Dissenting Opinion by
CATHELL, J.,in which RAKER and WILNER, JJ. join
I respectfully dissent.
In spite of the majority’s extensive discussion of double jeopardy principles and cases, which appear to make the issue presented more complex than it is, the issue before the Court is relatively simple. Is a hearing on a motion to dismiss a hearing on the merits? Apparently, the majority considers it to be so in respect to Maryland common law double jeopardy principles. I disagree.
The majority’s opinion is a wake up call for trial court judges. Additionally, and more importantly, the majority today takes a potentially dangerous step in the area of criminal law and may be, in essence, placing an additional burden on the State to try many criminal cases twice. In the process, witnesses, including police officers and other persons connected with the criminal justice system who could better serve the public by being on the street, or wherever, performing as*655signed functions may be required to come to court twice,1 where formerly they, generally, only had to come once.2 From this point on, all a defendant need do is file a motion to dismiss, attach a statement of charges, move an affidavit relating to evidence, or any document with evidentiary matter contained in it into evidence at a pre-trial hearing or file a premature motion for a judgment of acquittal. If that happens the State may be in the unenviable position of having to present facts sufficient to convict, because if it does not do so and the hearing court chooses to require additional factual information, as the trial court did in the case at bar, and then grants the motion to dismiss based in whole or part on a factual matter, the State will not be able to appeal that decision because of the double jeopardy holding rendered in this case. This is in spite of the provisions granting the State the right to make such an appeal.3
The State, in order to insure that a properly brought case is not prematurely dismissed as a result of a defendant moving a document containing facts, however slight, in evidence, into a motion to dismiss hearing, may have to try the case at that point, with a full presentation of the facts and the supporting witnesses. Even in that process, the defendant cannot be found guilty because the hearing on the motion to dismiss is not a trial on the merits, but the State can lose the case even though it is not a trial on the merits. The result of the majority’s opinion may well be to virtually afford every criminal defendant a full trial before a judge on a motion to dismiss, and then, if not successful at the motion to dismiss stage, *656another full trial before a judge or a jury. What the majority has done is inherently unfair to the prosecution.
The facts of the present case do not create the problem; the problem is that the majority is re-characterizing a long standing procedure. Nor can the problem merely be pushed aside by a thought that the factual circumstances of the parties can be easily proffered by the parties. With the filing of the majority’s opinion, any prosecutor, or defense attorney, who stipulates to the other’s evidentiary proffer in a motion to dismiss hearing, runs the risk of being considered incompetent.
I have no quarrel with the application of double jeopardy principles when it is appropriate to do so. A motion to dismiss hearing is not a full trial and it has never before been so held in this state or, to the extent of my knowledge, in any state. It is no more appropriate to apply double jeopardy principles to the limited type of hearing engendered when a motion to dismiss is filed, than it would be to apply such principles to hearings resulting from motions to suppress in which extensive factual matters are routinely proffered, and considered, and in which circumstances this Court has long held that such principles do not apply.
In my view, Md. Rule 4-252(d) specifically limits the context of such pre-trial motion to dismiss hearings. As the majority notes, in relevant part the rule provides: “[a] motion [to dismiss] asserting failure of the charging document to show jurisdiction in the court or to charge an offense may be raised at any time.” (alterations added).
As can be readily seen, this first part of section (d) relates only to whether the charging document, on its face, indicates that the respective court has no jurisdiction, and whether the charging document on its face fails to charge an offense. The Rule clearly does not contemplate that, as to these two issues, the hearing court shall hold any type of evidentiary hearing. Generally, evidence is simply not relevant to either of those *657issues.4 The Rule, in a subsequent clause, especially relevant here, goes on to state: “Any other defense, objection, or request capable of determination without trial of the general issue, shall be raised by motion filed at any time before trial.” (emphasis added).
