(concurring in part, dissenting in part):
Regarding the disposition of defendant’s peremptory change of judge claim, I concur in the result for different reasons than stated by the majority. I, however, dissent from affirming reimposition of the death sentence in this case.
We filed our mandate in Poland I on May 26, 1982. In the days immediately following this mandate the Yavapai County Attorney’s office avowed to defendant’s attorney that it would not retry the case. The County Attorney also made statements to the press expressing the same intentions. Defendant’s attorney relied upon these private and public representations.
On June 8, 1982 the Yavapai County Attorney moved to dismiss the charges against defendant. On June 21, 1982, the trial court held a hearing on the prosecutor’s motion where the prosecutor stated he was renewing his motion to dismiss. He argued that the state had lost contact with certain witnesses, others had died, still others were reluctant to testify, and that both defendants were serving 99 and 114 year *408sentences in federal prison for convictions arising from the same facts. He also questioned the admissibility of the testimony of a previously hypnotized witness. The prosecutor also noted that the FBI agent in charge of the case agreed that chances for successful prosecution were “extremely poor.” Both defense attorneys joined the prosecutor’s motion and asked the Court to give due consideration to a dismissal with prejudice under the state of the evidence.
Unlike the majority I believe that until the June 21st hearing, defense counsel had no need to file a peremptory change of judge notice. The County Attorney never gave any indication that he would prosecute defendant. To the contrary, he insisted he would not, and defendant’s counsel had every right to rely upon these assurances. Further, defense counsel had no way of knowing that the trial judge would deny the motion to dismiss. Defense counsel could reasonably conclude, in fact, that moving for a change of judge would be futile or even antagonistic in view of the appearance that the case would not again go to trial. I believe the majority’s construction of Rule 10.2, Ariz.R.Crim.P., 17 A.R.S., is too harsh because it would require defense lawyers to file notice of peremptory change of judge even when a trial seems improbable.
In addition, I disagree that by participating in the state’s motion to dismiss defendant waived his right to peremptorily challenge the judge. The majority claims this hearing involved a contested matter of law or fact in that the state wanted a dismissal without prejudice while defendant suggested a dismissal with prejudice. By participating in a contested matter in front of the trial judge, defendant would waive his right to peremptorily challenge the judge. Rule 10.4(a), Ariz.R.Crim.P., 17 A.R.S.
The majority has taken a strained view of the record. My reading of the record reveals that the defendant had no objection to the state’s motion to dismiss but asked the judge to consider dismissing the case with prejudice. The judge denied the motion to dismiss, and the question of whether the motion was to be with or without prejudice was never discussed or contested in any way at the hearing. A simple request by defense counsel for the judge to consider a dismissal with prejudice hardly constitutes a real contest of any legal issue.
I agree with the result reached by the majority, however, because defense counsel failed timely to file a peremptory challenge of the judge after the judge denied the state’s motion to dismiss. Once defense counsel became aware that the trial judge wanted a trial, he could no longer reasonably rely upon the prosecutor’s promise that he would dismiss the case. See Rule 16.5, Ariz.R.Crim.P., 17 A.R.S.; State v. Johnson, 122 Ariz. 260, 594 P.2d 514 (1979) (prosecutor does not have sole discretion to decide whether to dismiss; the Superior Court on good cause shown may order that a prosecution be dismissed). As defense counsel failed to file a peremptory notice of a change of judge within 10 days after the June 21st hearing, the motion was not timely-
I dissent from reimposition of the death penalty. In Poland I this Court reversed defendant’s death penalty “conviction” for lack of sufficient evidence. The United States Supreme Court has held that such an appellate reversal is the same as a fact-finder’s acquittal of the defendant. A “death penalty acquittal” is final for double jeopardy purposes, and the death sentence issue should not be retried, even after an entirely new trial on the guilt or innocence issue. See authorities cited infra.
