(dissenting). The question is whether the State of Michigan may prosecute the defendants for conspiracy to possess with intent to deliver in excess of 650 grams of cocaine after they had been prosecuted and convicted in federal court of similar offenses. We join with the signers of the lead opinion and the concurring opinion in remanding to the trial court to evaluate the defendants’ claims that the stat*289utory double jeopardy provision, § 7409 of the Public Health Code,1 barred the Michigan prosecutions.
This disposition may make it unnecessary for this Court to consider in the instant cases the proposal in part in of the lead opinion that this Court overrule People v Cooper, 398 Mich 450; 247 NW2d 866 (1976). Because the lead opinion states in part in why it would overrule Cooper, we respond stating why we would not do so.
We also disagree with the lead opinion’s conclusion, in part II, that defendant Mezy’s federal indictment and plea have no bearing on the statutory or constitutional double jeopardy analysis.
i
Section 7409 provides:
If a violation of this article is a violation of federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.
As the lead opinion observes, § 7409 did not codify this Court’s ruling in Cooper. Its reach is both more limited — it only applies to violations of the Public Health Code — and less limited — it does not state the exceptions enumerated in Cooper that might allow a subsequent prosecution in some cases.
The Legislature expressed its concern with successive prosecutions by enacting § 7409 of the Public Health Code. Other states have enacted similar provisions under the Uniform Controlled Substances Act.2 *290Similarly, the Attorney General of the United States promulgated what has come to be known as the Petite policy, a general prohibition of federal prosecutions following a state' prosecution absent approval from an assistant attorney general of the United States."3
The rationale for the Petite policy respecting successive federal and state prosecutions is informative regarding the legislative intent in enacting § 7409. The United States Supreme Court said that “[t]he overwhelming purpose of the Petite policy is to protect the individual from any unfairness associated with needless multiple prosecutions.”4
Additionally, § 7409 can be seen as a measure to conserve resources. If the federal government has already made expenditures to investigate, prosecute, and incarcerate a defendant, a second prosecution, *291with duplicate costs of investigation, prosecution, and incarceration can be seen by a legislature as wasteful.
Alabama has provided another reason for its version of this statute.
One of the purposes of enacting the Alabama Controlled Substances Act was “to standardize all laws in this State to be in conformity with the new Federal Comprehensive Drug Abuse Prevention and Control Act of 1970.” Clearly the purpose and intent of Section 20-2-77 is to bar a state prosecution when the defendant has been previously convicted in federal court (or the court of another state) for the same act.[5]
These legislative goals protect citizens from continual harassment, coordinate federal and state drug prosecutions, and protect the taxpayers from unnecessary costs.
The lead opinion quotes from the concurring opinion in State v Ableman, 72 NJ 145; 368 A2d 356 (1977).6 The majority in Ableman affirmed the reasoning of the lower court, which had cited with approval State v Krell, 125 NJ Super 457, 461-462; 311 A2d 399 (1973). In Krell, the judge said:
The four sections preceding section 25 [the comparable New Jersey statutory provision], under captions reading “Prohibited Acts,” expressly set forth what acts are unlawful ... . Since, therefore, the act expressly sets forth the acts which are unlawful, it follows that what is meant by the “same act” specified in section 25 is any act expressly prohibited by the preceding sections 19 through 22.
*292Because the defendants in Krell had not been charged in federal court with distribution of narcotics, one of the four acts listed in the New Jersey statute, the superior court held that they could face state prosecution on that charge. A conspiracy charge was barred, however, because of an earlier federal prosecution for conspiracy, and the state charges of possession and possession with intent to distribute were barred by the federal prosecution for possession with intent to distribute.
The New Jersey court thus took a common-sense approach to the definition of “same act.” Similarly, Michigan’s statute should be read to prohibit prosecutions for conspiracy in Michigan when the federal prosecution is for the same conspiracy, even if the federal conspiracy is broader and partly, though not exclusively, includes the conduct in Michigan.