T respectfully submit, that, generally, conflicts in evidence as to guilt or innocence, cannot be resolved without a trial of the general issue. In my view, given the restrictions of the Rule, it is inappropriate for a hearing judge to hear any evidence relating to the general issues that form the basis of the criminal trial. The general issues, in my view, are reserved for the trial on the merits. The majority does not disagree as to this position. A hearing judge is, as I see it, in determining motions such as those in the two cases before us, limited to jurisdictional defects apparent on the face of the charging document, the failure of the charging document to charge an offense or matters that can be determined without reference to evidence and he cannot be permitted to resolve guilt or innocence at this stage.
The majority, citing a series of cases, admits that “where there are factual issues involved, a motion to dismiss on the grounds that the State’s proof would fail is improper.” The majority goes on to hold that “the trial courts erred in granting the motions to dismiss for the evidentiary insufficiency reasons given by the trial judges.” The majority then holds that the indictments, i.e., charging documents, were sufficient and it concludes that both of these cases should have gone to trial. It essentially acknowledges that the hearing courts did not have the power to acquit or convict the defendants at the motion’s hearing stage. But the majority does not stop there.
The majority then incongruously states: “Although cloaked in the form of the grant of motions to dismiss, the substance of *658the trial judges’ rulings was to grant judgments of acquittal and so we must treat them [as such].” (alteration added). I cannot recall, and the majority does not present any case in which this Court has ever considered that a motion for judgment of acquittal was granted prior to the opening of a trial on the merits. The rule governing such motions, Maryland Rule 4-324(a) explicitly provides:
“A defendant may move for judgment of acquittal ... at the close of the evidence offered by the State and, in a jury trial, at the close of all the evidence. The defendant shall state with particularity all reasons why the motion should be granted.... ”
Not only have the defendants in the case never moved, appropriately, for judgments of acquittal; because they never appropriately made such a motion they have also never stated with particularity the evidentiary reasons why such a motion should be granted. Additionally, the State has never closed its evidence in a trial on the merits nor has the evidentiary stage of a trial on the merits ever commenced. What the majority ignores in its transmogrification of motions to dismiss into the granting of judgments of acquittal, is that, motions for judgments of acquittal filed prior to a trial on the merits are premature. Non-compliance with the rules requires the dismissal, out of hand, of motions for judgments of acquittal during pre-trial motions to dismiss hearings.
In essence, the majority strains to uphold the granting of something that the trial court had no power to grant and that was never expressly granted, was never appropriately moved for, was premature if moved for, at an inappropriate stage, without there ever being any particularization as required by the rule, and in respect to things that were, by the majority’s own admission, only properly resolvable at a trial and thus were inappropriate to even be considered in the motion to dismiss before the majority inappropriately transmogrified most of the motions.
I have no problem with the notion that it is sometimes necessary to look behind form and seek substance. But, I *659proffer, it should be done within the boundaries of statutory and rule constraints. The majority, in its struggle to reach substance, grasps for a procedure, a motion for a judgment of acquittal, that was not and could not have been used directly at the relevant point at time. It is not merely exalting substance over form, it is perverting the procedure to reach the substance, and in the process, in my view, the State is being denied a fair trial.
The genesis of the respondents’ position appears to be based, at least in substantial part, on the Supreme Court case of Finch v. United States, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977). Although the relative positions of the State and the respondents are not directly adopted in the majority opinion, the differences between Finch and Serf ass, infra, are relevant, in my opinion, to the position the Court should take in the present case. Finch was not a case in which anything that occurred at the pre-trial motion to dismiss was determinative. It has an unusual procedural history that indicates to me that the merits stage of the 'trial was under way before the trial court dismissed the charges against Finch. The underlying Finch case at the trial level was U.S. v. Finch, 395 F.Supp. 205 (D.Mont.1975). In that case the trial court denied the motion to dismiss. After a trial on the merits that concluded seven or eight months later, the trial court said:
“On June 14,1974, the defendant filed a motion to dismiss said information. The parties submitted extensive and well-considered memoranda of law. On September 4, 1974, an order was filed wherein I denied the motion to dismiss and noted that the information was sufficient on its face. An Agreed Statement of Facts and additional memoranda of law have been filed. Additionally, counsel for the Crow Tribe of Indians and the State of Montana, Department of Fish and Game, have appeared herein as amici curiae.
