dissenting:
I respectfully dissent. In response to the merits of the case before this Court, in my view, jeopardy never attached in this case, and therefore, double jeopardy principles do not bar a delinquency proceeding in the matter of Kevin E. No witness was ever called before the juvenile master, no evidence was ever received, and there was no finding amounting to an acquittal. Under the Fifth Amendment to the United States Constitution or Maryland common law, jeopardy never attached.1
*642Assuming, as does the majority, that a “live” delinquency petition somehow exists in this case, I turn to the merits of the argument before the Court. Appellant’s argument that jeopardy attached at the June 28, 2006 hearing when Judge Hargadon dismissed the petition is wrong. Appellant argues that a second adjudication of a juvenile petition of delinquency is barred by double jeopardy principles when at the first adjudication, the State was denied a postponement, “rested” after putting on no evidence, and the master recommended that the petition be dismissed.
I do not agree that the State would be barred by jeopardy principles from bringing Kevin E. to trial.2 Under the federal *643Constitution, “jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is ‘put to trial before the trier of facts, whether the trier be a jury or a judge.’ ” Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975) (internal citation omitted). Jeopardy never attached in this matter and therefore, Kevin E. was never in jeopardy. The State never presented any evidence, and of course, since the proceeding was a juvenile matter, a jury was never sworn.
The Fifth Amendment to the United States Constitution’s double jeopardy bar applies to the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). In a jury trial, jeopardy attaches when the jury is empaneled and sworn. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963). In a bench trial, jeopardy attaches when the court first hears evidence. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977). Under Maryland common law principles and the plea of autrefois acquit, “the essential inquiry is whether there has been a ruling on the evidence.... ” Giddins v. State, 393 Md. 1, 20, 899 A.2d 139, 150 (2006). See State v. Morton, 971 S.W.2d 335, 339 (Mo.App.1998) (noting “[i]n pre-trial proceedings, jeopardy does not attach when an indictment [or infor*644mation] is dismissed so long as the dismissal was not an adjudication of defendant’s guilt or innocence based on extrinsic evidence outside the indictment or information such as stipulated facts or evidentiary facts submitted to the court for its review”). In this case, there has been no evidence received and therefore, no ruling on the evidence. Double jeopardy plays no role in this proceeding.
If appellant’s theory is that in a juvenile proceeding, a recommendation of dismissal is the equivalent of a verdict of “not guilty” and therefore an acquittal, the master’s recommendation to the Circuit Court judge that the case be dismissed was simply that of a recommendation, and not an order or final action of court. Rule 11—111 (a)(2) states, in pertinent part, as follows: “The findings, conclusions and recommendations of a master do not constitute orders or final action of the court.” Md. Rule 11-111(a)(2) (2006). As this Court stated in In Re Darryl D., 308 Md. 475, 477 n. 2, 520 A.2d 712, 713 n. 2 (1987), a master “ha[s] but the power to recommend to the juvenile court judge, because ... ‘a juvenile master is entrusted with no part of the judicial power of this State.’ ”
Appellant’s argument that after the State rested at the June 28, 2006 hearing, the defense then made the equivalent of a motion for judgment of acquittal, which the master recommended be granted, is equally unavailing. His argument that the master’s ruling “was the equivalent of an acquittal” is simply wrong. Of course, “what constitutes an ‘acquittal’ is not to be controlled by the form of the judge’s action.” Martin Linen Supply Co., 430 U.S. at 571, 97 S.Ct. at 1354. The test is “whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” Id. at 571, 97 S.Ct. at 1355. First, a recommendation of a dismissal is not a dismissal. It is merely a recommendation. Second, barring prior receipt of evidence, a dismissal is not an acquittal or a not guilty finding. In this case, there has been no *645factual resolution in favor of Kevin E. on one or more of the elements of the offense charged. Had there been as much, the ruling and the dismissal could be the functional equivalent of a judgment of acquittal. See Martin Linen Supply, 430 U.S. at 571, 97 S.Ct. at 1355. In juvenile proceedings, the equivalent of a “not guilty” verdict is a finding of “not involved.”
For the principles of double jeopardy to apply to the second hearing, jeopardy must have attached at some time prior to that hearing. If appellant’s theory is that jeopardy attached when the Circuit Court signed the order of dismissal because the dismissal was the equivalent of an acquittal, he is mistaken. Inasmuch as the Circuit Court judge did not state that the dismissal was with prejudice, the State, ordinarily, would be free, subject to constitutional and statutory time limitations, to re-file the petition. See, e.g., § 3-8A-13(b) of the Courts and Judicial Proceedings Article, Md.Code (1974, 2006 Repl.Vol.) (providing statutory time limitations for the filing of petitions in juvenile causes). Assuming arguendo that there was no time bar to the re-filing of the petition, trial would not be barred by double jeopardy. A dismissal without prejudice in this context does not entail any ruling on the evidence or an adjudication of the merits of the case. It is therefore wholly unlike an acquittal. “There can be no double jeopardy ... until there has been initial jeopardy.” Payne v. State, 73 Md.App. 749, 752, 536 A.2d 158, 160 (1988).
. Procedurally, there could not be an adjudicatory hearing in this case because there does not appear to be a viable petition before the Circuit *642Court, although the record is less than clear as to exactly what transpired in the Circuit Court. There is no docket entry or court order vacating Judge Hargadon's order dismissing the case. Accordingly, it is difficult to understand how an adjudicatory proceeding could be held when the petition, which had been dismissed, was never reinstated. Somehow, without any indication as to the disposition of the Order of dismissal, a hearing on the State's exception was set before Judge Young of the Circuit Court. Judge Young sustained the State's exceptions and rescheduled the adjudicatory hearing. All parties seemed to assume that there was a petition pending in the Circuit Court.
. The majority states that "[tjhe State's position during the argument on the motion to dismiss was that, 'the State would stipulate that jeopardy attached, but its all, even at the exception level, its all the same proceeding.’ ” The quote is taken out of context and is not any evidence that the State is taking inconsistent positions on this issue. The State’s comment was made in the course of the discussion with the trial court at to double jeopardy generally and juveniles, and particularly in the context of Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978). The colloquy proceeded as follows:
"Your Honor, I believe that, that Swisher State’s Attorney v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705, has already addressed this issue in 1978 and has ruled that a Master's proposals of recommendation need to be finalized by a judge, and it’s all part of a single proceeding. Therefore, yes, the State would stipulate that jeopardy attached, but it’s all, even at the exception level, it’s all part of the same proceeding. This case, there is, there hasn’t been a second proceeding, and that involved an adult case with two judges, not a master and a judge. So that would not—.”
In Swisher v. Brady, the Supreme Court stated the question presented and holding as follows:
"[T]he narrow question here is whether the State in filing exceptions to a master’s proposals, pursuant to Rule 911, thereby '[requires] an *643accused to stand trial’ a second time. We hold that it does not. Maryland has created a system with Rule 911 in which an accused juvenile is subjected to a single proceeding which begins with a master's hearing and culminates with an adjudication by a judge.”
Swisher, 438 U.S. at 215, 98 S.Ct. at 2706. The Supreme Court quoted Breed v. Jones, 421 U.S. 519, 529, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975):
"We believe it is simply too late in the day to conclude ... that a juvenile is not put in jeopardy at a proceeding whose object is to determine whether he has committed acts that violate a criminal law and whose potential consequences include both the stigma inherent in such a determination and the deprivation of liberty for many years.”
The State has always maintained that jeopardy did not attach because no evidence was presented.