Case overruled: Nebraska Supreme Court allows Defendant facing retrial after a trial court ordered a deadlocked jury mistrial to file a plea in bar motion to contest whether double jeopardy would bar the retrial. Although the court should have had counsel and the defendant present while declaring the mistrial, the error was harmless. State v. Rubio, 261 Neb. 475, 623 N.W.2d 659 (2001) is overruled to the extent it suggests the plea in bar procedure is not available to challenge a mistrial. State v. Williams, S-08-1220, 278 Neb. 841 A mistrial entered without manifest necessity is the equivalent of an acquittal for purposes of double jeopardy analysis in that each terminates jeopardy without a finding of guilt. Abney v. United States, 431 U.S. 651, 660, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977). a plea in bar pursuant to § 29-1817 may be filed to assert any nonfrivolous double jeopardy claim arising from a prior prosecution, including a claim that jeopardy was terminated by entry of a mistrial without manifest necessity. To the extent that language in State v. Rubio, 261 Neb. 475, 623 N.W.2d 659 (2001). is inconsistent with this holding, it is disapproved. We conclude that although the judge erred in not having the parties and counsel present during his colloquy with the jury regarding its inability to reach a verdict, the court did not abuse its discretion in ordering the mistrial. Accordingly, jeopardy did not terminate and retrial is not barred by principles of double jeopardy.

Nebraska Supreme Court rules that Double Jeopardy Clause prevented retrial of assault defendant whose judge recused himself from the first bench trial after starting to hear testimony and declared a mistrial. State v. Jackson, S-07-084, 274 Neb. 724The State has the burden to show that it was manifestly necessary to allow a retrial after the mistrial. we cannot determine whether the judge exercised sound discretion in calling the mistrial because of the inadequacy of the record as to the underlying reasons for the decision. Because of the constitutional implications, the State bears the burden of demonstrating the manifest necessity of a mistrial declared over the objection of the defendant in a criminal case. See Arizona v. Washington, 434 U.S. 497, 98 S . Ct. 824, 54 L. E d. 2d 717 (1978){necessity for the retrial must appear in the record, although explicit findings are not required}; The State cannot meet this burden by simply requesting the court to make a general finding of manifest necessity, as it did here, without a factual record to support the finding. Where the reason for a mistrial is not clear from the record, the uncertainty with respect to manifest necessity must be resolved in favor of the defendant