dissenting:
I would deny the motion to dismiss the appeal because the trial court entered an order which had the effect of quashing the indictment as to the conspiracy count. This court clearly has jurisdiction to review such an order pursuant to A.R.S. § 13-1712(1).
The theory of the majority appears to be that an order quashing an indictment is not appealable unless correctly entered in accordance with former criminal rule 169. This is circular reasoning however, since, if it were correctly entered in accordance with rule 169, there would be no need for an appeal. It is when such an order is not correctly entered in accordance with rule 169 that an appeal is necessary. The fact that the order does not comport with rule 169 is the reason for the appeal.
The problem here is one of semantics. The appeal statute (A.R.S. § 13-1712) uses the words “order quashing an indictment” in a wider, more generic sense, than can be derived from rule 169. In the statute the phrase refers generally to orders which dismiss a criminal case because of insufficiency in the charging process. It is broad enough to bring under appellate review quashing orders which have deviated from the relatively narrow grounds set forth in rule 169. This is as it should be. If, for the sake of argument, an indictment were quashed because it was handwritten instead of typewritten, the order would be appeala-ble in spite of the fact that this is not a ground set forth under rule 169.
State v. Lopez, 26 Ariz.App. 559, 550 P.2d 113 (1976) and State v. Freeman, 78 Ariz. 281, 279 P.2d 440 (1955), relied upon by the majority, are not, in my opinion, to the contrary.
I would deny the motion to dismiss the appeal and resolve-¡the issues raised on the merits.