            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                        AT KNOXVILLE                               FILED
                                 OCTOBER SESSION, 1999                            February 16, 2000

                                                                                 Cecil Crowson, Jr.
                                                                                Appellate Court Clerk



STATE OF TENNESSEE,                       )
                                          )        No. 03C01-9904-CC-00167
        Appellee,                         )
                                          )        COCKE COUNTY
vs.                                       )
                                          )        Hon. BEN W. HOOPER, II, Judge
EMIT KEITH CODY,                          )
                                          )        (First Degree Murder)
                                          )
        Appellant.                        )




                                 SEPARATE CONCURRING


        I write separately to acknowledge my participation in this court’s previous

decision in State v. Donald Ray Smith, No. 02C01-9805-CC-00151 (Tenn. Crim.

App. at Jackson, Apr. 29, 1999), perm. to appeal granted, (Tenn. Nov. 8, 1999),

which ordered reversal of the conviction and dismissal of the indictment under

procedural circumstances similar to those in the case sub judice.
Notwithstanding, in light of the supreme court’s Rule 11 grant in this case and,
more importantly, Judge Welles’ thorough analysis of this unique procedural

issue, I amnow persuaded that my prior position requiring dismissal of the indictm in Smith
                                                                                  ent

requires revisiting. Indeed, the case law to which this court is bound to follow is clear that double
jeopardy would not bar retrial in the present case. See Lockhart v. Nelson, 488 U.S. 33, 109

S.C 285 (1988); State v. Longstreet, 619 S.W.2d 97 (Tenn. 1981). With this explanation, I join in
   t.

the majority’s opinion.


                                          ____________________________________
                                          DAVID G HAYES, Judge
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