dissenting.
I dissent.
My disagreement with the majority is both strong and basic.1 As I see it, the issue is whether, having vacated a jury’s guilty verdict on the grounds of inconsistency, the trial court could, without offending the prohibition against double jeopardy, reinstate that verdict. I totally reject the notion that the majority espouses, that the verdict was vacated “as a predicate to the award of a new trial.” And, contrary to the majority’s resolution of the issue, I am of the view that the answer is unequivocally “no.”
To place the matter in context, it must be reiterated that the jury rendered inconsistent verdicts with regard to two of the charges against appellant: even though the only aggravating factor relied upon by the State to raise the rape from the second to the first degree was the use of a handgun, it found appellant guilty of first degree rape and not guilty of use of a handgun in the commission of a crime of violence. As a result, appellant both filed a written motion for new trial and made an oral motion to strike the first degree rape guilty verdict. Both motions were premised on the “inconsistent verdicts” and more particularly upon appellant’s argument that acquittal on the handgun charge “should have precluded the jury from finding guilt as to the first degree rape charge.” Having heard argument on both motions, the court ruled:
All right. With respect to your Motion For a New Trial, that is denied.
*412With respect to your motion regarding the use of a handgun in the commission of the rape in this case, raising it from the second to first degree rape, I find that your point is well taken, and I grant your motion as to the first degree rape charge.
The court’s ruling was clear: it denied appellant’s new trial motion and granted his motion to strike. The clarity of that ruling was dissipated, however, by the discussion between court and counsel that followed. Appellant maintained that the court’s ruling was tantamount to a verdict of not guilty on the first degree rape charge. The trial judge, on the other hand, acknowledged that the verdicts were, and, indeed, he had found them to be, inconsistent and, further, that the use of a handgun was the only basis upon which the State relied to raise rape from the second to the first degree, a fact which the State seemed not to dispute.2 Nevertheless, the trial judge denied that he had, in effect, made a finding of not guilty as to the First Degree Rape.3 On the contrary, his position was that he *413had merely granted appellant’s motion for new trial as to first Degree rape. Accordingly, although agreeing with appellant that he “vacat[ed] the verdict as to the 1st Degree Rape Charge,” the trial judge concluded:
I do not find him not guilty. I find that the verdict was inconsistent vis-a-vis the 1st Degree Rape Charge. Your motion with respect to that is granted.4
It is well-settled that when a trial judge “intentionally renders a verdict of 'not guilty,’ the verdict is final and the defendant cannot later be retried on or found guilty of the same charge.” Pugh v. State, 271 Md. 701, 706, 319 A.2d 542 (1974). See State v. Shields, 49 Md. 301, 303-304 (1878), in which the Court of Appeals stated:
It has always been a settled rule of the common law that after an acquittal of a party upon a regular trial on an indictment for either a felony or a misdemeanor, the verdict of acquittal can never afterwards, on the application of the prosecutor, in any form of proceeding, be set aside and a new trial granted, and it matters not whether such verdict be the result of a misdirection of the judge or a question of law, or a misconception of fact on the part of the jury ...
See also Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211, 2217, 72 L.Ed.2d 652 (1982); State v. Despertt, 73 Md.App. 620, 623, 535 A.2d 963 (1988). This is, of course, true even *414when the verdict is rendered before any evidence has been introduced by the State. Despertt, supra.