“After a thorough review of the file, I am compelled to reconsider my order ... wherein I denied defendant’s motion to dismiss. I conclude that the information is not sufficient on its face for several reasons.
*660“In the instant case, plaintiff has failed to show that the Crows were fishermen or that they historically derived their food supply from fishing....
“For the reason that the bed of the Big Horn River is not held by the United States in trust for the Crow Tribe of Indians, and for the reason that even if said river bed were held in trust for the Crow Indians the defendant is not charged with going upon said bed, and for the reason that the Crow Indians lack sufficient sovereignty to prohibit fishing ... the Court concludes that the information on file herein does not state an offense against the United States.” Finch, 395 F.Supp. at 207-13.
On appeal to the United States Court of Appeals for the Ninth Circuit, United States v. Finch, 548 F.2d 822, 824-25 (9th Cir.1976), that court correctly described the facts leading up to the charges against Finch, and the procedural trial posture of the case:
“This case began when James Junior Finch stood on a bank of the Big Horn River and cast a fishing lure into the waters. He was charged ... with trespassing on Indian lands____All concede that the State of Montana [and not the Crow Tribe of Indians] owns the bank at that spot, having acquired the property by purchase.
“... and he was well aware of an ordinance promulgated by the tribe that forbade all persons who were' not tribal members from entering Crow lands for fishing. The district court found that no entry had been made on Indian land and dismissed the information. The Government appeals.
“The court below originally denied a motion by the defendant to dismiss the information. The Government and the defendant stipulated to an ‘Agreed Statement of Facts’ and submitted the case [for a trial on the merits] for the court’s determination. The trial court thereupon reconsidered its earlier ruling and entered an order dismissing the information. Finch asserts that submitting the stipulation of facts *661to the court put him once in jeopardy, and that we do not have jurisdiction ... because a reversal would place him in jeopardy a second time.
“... In this case, we believe that jeopardy attached in the proceedings below.
“Appellee’s initial motion to dismiss was denied. The parties then filed an ‘Agreed Statement of Facts.’ The stipulation was a submission of the case to the district court for plenary determination and decision. This stipulation constituted a waiver of a jury trial; after it was filed, the district court undoubtedly had the power to determine the guilt or innocence of the defendant. The agreed statement of facts, moreover, was relevant to the district court’s ultimate decision to dismiss the information....
“In at least two essential respects, this case differs from Serfass v. United States, supra, in which the Supreme Court held that jeopardy had not attached. In Serfass, the petitioner had not waived his right to trial by jury (in fact he had requested a jury trial), and the district court had no power to determine petitioner’s guilt or innocence. By contrast, the defendant here waived his right to a jury trial, and after the initial denial of his motion to dismiss, was subject to the risk of a determination of guilt.”[Citations omitted.] [Alterations added.] [Footnotes omitted.]
In the cases sub judice, the majority holds that the hearing judges had no power to convict the defendants. It is also obvious that neither of the defendants had finally waived their rights to jury trials. Accordingly, Serfass, not Finch, as far as the federal constitution issues are concerned, controls. Moreover, it should, in my opinion be controlling in respect to Maryland common law double jeopardy principles.
Finch was further discussed in a case where the federal appellate court first found that the Supreme Court had never cited Finch in respect to double jeopardy issues, and then considered Finch to have been overruled by U.S. v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). In U.S. ex rel. *662Young v. Lane, 768 F.2d 834, 838-39 (7th Cir.1985), cert. denied, 474 U.S. 951, 106 S.Ct. 317, 88 L.Ed.2d 300 (1985), the court stated that:
“One case gives us pause. In Finch ... a district court held a trial on stipulated facts. The court found the defendant not guilty, based on a conclusion of law; the court of appeals held the legal conclusion erroneous and ordered the district judge to impose a sentence; the Supreme Court found this barred by the Double Jeopardy Clause because there was no formal finding of guilt to reinstate. Relying on United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975), the Court held that whenever a reversal requires further proceedings in the trial court, the Double Jeopardy Clause bars the way.
