OPINION
BIVINS, Judge.
The State appeals from an order dismissing, on double-jeopardy grounds, Count I of a criminal information, aggravated assault on a peace officer with a deadly weapon, NMSA 1978, § 30-22-22(A)(l) (Repl.Pamp.1984), based on Defendant’s plea of no contest to Count V, resisting, evading, or obstructing an officer, NMSA 1978, § 30-22-1 (Repl.Pamp.1984). Three issues are raised: (1) whether the district court erred in determining that double jeopardy barred conviction and punishment of Defendant on the aggravated assault charge; (2) whether the district court erred, under Ohio v. Johnson, 467 U.S. 493,104 S.Ct. 2536, 81 L.Ed.2d 425 (1984), in making the double-jeopardy determination before giving the jury an opportunity to convict or acquit Defendant; and (3) whether double jeopardy bars the retrial of Defendant on remand. We reverse on the second issue and, thus, do not reach the first issue, and we conclude that double jeopardy does not bar Defendant’s retrial on remand.
I. BACKGROUND
On September 15,1991, Defendant led officers from several law enforcement agencies on a prolonged car chase along Highway 54 • near Alamogordo. The chase began when, after stopping Defendant at a checkpoint a short time earlier, Border Patrol Agent Holmes again stopped Defendant and observed signs of intoxication. Agent Holmes requested the presence of State Police Sergeant Arana and, while Holmes and Defendant waited for Sergeant Arana to arrive, Defendant started her vehicle and drove north on Highway 54. Agent Holmes pursued.
Eventually, Sergeant Arana joined in the pursuit, as did three Otero County Sheriffs Deputies. Defendant ignored commands to pull her vehicle over and continued to drive erratically at a high rate of speed. All vehicles participating in the chase were marked and had their flashing lights activated, and the officers were in full uniform.
The three deputies eventually were able to block Defendant’s car and bring it to a stop. However, Defendant placed her car in reverse and drove directly at Deputy Woltz, who had exited his car. Defendant did not strike the deputy, but, despite his firing three rounds at a tire of Defendant’s vehicle, Defendant was able to escape and drive northbound at high speed.
Later, Defendant attempted to run another roadblock, but failed. Defendant had to be bodily removed from her vehicle by the officers. She continued to resist when Deputy Woltz and other officers tried to handcuff her.
Based on these events, the State charged Defendant by criminal information with seven counts, only one of which was a felony: aggravated assault on a peace officer with a deadly weapon. The remaining six counts included the charge of resisting, evading, or obstructing an officer.
On the day of the trial, before jury selection, Defendant entered a plea of no contest to the six misdemeanor charges, including resisting, evading, or obstructing an officer. After entering this plea, Defendant moved that the remaining count of aggravated assault on a peace officer with a deadly weapon be dismissed on double-jeopardy grounds. Defendant further requested that the district court take her motion under advisement until after the State had presented its case, reasoning that the court had to hear the evidence in order to rule on the double-jeopardy motion. The prosecutor did not object to this procedure.
After the State rested, Defendant renewed her motion for dismissal based on double jeopardy. After argument by counsel, the district court first denied the motion, but then, after further argument, granted it. This appeal by the State followed.
II. DISCUSSION
Because we find the Johnson issue to be dispositive of this appeal, we address it first. Later in our opinion, we address Defendant’s argument that double jeopardy bars reprosecution on remand.
A. Ohio v. Johnson
Johnson concerned a defendant charged in the same indictment with four offenses stemming from the same incident. At arraignment, the defendant offered to plead guilty to two of the charged offenses, and the trial court accepted these pleas over the objection of the State. The trial court then granted the defendant’s motion to dismiss the remaining two charges based on double jeopardy. The trial court agreed with the defendant that the two charges to which the defendant pled guilty were lesser included offenses of the remaining two charges.
In reversing the judgment of the Ohio Supreme Court, which affirmed the trial court, the United States Supreme Court held that the Double Jeopardy Clause did not bar further prosecution of the defendant on the remaining charges. Johnson, 467 U.S. at 494, 500, 104 S.Ct. at 2538, 2541. The Court ruled that neither the double-jeopardy protection against cumulative punishments in a single prosecution, id. at 499-500, 104 S.Ct. at 2540-2541, nor the double-jeopardy protection against multiple prosecutions for the same offense, id. at 500-02, 104 S.Ct. at 2541-43, prevents the State from continuing prosecution on a greater offense when a defendant has pled guilty, in the same proceeding, to a lesser included offense.