A
The lead opinion begins its statutory analysis stating, “The key phrase in § 7409 is ‘the same act.’ In this, the statute differs from the United States and Michigan Constitutions, both of which discuss the same offense.”7 Although noting this “key” difference, the lead opinion provides no explanation of its significance. Insight can be gained from Justice Coleman’s concurrence in Cooper. She disagreed with part of the rationale of the majority, stating:
I would narrow the rale accepted from Commonwealth v Mills, 447 Pa 163; 286 A2d 638 (1971), which “prohibits a second prosecution for an offense arising out of the same *293criminal act" to one which “prohibits a second prosecution for the same offense." [Cooper at 463 (emphasis added).]
Tennessee applied a similar analysis when construing its statutory double jeopardy bar.
It is apparent that the Tennessee Drug Control Act of 1971 was enacted to compliment the then existing federal laws regarding drug control and that [Term Code Ann] 53-11-404 was included to effectuate that purpose. The provision that bars prosecution for the “same act” necessarily contemplates that the different jurisdictions may prohibit an act by means of defining offenses differently while still protecting the same interests, i.e., criminalizing drug trafficking. . . . TCA 53-11-404 requires a factual analysis to determine whether or not a person is being prosecuted for an offense based upon an act when such act was an offense or was included in an offense in another jurisdiction and' for which act that person has previously been convicted or acquitted. [State v Mongiove, 1991 Term Crim App LEXIS 77, *18.]
B
The signers of the lead opinion rely on federal cases for assistance in articulating a standard for determining whether there are one or more conspiracies.8 The Court should also look to the United States Supreme Court’s decision in Brown v Ohio, 432 US *294161, 168-169; 97 S Ct 2221; 53 L Ed 2d 187 (1977), in which this Court held that greater and lesser included offenses must be considered the “same” for federal constitutional double jeopardy analysis, and that “[wjhatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.” Thus, if one conspiracy is encompassed by another for constitutional double jeopardy analysis, prosecution is barred by § 7409, which uses the broader term “act” to describe when prosecution of the charge also would be barred in the federal courts as the same “offense.” As Brown makes clear, even if a trial of the smaller subset of allegations is held first, it bars a second prosecution for the larger scope of the offense.
c
I agree with the Court of Appeals in Mezy and the lead opinion that the “totality of the circumstances” test is useful in applying Michigan’s bar against double jeopardy, both under the statute and the state constitution. The United States Court of Appeals for the Eighth Circuit emphasized in United States v Thomas, 759 F2d 659, 662 (CA 8, 1985), immediately after listing the five factors cited in the lead opinion that this is a comprehensive inquiry:
These factors are guidelines only. The essence of the determination is whether there is one agreement to commit two crimes, or more than one agreement, each with a separate object.
We will therefore look beyond the indictments and consider all the evidence we have before us. This includes evidence adduced at the previous trial, evidence expected to be presented at the second trial, and information developed
*295at the evidentiary hearing conducted on the double-jeopardy issue.
The Court of Appeals in Mezy said, “[w]hile review de novo applies to a trial court’s holdings concerning whether there was a single criminal transaction and whether the state interests are substantially distinct, . . . the court’s findings of fact are reviewed for clear error.”9
Because this Court is today announcing a new standard for review of Mezy’s and Hermiz’ statutory claims, there are no findings of fact employing that standard to review. Remand for further fact finding is therefore necessary.
D
The lead opinion, in explaining the test to be employed and the degree of proof needed to satisfy it, *296places the burden on the defendants to prove that the statutory bar applies.101 agree that the burden should be placed on the defendants under MCL 333.7531; MSA 14.15(7531).
We are of the opinion that the Court of Appeals in Hermiz erred in not employing the Thomas test for multiple conspiracies. Instead, it narrowly focused on language in People v Sturgis, 427 Mich 392, 401; 397 NW2d 783 (1986), that, under the state constitutional analysis, part of Michigan’s broader “same transaction” test includes whether all the charges “demonstrate ‘a single intent and goal.’ ”11
The Court of Appeals said that there was “no indication in the record that the ‘single intent and goal’ of the conspirators in Florida was to conspire to possess with intent to deliver more than 650 grams of cocaine in Michigan.”12 This analysis ignores the holding in Brown that a prosecution for a lesser included offense bars a subsequent prosecution for a greater offense.
