(dissenting). While I agree with the majority’s conclusions regarding the retroactivity of People v Johnson, 411 Mich 50; 303 NW2d 442 (1981), I must dissent from the ultimate disposition of this appeal and that of codefendant Derrick Louis Pounds (People v Pounds, Docket Nos. 53862-53863, decided October 27, 1981 [unreported]).
Under Johnson, supra, proof of aiding and abet*180ting the crime of possession of a firearm during the commission of a felony requires that it be shown that the defendant procured, counselled, aided, or abetted and so assisted in obtaining the proscribed possession, or in retaining such possession otherwise obtained. Id., 54. In Johnson and in the subsequent disposition by order of other cases, the Supreme Court has revealed appropriate methods for disposing of cases where this standard has not been met.
In a guilty plea case, where the record lacks a sufficient factual basis to support the conviction, the matter is to be remanded to give the prosecutor the opportunity to establish the missing "possessory” element. If the prosecutor is successful and there is no contrary proof, the conviction is to be affirmed; if the prosecutor cannot establish the missing element, the conviction, of course, must be set aside. Finally, if contrary evidence is produced, the matter is to be treated as a motion to withdraw the tendered guilty plea, to be decided by the trial court in an exercise of discretion. Id., 54-55; see, also, Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975).
In cases tried before juries, the Supreme Court has remanded for new trial, since the essence of the trial error in such cases is that the instructions given were improper. People v Lankford, 411 Mich 939 (1981).1 Since the original jury cannot be reassembled to again determine the defendant’s guilt or innocence, retrial is the only practical solution.
For convictions by a court sitting without jury, *181the Supreme Court has indicated a different procedure for remand. In People v Zmijewski, 411 Mich 931, 932 (1981), the Court remanded such a case back to the trial court
"with instructions that the trial judge review the trial transcript and make additional and further findings of fact regarding whether the prosecutor established that defendant aided or abetted in the commission of this crime. The court is to apply the standard announced in this Court’s decision in People v Johnson and Tavolacci. If it determines that the crime was established, defendant’s conviction stands affirmed. If it determines that the crime was not established, the court shall enter an order setting aside the conviction because the prosecutor failed to establish a necessary element of the crime of felony-firearm.”
It is noteworthy that in this bench trial situation, the Court made no provision for the submission of additional proofs by the prosecution, but instead limited the trial court to review of the original trial transcript. Thus, there is no cause to remand the present matter back to the trial court for an "evidentiary hearing”, as the majority proposes.
This limitation to the original trial proofs is mandated by the Double Jeopardy Clauses of the federal and state constitutions. If the evidence initially adduced at trial was insufficient to support a finding of guilt, the constitution forbids retrial to afford the prosecution the opportunity to supply additional evidence. Burks v United States, 437 US 1, 11; 98 S Ct 2141; 57 L Ed 2d 1 (1978), Hudson v Louisiana, 450 US 40; 101 S Ct 970; 67 L Ed 2d 30 (1981). In this respect, we distinguish appellate reversals for trial errors from those based on a failure of proof. Burks v United States, supra, 14-16. A reversal for a trial error is neutral with regard to the guilt or innocence of the defen*182dant. Thus, retrial is appropriate since it satisfies both the interest of the accused in having a fair adjudication of guilt and that of the public in insuring that the guilty are punished. Id.
"The same cannot be said when a defendant’s conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.10 Moreover, such an appellate reversal means that the government’s case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it has decided as a matter of law that the jury could not properly have returned a verdict of guilty._
437 US 1, 16. (Emphasis in original.)
In other circumstances I would advocate a remand to allow the trial court to reconsider the trial transcript in light of People v Johnson, supra, as the Supreme Court did in Zmijewski. However, we have already determined, and I believe correctly so, that there was "no evidence produced at trial” to satisfy the requirements of Johnson. A remand to trial court in this situation would be a superfluous gesture, wasteful not only of the trial court’s time but of the state resources expended by further prosecutorial effort. As in any other case where insufficient evidence has been presented to the trier of fact, the matter should be dismissed with prejudice.
See, also, People v Gibson, 411 Mich 993 (1981), People v Louis MacKenzie, 411 Mich 984 (1981), People v Gregory Taylor, 411 Mich 984 (1981), People v Warren Moore, 411 Mich 983 (1981), People v Williamson, 411 Mich 948 (1981), People v Buckles, 411 Mich 914 (1981).
"10 In holding the evidence insufficient to sustain guilt, an appellate court determines that the prosecution has failed to prove guilt beyond a reasonable doubt. See American Tobacco Co v United States, 328 US 781, 787, fn 4 [66 S Ct 1125; 90 L Ed 1575] (1946).”_