State of West Virginia v. Gary Wayne Kent

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This is an appeal of a criminal case tried before a jury in the Circuit Court of Marion County. The appellant, Gary Wayne Kent, appeals his conviction for felony murder. Felony murder is defined as a separate crime by the Legislature, and applies when a death occurs during the commission of certain felonies. Mr. Kent received a sentence of life in prison, with the recommendation of mercy, meaning he will be eligible for parole. The appellant was previously tried and convicted in this same case. In his first trial he was found guilty by the jury of first degree murder, deliberate and premeditated. He successfully appealed that and the Supreme Court granted him a new trial. The Court granted this Petition for Appeal on only one issue: Whether the trial court erred by allowing the State to pursue felony murder charges against the petitioner in this second trial, because in the petitioner’s first trial, the jury implicitly acquitted the petitioner of felony murder, so double jeopardy principles prohibit the State from retrying the Appellant on the acquitted conduct of felony murder.