¶1dissenting, with whom LEHMAN, Justice, joins.
¶2I dissent. The majority rejects Birr’s petition for rehearing on the strength of DeSpain v. State, 865 P.2d 584 (Wyo.1993). In DeSpain, this court held:
DeSpain’s double jeopardy claim should have been asserted through a petition for post-conviction relief brought pursuant to Wyo.Stat. §§ 7-14-101 to -108, and invoking Wyo.R.Crim.P. 35(a) by a motion for correction of an illegal sentence was an inefficacious method of seeking relief.
¶3DeSpain, 865 P.2d at 589 (emphasis added).
¶4I would overrule DeSpainbecause it is based on non-binding authority and cites federal precedent as supportive of its holding when, in fact, the federal precedent cited points to the opposite conclusion. Specifically, DeSpaincites non-binding Florida cases. Id. at 588. See, Wiley v. State, 604 So.2d 6 (Fla.App.1992); Plowman v. State, 586 So.2d 454 (Fla.App.1991); and State v. Spella, 567 So.2d 1051 (Fla.App.1990). The Florida cases provide specious guidance regarding the interpretation of W.R.Cr.P. 35(a) because the Florida rules analyzed in these cases, although similar to W.R.Cr.P. 35(a), are not identical and, in fact, differ from their Wyoming counterparts in significant ways. See, Fla.R.Crim.P. 3.800 and 3.850.
¶5Contrary to the claim in DeSpainthat federal precedent is “supportive” of its holding, the federal precedent actually concludes that the old Fed.R.Crim.P. 35(a), which is identical to the Wyoming rule, is an appropriate tool with which to challenge a double jeopardy violation. Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962); Heflin v. United States, 358 U.S. 415, 422, 79 S.Ct. 451, 455, 3 L.Ed.2d 407 (1959); Herrera v. United States, 798 F.Supp. 295, 297-98 (E.D.N.C.), aff'd, 960 F.2d 147 (4th Cir.1992).
¶6In Heflin, the United States Supreme Court reversed a conviction it found to be violative of the double jeopardy clause. Heflin, 358 U.S. at 419-20, 79 S.Ct. at 454. There, the United States Supreme Court specifically indicated that a motion to correct an illegal sentence, filed pursuant to Fed. R.Crim.P. 35(a), was an appropriate method of attacking a double jeopardy violation. Heflin, 358 U.S. at 422, 79 S.Ct. at 455 (five member special concurrence). In Herrera, while considering a Fed.R.Crim.P. 35(a) motion to correct an illegal sentence, allegedly imposed in violation of the double jeopardy clause, the United States District Court for the Eastern District of North Carolina said:
Since a sentence is considered to be illegal if it is in excess of that prescribed by the applicable statute, or if the defendant has received multiple terms for the same offense …, the court is of the opinion that petitioner has alleged sufficient facts to invoke the court’s jurisdiction under F.R.Crim.P. 35(a) as it existed prior to November 1, 1987.
¶7Herrera, 798 F.Supp. at 297-98.
¶8W.R.Cr.P. 35(a) is identical to the pre-1987 Fed.R.Crim.P. 35(a), the rule under consideration in Heflinand Herrera. DeS-pain incorrectly cites Herrera, among other inapposite federal cases, as supportive of the proposition that a W.R.Cr.P. 35(a) motion is “an inefficacious method of seeking relief’ from a double jeopardy violation. DeSpain, 865 P.2d at 588-89. DeSpainconcludes that “the rationale of the cases cited above is compelling.” Id. at 589.
¶9I disagree. The only “compelling” conclusion one can reach after reading Heflinand Herrerais that a Rule 35(a) motion is a perfectly acceptable mechanism for challenging a double jeopardy violation. In other words, if a person has been subjected to double jeopardy, in violation of both the Wyoming and United States Constitutions, then *45Ms or her sentence is subject to challenge as an illegal sentence under W.R.Cr.P. 35(a) because, “[t]he Rule certainly covers a case like the present one where the claim is that the sentence imposed was illegal on its face.” Heflin, 358 U.S. at 422, 79 S.Ct. at 455.
¶10The Florida cases cited in DeSpainare non-binding. The federal precedent cited in DeSpaindoes not “compel” the conclusion reached in DeSpain. I would reconsider Birr v. State, 878 P.2d 515 (Wyo.1994) (reh’g granted 9/13/94) on its merits.