concurring in the dissent of HUNTLEY, J.
It is interesting to observe that in the view of Justice Bakes, joined by the Chief Justice and Justice Shepard, the sole reason advanced for the promulgation of Criminal Rule 12(b) “is to avoid ‘the serious inconvenience to jurors from unnecessary disruption of trial to deal with issues that could and should have been raised in advance.’ ” State v. Collinsworth, 96 Idaho 910, 539 P.2d 263 (1975); State v. Gerhardt, 97 Idaho 603, 549 P.2d 262 (1976).
For my part, I would prefer to see the Court having a little less concern for juror inconvenience and a little more' concern for the integrity of a judicial system which is supposedly geared to greater aspirations. *893Justice Bakes, in Stockwell v. State, 98 Idaho 797, 802, 573 P.2d 116, 121 (1977), observed that “the overriding concern in a criminal prosecution is ... that justice shall be done____”
The state’s brief in this case commendably quotes the foregoing passage, and adds that evidence taken at the preliminary hearing indicated that Alanis shot the victim, and that a jury should have passed upon her innocence or guilt. If that be so, and the state says that it is, then it was the prosecutor who was perhaps in error in declaring as he did, in essence, that absent the suppressed evidence, he could not proceed, i.e., had no case. At any rate he declined to put on evidence which was admissible, and the prosecution was thereby terminated.
Although I.A.R. 11(c) does specify that an order granting a suppression motion is independently appealable, any practicing attorney will generally know, and every member of the Appellate Rules Committee who has assisted Justice Bakes in the making of rules will specifically know, the rule’s intent was to position the state (but not the defendant) for the taking of an appeal so as to resolve the question immediately. Today, where the case has gone to a final judgment, and the suppression order was an incident of proceedings leading to that final judgment, how wonderful it may seem to the trial bar that Justice Bakes can reverse the suppression order but cannot bring himself to reverse the final judgment of dismissal and acquittals which wholly terminated district court jurisdiction of the case. That which Justice Bakes has done is akin to his opinion in State v. Iwakiri, 106 Idaho 618, 682 P.2d 571 (1984), where he correctly wrote that testimony in violation of the attorney-client relationship mandated reversal, id., at 621, 682 P.2d at 574, and then, by adding that the reversal was for a new trial, kept Mrs. Iwakiri dangling in court as a criminal defendant all the while full well knowing that without the evidence which had been excluded a second trial would never take place. And it did not.
So long as the final judgment in this case remains intact, Justice Bakes’ views on the suppression issue are the equivalent of kicking a dead horse in the rump — satisfying but nonproductive.
Having concurred with the dissent of Justice Huntley, my consternation must also be expressed on finding any member of this Court willing to implement a double standard by which they will judge prosecutorial and defendant conduct in failing to make proper objections or in following proper procedures. Apparently, if you are a defendant, and you invite or acquiesce in error, you will be precluded from appealing the error, see State v. Stuart, Idaho, (Sup.Ct. No. 14865, issued May 3, 1985) reh. granted Sept. 20, 1985, but if you are the state and you invite — or at least acquiesce in — the error, you need not fear being precluded from asserting the error on appeal.1
In the constellation of constitutional and statutory rights — both federal and state— one overriding theme is readily apparent, and it is that “We the people,” i.e., we the government, must be just and fair in the exercise of those powers given to and held by us in trust as officials of the government. To .the extent that government trifles with justice, to the extent that it ignores fairness, then to that degree it has taken the law into its own hands. In doing so, it undermines the importance of rule of law, which is the distinguishing and guiding light in our democratic institutions; and where there is no rule of law, there is no rule at all.
Equally disturbing as the basis upon which Justice Bakes would have us decide the case is his refusal to squarely confront the primary and very fundamental issue on appeal — whether the double jeopardy provisions of the Fifth Amendment of the United States Constitution2 and art. 1, § 13 of *894the Idaho Constitution3 preclude any retrial of the defendant. The issue was raised, briefed, and argued on appeal; it is the function of this Court to decide the issue. Stating only that jeopardy “no doubt” will prevent a retrial is a rather vaporous' statement. Certainly it is of no benefit to Alanis who would have to undergo further judicial proceedings were Justice Bakes’ views the majority, which is not so. The three separate opinions of Chief Justice Donaldson, Justice Huntley, and myself, cumulate into a three-vote holding that jeopardy has attached and precludes any further judicial proceedings in this matter. Three of us are so holding. What follows is an analysis of how that conclusion was reached.