“The next year the Court overruled Jenkins, holding in Scott that further proceedings are permitted if they do not call into question factual findings favorable, to the accused. The majority did not mention Finch in Scott (although the dissent did), and the Court has not cited Finch since. We think that Scott overruled Finch along with Jenkins.
“If the judge makes a mistake before trial, it can be corrected and the accused tried properly. E.g., Serfass v. United States, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975); United States v. Sanford, 429 U.S. 14, 97 S.Ct. 20, 50 L.Ed.2d 17 (1976). If the judge makes a mistake after trial, that too can be corrected under Wilson. If the prosecution makes a mistake in drafting the indictment, and this causes a mid-trial dismissal, that may be corrected and the trial redone. If the trial judge makes a procedural mistake during trial, and the result is not an ‘acquittal/ the mistake may be corrected and the defendant tried again. All these further proceedings can be very costly indeed and lead to expense, anxiety, and a greater risk of conviction, but the [double jeopardy] clause does not prevent all expense and inconvenience. But, if the judge makes a legal error during trial that leads to an acquittal — even if error is blatant, and even if the defendant induced the judge to *663make the error — the resulting disposition is final.” [Some citations omitted.][Some emphasis added.]
The United States Court of Appeals for the Sixth Circuit in U.S. v. Gamble, 141 F.3d 621, 625 (6th Cir.1998), more recently clarified the procedural nature of Finch when it stated: “He cites Finch ... for the proposition that a pretrial order of dismissal can trigger double jeopardy protection. In Finch, however, the entire case had been submitted to the district court on an agreed statement of facts.” See also U.S. v. Wagstaff, 572 F.2d 270 (10th Cir.1978); Rivera v. Sheriff of Cook County, 162 F.3d 486 (7th Cir.1998) (citing Finch for the proposition that an acquittal after a bench trial creates jeopardy).
From my reading of Finch, it clearly is not similar to the present case. As the Court of Appeals for the Seventh Circuit opined in Young, I believe that in Finch the trial court first dismissed the motion to dismiss. The case then moved on to the trial on the merits stage by proceeding on an agreed statement of facts. At that point the trial was in a stage where the trial court could have convicted Finch if sufficient evidence existed. After the agreed statement of facts submitted in the merit’s stage had been considered, along with the memoranda of law submitted by the parties and amicus, the trial judge determined that he had been wrong in denying the motion to dismiss, and changed his ruling. At that point Finch had waived his right to a jury trial and Finch, depending on the evidence could have been found guilty or not guilty. The important issue is that in Finch there was a trial on the merits. Finch, as I read it, stands for the proposition that if, after a trial on the merits, a trial judge strikes his previous denial of a motion and grants it, then under those circumstances double jeopardy principles preclude a retrial. I do not believe it supports the position proffered by the respondents in respect to the very different situation in the case sub judice. Finch simply is not this case.
The correct federal case upon which this Court should rely, and I believe should consider as particularly relative to the *664State common law claims, under the circumstances of this case, is a case relied upon by the petitioner, Serfass v. U.S, 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), decided two years earlier than Finch, and which was not overruled by Finch, but cited as authority for its holding. It is important to note that the issue between the majority and the dissenters in Finch was not whether double jeopardy could attach at a motions to dismiss hearing, because in that case there had been a trial on the merits. The issue in the case sub judice, whether jeopardy attaches at pre-trial motions hearings if evidence is somehow considered by the hearing judge, was never in the Finch case. There, the issue between the Justices was whether double jeopardy could attach in a merit’s trial if the evidentiary stage of a trial on the merits proceeded by way of a statement of facts.5
The trial court’s decision in Finch was not rendered in a motion to dismiss hearing, or even after its conclusion, but was only rendered after a trial on the merits whereby the eviden-tiary stage occurred via an agreed statement of facts. The primary issue that the Court appears to have been addressing in Finch, was whether double jeopardy attaches when evidence is presented by an agreed statement of facts. It *665appears to me, that the correct holding of Finch is that in a trial on the merits jeopardy can attach when the evidence is presented by an agreed statement of facts. When the context of the trial proceedings is fully understood, and the Finch decision with its reliance on Serfass carefully read, I do not believe that any other interpretation is logically possible.
