¶1dissenting.
¶2While I agree with the majority in its conclusion that the trial court was in error, I believe that the instant action should not be remanded for further proceedings but, rather, should be dismissed. As noted by the majority, the trial court sustained a motion to dismiss as to a felony charge but proceeded to find the defendant guilty of a misdemeanor, for which it appears no complaint was ever filed. It may very well be that the trial court did indeed try the defendant on the felony charge and erroneously found him guilty of a lesser-included offense. We simply cannot tell from the state of the record. On that basis it occurs to me that to try the defendant again on any charge arising out of this transaction, for which the trial court has already sustained a motion to dismiss as to the felony charge and therefore has rendered a judgment on the merits, is double jeopardy, in violation of the fifth amendment to the U.S. Constitution and Neb. Const, art. I, § 12. See In re Resler, 115 Neb. 335, 212 N.W. 765 (1927).