If Mezy and Hermiz were prosecuted in Florida for the conspiracy to buy cocaine for distribution in Oakland County and elsewhere in Michigan, a prosecution in Oakland County for conspiracy to distribute that cocaine in that county would be a prosecution for the same offense. This is true even if others in the Florida prosecution were not solely focused on selling the cocaine in Oakland County. The Court of Appeals approach would produce the same anomaly *297in a conspiracy context that the United States Court of Appeals for the Eighth Circuit noted in Thomas:
If [this test] is the sole standard used to determine whether multiple conspiracies exist, then prosecutors could drawn up [sic] two indictments and by skillfully choosing different sets of overt acts make one conspiracy appear to be two. [Id. at 662.][13]
n
Ignoring the rule of construction that constitutional questions should not be reached if a statutory analysis obviates the inquiry, the lead opinion proposes to overrule Cooper. In the circumstance that the lead opinion concludes that a remand is necessary to evaluate the statutory claim, there is no reason to reach Cooper. Because the lead opinion does so, I write to explain why we are of the opinion that the lead opinion errs in its analysis of Cooper and its proposal to overrule it.
The lead opinion proposes to overrule Cooper because it concludes that this Court failed to follow the “general rule” that, “[u]nless there is a compelling reason to afford greater protection under the Michigan Constitution, the Michigan and federal provisions will be treated as affording the same protections.”14 *298The “compelling reason” test was not announced until after Cooper was decided, and it has principally been employed in cases arising under the Fourth Amendment.
A review of the record and briefs in this Court when Cooper was decided demonstrates the error in the lead opinion’s assertion. Marx Cooper’s brief to this Court, as well as the briefs of amici curiae, all discussed the conflict between protecting an accused from being twice put in jeopardy and the dual sovereignty doctrine set forth in Bartkus v Illinois, 359 US 121; 79 S Ct 676; 3 L Ed 2d 684 (1959).
The defendant’s brief not only addressed how the reasoning underlying Bartkus had been undermined by subsequent federal case law, but it also discussed why the Michigan Constitution should be read as providing stronger double jeopardy protections. The defendant also discussed some of the scholarly criticisms of the dual sovereignty doctrine (whether based on subsequent federal case law, the practical reasons for disagreeing with Bartkus, or constitutional/jurisprudential objections to trying someone twice for essentially the same act) and provided this Court with a comprehensive list of scholarly articles reviewing the dual sovereignty doctrine.15
The defendant in that case said, “It would be hard to find a practice more universally condemned by the legal scholars than this double jeopardy practice of successive federal-state trials for the same act.”16 This *299Court was provided a full review of the case law and supplementary materials on this issue. This Court reviewed this material, made its decision, and chose to read the Michigan Constitution as prohibiting most successive state prosecutions. The lead opinion’s bold but unsupported assertion that this Court failed to consider the issue before it and give proper deference to federal case law is clearly incorrect.
Cooper did not rely on an anticipated change in federal double jeopardy jurisprudence that has not occurred since Cooper was decided. While Cooper noted that the rationale in Bartkus had been undermined by subsequent cases, the Court explicitly stated that it was not resting its decision on what the United States Supreme Court had done or might do.17 The Court based its opinion on the Michigan Constitution because it was persuaded that it requires the heightened protection of double jeopardy values.
There is no evidence in Cooper that this Court did not understand the consequences of its decision or that it acted on a whim. The opinion was reasoned and careful. Although the opinion did not use the words “compelling reason,” the Court found significant, compelling merit in the criticisms of the dual sovereignty doctrine and the failure of that doctrine to protect the rights of the accused. The Court balanced the state’s interests in prosecuting those who had broken the law and the defendant’s right to avoid multiple prosecutions, and said: “We feel that the interests of the state and the defendant are best accommodated by the approach of the Pennsylvania Supreme Court in Commonwealth v Mills, 447 Pa 163; *300286 A2d 638 (1971).”18 While Justice Coleman did not fully agree with the reasoning in Cooper, she concurred in the result, making that decision to read the Michigan Constitution as barring multiple federal-state prosecutions unanimous.