In Finch, 433 U.S. at 677, 97 S.Ct. at 2910, 53 L.Ed.2d at 1050, the majority held:
“We think that the Court of Appeals was without jurisdiction to entertain the appeal. When the District Court dismissed the information, jeopardy had attached, see Ser-fass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 43 L.Ed.2d 265, (1975), but no formal finding of guilt or innocence had been entered.... ”
Because the Finch Court specifically relied on the authority of Serfass, a case where the motion to dismiss was not granted until after a full trial on the merits, it is instructive to examine that case in order to fully understand the holding of Finch and the lessons from the federal cases that should be heeded in the present case in respect to the position the majority takes on the State law claims.
Serfass was notified to report for induction pursuant to the draft. At that point he requested an application for a conscientious objector status, but he was not immediately so classified. He was ordered to report for induction, but failed to appear. He was indicted. He prayed a jury trial. Prior to January 9, 1973, the scheduled date of his trial, he filed a motion to dismiss the indictment. Attached to his motion was an affidavit that he had applied for conscientious objector status. A postponement was granted and a date set for a hearing on his motion to dismiss. The parties were directed by the hearing judge to submit certain documentation concerning Serfass’ status. At the hearing, the hearing court considered the documentation and considered “the oral stipulation of counsel at the argument ‘that the information which Serfass submitted to the Board establishes a prima facie claim for conscientious objector status....’ ” Serfass, 420 U.S. *666at 380, 95 S.Ct. at 1058, 43 L.Ed.2d at 269. The hearing judge granted the motion to dismiss. The United States appealed to the Court of Appeals for the Third Circuit. Serfass filed a motion to quash with the Court of Appeals, which was denied. The Supreme Court noted that the Third Circuit held that: “[sjince petitioner had not waived his right to a jury trial, and no jury had been impaneled and sworn at the time the District Court ruled on his motion to dismiss the indictment, jeopardy had not attached and the dismissal was an appealable order.’ ” Id. at 382, 95 S.Ct. at 1059, 43 L.Ed.2d at 270 (footnote omitted). On certiorari, the Supreme Court opined:
“As an aid to the decision of cases in which the prohibition of the Double Jeopardy Clause has been invoked, the courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and policies are implicated by resort to the concept of ‘attachment of jeopardy.’ In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn. In a nonjury trial, jeopardy attaches when the court begins to hear evidence. The Court has consistently adhered to the view that jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is ‘put to trial before the trier of the facts, whether the trier be a jury or a judge. ’
“Under our cases jeopardy had not yet attached when the District Court granted petitioner’s motion to dismiss the indictment. Petitioner was not then, nor has he ever been, ‘put to trial before the trier of facts.’ The proceedings were initiated by his motion to dismiss the indictment. Petitioner had not waived his right to a jury trial.... In such circumstances, the District Court was without power to make any determination regarding petitioner’s guilt or innocence.... At no time during or following the hearing on petitioner’s motion to dismiss the indictment did the District Court have jurisdiction to do more than grant or deny that motion, and neither before nor after the ruling did jeopardy attach.
*667“... [Petitioner] argues that because the ruling was based on ‘evidentiary facts outside the indictment, which facts would constitute a defense on the merits at trial,’ it was the ‘functional equivalent of an acquittal on the merits’ and ‘constructively jeopardy had attached.’
“... Although an accused may raise defenses or objections before trial which are ‘capable of determination without the trial of the general issue,’ and although he must raise certain other defenses or objections before trial, in neither case is he ‘subjected to the hazards of trial and possible conviction.’... Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier ‘having jurisdiction to try the question of guilt or innocence of the accused.’ Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy. ” Serfass, 420 U.S. at 388-92, 95 S.Ct. at 1062-64, 43 L.Ed.2d at 274-76. [Citations omitted.] [Emphasis added.] [Alterations added.]