BISTLINE, Justice,writing separately:
The purposes of all double jeopardy clauses are to protect criminal defendants from multiple trials, United States v. Wilson, 420 U.S. 332, 344-46, 95 S.Ct. 1013, 1022-23, 43 L.Ed.2d 232 (1975); State v. Sharp, 104 Idaho 691, 694, 662 P.2d 1135, 1138 (1983), and multiple punishments for the same offense. Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1435, 63 L.Ed.2d 715 (1980).
The federal jeopardy clause is applicable to the states through the due process clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794-96, 89 S.Ct. 2056, 2062-63, 23 L.Ed.2d 707 (1969). Thus, federal rules concerning jeopardy provide a benchmark or minimum set of standards by which jeopardy claims are to be decided. The incorporation of fundamental federal constitutional rights into the Fourteenth Amendment does not mean, however, that discovery of that which federal rights protect or how analysis of federal rights proceeds is necessarily the end of our inquiry. As declared by a unanimous Court this very year:
State courts are at liberty to find within the provisions of their own constitutions greater protection than is afforded under the federal constitution as interpreted by the United States Supreme Court____ Long gone are the days when state courts will blindly apply United States Supreme Court methodology when in the process of interpreting their own constitutions. State v. Newman, 108 Idaho 5, 10 n. 6, 696 P.2d 856, 861 n. 6 (1985).
Thus, we turn to federal sources first in delineating what the federal constitution protects, and then analyze Idaho law on the matter.
The prohibition of multiple prosecution bars retrial after acquittal or conviction. Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962); In re Nielson, 131 U.S. 176, 187-88, 9 S.Ct. 672, 675-76, 33 L.Ed. 118 (1889). In certain instances the jeopardy clause also bars retrial following a mistrial. Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416 (1982).
What is an acquittal for double jeopardy purposes has been defined by the United States Supreme Court as “the ruling of a judge, whatever its label, [which] actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” United States v. Martin Linen Supply Co., 430 U.S. 564, *895571, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977). A jury need not explicitly acquit the defendant so long as the acquittal is one on the merits. Sanabria v. United States, 437 U.S. 54, 65 n. 18, 98 S.Ct. 2170, 2179 n. 18, 57 L.Ed.2d 43 (1978).
The holding in Sanabria is of especial importance to this case because of strong factual similarities. The issue before the United States Supreme Court was “whether the United States may appeal in a criminal case from a midtrial ruling resulting in the exclusion of certain evidence and from a subsequently entered judgment of acquittal.” Id., at 56, 98 S.Ct. at 2174. The United States Supreme Court held that the government cannot because of the double jeopardy clause.
The United States Supreme Court reached this conclusion even through ruling that the district court below had erred in excluding crucial evidence incriminating to the defendant. Id., at 78, 98 S.Ct. at 2186. The Court declared:
In deciding whether a second trial is permissible here, we must immediately confront the fact that petitioner was acquitted on the indictment. That “ ‘[a] verdict of acquittal ... [may] not be reviewed ... without putting [the defendant] twice in jeopardy, and thereby violating the Constitution,’ ” has recently been described as “the most fundamental rule in the history of double jeopardy jurisprudence.” United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977), quoting United States v. Ball, 163 U.S. 662, 671, 16 S.Ct. 1192, 1195, 41 L.Ed. 300 (1896). The fundamental nature of this rule is manifested by its explicit extension to situations where an acquittal is “based upon an egregiously erroneous foundation.” Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962); see Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957). In Fong Foo the Court of Appeals held that the District Court had erred in various rulings and lacked power to direct a verdict of acquittal before the Government rested its case. We accepted the Court of Appeals’ holding that the District Court had erred, but nevertheless found that the Double Jeopardy Clause was “violated when the Court of Appeals set aside the judgment of acquittal and directed that petitioners be tried again for the same offense.” 369 U.S., at 143, 82 S.Ct., at 672, 7 L.Ed.2d 629. Thus when a defendant has been acquitted at trial he may not be retried on the same offense, even if the legal rulings underlying the acquittal were erroneous. Id. at 64-65, 98 S.Ct. at 2178 (footnote omitted).
In Sanabria an acquittal had been granted, because with the incriminating evidence excluded there was a “failure of proof on a key ‘factual element of the offense charged.’ ” Id. at 71, 98 S.Ct. at 2183. The United States Supreme Court held this to be an acquittal for double jeopardy purposes. Id. Accordingly, because the double jeopardy clause prohibits the defendant from being tried again for the same offense, any appeal by the government is also precluded.