Further support for the view that this Court thoughtfully and fully considered its decision and concluded that it should depart from the Bartkus construction appears in this Court’s subsequent decisions affirming the result and the rationale in Cooper. In People v Gay, 407 Mich 681, 693-694; 289 NW2d 651 (1980), this Court said that, in Cooper, “we found that emerging Federal trends in recent years and the dictates of our own Constitution required us to impose limits on what dual sovereignty would permit. . . . [T]his Court also recognized the fundamental need to safeguard defendants’ constitutional rights. We therefore prohibited dual prosecution where the interests of the state are not ‘substantially different.’ ” (Emphasis added.) The Court stated the public policy reasons for its decisions, and said:
Cooper represents a strong and uncompromising statement by this Court that a defendant’s right not to be twice tried in Federal and state court for the same criminal act will be jealously guarded except in extreme cases where Federal laws are framed to protect substantially different social interests. . . . Cooper makes clear that as a. firm rule dual prosecution ordinarily will not be tolerated in Michigan. . . . Further, since this safeguard of defendant’s right against double jeopardy is of a constitutional magnitude, it must receive this Court’s close consideration. [Id. at 694-695 (emphasis added).]
*301Once again, while not all the members of the Court in Gay agreed with the application of the balancing of interests test outlined in Cooper, the Court unanimously upheld the rationale of Cooper and unanimously agreed it was necessary to apply the decision retroactively. This Court again unanimously reaffirmed the rationale of Cooper in People v Formicola, 407 Mich 293; 284 NW2d 334 (1979).
The lead opinion relies on In re Illova, 351 Mich 204; 88 NW2d 589 (1958), for the proposition that this Court had accepted the dual sovereignty principle before Cooper was decided. This Court distinguished Illova in Cooper as a case concerning jurisdiction, not double jeopardy.19 Contrary to the lead opinion’s claim, there is every “reason to suppose that Illova was not an accurate expression of the state of the case law on double jeopardy at the time of the Constitutional Convention . . . .”20 (Emphasis added.)
The lead opinion also fails to accord proper deference to the principle of stare decisis. This Court once observed long ago:
The rule of stare decisis establishes uniformity, certainty, and stability in the law, but it was never intended to perpetuate error or to prevent the consideration of rule of law to be applied to the ever-changing business, economic, and political life of a community Only in the rare case when it is clearly apparent that an error has been made, or changing conditions result in injustice by the application of an *302outmoded rale, should we deviate from following the established rale. [Parker v Port Huron Hosp, 361 Mich 1, 10; 105 NW2d 1 (I960).]
This is not the “rare case when it is clearly apparent that an error has been made,” but rather one where the lead opinion simply disagrees with the decision in Cooper and ignores the basic principles underlying stare decisis. There is not a crisis of criminals terrorizing the people of this state after a federal prosecution for a drug or other offense. There has not been a factual change other than the failure of the United States Supreme Court to overrule Bartkus (in part because of the principles of stare decisis), a change that this Court explicitly in Cooper distanced itself from requiring.
As the United States Supreme Court recently stated in the context of the abortion debate:
[T]he Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 1973. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided. [Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833, 864; 112 S Ct 2791; 120 L Ed 2d 674 (1992).]
The lead opinion does not state a “special reason” for overruling Cooper. It does not discuss the strong scholarly opposition to the dual sovereignty doctrine in Bartkus, or other states’ decisions that explain the flaws in the dual sovereignty doctrine, or this Court’s decisions that have consistently reaffirmed Cooper. The lead opinion simply states without support that *303this Court did not give proper deference to federal decisions, and then proposes to overrule Cooper. This is nothing more than a “belief that a prior case was wrongly decided.”
