¶1I respectfully dissent. None of the cases cited in support of the majority’s conclusion involves a situation wherein a substitute information charging a lesser offense was filed purely in contemplation of a plea bargain which was subsequently rejected by the trial court. It is axiomatic that the first indictment or information is suspended by the filing of a second and the first cannot form the basis for trial of a defendant while such suspension remains in effect. It is also well established that the trial court is without power to dismiss an indictment or information. But neither of these principles is intended to deprive the trial court of jurisdiction in a situation where the defendant is permitted to withdraw his plea of guilty to the lesser offense because the trial court refuses to accept a plea bargain. To deny jurisdiction under such circumstances, it seems to me, is to place form over substance. I believe that, under such circumstances, the formal requirement that a piece of paper dismissing the second information be filed has been laid to rest by State v. Granberry, 530 S.W.2d 714 (Mo.App.1975) wherein this court held that an agreement between the prosecution and the defense that the trial would proceed upon the first indictment was sufficient to fully resurrect and re*840store to life the first indictment and to put to death the second. Granted, the terms of the agreement were much more detailed in Granberrythan is evident from the record here. Nevertheless, the principle established by Granberryis clear and is applicable to this case: the conduct of the parties, rather than the ministerial act of filing a formal nolle prosequi by the prosecutor, is sufficient to dispose of the second charge and thereby revive the vitality of the first. Id. at 722.
¶2When Judge Kitchen rejected the plea bargain he expressly authorized the State to proceed on the original indictment. I do not agree with the majority that this order was a nullity. It was part and parcel of the process of restoring the case to its original status as it existed before the plea bargain and the withdrawal of the guilty plea necessitated by the court’s rejection thereof. Rule 24.02(d)(4). The rule contemplates such a restoration as though the plea of guilty had never occurred. The defendant in the instant case was well aware of this and that he was being tried on the original indictment. The trialogue between the trial judge, the Assistant Circuit Attorney, and defense counsel demonstrates this fact conclusively. No objection to trial on the original charge of assault in the first degree was made during trial or in the motion for new trial. This point is first asserted by new counsel on appeal. If the matter is jurisdictional, that fact would be immaterial. But Granberry, in holding the second indictment can be killed and the first revived by consent of the parties, effectively establishes that the failure to file the piece of paper, the formal nolle prose-qui or dismissal, cannot deprive the court of non-waivable jurisdiction.
¶3I further disagree with the outright reversal of the conviction. If the State proved the defendant’s guilt of assault in the first degree, perforce it proved him guilty of assault in the second degree. At most the cause should be remanded to the trial court for re-sentencing under the conviction of the lesser included offense which was expressly charged in the substitute information. If the consent of the parties did not revive the vitality of the first indictment, the substitute information remained in effect at the time of trial.
¶4This case demonstrates a rather slipshod attitude toward procedural rules on the part of the prosecution which I certainly do not condone. However, I can ascertain no specter of prejudice to the rights of the defendant under the circumstances reflected by this record. Therefore, I dissent.