dissenting.
The majority opinion in this case first concludes that, under the facts presented, the crime of attempted robbery is a lesser-included offense of manslaughter. From this conclusion, the court proceeds to decide a difficult and relatively novel question involving double jeopardy. The court concludes that the double jeopardy clauses of the United States and Alaska Constitutions do not preclude retrial of a defendant for a principal offense when a jury, deadlocked on the principal offense, is permitted to convict on a lesser-included offense, and when the state agrees to entry of a conviction on the lesser-included offense. I have serious reservations about this resolution of the double jeopardy issue.
In particular, I find the reasoning of the court in Bell v. State, 249 Ga. 644, 292 S.E.2d 402 (1982), to be unpersuasive. The principles relied upon in Bell to support the conclusion that double jeopardy was not violated in that case simply do not support *849the Georgia court’s conclusion; each of the three principles mentioned in Bell is based on policies essentially irrelevant to those presented by the specific double jeopardy issue decided in Bell and presented here. I am especially concerned that there is a real potential for unfair and oppressive results in cases such as this. If the prosecution elects to accept the benefits of a conviction on a lesser-included offense, while at the same time proceeding to retry the defendant on the greater offense, then upon retrial the defendant will be placed at a significant disadvantage; at the second trial, the jury will not have the option of convicting the defendant on the lesser-included offense. The jury will be faced with an all-or-nothing proposition as to the defendant’s guilt or innocence of the greater charge.
Such a result encroaches on the accused’s right against double jeopardy, since the accused is subjected to the prospect of successive trials in which the state’s chances of obtaining a conviction on the original crime charged are progressively strengthened by its deliberate election to accept a premature verdict on a lesser-included offense. More significantly, the right of the accused to due process of law is impinged upon. Where the evidence in a criminal case is sufficient to support a possible finding by the jury of a lesser-included offense, due process requires that a lesser-included offense instruction be given upon request of the accused. Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). Here, the prosecution, by electing to accept the lesser-included offense conviction, precluded the giving of a lesser-included offense instruction upon retrial, despite the fact that the evidence would apparently have warranted one.1
The majority opinion indicates that the double jeopardy clause should not be applied to cases such as this in the absence of good reasons. I would submit that the foregoing considerations may well constitute sufficient justification to require application of double jeopardy in these circumstances. Ultimately, however, I find it unnecessary to decide this issue, since I conclude that attempted robbery is not a lesser-included offense of manslaughter.
In order to establish first-degree murder in this case, the prosecution relied on a felony-murder theory; thus, of necessity, the state was required to prove Hughes’ participation in the attempted robbery as a means of establishing first-degree murder. Because the state had insufficient evidence of premeditation, it was precluded from relying on any theory other than felony murder to establish Hughes’ liability for first-degree murder. Accordingly, I agree with the majority’s conclusion that attempted first-degree robbery was a lesser offense, necessarily included in the charge of first-degree murder against Hughes.2
The same does not hold true with respect to the relationship between attempted robbery and the crimes of second-degree murder and manslaughter. Significantly, the indictment charging Hughes with felony-murder included a specific allegation that Hughes acted with intent to kill, since the felony-murder provision in effect at the time of Hughes’ offense required intent to kill as an essential element of felony murder. See Gray v. State, 463 P.2d 897, 906 (Alaska 1970). Because the felony-murder charge alleged that Hughes acted with in*850tent to kill, second-degree murder — which required proof of an unjustified, intentional killing — was a lesser offense included in the first-degree murder charge. Similarly, manslaughter, which could be established by proof of an unjustifiable killing — including a reckless homicide — was a lesser-included offense of both first-degree felony murder and second-degree murder.
Both second-degree murder and manslaughter were lesser-included offenses of first-degree murder under the strict, statutory elements analysis, and, thus, reliance on the broad cognate theory of lesser-included offenses adopted in Elisovsky v. State, 592 P.2d 1221, 1226 (Alaska 1979), would be unnecessary in order to support second-degree murder and manslaughter as lesser-included offenses. Accordingly, proof of Hughes’ participation in an attempted robbery was both legally and actually unnecessary to establish the lesser-included offenses of second-degree murder and manslaughter. Admittedly, the first-degree murder charge was factually related to proof of Hughes’ attempted robbery. However, it would be wholly unnecessary for the jury to conclude that Hughes participated in an attempted robbery before it could convict him of second-degree murder or manslaughter. Hughes’ act of homicide, if considered either as an intentional killing or as a reckless killing, could be established without requiring the jury to determine his participation in the attempted robbery.3 Accordingly, I believe that, except insofar as the attempted robbery was relied on by the state as a means of seeking a first-degree murder conviction, the attempted robbery and the homicide in this case constitute separate offenses in this case and do not merge.