It is virtually inconceivable to me that just two years after the Serfass case, the Supreme Court, if it had changed its mind about jeopardy attaching at pre-trial motions to dismiss hearings, would not have said so and, in the process, overruled Serfass. The only possible explanation as I see it, is that the Supreme Court was fully aware of the fact that in Finch it was not dealing with the granting of a pre-trial motion to dismiss, but with a dismissal after a full trial on the merits, albeit on an agreed statement of facts, where the relevant issue was whether trials that proceeded on agreed statements of facts could create double jeopardy prohibitions.
More important, however, is that this Court has already made the same distinction that I now make in respect to Finch. Finch involved the submission of an agreed statement of facts in a merit’s trial, where after considering the agreed statement of facts, the trial judge rescinded his previous *668denial of a motion to dismiss. This Court initially stated in respect to the procedural aspects in State v. Shaw, 282 Md. 281, 232-36, 383 A.2d 1104, 1105 (1978) that:
“.... The [Shaw] case was submitted to the court on an agreed statement of facts. ... Shaw moved for a judgment of acquittal following presentation of the agreed statement of facts. The court reserved ruling on the motion. Almost a year later, the court ordered that the charging document be dismissed on the ground that misprision of a felony is not a crime in Maryland.” [Emphasis added.] [Alteration added.]
As I have indicated, in Finch the trial court initially denied a pretrial motion to dismiss, the trial was actually held, albeit on an agreed statement of facts, and seven or eight months later, after receiving evidence in a merit’s trial, the court changed its previous determination as to the motion. We went on to say in Shaw:
“[In his favor] [o]n the other hand, Shaw contends that the dismissal amounts to a ruling on the merits and that to remand the case to resolve issues of fact ... would violate the double jeopardy prohibition.
“Both the State and Shaw rely upon several recent Supreme Court cases; they read the cases differently, to say the least....
“... The [Finch] case was submitted to the District Court on an agreed statement of facts. The court, after considering these facts, entered-an order dismissing the information for failure to state an offense, and the government appealed.
“The Supreme Court held that the lower appellate court was without jurisdiction to entertain the appeal because at the time the District Court dismissed the information, jeopardy had attached and any further prosecution was barred....” Id. at 233-36, 383 A.2d at 1106-07. [Emphasis added.] [Footnote omitted.]
As I read the Shaw case, it also involved Maryland common law double jeopardy principles: “It is a well established *669common law principle in Maryland that a criminal defendant may not be twice put into jeopardy for the same offense.” Nonetheless, this Court relied on the federal cases in applying Maryland double jeopardy principles. In Shaw, relying primarily on the federal cases, we opined: “... Since the issues were submitted to the trial court on an agreed statement of facts jeopardy attached.” Also in Shaw, the trial on the merits was underway, and a motion for acquittal was properly before the court. None of which exists in the cases at bar.
From my reading of Finch, it is not similar to the present case. As the Court of Appeals for the Seventh Circuit opined in Young, I believe that in Finch the trial court first dismissed the motion to dismiss. The case then moved on to the trial on the merits stage by proceeding on an agreed statement of facts. After the agreed statement of facts submitted in the merit’s stage had been considered, along with the memoranda of law submitted by the parties and amicus, the trial judge determined that he had been wrong in denying the motion to dismiss and changed his ruling. The important issue, however, is that there was a trial on the merits. Finch, as I read it, may stand for the proposition that if, after a trial on the merits, a trial judge strikes his previous denial of a motion and grants it, then under those circumstances double jeopardy principles preclude a retrial. I do not believe it supports to any degree the position proffered by the respondents in respect to the very different situation in the case sub judice. Moreover Shaw’s reliance on Serfass in applying Maryland common law double jeopardy principles should, in my view, be applied to the circumstances of this case.