The lead opinion’s approach is troublesome. It undermines the authority of this Court. As Justice O’Connor observed:
The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible
There is a limit to the amount of error that can plausibly be imputed to prior courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation. [505 US 865-866.]
While Justice O’Connor’s decision in Planned Parenthood has been criticized by some, her articulation of the principles underlying the doctrine of stare decisis and the obligation of an appellate court to overrule its prior decisions only after careful and thoughtful deliberation producing a strong conviction that the prior case was wrongly decided, only when there is a “compelling” reason to abandon the prior decision, is legally sound. To overrule precedent of this Court with so little evaluation of the costs and benefits of the established rule would be a lamentable departure from the rule of law.
*304The concerns addressed by this Court in Cooper and Gay, as well as those stated in judicial opinions in other states and scholarly writings, remain. The right against being put twice in jeopardy is a personal right that would be impinged by successive federal and state prosecutions. This right must give way when the prosecutions serve significantly different ends. But unless the subsequent state prosecution is shown to meet the test set forth in Cooper, the individual’s right to protection from further governmental prosecution should prevail. Nothing has occurred factually or jurisprudentially to change the fundamental impolicy of successive prosecutions. Until it can be shown otherwise, we should continue to follow Cooper.21
III
The lead opinion states, in the Mezy case, “Jeopardy does not attach to charges dismissed as part of a plea agreement.”22
We would agree that if a defendant withdraws a guilty plea and the prosecutor seeks to reinstate the original charges, jeopardy has not attached to the original charges.23 If, however, a plea is accepted and *305accompanying counts are dismissed with prejudice, other considerations come into play.
The lead opinion’s reference to a federal “rule” overstates the law. Courts that have adopted this “rule” have stated it in passing, such as in the footnotes cited by the lead opinion,24 or, when in the main body of the opinion, in cases where the discussion is not critical to resolution of the issue before the Court.25 The cases cited by the lead opinion are thus
*306not on point, nor are the cases cited by the cases cited in the lead opinion.
Section 7409 literally speaks only of “a conviction or acquittal under federal law,” and thus is subject to the construction that a dismissal with prejudice of a federal prosecution, not being either a “conviction or acquittal,” is not a bar to prosecution in this state.
The literal, or as it is sometimes stated, the “plain meaning” of a statute is often held to be the correct construction of legislative intent. But in other cases, this Court has looked beyond the literal meaning to the spirit of the statute for guidance to the correct construction. “Few words have a ‘content so intrinsic’ that their meaning does not become doubtful in the context of a particular question.” People v McFarlin, 389 Mich 557, 563; 208 NW2d 504 (1973), where this Court held that a statute providing that the disposition of a child, under the chapter of the probate court concerning juveniles, shall not in any “criminal or any other cause or proceeding whatever” be evidence against the child “for any purpose whatever,” does not bar a judge from considering an adult offender’s juvenile offense record as a factor in imposing sentence upon him. Since the lead opinion does not recognize and discuss the issue as one of statutory construction, there is no need to further respond in this regard. See also Lawrence v Toys R Us, 453 Mich 112; 551 NW2d 155 (1996), where this Court today similarly departs from a literal or “plain meaning” in construing the worker’s compensation act.
*307And while it is certainly doubtful whether a dismissal of a federal charge as part of a plea bargain can be seen as having occurred after the accused was in jeopardy, there are other constitutional principles, particularly the Due Process Clause, that might bar a state prosecution, following dismissal of a federal charge as part of a plea bargain, for essentially the same reasons that this Court concluded in Cooper that multiple prosecutions by both the state and the federal government is unnecessarily onerous and to be avoided except in compelling circumstances not present in the instant cases.
Cavanagh and Mallett, JJ., concurred with Levin, J.MCL 333.7409; MSA 14.15(7409).
New Jersey, Ohio, Alabama, Arkansas, North Carolina, and Tennessee are among the states that have enacted a version of this statute. NJ Stat *290Ann 24:21-1; Ohio Rev Code Ann 2925.50; Ala Code 20-2-77; Ark Stat Ann 5-64-405; NC Gen Stat 90-97; Tenn Code Ann 53-11-404 (repealed in 1990).
