The majority recognize that the federal and state constitutionsmandate review of Pete Stamper's double jeopardy challenge prior to a second trial. Accordingly, the court grants the extraordinary writ of certiorari to provide a remedy where no right of appeal exists. Instead of affording the defendant meaningful review of his claim, however, the majority rule on this relatively complex double-jeopardy question without benefit of briefing or oral argument and with what appears to me to be only a cursory analysis of controlling authority. I would have afforded the defendant and the State an opportunity to fully develop their respective positions, so that we might decide this constitutional issue on the soundest foundation possible.
In my concurring and dissenting opinion in Stamper v. State, Wyo., 672 P.2d 106, 107-109 (1983), I reviewed the basis for our reversal of Stamper's original conviction and concluded that retrial in this case will subject the defendant to double jeopardy. We overturned his conviction of aggravated assault with a deadly weapon in Stamper v. State, Wyo., 662 P.2d 82 (1983), on the ground that the evidence was insufficient to warrant instructing the jury on such offense. By granting the State a second chance to amass enough evidence to obtain a conviction of aggravated assault with a deadly weapon, we place Stamper twice in jeopardy for the same offense. See Burks v. United States,437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The State had one fair opportunity to prove its case against Stamper and that is all the constitution allows.
For these reasons more fully developed in my concurring and dissenting opinion in Stamper v. State, supra, 672 P.2d at 107-109, I concur only in that portion of the Order granting review through the writ of certiorari; I dissent to the extent that it dispenses with argument from the parties and affirms the denial of the motion to dismiss.