Additionally, this Court’s cases relied on by the majority, do not, as I view them, support the result the majority reaches.6 Not a single one of the Maryland cases relied on by the majority involves a motion to dismiss. Ware v. State, 360 Md. *670650, 759 A.2d 764 (2000), Thanos v. State, 330 Md. 576, 625 A.2d 932 (1993), Booth v. State, 301 Md. 1, 481 A.2d 505 (1984) Tichnell v. State, 297 Md. 432, 468 A.2d 1 (1983) and Bell v. State, 286 Md. 193, 406 A.2d 909 (1979), all involved matters relating to motions for mistrials made after the trials on the merits had begun. Farrell v. State, 364 Md. 499, 774 A.2d 387 (2001), involved a trial on citations that alleged certain traffic offenses. The case was called for a merit’s trial. Farrell pled not guilty and after the State presented no evidence, was found not guilty. The. State then attempted to retry him based upon a criminal information. In Gianiny v. State, 320 Md. 337, 577 A.2d 795 (1990), Gianiny, as a result of an accident involving a fatality, had been charged with several traffic offenses on citations, including a citation for negligent driving. A trial was scheduled. Before that trial date, upon learning that the State was planning to indict him for automobile manslaughter, Gianiny paid the pre-set fines for the relevant traffic offenses. We first noted:
“[I]n order to prove the greater offense, manslaughter by automobile, the State must necessarily prove the lessor offense, negligent driving.
“Gianiny paid a fine----[B]y paying the fine he stood convicted of negligent driving....
“The contention that jeopardy never attached because there was no trial and no acceptance of a guilty plea deserves no lengthy discussion. When one has been convicted and punished for a criminal offense, he has been in jeopardy.... If the prosecution terminated before jeopardy attached, the prohibition against double jeopardy simply will not apply.... But once a prosecution has concluded with either a conviction or an acquittal, no further prosecution may be had for the same offense.” Gianiny, 320 Md. at 343-47, 577 A.2d at 798-99.
In Daff v. State, 317 Md. 678, 566 A.2d 120 (1989), the case had been called for trial on the scheduled trial date. When the State discovered that its witnesses were not present, it *671requested a postponement of the then proceeding trial on the merits. The trial judge denied the request for a postponement. The defendant then reiterated his plea and his choice to be tried by the court, both elections he had previously made in writing. The State then declined to “nolle pros ” the charges. When the State declined to nolle prosequi the case, the trial judge rendered a verdict of not guilty. That verdict was rendered in the trial, not at a motion to dismiss hearing. This Court made that absolutely clear. We said:
“The court has the authority to control its docket, and it may force the State to proceed to trial or to enter a nolle prosequi when the case is called for trial on a regularly assigned trial date. Failure of the State to produce any evidence at the trial will necessarily result, as it did here, in an acquittal.” Doff, 317 Md. at 687, 566 A.2d at .124-25.
During the trial on the merits in Wright v. State, 307 Md. 552, 515 A.2d 1157 (1986), a case relied on by respondents here, a trial judge acquitted Wright of the underlying felony but submitted the felony murder count to the jury. It was a classic traditional double jeopardy case. Brooks v. State, 299 Md. 146, 472 A.2d 981 (1984), involved the granting of a judgment of acquittal at the close of the State’s case and the subsequent attempts by the State to have the judge reconsider, after which the trial judge attempted to alter his ruling by reserving on the motion he had already granted. Subsequently, the judge sent to the jury the same charges in respect to which he had previously granted a motion of acquittal. Parks v. State, 287 Md. 11, 410 A.2d 597 (1980), involved a prior correct dismissal specifically based upon un-timeliness where the trial court had not erred. In Block v. State, 286 Md. 266, 407 A.2d 320 (1979), a trial judge, after a full trial on the merits first found the defendant guilty; the defendant asked him to reconsider and the trial judge then rendered a verdict of not guilty. Later, the prosecutor asked the judge to set aside the not guilty verdict and reinstate the previous guilty verdict. Instead the trial judge ordered a new trial. In Blondes v. State, 273 Md. 435, 330 A.2d 169 (1975), the issue was, in respect to the nolle prosequi of charges, when in a trial *672on the merits did jeopardy attach. In Pugh v. State, 271 Md. 701, 319 A.2d 542 (1974), after a full trial on the merits the trial judge rendered a verdict of “not guilty,” and then tried to change his mind in order to render a verdict of guilty. State v. Barger, 242 Md. 616, 220 A.2d 304 (1966), involved the circumstance where, in a prior trial by a jury, Barger had been found not guilty of first degree murder, but guilty of second degree murder. The second degree murder conviction was reversed on appeal.' At the subsequent trial the State attempted to retry Barger on the first degree murder charge as well as the second degree murder charge. In the older case of State v. Shields, 49 Md. 301, 304-05 (1878), Shields had been acquitted of all charges by a jury after a full trial on the merits. The State was seeking to appeal the verdict alleging errors, in order to be able to try Shields again.