The double jeopardy rule forbids retrial of a defendant who has been acquitted of the crime charged or whose conviction is reversed on appeal because of insufficient evidence. Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In Bullington, the United States Supreme Court made these principles applicable to state death sentencing proceedings when such proceedings resemble a trial. The Court later specifically held that Arizona’s *409death sentencing procedure is a separate trial for double jeopardy purposes, thus invoking all double jeopardy protections. Arizona v. Rumsey, — U.S. -, 104 S.Ct. 2305, 81 L.Ed.2d 164 (1984). In Arizona, therefore, if a trial court “acquits” a defendant on the ultimate issue in the death sentencing proceeding — whether to impose the death penalty — or if this Court reverses a death penalty “conviction” because of insufficient evidence, the double jeopardy rule prohibits retrial of the death penalty issue. Arizona v. Rumsey, supra; Bullington v. Missouri, supra.
Our decision in Poland I was surely a reversal of defendant’s death penalty “conviction” for insufficient evidence constituting a final acquittal of that charge. In Poland I the trial court found one aggravating circumstance upon which it based the death penalty: A.R.S. § 13-454(E)(6) (now § 13-703(F)(6)), that defendant committed the offense in an especially heinous, cruel, or depraved manner. Because of a mistake of law, however, the trial court failed to find the pecuniary gain aggravating circumstance, A.R.S. § 13 — 454(E)(5) (now § 13-703(F)(5)). On appeal, this Court thoroughly analyzed the lone aggravating circumstance supporting defendant’s death penalty, and we found it nonexistent because of insufficient evidence. As a matter of common sense, then, when this Court struck down the sole aggravating factor found by the trial court to justify defendant’s death penalty because of insufficient evidence, we necessarily reversed defendant’s death penalty “conviction” for lack of sufficient evidence.
No other view of our Poland I decision is possible. As this Court does not write non-binding advisory opinions, the death sentence review in Poland I cannot be viewed as such. Further, even if our discussion in Poland I could somehow be construed as dicta, I had always believed that dicta was binding upon the parties in the case in which the dicta appears. It was certainly binding in the instant case.
The majority, however, explains our decision in Poland I by relying upon the law as it stood before Bullington and Rumsey. According to the majority,
“Our holding in Poland I, however, was simply that the death penalty could not be based soley upon this aggravating circumstance [cruel, heinous, or depraved] because there was insufficient evidence to support it. This holding was not tantamount to a death penalty ‘acquittal’.”
Though perhaps correctly characterizing our holding in Poland I, the majority fails to see that the disposition in Poland I is unacceptable under current double jeopardy rules, which apply retroactively to this case. At the time of Poland I it was appropriate to resentence defendant, despite this Court’s nullification of the sole aggravating circumstance against him. It was appropriate, however, only because Arizona’s death sentencing procedure was not then considered a separate trial for double jeopardy purposes.
The United States Supreme Court has since changed the law, and now death sentencing procedures are separate trials for double jeopardy purposes. Arizona v. Rumsey, supra; Bullington v. Missouri, supra. Thus, in the Poland I death sentencing “trial” defendant was found guilty of the charge against him — whether to impose the death penalty. One basis supported that “conviction”. This Court, however, found that sole basis non-existent because of insufficient evidence. Thus, just as in any other type of trial, when this Court finds the sole basis for a conviction unsupported by the evidence, we necessarily reverse that conviction for lack of sufficient evidence. Furthermore, just as in any other type of trial, such a reversal is a final acquittal for double jeopardy purposes. Burks v. United States, supra; Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) (applying Burks to the states). The majority’s explanation of Poland I would allow appellate courts to reverse convictions for insufficient evidence and then remand to the trial court with instructions to convict the defendant *410of the same charge on another basis. Such a result cannot be correct.
Furthermore, as settled by Rumsey, the trial court’s error in not finding the pecuniary gain aggravating circumstance at the first trial in no way justifies a second sentencing proceeding. In “acquitting” the defendant of the death penalty, the trial judge in Rumsey made the exact legal error the trial judge made in the instant case. Nevertheless, this court and the United States Supreme Court held that the trial court’s erroneous “acquittal” was final for double jeopardy purposes. As stated by the high court in Rumsey:
“Reliance on an error of law, however, does not change the double jeopardy effects of a judgment that amounts to an acquittal on the merits. ‘[T]he fact that “the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles” * * affects the accuracy of that determination, but it does not alter its essential character.’ United States v. Scott, 437 U.S. 82, 98, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978) (quoting Id., at 106, 98 S.Ct. at 2201 BRENNAN, J., dissenting). Thus, this court’s cases hold that an acquittal on the merits bars retrial even if based on legal error.”
