that he be convicted of that as well for appeal purposes. Although appellant’s counsel made no response at trial to the Commonwealth’s position, he made a specific objection at the sentencing hearing, which I would hold, read in light of the Commonwealth’s prior argument, was sufficient to preserve the double jeopardy issue for appeal. Appellant’s counsel argued as follows at sentencing: Judge, I don’t think the Commonwealth should just throw this up to the Court and say, okay, we think the aggravated [involuntary] manslaughter and involuntary manslaughter [is for] the Court of Appeals [to] decide. We would request the Commonwealth make an election to begin with of which theory they were proceeding under. Now, they want you to make a decis -30, 414 S.E.2d 401, 404-05 (1992) (en banc) (<HOLDING>). To hold otherwise would be to elevate form
holding that appellate counsel was ineffective in failing to argue based on the first districts decision in montgomery that the standard attempted manslaughterbyact instruction was fundamentally erroneous where betts was charged with attempted firstdegree premeditated murder and convicted of the necessary lesserincluded offense of attempted seconddegree murder holding that where evidence was sufficient for attempted murder it was necessarily sufficient for aggravated assault which is a lesser included offense holding that tendering of assault instruction in attempted capital murder case was sufficient under rule 5a18 to alert the trial judge and the commonwealth that simple assault is a lesserincluded offense of attempted capital murder and that the defendant believed sufficient evidence supported granting the instruction holding military judge did not err by considering appellants admissions concerning the elements of the lesserincluded offense of aggravated assault in determining appellant was guilty of the greater offense of attempted premeditated murder holding that failure to give lesserincluded charge of simple assault as lesserincluded offense of aggravated assault on police officer was reversible error