ORDER THAT NOTICE OF APPEAL BE CONSIDERED A PETITION FOR WRIT OF CERTIORARI; ORDER GRANTING PETITION FOR CERTIORARI; AND ORDER AFFIRMING THE DENIAL OF THE MOTION TO DISMISS
This case came before the court upon its own motion to consider the jurisdiction of this court to hear an appeal from the Order Denying Motion to Dismiss, entered by the Fremont County District Court, Ninth Judicial District, against the defendant, Pete Stamper. The court having examined the files and record in this case and being fully advised in the premises finds that:1. An information has been filed in the district court charging the defendant with aggravated assault and battery with a dangerous or deadly weapon, § 6-4-506(b), W.S. 1977 (now §6-2-502, W.S. 1977, 1984 Cum.Supp.), for an incident which occurred *Page 558 July 10, 1981. The defendant moved the court to dismiss the information on the ground that the trial of this charge would place him twice in jeopardy for the same offense. The district court denied this motion to dismiss, finding expressly that retrial would not violate the defendant's rights under the double jeopardy clauses of the Wyoming and United States Constitutions. The defendant filed a Notice of Appeal, seeking review of the district court's order.
2. This court, in the case of Stamper v. State, Wyo.,672 P.2d 106 (1983), determined that no right of appeal exists from an order denying a motion to dismiss an action, because such order is not a final order as defined in Rule 1.05, W.R.A.P. We held that the writ of certiorari is an adequate and appropriate remedy by which a defendant may separately assert and litigate to finality his claim that he is placed in double jeopardy, in accordance with Abney v. United States, 431 U.S. 651,97 S.Ct. 2034, 52 L.Ed.2d 651 (1977); and Peterson v. State, Wyo.,586 P.2d 144 (1978). Therefore, it is appropriate to consider the defendant's Notice of Appeal in the instant case as a petition for a writ of certiorari.
3. In the case of Stamper v. State, supra, this court considered the identical claim of double jeopardy brought by the identical defendant, based on the identical files and record that are presently before this court. We held in Stamper v. State, supra, 672 P.2d at 106-107, that:
"* * * [T]he Writ of Certiorari should be granted in this case; the files and record of this court are sufficient to apprise the court of the facts surrounding the claim of double jeopardy and the denial of the Motion to Dismiss by the district court; there is no necessity in this case for further briefing or argument of either the facts or the law; the retrial of Pete Stamper does not place him twice in jeopardy because the reversal of his prior conviction was premised upon the incorrect receipt of evidence and an incorrect instruction (see Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)); and the denial of the Motion to Dismiss by the district court should be affirmed * * *."
Accordingly, we issued an order granting the writ of certiorari and affirming the district court's order refusing to dismiss the criminal action against Pete Stamper.
4. In an unpublished order, this court withdrew the order issued in Stamper v. State, supra, on the ground that no case against Pete Stamper was pending in district court upon which an adjudication could be had or which the defendant could move to dismiss.
5. The defendant now stands charged with violating § 6-4-506(b), W.S. 1977 (now § 6-2-502, W.S. 1977, 1984 Cum.Supp.), and, therefore, his claim that retrial places him in double jeopardy is ripe for review. Except for the existence of pending criminal charges, the factual and legal grounds for our disposition in Stamper v. State, supra, remain unchanged. Therefore, the petition for certiorari should be granted and the Order Affirming the Denial of the Motion to Dismiss, issued by this court in Stamper v. State, supra, and subsequently withdrawn should be reinstated.
It therefore is
ORDERED that the Notice of Appeal filed herein by Pete Stamper on January 9, 1985, be, and the same hereby is, considered a petition for a writ of certiorari; and it further is
ORDERED that the writ of certiorari be, and the same hereby is, granted to the extent required for review of the Order Denying the Motion to Dismiss, entered by the district court; and it further is
ORDERED that the action of the district court in denying the Motion to Dismiss by Pete Stamper based upon his claim of double jeopardy be, and the same is hereby, affirmed. *Page 559