A jury found Chauncey Brantley guilty of aggravated assault and possession of a firearm by a convicted felon, and the trial court entered judgments of conviction and sentences on the guilty verdicts. The Court of Appeals affirmed in part, but held that the certified copies of a criminal proceeding, which were admitted without objection to prove that Brantley is a convicted felon, do not clearly show that Brantley pled guilty to any of the prior felony charges. Brantley v. State, 242 Ga. App. 85, 86 1 b __SE2d__ 2000. Based upon this holding and the State’s claim that the transcript of the plea hearing would prove the guilty plea, the Court of Appeals remanded the case for a hearing on the sole issue of whether Brantley had in fact pled guilty to any of the prior charges. Brantley v. State, supra at 86-87 1 b. This Court granted certiorari to consider whether the Court of Appeals erroneously remanded after having already determined that the State’s evidence was insufficient to prove that Brantley was a convicted felon. Because conviction of a prior felony was a necessary element of the crime of firearm possession as proscribed in OCGA § 16-11-131, we conclude that the insufficiency in the proof of this element demands entry of a judgment of acquittal as to that offense.
” ‘ “ The Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient. . . .” ‘ Cit.” Priest v. State, 265 Ga. 399 1 456 SE2d 503 1995. Whether double jeopardy precludes a retrial to establish a prior conviction depends upon whether the purpose of the conviction is to enhance the sentence or to prove an actual element of the offense. State v. Atwood, 16 SW3d 192, 194 Tex. Ct. App. 2000. See also Monge v. California, 524 U.S. 721, 734 II 118 SC 2246, 141 LE2d 615 1998 double jeopardy does not preclude retrial on a prior conviction allegation in noncapital sentencing proceedings; Holcomb v. Peachtree City, 187 Ga. App. 258, 259 1 370 SE2d 23 1988. In answering this question, a court must ascertain the intent of the legislature. Almendarez-Torres v. United States, 523 U.S. 224, 228 II 118 SC 1219, 140 LE2d 350 1998; State v. Atwood, supra at 195. This Court has already held that OCGA § 16-11-131 defines the offense of firearm possession so that a previous felony conviction is a necessary element thereof and, thus, relates to the issue of guilt, and not punishment. Prather v. State, 247 Ga. 789, 790 2 279 SE2d 697 1981. See also Mize v. State, 269 Ga. 646, 658 15 501 SE2d 219 1998. Indeed, a statutory provision is a “penalty enhancer” only if its proof “is not necessarily required to secure a conviction.” People v. Leske, 957 P2d 1030, 1039 II C Colo. 1998. See also Almendarez-Torres v. United States, supra at 241 III. In a prosecution under OCGA § 16-11-131, proof of a prior felony is an absolute prerequisite to obtaining any conviction.