The Model Penal Code suggests codifying double jeopardy principles for all criminal offenses. Model Penal Code and Commentaries, § 1.10, pp 167-178. A number of states have adopted some form of this prohibition. E.g., Alas Stat 12.20.010; 18 Pa Cons Stat Ann 111; NY Crim P 40.20.
Shortly after the United States Supreme Court’s decision in Abbate v United States, 359 US 187; 79 S Ct 666; 3 L Ed 2d 729 (1959), affirming the right of the federal government to initiate prosecution after a state trial, the Attorney General instructed all United States Attorneys to make an effort to coordinate with local law enforcement and prosecute a defendant in the most appropriate forum. The United States Supreme Court noted this policy Petite v United States, 361 US 529; 80 S Ct 450; 4 L Ed 2d 490 (1960). See 3 LaFave & Israel, Criminal Procedure, § 24.5, p 100.
The federal courts have ruled that the Petite policy is an internal guideline of the Department of Justice that provides no substantive rights for defendants to challenge a violation of the policy. See, e.g., United States v Pungitore, 910 F2d 1084, 1120 (CA 3, 1990). In Michigan, however, the policy respecting drug offenses is statutory, providing defendants with an opportunity to challenge a prosecution that violates § 7409.
Rinaldi v United States, 434 US 22, 31; 98 S Ct 81; 54 L Ed 2d 207 (1977).
Barnett v State, 373 So 2d 1226, 1228 (Ala Crirn App, 1979).
Ante at 284.
Ante at 284 (emphasis in original).
While the totality of the circumstances test outlined in the lead opinion is useful, it should not finish the inquiry whether these defendants were prosecuted for the “same act.” Other states have held that federal conspiracy charges bar prosecution for an in-state conspiracy when the two involve the same set of criminal acts, even if the federal conspiracy was broader in scope. Krell, supra; Commonwealth v Savage, 388 Pa Super 561; 566 A2d 272 (1989); People v Abbamonte, 43 NY2d 74; 400 NYS2d 766; 371 NE2d 485 (1977). Thus, while we do not disagree with the test outlined in the lead opinion, that federal test might not be sufficient to adequately implement the legislative intent to bar successive federal and state drug prosecutions.
208 Mich App 545, 551; 528 NW2d 783 (1995).
The concurring opinion suggests a resolution of the factual question being remanded to the trial court. Before an appellate court can adequately review a trial court’s findings for clear error, it must first have the trial court’s findings made under the proper standard. The record before this Court is insufficient to preemptively determine whether the defendants faced multiple prosecution for the same act.
Similarly, the concurring opinion also errs in finding, under the constitutional analysis, that these were separate conspiracies. The opinion does not discuss trial court findings of fact, made after that court heard the testimony in the state trials, reviewed both the federal and state indictments and accompanying exhibits, the federal and state statutes the defendants were found to have violated, the testimony of witnesses at the federal trial, the testimony before both the federal and state grand juries, the testimony taken during the preliminary examination and at a federal forfeiture proceeding, and the testimony during the evidentiary hearing on the double jeopardy claim.
The opinion does not attempt to explain away these findings of fact, made by the trial court “after laboriously considering all these factors.” The clear error standard is designed to protect against an appellate judge hastily substituting his reaction to the generally limited evidence before him for the considered evaluation of a more informed trial court judge.
Ante at 282-283.
207 Mich App 449, 451; 526 NW2d 1 (1994).
Id. at 452.
This also explains why Brown v Ohio’s discussion of greater and lesser included offenses also applies to greater and lesser factual conspiracies. The unique nature of a conspiracy prosecution justifies the broad test outlined in Thomas, rather than the traditional “same elements” test of Blockburger v United States, 284 US 299; 52 S Ct 180; 76 L Ed 306 (1932). The essence of the analysis under Thomas and the other federal conspiracy tests is whether the agreement is for one, possibly extended, criminal enterprise, or more than one; it is not a narrow determination of the “intent and goal” of any one of the conspirators.
