(dissenting).
I respectfully dissent from the majority on the double jeopardy issue.
The case before us is unique because defendant’s conviction was reversed, by appellate review, based upon prosecutorial misconduct. Swartz v. State, 506 N.W.2d 792, 799 *542(Iowa App.1993). The question is whether the Oregon exception should be extended to cases involving convictions reversed because of prosecutorial misconduct.
Until recently, U.S. Supreme Court precedent seemed to foreclose the possibility of such an extension. In Burks, the Court stated governmental misconduct was not among the grounds for reversal that implicates the Double Jeopardy Clause. Burks, 437 U.S. at 15, 98 S.Ct. at 2149, 57 L.Ed.2d at 12. In DiFrancesco, the Court called insufficiency of the evidence the “one exception” to the general rule retrial after reversal is not barred. DiFrancesco, 449 U.S. at 131, 101 S.Ct. at 434, 66 L.Ed.2d at 342. However, the Court’s latest decision leaves room for serious doubt. In Lockhart, an appellate reversal case decided in the prosecution’s favor, the Court started its double jeopardy analysis by stating the record revealed no prosecutorial misconduct. Lockhart v. Nelson, 488 U.S. 33, 34, 109 S.Ct. 285, 287, 102 L.Ed.2d 265, 269 (1988). The Eighth Circuit stated under the Lockhart dictum, the issue of whether the Oregon exception should be extended is an “open issue.” Jacob v. Clarke, 52 F.3d 178, 181 (8th Cir.1995).
Other federal circuits have struggled with the question of whether, and how far, to extend the exception in Oregon. Compare Beringer v. Sheahan, 934 F.2d 110, 114 (7th Cir.1991) (“a defendant who did not move for a mistrial on the basis of intentional prosecu-torial misconduct cannot invoke the Double Jeopardy Clause to bar the state from retrying him after his conviction is reversed on that ground.”), cert. denied, 502 U.S. 1006, 112 S.Ct. 641, 116 L.Ed.2d 658 (1991) with United States v. Pavloyianis, 996 F.2d 1467, 1474 (2d Cir.1993) (Double Jeopardy Clause bars retrial “where the misconduct of the prosecutor is undertaken, not simply to prevent an acquittal, but to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct.”) (internal quotation omitted) and United States v. Wallach, 979 F.2d 912, 916 (2d Cir.1992) (same), cert. denied, — U.S. -, 113 S.Ct. 2414, 124 L.Ed.2d 637 (1993). Ultimately, we cannot be sure of the correct analysis under our federal constitution.
Iowa precedent is no more helpful than federal law. The Iowa Supreme Court has not yet decided a case requiring it to answer the question before us. Our supreme court recently discussed double jeopardy principles. Rademacher, 433 N.W.2d at 757-59. In that case, at trial the prosecution violated the district court’s pretrial ruling on admissibility of evidence. Id. at 755. Defendant moved for a mistrial, which was granted. Id. The state attempted to reprosecute defendant, but defendant claimed retrial was barred by the Double Jeopardy Clause. Id. The supreme court held that the Oregon federal standard was the correct one to apply, and under that standard, defendant could not be retried. Id. at 757-59. However, Rademacher addressed only the mistrial issue and did not need to examine the reversal on appeal issue.
Our supreme court has made it clear double jeopardy principles are applicable under the Iowa Constitution as well. State v. Bell, 322 N.W.2d 93, 94 (Iowa 1982), cert. denied, 459 U.S. 1210, 103 S.Ct. 1204, 75 L.Ed.2d 445 (1983); cf. State v. Allen, 304 N.W.2d 203, 208 (Iowa 1981) (reserving issue concerning whether double jeopardy will be found under state constitution when defendant obtains acquittal without submission of ease to the factfinder). Since we find the federal standard to be unclear in this situation, we analyze the instant case under the Double Jeopardy Clause of the Iowa Constitution. I find the Double Jeopardy Clause of the Iowa Constitution prohibits retrial of a defendant not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of denial of a fair trial. See Iowa Const, art. I, § 12. Such a rule is necessary to curb prosecutorial overreaching, provide increased certainty and consistency in criminal trials, and protect the integrity of the judicial process. At least one other state court has adopted this rule under its own constitution. See Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321, 325 (1992).
This standard should be applied to the case at bar. Our previous reversal of defen*543dant’s conviction described the prosecutor’s actions at trial as “a knowing and apparently deliberate use of perjured testimony.” Swartz v. State, 506 N.W.2d 792, 798 (Iowa App.1993). Further, we held this use of perjured testimony “was material and interfered with Swartz’s constitutional right to a fair trial.” Id. at 799. The prosecutorial misconduct was so severe it raised “a reasonable probability that without such perjured testimony the result would have been different.” Id.
The State makes much of the fact that in our review of the first trial, we did not dismiss the ease. Rather, we reversed and remanded for a new trial. Id. However, at that point in time, the double jeopardy issue was not directly before us. It certainly is now.
The prosecutor’s use of perjured testimony against defendant was intentionally undertaken to deny defendant a fair trial. Consequently, I find retrial of defendant is barred by the Double Jeopardy Clause of the Iowa Constitution. I would reverse the district court and dismiss the case against defendant.
SACKETT, J., joins this dissent.