Arizona v. Rumsey, supra, — U.S. at ---, 104 S.Ct. at 2310-2311, 81 L.Ed.2d at 171-172. As this Court effectively “acquitted” defendant of the death penalty in Poland I, reimposition of the death penalty was improper, despite the trial court’s error in failing to find the pecuniary gain aggravating circumstance.
The majority, however, maintains that it has reached the correct conclusion because, unlike Bullington and Rumsey, defendant in this case was sentenced to death at the first trial.1 If I could ignore the principle established in Burks v. United States, supra, and Greene v. Massey, supra, I might agree with the majority’s argument. In Burks and Greene, however, the United States Supreme Court held that an appellate reversal for insufficient evidence has exactly the same double jeopardy effect as a jury acquittal. The Burks rationale is logical:
“In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, *411e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. See Note, Double Jeopardy: A New Trial After Appellate Reversal for Insufficient Evidence, 31 U.Chi. L.Rev. 365, 370 (1964).
“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. 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 is decided as a matter of law that the jury could not properly have returned a verdict of guilty.” (emphasis in the original)
Burks v. United States, supra, 437 U.S. at 15-16, 98 S.Ct. at 2149-2150, 57 L.Ed.2d at 12-13.
As explained above, our decision in Poland I was nothing but an appellate reversal of defendant’s death penalty “conviction” for lack of sufficient evidence. As established in Burks and reaffirmed in Bullington, this reversal is exactly the same as the factfinder’s acquittal of defendant on the death penalty “charge.” Thus, it violated double jeopardy to retry defendant on that charge. See Jones v. Thigpen, 741 F.2d 805 (5th Cir.1984) (Defendant sentenced to death at the trial court, but appellate court found insufficient evidence to support that sentence. Citing Bullington, Rumsey, Burks and Greene, the court held double jeopardy prevented state from again subjecting defendant to death sentencing hearing in second trial.)2 The majority’s basis for distinguishing this case from Bullington and Rumsey, therefore, is erroneous because it concentrates only on the trial court decision while ignoring the important double jeopardy effects of our decision in Poland I.
Finally, I will address what I believe to be an unstated basis for the majority opinion. That is, in Poland I, this Court ordered an entire new trial, including both the guilt or innocence phase and the death sentencing phase. Thus, as both phases of trial are fundamentally connected to each other, if convicted, the defendant should be subject to a totally new sentencing in the second trial. Though I believe this position is entirely reasonable, the law as it now stands rejects this thinking.
First, Bullington established that death sentencing proceedings are wholly separate from the guilt or innocence phase for double jeopardy purposes. In Bullington the defendant was convicted of capital murder and sentenced to life imprisonment. The trial court granted a new trial on the guilt or innocence phase but refused to allow the state a second chance to attempt to sen*412tence the defendant to death. Affirming the trial court, the United States Supreme Court held that the first death sentencing procedure was a trial for double jeopardy-purposes and that the acquittal the defendant received in that trial prevented a retrial on the death sentence in the second murder trial. Thus, whether or not an appellate court grants a new trial on the guilt or innocence phase, a final acquittal in the death sentencing phase prevents a retrial of defendant on the death sentence issue.
As previously shown, then, our reversal of defendant’s death sentence in Poland I equalled a final acquittal on that issue, and, as Bullington shows, that final acquittal in the first trial prevents retrial of the death sentence in the second trial.
The result I urge in this case is in no way bizarre or unheard of. It is simply a matter of logically applying existing law. Other courts have reached the exact result I argue for. In a case decided before Bullington, the Court of Criminal Appeals in Texas reversed the guilt or innocence phase of a defendant’s trial for legal error and reversed imposition of the death penalty for insufficient evidence. Brasfield v. State, 600 S.W.2d 288 (Tex.Crim.App.1980). In remanding the case to the trial court, the appeals court, citing Burks and Greene, held that the defendant could not again be tried for capital murder where the state seeks the death penalty. The United States Supreme Court cited Brasfield in footnote 9 of Bullington.
