concurring-in-part-and-dissenting-in-part">

CONCURRING IN PART, DISSENTING IN PART

Prentice, J.

I concur with the majority upon issues I, III and IV but dissent with respect to issue II. I would affirm the judgment upon Count I (Felony Murder) and reverse upon Count II (Robbery), for want of jurisdiction.

The majority premises its decision upon the issue upon an extension of the dicta from Blythe v. State, (1978) 268 Ind. 98, 373 N.E.2d 1098. I hold to my view, expressed in that case, that I would not disturb a verdict of guilty as to a necessarily included offense, where there had been a proper waiver upon the greater offense. Permitting the filing of additional charges, even though they be included in the offense for which jurisdiction has been waived, without first requiring an additional waiver, however, is of no great benefit and invites prosecutorial attempts to short-cut the system. I do not see juvenile waiver proceedings as an undue burden, and I am of the opinion that by dismissing a charge upon which a waiver has been obtained and by proceeding upon another charge upon which no waiver was expressly obtained, the prosecutor creates a situation where the reviewing court must determine, with some degree of speculation, whether or not a waiver should have been sought. Although not to be presumed, it is, nevertheless, not unreasonable to speculate as to whether the same circumstances that occasioned the filing of additional or substitute charges might not also be cause for the juvenile judge, to re-assess the merits of waiver. It is, after all, his responsibility. At stake is the necessity of an appellate review which could have been easily avoided and a possible waste of a conviction which, otherwise, was valid in all respects.

*148In view of the valid conviction of the defendant upon the murder charge, I see no particular value to the State in salvaging his robbery conviction. I, therefore, would sacrifice it in the interest of encouraging our prosecutors to be wary of questionable incursions into the domain of the juvenile judges.

I would affirm the trial court as to Count I and reverse as to Count II.

Hunter, J. concurs.

Note — Reported at 402 N.E.2d 1235.

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