This appeal arises out of the trial court’s order granting the plea in bar and motion to dismiss filed by Ernest Lambert. Lambert was acquitted of murder, felony murder and other charges. The jury, however, could not reach a verdict on the separate charge of kidnapping with bodily injury, a charge which also constituted the felony underlying the felony murder charge. The trial court granted a mistrial on the kidnapping charge and later granted Lambert’s plea in bar and motion to dismiss, made on the ground that retrial on the kidnapping charge would violate federal and state prohibitions against double jeopardy. Because we conclude that the acquittal on the felony murder charge did not necessarily imply acquittal on the kidnapping charge, and because retrial on the kidnapping charge is permissible under the doctrine of continuing jeopardy, we reverse. Along with several codefendants, Lambert was charged with malice murder, felony murder, kidnapping with bodily injury, and concealing the death of another.1 Lambert and codefendants Raymond Lambert and John Walker were tried together before a jury. Raymond Lambert was acquitted of all charges. Walker was convicted only of concealing the death of another. Lambert was acquitted of malice murder, felony murder, and concealing the death of another. As previously stated, the trial court declared a mistrial on the kidnapping charge after the jury was unable to reach a verdict on that charge. The State appeals from the dismissal of the kidnapping charge, arguing that Lambert would not be twice placed in jeopardy upon retrial of that charge.
It is axiomatic that, among other things, “the Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal.” Citation and punctuation omitted. Brown v. Ohio , 432 U.S. 161, 165 97 SC 2221, 53 LE2d 187 1977. The test for determining whether two offenses constitute the “same offense” for double jeopardy purposes is set out in Blockburger v. United States , 284 U.S. 299 52 SC 180, 76 LE 306 1932: “Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.Cit.” Id. at 304. Relying largely on Blockburger , Lambert argues that “the felony murder charge of which he was acquitted was based on the very same facts which the State alleged supported the kidnapping with bodily injury charge” and that “the State was barred from further prosecuting him for the kidnapping with bodily injury since it was, fundamentally, the same offense for which he’d been acquitted.” We do not agree with Lambert’s reasoning.