Because Hughes was still under indictment for first-degree murder after being convicted of attempted robbery, and because both second-degree murder and manslaughter were lesser-included offenses of the first-degree murder indictment, I think Hughes could properly have been retried, for either second-degree murder or manslaughter, even assuming that double jeopardy precluded retrial for first-degree felony murder.4
This conclusion leaves Hughes’ case in an unusual procedural posture. After his initial trial, Hughes pled nolo contendere to the lesser offense of manslaughter, reserving his right to appeal the double jeopardy issue under Cooksey v. State, 524 P.2d 1251 (Alaska 1974), and Oveson v. Anchorage, 574 P.2d 801 (Alaska 1978). Both parties *851and the court below agreed that the double jeopardy claim asserted by Hughes would be dispositive of his case if he prevailed. I believe, however, that Hughes’ double jeopardy argument, if resolved in his favor, would at most have been dispositive of the first-degree felony-murder charge. It would not have disposed of the lesser-included offense of manslaughter to which Hughes actually pled.
Because Hughes’ double jeopardy claim would not be dispositive of the charge to which he pled, I believe that the only proper recourse is to dismiss this appeal for lack of jurisdiction. See Oveson v. Anchorage, 574 P.2d at 803 n. 4. I recognize, however, that such a resolution is not likely to have been foreseen by the parties and would violate the expectations and assumptions upon which Hughes’ plea and the state’s willingness to accept that plea were based. In remanding this case to the superior court, I would therefore expressly permit Hughes or the state to request withdrawal of the manslaughter plea and to proceed to trial on the charge of second-degree murder and manslaughter.
Given my dissenting view as to the appropriate disposition of the merits of this appeal, I see no need to consider Hughes’ sentence appeal.
For the reasons stated, I dissent from the majority’s disposition of this case.
. I do not mean to indicate that the majority’s opinion forecloses the possibility that a trial judge could, in the exercise of discretion, give some form of jury instruction on retrial to cure this potential problem. However, in my view, the potential for injustice to the accused cannot be resolved by leaving the issue of a curative instruction open to the discretion of the trial court. I believe that the only potentially effective curative instruction upon retrial is one that would be available as a matter of right to the accused and would permit the jury to redetermine the accused’s guilt as to the lesser-included offense. Such an instruction would resolve any double jeopardy problem where, as in this case, a judgment has not yet been entered on the lesser offense before retrial on the greater. Nevertheless, the instruction would be tantamount to a declaration of mistrial on the initial conviction.
. But see Missouri v. Hunter, — U.S. —, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).
. At trial, Hughes admitted his participation in the attempted robbery, arguing self-defense to justify the homicide. Hughes’ admission that he was participating in an attempted robbery at the time of the killing would, of course, make it difficult as a practical matter for the jury to acquit Hughes of attempted robbery. This fact, however, does not serve to convert the attempted robbery into a lesser-included offense of second-degree murder or of manslaughter, even under the cognate approach toward lesser-included offenses. Although Hughes admitted to commission of the attempted robbery, the acts necessary to establish the elements of that offense are independent of the acts constituting second-degree murder or manslaughter. The essential consideration is that neither Hughes’ conduct nor his intent in committing the attempted robbery would be necessary components of either second-degree murder or manslaughter.
. I am aware that no lesser-included offense instruction was given on second-degree murder at Hughes’ first trial and that the primary basis on which manslaughter was argued was a “felony manslaughter” theory. I do not view these facts as precluding the prosecution, on retrial, from requesting second-degree murder instructions based upon a theory of intentional but mitigated homicide, such as heat of passion, or from seeking manslaughter instructions based on a theory of reckless and unjustifiable homicide. The first-degree murder charge in the indictment against Hughes alleges an intentional killing perpetrated in the course of an attempted robbery. This indictment is sufficiently broad to provide ample notice of the lesser-included offenses of second-degree murder and manslaughter. I see no reason why the state, on retrial, would be prohibited from arguing a different theory of the case than was presented at Hughes’ first trial, as long as the state did not seek to prove commission of a different offense or to argue a theory as to which the indictment did not provide sufficient notice. Nor do I see any reason why the state would be foreclosed on retrial from requesting instructions on second-degree murder simply because it neglected to request such instructions at the initial trial.