CONCURRING.
I concur in the result reached and general reasoning contained in the lead opinion. I write to suggest a procedural protocol, however, grounded in due process, should such a situation arise in the future. My suggestion for the trial court would be for the judge to raise his/her concern and highlight the issue (specific ground for a new trial) before giving a final opinion. That way, the state would ■have notice and an opportunity to respond by *485way of written authorities and/or argument prior to the court’s actual ruling. Such was not done in this case and the state may have been caught off-guard without an opportunity to fully respond.
Nevertheless, the state did not seek a motion for reconsideration nor ask for an opportunity to respond to the ruling. Furthermore, and by way of consolation to the state, this issue would have resurfaced through the Uniform Post-Conviction Procedure Act at a much later date and been resolved against the state at that juncture. Such being the case, “all’s well that ends well.”
Judge Pro Tem BENGTSON CONCURS.