(concurring specially).
In view of the fact that the respondent, Perry 0. Hooper, trial judge, filed a motion under Rule 39(k), Ala.R.App.P., in which he stated that “the new trial was granted on grounds other than insufficiency of the evidence,” I agree that the Court of Criminal Appeals erred in granting the state’s petition for mandamus. The circumstances of this case are unlike those presented in Ex parte Nice, 407 So.2d 874 (Ala.1981).