dissenting.
The majority opinion does not answer the central issue posed by this case: How many times can the State file a criminal complaint after one has been involuntarily dismissed, against the same defendant for the same offense, before that defendant’s due process rights have been violated? Here, Mr. Bacon has been subjected to prosecution three times for the same offense, and once for a lesser included offense. The criminal complaints in this case have been filed and involuntarily dismissed over the span of twelve months. I would hold that three involuntary dismissals are sufficient to place the burden on the State to prove good faith before another attempt at prosecution may commence. The majority improperly places the burden on Mr. Bacon to prove that the State was not acting in good faith, notwithstanding that the facts establish at the least a prima facie case of a due process violation occasioned by either prosecutorial harassment, prosecutorial incompetence, or undue prosecutorial zeal.
It is true that Stockwell v. State, 98 Idaho 797, 573 P.2d 116 (1977), has been interpreted by Rufener v. Shaud, 98 Idaho 823, 573 P.2d 142 (1977), and later cases to stand for the proposition that “refiling is not prohibited unless done without good cause or in bad faith.” Rufener, 98 Idaho at 825, 573 P.2d at 144. It is also true, according to a recent Court of Appeals opinion, that “[t]he filing of a second criminal action after dismissing the first is not a per se violation of the federal due process clause.” State v. Barlow’s Inc., 111 Idaho 958, 963, 729 P.2d 433, 438 (Ct.App.1986) (citations omitted). However, these precedents do not address the facts of this case, where each of three (not two, but three) felony DUI criminal complaints were dismissed by the presiding judge for the same reason: The State could not prove up the underlying misdemeanor DUI offenses.
While the prosecutor may not have had the luxury of relying upon State v. Mesenbrink, 115 Idaho 850, 771 P.2d 514 (1989), to instruct him on what was required to prove up the underlying misdemeanors in a felony DUI prosecution, one is left to wonder what, if anything, was done by the prosecutor to buttress his case before he attempted successive prosecutions. Notwithstanding the absence of this information, the majority gives the State the benefit of the doubt, by declaiming that Mr. Bacon has not proved an absence of good faith. As in the game of baseball, a line should be drawn at three strikes. After three failed attempts to prosecute a defendant, this Court should pause to consider the example set when today’s implicit holding becomes case precedent. Only where this Court knows the circumstances of the failed prosecutions is it in a position to place its endorsement of an Idaho citizen being subjected to multiple successive prosecutions. Were we privy to the unrevealed circumstances, it very well might be that I could readily concur. But in a vacuum, no.