Exceptions to application of the double jeopardy clause exist. They are: (1) where a mistrial is declared for a “manifest necessity,”4 Wade v. Hunter, 336 U.S. 684, 689-90, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949); (2) where the defendant requests a mistrial, and the reason the defendant made his or her request is not because of prosecutorial or judicial conduct intended to provoke the defendant into moving for a mistrial, Kennedy, supra, 456 U.S. at 680, 102 S.Ct. at 2091 and (3) where an indictment is dismissed at the defendant’s request in circumstances functionally equivalent to a mistrial, Jeffers v. United States, 432 U.S. 137, 152-54, 97 S.Ct. 2207, 2216-18, 53 L.Ed.2d 168 (1977).
Finally, jeopardy attaches when a jury is sworn. Crist v. Bretz, 437 U.S. 28, *89637-38, 98 S.Ct. 2156, 2161-62, 57 L.Ed.2d 24 (1978). The reason for this rule is that a defendant has a “valued right to have his trial completed by a particular tribunal.” Hunter, supra, 36 U.S. at 689, 69 S.Ct. at 837. This right is deeply rooted in the history of Anglo-American jurisprudence. Crist, supra, 437 U.S. at 36, 98 S.Ct. at 2161.
This Court did not analyze to any degree Idaho’s double jeopardy provision until 1940 when it decided State v. Randolph, 61 Idaho 456, 102 P.2d 913 (1940). In Randolph the Court announced the rule that jeopardy attaches “at least” on a defendant’s plea of guilty. Id. at 459, 102 P.2d at 914. This rule tracks closely the federal rule. See, e.g., Crist, supra, 437 U.S. at 37 n. 15, 98 S.Ct. at 2162 n. 15. Subsequent cases to Randolph have also generally announced rules similar to federal rules.
In State v. Hall, 86 Idaho 63, 69, 383 P.2d 602, 605-06 (1963), this Court held that murder and robbery are separate and distinct crimes.5 The Court stated that neither offense is the “same offense” as the other; therefore, Idaho’s jeopardy clause is not implicated when the defendant was charged with robbery after having been indicted but never brought to trial on a charge of first degree murder. This is so even though both charges arose out of one transaction. Cf., Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).
In Franklin v. State, 87 Idaho 291, 306, 392 P.2d 552, 560-61 (1964), this Court stated that Idaho’s jeopardy clause applies only to a person being put on trial a second time for the same offense, and not for the serving of a sentence imposed subsequent to a defendant’s having been placed on parole, but who subsequently broke the terms under which the parole was granted.
In Lewis v. Anderson, 94 Idaho 254, 254-56, 486 P.2d 265, 265-67 (1971), the Court held that Idaho’s jeopardy clause would not prohibit the refiling of a suit against the defendant where the judge declared a mistrial because of the prejudicial impact of a newspaper article the judge had inadvertently read. The article disclosed the institution of a civil suit by the defendant against a witness who was going to testify against the defendant in the criminal suit. The judge claimed that the article prejudiced him against the defendant and sua sponte dismissed the jury. No witnesses had yet testified and neither party did anything to concur with or opposed the judge’s decision. Stating that the judge was acting in the interests of the defendant, the Court said a “manifest necessity” justified the district court's decision to declare a mistrial. The Court relied upon United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), a case that was explained and narrowed in its scope in Kennedy, supra, 456 U.S. at 678-80, 102 S.Ct. at 2091. The reasoning in Lewis v. Anderson, however, is compatible with Kennedy.
In State v. Gibbs, 94 Idaho 908, 912-14, 500 P.2d 209, 213-15 (1972), this Court held that jeopardy does attach in juvenile proceedings brought under Idaho’s Youth Rehabilitation Act. Cf. Breed v. Jones, 421 U.S. 519, 529-30, 95 S.Ct. 1779, 1785-86, 44 L.Ed.2d 346 (1978). Gibbs, when it was handed down, put Idaho in the forefront in expanding the jeopardy clause’s scope and protection. Gibbs, supra, 94 Idaho at 913, 500 P.2d at 214.
In State v. Salazar, 95 Idaho 650, 651, 516 P.2d 707, 708 (1973), this Court held that a second persistent violator prosecution relying on offenses utilized to sustain a first persistent violator charge does not constitute jeopardy. Compare Spencer v. Texas, 385 U.S. 554, 564-678, 87 S.Ct. 648, 653-61, 17 L.Ed.2d 606 (1967). The rationale is that Idaho’s persistent violator statute — I.C. § 19-2514 — does not create a new or separate offense but merely makes it possible for the enhancement of punish*897ment for people convicted of three or more felonies.
