(dissenting).
I dissent. I would find jeopardy has attached and the charge should be dismissed.
Defendant requested a mistrial and when the mistrial was granted, defendant immediately made a motion asking the trial court to reconsider the motion. In making the motion to reconsider, defendant agreed that if the order granting the mistrial were withdrawn, the issue of the trial court’s refusal to grant the mistrial would not be advanced by defendant as a ground for reversal on appeal. When this motion to reconsider was made, the jury had not yet learned the trial court’s ruling and the jury was available to hear the case. Both the State and defendant had made considerable outlays of time and money to reach this point in the trial. The State had no valid reason not to join defendant’s motion. In fact, because defendant had agreed to fore-go the reason he argued for a mistrial on appeal, the State, in agreeing to go ahead at this point, would have been in a better position than if the motion for the mistrial had not been sustained. The State did not agree to going ahead and the trial court did not modify its ruling. The trial, therefore, was ultimately terminated over defendant’s objection. Contrary to the majority, I would determine jeopardy has attached.