Ex Parte Preston

OPINION DENYING STATE’S MOTION FOR REHEARING

On original submission we granted appellant relief and ordered the prosecution dismissed. The State contends that result is erroneous for several reasons. We now address those contentions.

I

On original submission we began by stating, “[t]he facts are not in dispute ... there is no evidence in the record that the State took any affirmative action to dismiss, waive or abandon or that the State obtained permission for the trial judge to dismiss, waive or abandon the first and third counts in that indictment.” Maj. op. pg. 517. The State contends we…