¶1dissenting.
¶2I dissent with the results in this matter. The burden is initially on the defendant to make out a prima facie claim of double jeopardy. Once the defendant meets his burden, the state must then demonstrate the indictment charges a crime separate from the first.
¶3As the majority opinion states, the state did not meet its burden at the motion to quash, simply submitting on the record which did not contain proof the evidence would pass the “same evidence” test. Having failed to meet its burden, the state may not now have a second opportunity.
¶4Accordingly, I would find the trial judge erred in denying the motion to quash.