In a case subsequent to Bullington, the presiding judge of the Texas Court of Criminal Appeals gave an able analysis of the situation confronting us today:
“The evidence being insufficient to support the assessment of the death penalty, death is no longer an available penalty. Brasfield v. State, 600 S.W.2d 288 (Tex.Cr.App.1980); Bullington v. Missouri, [451] U.S. [430], 101 S.Ct. 1852, 68 L.Ed.2d 1270 (1981); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978). In a capital murder case where the evidence is insufficient to support the death penalty assessed, the reviewing court, before deciding on the proper disposition of the appeal, must determine if the guilt stage is free from reversible error. If the guilt stage is not free of such error, the cause must be reversed for such error, and upon any retrial the death penalty would not be an available penalty.”
Wallace v. State, 618 S.W.2d 67, 74 (Tex. Crim.App.1981).
Today, however, the majority holds that a death sentence “conviction” reversed on appeal for insufficient evidence invokes no double jeopardy protections. This holding is contrary to the law established in Arizona v. Rumsey, supra; Bullington v. Missouri, supra; Burks v. United States, supra; and Greene v. Massey, supra and I, therefore, dissent. Accordingly, I would reduce defendant’s sentence to life imprisonment without possibility of parole for twenty-five years.
. In support of this reasoning the majority cites Knapp v. Cardwell, 667 F.2d 1253, 1264-65 (9th Cir.), cert. denied, 459 U.S. 1055, 103 S.Ct. 473, 74 L.Ed.2d 621 (1982). That case, however, is inapplicable to the instant case. In Knapp, a class of Arizona death row inmates brought suit challenging the constitutionality of the Arizona death sentence statute and argued that, even if constitutional, its application to them violated ex post facto laws and the double jeopardy clause.
Rejecting this argument, the Ninth Circuit Court of Appeals stated:
"The present case is clearly distinguishable from Bullington. First, appellants in this case, unlike Bullington, were sentenced to death at their original sentencing. There exists no implied 'acquittal’ in the case. See Bullington, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (Justice Powell, dissenting).
"In addition, the Arizona sentencing procedure, both before and after Watson, bears less resemblance to a trial than did that of Missouri. For example, the Arizona sentencing decision is made by the judge rather than the jury, and the procedure for presenting the evidence in Arizona is much less trial-like. These differences lend weight to our holding that in this case no implied acquittals have been shown to exist.”
667 F.2d at 1265.
The Knapp reasoning is inapplicable to this case for an important reason the majority does not acknowledge: the death sentences in Knapp were never reversed on appeal for insufficient evidence. The death sentence in this case was reversed on appeal for insufficient evidence thus rendering it identical to a final acquittal for double jeopardy purposes. See Burks v. United States, supra.
In addition, this Court and the United States Supreme Court expressly rejected the Knapp analysis that our death sentencing proceeding is not like a trial. Arizona v. Rumsey, supra. State v. Rumsey, 136 Ariz. 166, 665 P.2d 48 (1983).
. Though Jones v. Thigpen, supra, is slightly distinguishable from the instant case, the distinguishing factor makes no difference. In Jones, appellant's death sentence was not reversed because of insufficient evidence supporting the aggravating factors but because insufficient evidence supported a finding that Jones killed, 1 intended to kill or attempted to kill the victim. See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). Thus, it was an insufficiency of Enmund evidence that spared Jones' life.
This difference is insignificant because, like this case, Jones’key issue was the state’s insufficient evidence supporting the death penalty. The Jones court agreed with the defendant "that Enmund's is a rule of evidentiary sufficiency, and that because the State failed to produce sufficient evidence of personal culpability at the first trial it is barred by the Double Jeopardy Clause from a second chance." Jones v. Thigpen, supra at 814. Thus, just as I believe should be the result in this case, "if the jury under Bullington [the judge under Rumsey] or an appellate court under Burks finds the prosecution’s evidence in support of the death penalty insufficient, the defendant cannot again be made to face a possible death sentence.” Id. at 815.