In State v. Lewis, 96 Idaho 743, 750, 536 P.2d 738, 745 (1975), a unanimous Court per Justice Bakes held that dismissal of rape and kidnapping charges on defendants’ motion for acquittal on the ground that the state’s evidence was insufficient to sustain a conviction, though erroneously granted, constituted a factual determination of innocence favorable to the defendants. Thus, the defendants were protected from retrial on either charge because of the federal and state protections against double jeopardy. Cf. United States v. Jenkins, 420 U.S. 358, 369-70, 95 S.Ct. 1006, 1012-13, 43 L.Ed.2d 250 (1975).
In State v. Thompson, 101 Idaho 430, 433-36, 614 P.2d 970, 973-76 (1980), the Court held that where there was only one event — the defendant’s shooting at the victim’s door — the charge of assault with a deadly weapon was a lesser included offense in a charge of attempted robbery. Thus, constitutional double jeopardy provisions prohibit conviction of the defendant on both charges. Cf. Harris v. Oklahoma, 433 U.S. 682, 682-83, 97 S.Ct. 2912, 2912-13, 53 L.Ed.2d 1054 (1977).6
In State v. Byers, 102 Idaho 159, 167, 627 P.2d 788, 796 (1981), the Court cited authority from the Supreme Court of the United States which required our holding that abolishment of the requirement of corroboration in sex crime cases could only be applied prospectively. The reason given was that the defendant had been tried under the previous rule requiring corroboration, and under that rule defendant’s conviction would have been reversed because there was insufficient evidence of corroboration. Ordering a retrial or affirming the defendant’s conviction, the court held, was not possible because the evidence under the law as it existed at the time of trial was insufficient to support the conviction, and double jeopardy prohibits further proceedings.
In State v. Talmage, 104 Idaho 249, 253, 54, 65 P.2d 920, 924-25 (1983), the Court held that double jeopardy would not bar retrial of the defendant where the district court had declared a mistrial because the jury was not capable of reaching a verdict. In so doing the Court relied upon Kennedy, supra, and statements contained therein, that hung juries are the “prototypical” example of meeting the manifest necessity standard.
In State v. Sharp, 104 Idaho 691, 693-94, 662 P.2d 1135, 1137-78 (1983), the Court held that prosecutorial misconduct in the case was not intended to provoke the defendant into requesting a mistrial. In Sharp the prosecution had failed to answer defendant’s interrogatories, which had been submitted during the discovery phase of the case. The defendant requested a dismissal at the beginning of trial, which was denied by the district court. The district court, however, decided to grant defendant’s request for a continuance during which the state would answer the requested questions. The court, sua sponte, then dismissed the jury which had been previously sworn.
In the subsequent trial, defendant was convicted. This Court, on appeal, agreed with the district court that the prosecutor’s failure to answer defendant’s interrogatories was a “technical” error, and that there was no evidence that the prosecutor’s actions were intended to provoke defendant into requesting a mistrial. The Court also declared that it was applying the rules of law handed down in Kennedy, supra. The Court, in part, aligned itself with federal precedent in declaring that, under Idaho’s Constitution, jeopardy attaches when a jury is sworn, in stating that the primary purpose of the double jeopardy clause is to *898prevent a defendant from being continually retried by the state with its limitless resources, and in adopting the Kennedy rule for determining the applicability of the jeopardy clause after a defendant has been granted his or her motion for mistrial. Id.
The dissent in Sharp. accurately points out that the jury in Sharp was not dismissed upon defendant’s request. Rather, the defendant, after having his motion to dismiss denied, had then moved for a continuance. No mention is made of the prosecution’s failure to caution the court against discharging the jury. The overlooking of this crucial distinction — that between a mistrial, which requires new jurors and a new trial, and a continuance, which merely “continues” the same trial and keeps intact the original jury — is inexcusable. It fatally flaws any precedential value Sharp may have had. Even a cursory review of the record in Sharp reveals that resort to Kennedy was incorrect, because it was inapplicable, it only applying to instances where the defendant requested a mistrial or dismissal. It is readily apparent that the majority in Sharp should have focused upon the “manifest necessity” standard. See, e.g., Lewis v. Anderson, supra; Hunter, supra.
In failing to recognize this distinction and the inapplicability of Kennedy, Sharp comes into conflict with United States Supreme Court decisions on this issue. Crist, supra, 437 U.S. at 37, 98 S.Ct. at 2161; Hunter, supra, 336 U.S. at 689, 69 S.Ct. at 837. With these rules in mind, it is now in order to turn to the facts surrounding the case at hand.
