While there is no standard set forth that the State must meet in order to overcome the presumption that its actions were vindictive, it appears that the State just had to show by a preponderance of the evidence that the enhancements were not vindictively added to the second indictment. This is not strong enough. It should at least require clear and convincing evidence to overcome a presumption. To me, "We forgot" doesn't quite get there when we presume that the enhancement paragraphs were vindictively added to the second indictment because the first conviction was reversed on appeal. The State's excuse sounds a lot like "the dog ate my homework" and the trial court should not have "unpresumed" with this lame excuse. Therefore, I respectfully dissent.

Meyers, J.

Filed: January 18, 2006

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