The principle is no less applicable to the situation where the not guilty verdict, or a ruling tantamount to such a verdict, has been rendered following, and indeed replaces, a jury’s verdict of conviction entered on sufficient evidence. See Block v. State, 286 Md. 266, 407 A.2d 320 (1979). There, the trial judge found the accused guilty of shoplifting, but deferred sentencing. Later, pursuant to a motion to reconsider the verdict, the trial judge replaced that verdict with one of “not guilty.” Still later, upon the application of the State, the trial judge struck the not guilty verdict and ordered that the accused be retried. 286 Md. at 267-68, 407 A.2d 320. The Court of Appeals reversed the lower court’s denial of the accused’s motion to dismiss on double jeopardy grounds. After citing the principle set forth in Pugh, see 271 Md. at 706, 319 A.2d 542, the Court addressed the State’s argument that, since the lower court lacked jurisdiction to set aside the guilty verdict and render a verdict of not guilty in the first place, the verdict of acquittal was a nullity. The Court assumed that it was error for the court to have set aside the guilty verdict and replace it with a not guilty verdict, but, pointing out that “ ‘jurisdiction’ of the court for purposes of this principle [autrefois acquit] of double jeopardy law means jurisdiction in the most basic sense [-i]t does not mean that an error in the exercise of jurisdiction permits judicial proceedings to be treated as a nullity,” 286 Md. at 270, 407 A.2d 320, it held:
In the present case, the District Court had jurisdiction over the offense at the time the verdict of not guilty was rendered____ As in Parojinog [v. State, 282 Md. 256, 384 A.2d 86 (1978) ] the fact that the court may not have been authorized under the rules to render the verdict does not make it void for double jeopardy purposes. The cases make it clear that an improper or defective exercise of jurisdiction does not deprive an acquittal of its finality. Instead, as long as the court rendering a not-guilty ver*415diet has jurisdiction over the offense, the verdict is a bar to further criminal proceedings on the same charge.
286 Md. at 273-74, 407 A.2d 320.
In Block, the trial judge specifically entered a verdict of not guilty. Here, he did not. The question thus becomes, were the trial judge’s actions in vacating the jury’s verdict in this case tantamount to a finding of not guilty? I think the answer is obvious.
The State relied upon appellant’s use of a handgun as the aggravating circumstance raising second degree rape to first degree rape, see Maryland Code, art. 27, § 462(a)(1), there being nothing in the record to suggest any other operative aggravating factor. See n. 2 supra. Relying upon this fact and the further one that the jury acquitted him on the handgun charge, appellant argued that the verdicts were inconsistent. He then urged the trial judge to grant a new trial and /or to strike the first degree rape conviction as being precluded by the handgun acquittal. And, premised upon appellant’s inconsistent verdicts argument, the court, after denying the new trial motion, did vacate the guilty verdict as to first degree rape. Under these circumstances it follows, as appellant contends, that “the action of the trial judge was tantamount to an acquittal on the first degree rape charge.” By accepting appellant’s argument that the not guilty verdict on the handgun charge precluded a not guilty verdict on the first degree rape charge, the court necessarily determined that the evidence was insufficient to sustain a guilty verdict on the first degree rape charge;5 its ruling “actually represents a *416resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged.” United States v. Scott, 437 U.S. 82, 97, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978), quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977). Moreover, far from being inadvertent or unintended, the Court’s ruling had been well considered, having been arrived at only after both the State and appellant had been fully heard on the point. That being so, as in Block, when the trial court vacated the jury’s verdict, it had *417jurisdiction over the subject matter and over the defendant. See Parojinog, 282 Md. at 264-65, 384 A.2d 86; Despertt, 73 Md.App. at 624, 535 A.2d 963. Thus, whether, the trial judge had authority to vacate the jury’s verdict and, whether, vel non, that action was error, once he did so, he could not thereafter set it aside upon the application of the State. The State concedes that this is correct.
The thrust of the majority opinion is that, because “the trial judge expressly clarified that he did not intend to find the appellant not guilty [rather], that it was his intention merely to vacate the jury verdict because of the inconsistency and grant a new trial as to first degree rape”, the court’s ruling was not tantamount to a not guilty verdict. I remind the majority that “the trial judge’s characterization of his own action cannot control the classification of the action.” United States v. Scott, 437 U.S. at 96, 98 S.Ct. at 2196, quoting United States v. Jorn, 400 U.S. 470, 478 n. 7, 91 S.Ct. 547, 553 n. 7, 27 L.Ed.2d 543 (1971) (Opinion by Harlan, J.). Thus, however the judge may have characterized it, whether the ruling is tantamount to an acquittal of the appellant must be determined from a consideration of all of the circumstances. The circumstances here, as I have demonstrated, belie the judge’s characterization.
I would reverse.
. The majority and I do agree that "there was no infirmity in the jury verdicts finding appellant guilty of first degree rape while, at the same time, acquitting him of the handgun charge.”
. MR. McCARTHY [assistant State’s Attorney]: Your Honor, did I understand the basis upon which the Court is going—
THE COURT: That it is inconsistent. They acquitted him of the use of a handgun, which in this particular case was the basis from raising it from 2nd to 1st degree.
