concurring in part and dissenting in part.
I agree with the majority’s conclusion that Crozier was not a victim of vindictive or selective prosecution. I do not agree with the majority’s analysis or conclusion regarding the double jeopardy issue, and I, there*1237fore, dissent from that portion of the majority opinion.
I believe that the majority applied an incorrect analytical approach in reaching the double jeopardy issue. After the majority had dismissed the State’s cross-appeal, the only issues properly before this Court were those raised by Crozier in his direct appeal— the vindictive and selective prosecution claims. The parties did not fully brief or argue the double jeopardy issue. When the Court decided that it was going to reach the double jeopardy issue, it should have requested supplemental briefing from both parties.
I am not convinced that Crozier’s constitutional rights were violated when he was tried for the second time on the disposal count. Absent prosecutorial or judicial bad faith or overreaching, double jeopardy does not prohibit reprosecution after a trial ends in a mistrial when the defendant requests the mistrial or acquiesces to it. See Peterson v. State, 586 P.2d 144, 148 (Wyo.1978), overruled on other grounds, Crozier v. State, 723 P.2d 42, 56 (Wyo.1986); and Nowack v. State, 774 P.2d 561, 566 n. 6 (Wyo.1989) (quoting Garrett v. United States, 471 U.S. 773, 796, 105 S.Ct. 2407, 2420, 85 L.Ed.2d 764 (1985) (O’Connor, J., concurring)). Even when the defendant objects to the mistrial, he may be retried if “manifest necessity” warrants the mistrial decision. Oregon v. Kennedy, 456 U.S. 667, 672, 102 S.Ct. 2083, 2087, 72 L.Ed.2d 416 (1982); Peterson, 586 P.2d at 148.
In this case, a question certainly exists with regard to whether Crozier acquiesced to the trial court’s decision to dismiss the first case without prejudice. Although he sought a dismissal with prejudice, he did not request that the first trial continue when the district court decided to dismiss without prejudice.
Even if Crozier did not acquiesce, a question remains as to whether manifest necessity required the dismissal. The trial judge made a specific finding that manifest necessity existed for the dismissal. The determination of whether manifest necessity exists generally rests within the sound discretion of the trial judge. Peterson, 586 P.2d at 148. The sole problem in the first trial was that the information charged the wrong date for the commission of the crime. Crozier was aware of the mistake before trial but “set up” the double jeopardy problem by failing to notify the prosecutor or the trial judge before the jury was sworn and opening arguments were presented. In his opening statement, Crozier chose to base his entire defense on the fact that he had an “alibi” for the date charged.
Supplemental briefing was necessary in order for this Court to make informed decisions as to whether Crozier acquiesced to the dismissal without prejudice and whether manifest necessity supported the district court’s decision to declare a mistrial.