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Prater v. State

State's failure to seek convictions for felony murder based on the lesser included offense of attempted armed robbery in defendants' first trial barred any retrial for that crime.

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After appellants were convicted of felony murder based upon armed robbery and also convicted of aggravated assault,1 the trial court held that they were entitled to a new trial due to: 1 insufficient evidence to support the felony murder convictions, and 2 an erroneous jury instruction. Thereafter, on the State’s motion, the trial court vacated its findings that there was insufficient evidence to support the felony murder convictions, and amended the new trial order to hold that appellants were entitled to a new trial due only to an erroneous jury instruction. The trial court then denied appellants’ motions in autrefois acquit and pleas of double jeopardy. Appellants appeal from that ruling. We conclude that the evidence of record fails to support appellants’ convictions for felony murder based upon armed robbery, and that Double Jeopardy attaches to the State’s announced effort to retry appellants for that crime and for felony murder based upon criminal attempt to commit armed robbery. Therefore, we must reverse.

The evidence of record shows that appellants discussed robbing a Little Caesar’s Pizza restaurant. Thereafter, appellants proceeded to the restaurant and knocked on the back door, carrying with them a 12-gauge shotgun and a red pizza delivery bag. Jonathan Tripp, an employee of the restaurant, responded to the knocks, believing them to be from a friend. When Tripp opened the door, the shotgun was discharged, killing Tripp and injuring restaurant employee Kyle Parenteau. Appellants then fled the scene. It is indisputable that there is no evidence of record to indicate that any money or valuables were taken from the restaurant, or that any of the appellants entered the restaurant premises after the fatal shot was fired.

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