that a defendant who is erroneously prosecuted pursuant to the wrong statute, yet whose conduct constitutes a criminal act under a different statute, may be re-tried under the correct offense. See Montana v. Hall, 481 U.S. 400, 404, 107 S. Ct. 1825, 1827, 95 L. Ed. 2d 354 (1987). However, such a retrial is only permitted when the offenses have not merged. Compare Gov’t of the Virgin Islands v. Joseph, 765 F.2d 394, 397 (3d Cir. 1985) (vacating conviction for rape in the third degree, which was not charged in the information, because offense had not merged with charged offense of rape in the first degree and failure to formally allege age element of third degree rape in information altered defendant’s trial strategy) with State v. Midgeley, 15 N.J. 574, 105 A.2d 844, 847-48 (N.J. 1954) (<HOLDING>). However, the issue of whether the offense of
holding that where jury was instructed on both a greater offense and lesserincluded offense and the jury convicted on the lesserincluded offense the double jeopardy provision prohibited retrial on the greater offense holding that offense of burning an unoccupied building merges with offense of burning a dwelling house holding that that the trial court erred when it determined that firstdegree sexual offense was an aggravated offense holding that no offense alleged where affidavit described offense as felony holding that counsel was not ineffective in failing to request a charge on the lesserincluded offense when the evidence showed either the commission of the completed offense as charged or the commission of no offense such that the defendant was not entitled to a charge on the lesser offense