Ante at 281, quoting People v Perlas, 436 Mich 305, n 7; 462 NW2d 310 (1990).
See defendant-appellant Marx Cooper’s brief and appendix on appeal, No. 3, June term 1976, pp 23-25 for discussion, pp 87a-89a for citations of sources discussing the dual sovereignty principle.
Id. at 23. The lead opinion acknowledges the criticism of the dual sovereignty doctrine in the legal community. Ante at 280, n 12.
Cooper, 398 Mich 461.
398 Mich 460.
The passage of time does not alter this conclusion. “The jurisdictional question presented in petitioner’s brief, not controverted by the State, reads . . .
“The claim, then, is a loss of jurisdiction by the State when petitioner was transferred to the Federal authorities to serve the sentence imposed by the Federal courts.” In re Illova, supra at 207. (Emphasis added.)
Ante at 280, n 11.
Because this Court is remanding these cases for evaluation under the statute, the trial court might reevaluate its decision under Cooper, but need not do so. Its conclusion that Michigan’s interests were not vindicated by the federal prosecution remains an open question that this Court has not addressed. As we see it, this Court is remanding the cases for evaluation under the statute without prejudice to the parties’ arguments under Cooper.
Ante at 276.
United States v Baggett, 901 F2d 1546, 1550 (CA 11, 1990), held that “the double jeopardy clause [does not] bar[ ] prosecution for counts dismissed as a result of a subsequently withdrawn plea bargain.”
United States v Gamer, 32 F3d 1305, 1311, n 6 (CA 8, 1994), cited by the lead opinion, states, “Even if the double jeopardy did apply, Gamer’s claims are without merit” The court’s opinion did not depend on this resolution, and the degree of analysis reflects its lack of importance in that case. Similarly, United States v Soto-Alvarez, 958 F2d 473, 482, n 7 (CA 1, 1992), simply cites United States v Garcia-Rosa, 876 F2d 209, 235 (CA 1, 1989), in which the court explained what the defendant was not arguing. The defendant there “concede[d] that his guilty plea on counts two and five of the 1985 indictment did not cause jeopardy to attach with respect to the dismissed counts of that indictment.” The First Circuit thus “adopted” this rule in a case where it was not contested. The court did refer, in n 21, to United States v Vaughan, 715 F2d 1373 (CA 9, 1983), and Fransaw v Lynaugh, 810 F2d 518, 524-525 (CA 5, 1987), where the United States Court of Appeals for the Fifth Circuit wrote, “The cases hold with apparent unanimity that when defendant repudiates the plea bargain, either by withdrawing the plea or by successfully challenging his conviction on appeal, there is no double jeopardy (or other) obstacle to restoring the relationship between defendant and state as it existed prior to the defunct bargain.” (Emphasis added.)
United States v Dahlstrum, 655 F2d 971, 974 (CA 9, 1981), is cited in Vaughan, n 24 supra at 1376-1377, for the proposition that a “dismissal is not equivalent to an acquittal even if dismissal is ‘with prejudice.’ ” Dahlstrum actually holds that a judge’s characterization of a dismissal as one with prejudice does not control where the basis for the dismissal is actually the court’s finding of “ ‘governmental misconduct.’ ” 655 F2d 974. Additionally, in Dahlstrum, the United States Court of Appeals for the Ninth Circuit noted that it was not relying “ultimately on the ‘acquittal’ of appellee,” id. at 975, n 5, but on “[ajppellee’s involvement in the termination of the trial was at best minimal[.]” Id. at 975. Vaughan also relied on United States v Barker, 681 F2d 589 (CA 9, 1982), which held that the government could reinstate charges of first-degree murder and conspiracy to commit murder after the defendant successfully had her plea to second-degree murder set aside. See id., 715 F2d 1377. Vaughan, the only case cited in the lead opinion where the facts might be seen as somewhat *306analogous, relied on cases which stood for far different propositions than what the Ninth Circuit claimed for them.