have been in, or to recreate the situation that would have existed if there had been no error in the trial court. State v. Malufau, supra at 622 (I).
“From this, it would seem to follow that if the appellate court has also found some error in the trial (in addition to a determination that insufficient evidence to support a conviction of the greater offense was presented at trial), then it is proper to remand the case for retrial on the lesser included offense.” [Cits.]
State v. Malufau, supra at 622 (I). Several other jurisdictions “have approved procedures allowing retrial on lesser included offenses following appellate determinations that insufficient evidence to support convictions of greater offenses had been presented at trial. [Cits.]” State v. Malufau, supra at 622 (I). See also State v. Archie, 230 Ga. App. 253-254 (495 SE2d 581) (1998) (“ ‘acquittal on a greater offense does not preclude a retrial on a lesser offense to which continuing jeopardy has attached. . . .’ [Cit.]”).
In my opinion, we should do likewise in connection with these *488cases. The only reason why we cannot simply affirm the felony murder convictions is because of the insufficient instruction on the lesser underlying felony. Dillard v. State, supra at 859 (2). If the trial court had included an adequate instruction, then the jury would have had the opportunity to consider attempted armed robbery, and the evidence would have been sufficient to support a guilty verdict of felony murder while in the commission of that lesser underlying felony. Restoration of appellants to their proper positions requires both reversal of the felony murder convictions because of the insufficient evidence of the underlying felony of armed robbery, and remand of the case for retrial on felony murder while in the commission of the lesser underlying felony of attempted armed robbery. Such a retrial would not give the State a second chance to convict and punish appellants for a single offense. To the contrary, the effect of reversal and remand will be to give them, at their request, another chance to rebut the State’s evidence that they committed felony murder, even though the State has already obtained a conviction for that offense. Beverly v. Jones, 854 F2d 412, 415 (II) (B) (11th Cir. 1988).
By conditioning retrial on the giving of a lesser included offense instruction, the majority “ ‘creates the anomaly of forcing a defendant to make himself subject to retrial if he requests a lesser-included offense in those cases in which he challenges the sufficiency of the evidence with respect to the higher offense.’” 5 LaFave, Israel & King, supra at § 25.4 (b), p. 681. The majority places a burden on the State to request a charge on the lesser included offense. The opinion cites no authority for this holding and I submit that there is none. Even if the prosecutor did have that burden, he clearly did not abandon the lesser offense. As the majority admits and the record shows, the attorney for the State believed that the instruction which was given was sufficient to cover criminal attempt to commit armed robbery. The State’s incorrect legal determination that the instruction was adequate or that the facts of this case could prove a completed armed robbery
caused the defendants to be convicted through a flawed judicial process. We fail to see a meaningful distinction between the reversal in this case and a reversal for a legally incorrect jury instruction (which Burks [a United States, 437 U. S. 1 (98 SC 2141, 57 LE2d 1) (1978)] gave as a specific example of trial error). In both situations the jury is misinformed regarding the correct legal standard applicable to the facts before it, and a reversal of the jury’s conviction represents nothing more than a decision to that effect. [Cit.]
United States v. Lanzotti, 90 F3d 1217, 1223 (II) (7th Cir. 1996). As in *489Montana v. Hall, 481 U. S. 400 (107 SC 1825, 95 LE2d 354) (1987) and subsequent cases, the State simply relied on the wrong theory to establish a predicate offense, although the evidence clearly showed that the defendants’ conduct was criminal. United, States v. Lanzotti, supra at 1223 (II). Given that inculpatory evidence, the prosecutor had no illicit incentive to proceed only under the theory of armed robbery. Since the jury was instructed on armed robbery, it could easily have acquitted the appellants, and double jeopardy would have prevented retrial. United States v. Lanzotti, supra at 1223-1224 (II).
Thus, the government mistakenly relied, to its own potential detriment, on an inapplicable predicate offense. [F]orbidding retrial in this situation would only encourage sandbagging by defendants, who would have every incentive to allow [instructions] on a legally inapplicable theory. Regardless of whether the jury acquitted or convicted the defendant under that theory, he would not be ultimately punished for his alleged crime. . . . Hall teaches that the prosecution’s oversight regarding the applicability of a law, without more, will not bar a retrial for the same conduct under a correct legal theory.
United States v. Lanzotti, supra at 1224 (II).
