¶1(dissenting).
¶2I dissent, as in my opinion jeopardy did not attach in this case. It is well settled law that “an accused must suffer jeopardy before he can suffer double jeopardy.” Serfass v. United States, 420 U.S. 377, 393, 95 S.Ct. 1055, 1065, 43 L.Ed.2d 265, 277 (1975).
¶3The majority cites Fransaw for the proposition that in the case of a plea bargain, jeopardy attaches when the court accepts the guilty plea. Fransaw v. Lynaugh, 810 F.2d 518 (5th Cir.1987), cert. denied, 483 U.S. 1008, 107 S.Ct. 3237, 97 L.Ed.2d 742 (1987). However, for authority Fransawrelies on United States v. Sanchez, 609 F.2d 761, 762 (5th Cir.1980) and’clearly cites Sanchezfor the proposition that “acceptance must be unconditional.” Fransaw, 810 F.2d at 523. Sanchezexplicitly limits the attachment of double jeopardy to situations where the court has unconditionally accepted a plea bargain.
The plea agreement and the plea were inextricably bound up together, and acceptance or rejection of one by the judge meant acceptance or rejection of the other ... The judge in this case took the middle road — she accepted the agreement conditionally while at the same time deferring her final decision until she had studied the probation report. Her chosen path may not have been the wisest under the circumstances; certainly it was not error.... no final judgement was entered on the lesser included offense, Sanchez has not been subjected to the harassment of successive prosecutions and there is no question of multiple trials or multiple punishments. Because the judge made it clear that she was taking the agreement under advisement, jeopardy did not attach and she acted within the bounds of her discretion in rejecting the agreement and the plea after full consideration of the case.
¶4Sanchez, 609 F.2d at 762-63; see also United States v. Baggatt, 901 F.2d 1546, 1548 (11th Cir.1990) (citing Sanchez, supra,“[i]n the case of a plea bargain, with respect to the offense pleaded to, jeopardy normally attaches when the court unconditionally accepts the plea bargain”), cert. denied, 498 U.S. 862, 111 S.Ct. 168, 112 L.Ed.2d 133 (1990).
¶5The other cases relied on by the majority are easily distinguished. The case of United States v. Bullock, although it states “jeopardy would attach when a plea of guilty is accepted” does not address the question of *601whether the court actually accepted the plea. United States v. Bullock, 579 F.2d 1116, 1118 (8th Cir.1978) (finding where conviction based on guilty plea was vacated, double jeopardy did not prevent subsequent trial on all charges brought in original indictment), cert. denied, 439 U.S. 967, 99 S.Ct. 456, 58 L.Ed.2d 425 (1978). Similarly, Smith does not address the question of whether a court has accepted a plea agreement. United States v. Smith, 912 F.2d 322, 324 (9th Cir.1990) (“[jjeopardy ordinarily attaches upon the court’s acceptance of a plea agreement”). In U.S. v. Britt, the court did not discuss whether the plea had been accepted, it “assumed for the purposes of this discussion” that the plea had been accepted and jeopardy had attached. U.S. v. Britt, 917 F.2d 353, 356 n. 3 (8th Cir.), cert. denied, 498 U.S. 1090, 111 S.Ct. 971, 112 L.Ed.2d 1057 (1991). In Riadon, the court stated in dicta that double jeopardy attached in situations where a guilty plea “was allowed to stand.” Riadon v. United States, 274 F.2d 304, 306 (6th Cir.1960) (finding acceptance of guilty plea in one case did not bar prosecution of another charge in subsequent case), cert. denied, 364 U.S. 896, 81 S.Ct. 225, 5 L.Ed.2d 189 (1960). Under Riadon’s rationale, the trial court’s rejection of McAlear’s plea bargain would mean the guilty plea was not allowed to stand, thus, jeopardy did not attach.
¶6The case of State v. Comstock, 168 Wis.2d 915, 485 N.W.2d 354 (1992), upon which McA-lear relies, is also clearly distinguishable. In Comstock, after hearing testimony from the victim, dismissing felony charges and accepting guilty pleas to reduced charges, the circuit court sua sponte vacated the guilty pleas in a subsequent proceeding. In the original proceeding, the judge “stated his understanding of the plea agreement on the record.” Id.485 N.W.2d at 359. Thus, the trial court had accepted both the plea and the plea bargain. In this case, during the original hearing, the trial court clearly stated: “If you don’t find [the victim] by then I’ll accept the plea bargain.” This was not unconditional acceptance of the plea bargain. Moreover, the trial court did not dismiss the charges contained in the original indictment.
¶7Additionally, there is case law which holds that double jeopardy does necessarily attach even at the time a court unconditionally accepts a guilty plea. United States v. Santiago Soto, 825 F.2d 616, 618 (1st Cir.1987) (jeopardy did not attach when court accepted guilty plea and subsequently rejected plea without having imposed sentence); United States v. Cruz, 709 F.2d 111, 113-14 (1st Cir.1983) (“we do not think that jeopardy must attach automatically and irrevocably in all instances when a guilty plea is accepted ... We agree that jeopardy must attach somewhere, but acceptance of the plea is not the only possibility.”). As the Supreme Court of Vermont stated:
First, the rule is only that jeopardy “generally” attaches at the time of acceptance of the guilty plea, the rule has exceptions. The attachment of jeopardy upon the court’s acceptance is neither automatic nor irrevocable.... The issue here is not whether defendant was subjected to the kind of government overreaching that the double jeopardy clause was designed to prevent. Rather, it is a much narrower and simpler one — whether the court ought be able to correct a mistake. The court’s decision not to appoint counsel for defendant was based on incomplete information. ... The court simply corrected the mistake by erasing the plea acceptance and proceeded to treat the case as it should have been treated from the outset. Although it would have been better practice for the court to have made a more through inquiry ... under the facts presented here jeopardy did not attach. And, even if we were to follow a proerustean analysis that jeopardy did attach, it was not irrevocable.
¶8State v. Duval, 156 Vt. 122, 589 A.2d 321, 324-25 (1991) (citations omitted); State v. Todd, 654 S.W.2d 379, 383 (Tenn.1983) (“jeopardy does not attach at a hearing on a guilty plea until the plea is unconditionally accepted_ Until a final judgment is entered a court is free to reject the plea and plea agreement. Rejection of one is rejection of the other.”); accord State v. Kay, 717 P.2d 1294, 1304 (Utah 1986) (“by permitting the declaration of a misplea under appropriate circumstances, the legitimate interest of *602the public in assuring that criminal prosecutions are not frustrated by a clumsy application of the double jeopardy clause is protected.”
¶9Here, the trial court accepted McAlear’s guilty plea but deferred accepting the plea bargain when it discovered the victim had not been allowed to present her viewpoint. Where there was not unconditional acceptance of the plea by the trial court, double jeopardy did not attach; therefore, I respectfully dissent.