MR. McCARTHY: The defense even conceded in their own argument that that is permissible. The jury can return an inconsistent— THE COURT: I understand, but what other evidence was there of force, other than this handgun?
MR. McCARTHY: Well, she was pushed back on the bed at some point in time.
THE COURT: I understand, but do you think that would have raised it from 2nd to 1st Degree Murder [sic] without the handgun?
MR. McCARTHY: That by itself, absolutely not. I think the Court is invading the province of the jurors as fact finders in the case. They reached—
. MR. SEVERT: Well, my request, and I thought the Court just granted it, was to set aside the finding and guilt as to Count I, because it is inconsistent.
THE COURT: That is what I did.
MR. SEVERT: Which is tantamount to finding him not guilty.
THE COURT: Why is it tantamount to finding him not guilty?
*413MR. SEVERT: In effect, what you have done is granted what was not done in—which is basically indicating that there was not enough evidence to find him guilty of 1st Degree Rape.
THE COURT: No, your argument was based on inconsistent verdicts.
MR. SEVERT: Right.
THE COURT: I agree with you.
MR. SEVERT: I asked you to correct the verdict.
THE COURT: I am.
MR. SEVERT: By correcting the verdict you find him not guilty. THE COURT: No, I vacate the verdict as to the 1st Degree Rape Charge.
. The docket entry reads: "Hearing On Defendants [sic] Motion For New Trial (# 55) (Weinstein, J.) Granted As To Count # 1 (RAPE—First Degree) Vacates Verdict; Denied On All Other Points----”
. In Christian v. State, 65 Md.App. 303, 500 A.2d 341 (1985), aff’d, 309 Md. 114, 522 A.2d 945 (1987), we held that, in a criminal case, although there is a conviction, there is no final judgment until sentencing, and that prior to sentencing, a judge may reconsider his order granting a new trial. Id., 65 Md.App. at 307, 500 A.2d 341. There, a new trial was granted on the grounds that the State had failed to disclose a statement the accused had made to the victim. After the decision in White v. State, 300 Md. 719, 481 A.2d 201 (1984), which seemed to indicate that there was no impropriety in the State’s action, the court rescinded its new trial order. Unlike in Christian, in the *416case sub judice, the grounds offered in support of the motion went to the merits of the charge. Because, in Christian the grounds for granting the new trial did not reach the merits, i.e., had nothing to do with the sufficiency of the evidence, Christian is not apposite.
In Re Petition for Writ of Prohibition, 312 Md. 280, 539 A.2d 664 (1988) is similarly inapposite. There, the Court of Appeals declined to accept the State’s argument that a Writ of Prohibition should issue with regard to a trial judge’s consideration of the credibility of witnesses in determining to grant an accused a new trial. It held, on the contrary, that a court, in an exceptional case, may grant a new trial if it determines that the verdict is against the weight of the evidence. Id., 312 Md. at 326-27, 539 A.2d 664. In so doing, it recognized
that there is a difference between a motion for judgment of acquittal and a motion for new trial based on weight of the evidence. The former, if granted, results in acquittal and the proper test is sufficiency of the evidence to convict.
Weight and credibility are not at issue. The evidence must be read from the viewpoint most favorable to the prosecution and if so read any rational fact-finder would find it sufficient, the motion must be denied. The latter, if granted, results only in a new trial. As a consequence, a court has more latitude in considering it, and may take into account factors such as credibility. To conclude otherwise is to make the two types of motions essentially indistinguishable when the issue is the extent of evidence presented to the trier of fact.
Id., 312 Md. at 325, 539 A.2d 664. The case sub judice is far different. Here the evidence could only be sufficient if there was evidence of an aggravating factor which would raise the rape from second to first degree; the not guilty verdict on the handgun charge negated that evidence. It is also interesting to note that, despite the majority’s bold and bald assertion that "there was sufficient evidence, aside from the use of the handgun, to support a conviction of first degree rape,” we are not told what the evidence is.
In fact, other than the reference in n. 2 supra the issue whether the evidence sans the handgun would suffice to sustain a guilty verdict as to first degree rape was not addressed by Counsel or the Court.