The majority incorrectly relies upon Georgia’s double jeopardy statutes. As is clear from Dillard v. State, supra, the State was not required to include in the indictment any explicit charge of felony murder based upon the lesser underlying felony of attempted armed robbery. “An accused may be convicted of a crime included in a crime charged in the indictment or accusation.” OCGA § 16-1-6.
It is axiomatic that, where the evidence is sufficient to support a conviction, an accused may be convicted of a crime included in the crime charged in the indictment, without the -necessity of the lesser included crime being specifically charged. It is likewise well settled that an attempt to commit a specific ofiense is a lesser included crime. [Cits.]
Collins v. State, 164 Ga. App. 482, 483 (1) (297 SE2d 503) (1982). Thus, an indictment for felony murder permits conviction based upon the lesser underlying felony of attempt. See Motes v. State, 192 Ga. App. 302 (1) (384 SE2d 463) (1989), overruled on other grounds, Smith v. State, 268 Ga. 196, 200, fn. 5 (486 SE2d 819) (1997). Not only did the charge in the indictment include felony murder based on attempted armed robbery by virtue of OCGA § 16-1-6, OCGA § 16-1-7 (b) required the State to try that lesser offense along with felony murder based on the completed crime, since the trial court did not *490order separate trials under OCGA § 16-1-7 (c). Ezzard v. State, 229 Ga. 465, 466 (3) (192 SE2d 374) (1972), overruled on other grounds, Head v. State, 235 Ga. 677, 679 (221 SE2d 435) (1975). Thus, the trial necessarily encompassed attempted armed robbery. Indeed, the State understood this and believed, however erroneously, that that crime was before the jury. Accordingly, it is clear that the lesser offense of felony murder while in the commission of attempted armed robbery was “prosecuted in a single prosecution” with the greater offense, as required by OCGA § 16-1-7 (b). The majority’s analysis and citation of cases are based upon the erroneous premise that a retrial for the lesser offense would somehow be a separate prosecution. However, such a retrial could not be a separate prosecution, as it results from a reversal on appeal, not due to insufficient evidence of the lesser offense, but due to the absence of a charge thereon. The fact that the jury was not charged on the lesser offense of felony murder during the commission of attempted armed robbery is not a valid reason for refusing to allow the State to retry the defendants for that crime.
The remaining statutory double jeopardy issue is whether the single prosecution for felony murder bars retrial because it resulted in a conviction, an acquittal, or an improper termination. OCGA § 16-1-8. Subsection (b) of OCGA § 16-1-8 only “governs cases in which the State brought separate prosecutions for a greater and included offense, in violation of OCGA § 16-1-7 (b).” (Emphasis in original.) State v. LeMay, 186 Ga. App. 146, 147 (3) (367 SE2d 61) (1988) (Benham, J.). Otherwise, conviction of a lesser offense would automatically preclude retrial of the greater offense, contrary to Bell v. State, 249 Ga. 644, 646 (3) (292 SE2d 402) (1982). Thus, the exclusive means for determining whether double jeopardy bars a retrial in this case is subsection (a) of OCGA § 16-1-8. State v. LeMay, supra at 147 (3). Under that subsection, the former prosecution cannot bar retrial of felony murder while in the commission of attempted armed robbery, because this Court, in reversing the conviction, did not find that the evidence did not authorize a verdict of guilt of felony murder while in the commission of any offense other than armed robbery. OCGA § 16-1-8 (a), (d). Although appellants’ prior trial on the greater offense ended in the functional equivalent of an acquittal, the trial on the lesser offense “did not end in conviction, acquittal, or improper termination. Therefore, retrial on that same charge is not barred by either the constitutional or statutory prohibitions against double jeopardy.” State u. LeMay, supra at 148 (3).
From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction *491would put the accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial-serves defendants’ rights as well as society’s interest.Decided January 8, 2001 Reconsideration denied March 2, 2001. Cauthorn & Phillips, Thomas E. Cauthorn III, for appellant (Case No. S00A1684). Marc D. Celia, for appellant (Case No. S00A1685). Alan J Baverman, for appellant (Case No. S00A1686). Thurhert E. Baker, Attorney General, Paula K. Smith, Senior Assistant Attorney General, for appellee.
United States v. Tateo, 377 U. S. 463, 466 (84 SC 1587, 12 LE2d 448) (1964). See also United States v. Lanzotti, supra at 1220 (II).
Allowing a retrial in these cases would protect “ ‘the right of an accused to be given a fair trial’ as well as ‘the societal interest in punishing one whose guilt is clear after he has obtained such a trial.’ [Cit.]” United States v. Lanzotti, supra at 1224 (II).