Under application of both federal and Idaho law, jeopardy had attached and bars the state from retrying Linda Alanis. The reasoning in Sanabria, supra, and State v. Lewis, supra, lead inexorably to the conclusion that jeopardy precludes retrial. In both cases, the trial judges incorrectly suppressed or evaluated evidence in concluding that insufficient evidence existed by which to convict the defendants. Nevertheless, because the defendants had been acquitted, the United States Supreme Court and this Court both held that jeopardy precluded retrial.
The facts of Alanis are not in dispute and lead to the same result. Those facts include the following: A jury was selected and sworn in the trial of Linda Alanis. The judge ruled that certain evidence was unconstitutionally obtained and excluded it. The judge then asked for the prosecution to continue with the case. The prosecution refused to do so, saying that it did not believe that it could proceed without the evidence which had been suppressed. In this posture of stalemate the défendant requested a dismissal with prejudice. The district court obviously was left with no alternative but to.enter the dismissal, except of course for the fact that the judge could have swallowed his conscience and reversed his own ruling. The particular judge involved, however, was not of such weak temperament that he would succumb to the prosecutor’s whimsy. Clearly the prosecutor had advised the court of the prosecution’s belief that there remained insufficient evidence to justify a conviction, and the entry of an. acquittal, as clearly provided for in I.C.R. 9, was- upon this basis.
Even if somehow there were some doubt about the entry of the acquittal, jeopardy would still bar a retrial. As Justice Bakes declared for the unanimous Court, which included Justice Shepard, in State v. Lewis, supra, where the Court was deciding whether jeopardy prohibited two defendants from being retried on rape charges that had been erroneously dismissed by the district court:
It is unclear upon what basis the rape charges were dismissed, whether they were dismissed upon an erroneous evaluation of the evidence or upon an erroneous interpretation of the law, but because the dismissals might have been based upon a factual determination favorable to the defendants they cannot be retried upon the rape charges. State v. Lewis, supra, 96 Idaho at 750, 536 P.2d at 745 (emphasis added).
*899It is clear that the dismissal here not only “might have been based upon a factual determination favorable” to Alanis, but was so based by reason of the prosecutor’s evaluation of the sufficiency of his remaining evidence. Accordingly, she cannot be retried, and a majority of this Court so holds.
Idaho statutory law also prohibits the state from retrying Alanis. I.C. § 19-1719 reads as follows: “When the defendant is convicted or acquitted, or has once been placed in jeopardy upon an indictment, the conviction, acquittal or jeopardy is a bar to another indictment for the offense charged in the former, or for an attempt to commit the same, or for an offense included therein, of which he might have been convicted under that indictment.” I.C. § 19-1718 defines an acquittal as follows: “Whenever the defendant is acquitted on the merits he is acquitted of the same offense, notwithstanding any defect in form or substance in the indictment on which the trial was had.” It is readily apparent that an erroneous decision on the merits is of no consequence in determining whether a defendant can be retried. The statute makes no exceptions: so long as the defendant was acquitted, and the reason is a failure of sufficient evidence to convict the defendant, the state cannot retry him or her for the same offense. Therefore, on statutory grounds as well as on constitutional grounds, we hold that Alanis cannot be retried on the matter upon which she was charged and acquitted.
HUNTLEY, J., concurs.. Justice Huntley articulately points out how the state, at the very least, acquiesced in the district court’s decision, which Justice Bakes sees as error.
. The Fifth Amendment reads:
*894No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty,' or property, without due process of law; nor shall private property be taken for public use, without just compensation. (Emphasis added.)
. Article 1, section 13 reads:
In all criminal prosecutions, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend in person and with counsel.
No person shall be twice put in jeopardy for the same offense; nor be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law. (Emphasis added.)
. The most common form of "manifest necessity” is where a judge declares a mistrial because the jury is unable to reach a verdict. Kennedy, supra, 456 U.S. at 673, 102 S.Ct. at 2088.
. Halts reasoning has been followed in State v. Mooneyham, 96 Idaho 145, 147-48, 525 P.2d 340, 342-44 (1974) and State v. Werneth, 101 Idaho 241, 243, 611 P.2d 1026, 1028 (1982), cert. denied, 449 U.S. 1129, 101 S.Ct. 951, 67 L.Ed.2d 118.
. Brown v. Ohio, 432 U.S. 161, 169-70, 97 S.Ct. 2221, 2227, 53 L.Ed.2d 187 (1977) suggests an exception to this rule. In Brown the Supreme Court stated that prosecution for a greater offense following prosecution for a lesser included offense is permissible if the state can show that it was unable to proceed on the more serious charge at the outset because events necessary to sustain that charge had either not yet occurred or had not yet been discovered by the state despite due diligence.