As is, in my view, clear, no case in Maryland has yet gone as far as the majority goes in this case. I believe it is necessary to have in advance some discernable line before which, and/or after which, double jeopardy principles attach, whether based on common law, Maryland constitutional law or Federal constitutional law principles. The line established in Serfass and like cases should be, in my view, that line: Did the defendant, or>was the defendant required to, waive his right to a jury trial and could the defendant be convicted at the proceeding then in progress? If the answer is yes to these questions— jeopardy attaches. If the answer is no-jeopardy does not attach. The procedure adopted by the majority of a case by case analysis that, while it holds a proceeding in error, nonetheless holds that a defendant, who has never waived his right to a jury trial and could not have been convicted, has been placed in jeopardy is, in my view, the wrong procedure to utilize when considering double jeopardy issues. The State can never be sure, in advance, whether the proceeding they are in, is going to become a hearing on a motion for judgment of acquittal because at some point during the proceeding the trial judge considers inappropriate matters and makes a decision that is beyond his or her power to make.
*673Because neither Taylor, Bledsoe, Kopp or Johnson, waived their rights to a jury trial and neither of them could have been convicted at their respective motions to dismiss hearings, and because I believe the relevant case that we should adopt as controlling this issue is Serfass, supra, I would reach the merits of the State’s appeal. I would additionally find that it has merit and would reverse the trial courts’ granting of the motions to dismiss.
Judges RAKER and WILNER join in this dissent.
. It is generally understood that it is difficult to get witnesses to come forward and to voluntarily appear as witnesses in criminal proceedings.
. I understand that with the postponement practices in some jurisdictions, it may well be rare for a witness to only appear once in criminal proceedings. However, the general practice is for one adversarial trial on the merits in which witnesses are required to appear.
. Md.Code (1957, 1998 Repl.Vol., 2001 Supp.), § 12-302(c)(i) of the Courts and Judicial Proceedings Article.
. It may be necessary in some instances, for a hearing court to consider some facts for a limited purpose, such as in this case, venue issues. Such matters however, do not transform the dismissal hearing to the guilt or innocence stage of a trial.
. The dissenters in Finch, when that case was before the Supreme Court, stated:
"My second reason for disagreeing with summary disposition is that this Court has never passed on any claim of double jeopardy where the issues were submitted on an agreed statement of facts, rather than to a jury for its verdict or to the Court for a finding of guilt or innocence after hearing witnesses....
"If there has been some shift in emphasis in the Court's cases this Term, it seems to me that the submission of guilt or innocence on an agreed statement of facts not only factually distinguishes this case from Jenkins, but is a factor to be weighed in any balancing test against a finding of double jeopardy....
"Because we have never decided a case involving double jeopardy claims where the issue of guilt or innocence was submitted to the court on an agreed statement of facts without calling any witnesses, we have never had occasion to pass on when jeopardy attaches in such a situation....” Finch 433 U.S. at 678-81, 97 S.Ct. at 2910-12, 53 L.Ed.2d at 1051-53.
. State v. Despertt, 73 Md.App. 620, 535 A.2d 963 (1988), from the Court of Special Appeals comes perhaps, the closest, in that the trial judge looked at exhibits before improperly basing an acquittal solely on a prosecutor’s opening statement. Even then, however, what occurred happened in a trial on the merits not in a motions to dismiss hearing.