Turning to the instant appeal, our review of the record indicates that the district court’s dismissal of the aggravated assault charge against Defendant was based on the double-jeopardy protection against cumulative punishments in a single prosecution. Additionally, Defendant continues to make a “single prosecution” argument on appeal, citing Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991). Even assuming, without deciding, that punishment of Defendant for both the aggravated assault charge and the resisting, evading, or obstructing charge would. violate this protection, Johnson clearly dictates that the State should be allowed the chance to obtain a determination of guilt or innocence on the aggravated assault charge. Because its reasoning is so clearly on point, we quote at length from the Supreme Court’s opinion:
[BJefore [the defendant] can ever be punished for the [greater offenses] he [or she] will first have to be found guilty of those offenses. The trial court’s dismissal of these more serious charges did more than simply prevent the imposition of cumulative punishments; it halted completely the proceedings that ultimately would have led to a verdict of guilt or innocence on these more serious charges. Presumably the trial court, in the event of a guilty verdict on the more serious offenses, will have to confront the question of cumulative punishments ... but because of that court’s ruling preventing even the trial of the more serious offenses, that stage of the prosecution was never reached. While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting [the defendant] for such multiple offenses in a single prosecution.
467 U.S. at 499-500, 104 S.Ct. at 2541. This language makes it clear that the single-prosecution double-jeopardy protection will not be implicated in this case unless convictions are obtained on both the resisting, evading, or obstructing charge and the aggravated assault charge.
We are not persuaded by Defendant’s attempts to distinguish Johnson. First, Defendant points out that the State objected to the entry of guilty pleas in Johnson, while the State here did not object to Defendant’s no contest plea. We fail to see how this fact affects the applicability of Johnson’s rationale to the instant appeal. Defendant seems to suggest that, by failing to object, the State somehow forfeited its right to a “full and fair opportunity to present its case.” We do not believe that the State’s willingness to accept a plea to a lesser charge has any bearing on the State’s entitlement to seek a determination of guilt or innocence on the more serious charge.
Defendant also suggests that her case raises a concern about “prosecutorial overreaching,” a concern that the Johnson Court specifically found was not present in that case. However, Johnson discussed prosecutorial overreaching in the context of distinguishing Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), a case involving successive prosecutions. Johnson ’s reasons for distinguishing Brown, and for finding inapplicable the concern about overreaching, were rooted in the fact that Brown involved successive prosecutions while Johnson involved a single prosecution. Johnson, 467 U.S. at 501-02, 104 S.Ct. at 2541-43. The instant appeal also involves a single prosecution, and the Johnson reasoning applies equally well here. We believe, as did the Johnson Court, that “[t]here simply has been none of the governmental overreaching that double jeopardy is supposed to prevent.” Id. at 502, 104 S.Ct. at 2542.
Finally, Defendant claims that Johnson is distinguishable because, unlike the State in Johnson, the State here “received a full and fair opportunity to present its entire ease.” We concede that the State here had an opportunity to present its case, but reject Defendant’s argument because the Johnson Court was concerned with the State’s right to “one full and fair opportunity to convict those who have violated its laws.” Id. at 502, 104 S.Ct. at 2542 (emphasis added). Here, the State clearly was deprived of this opportunity.
Under Johnson, the district court erred in dismissing the charge of aggravated assault on a peace officer with a deadly weapon.
B. Reaching Ohio v. Johnson
Defendant, however, contends that the State cannot rely on the doctrine set forth in Johnson because the State did not raise the issue below. See SCRA 1986, 12-216(A) (Repl.1992). We agree with Defendant that the State failed to bring the Johnson issue to the attention of the trial court and, thus, failed to preserve the issue. However, we disagree with Defendant’s claim that the State’s failure to raise the Johnson issue below precludes us from addressing the issue. Although we are not certain that the present circumstance comes squarely within the scope of SCRA 12-216(A), that provision states guiding principles that should inform us whenever we are asked to consider issues not raised in the trial court. With these principles in mind, we hold that, under the facts of this case and under Johnson, the district court’s dismissal of the State’s case constituted fundamental error. See SCRA 12-216(B)(2).
1. New Mexico Law on Fundamental Error: Application of the “Miscarriage of Justice” Standard to the State
Neither Defendant nor the State has drawn our attention to, nor are we aware of, any New Mexico cases in which an appellate court of this state applied the doctrine of fundamental error to an issue raised for the first time on appeal by the State. Thus, we address an issue of first impression in New Mexico. Because of its significance, we scheduled oral argument and directed counsel to focus on this issue. We also invited amici curiae briefs from the New Mexico Criminal Defense Lawyers Association and the Administrative Office of the District Attorneys. Their briefs addressing this issue were most helpful to the Court.
We conclude that the doctrine of fundamental error generally is applicable to issues raised by the State. However, we list below certain limiting factors that we believe are important in determining, in any particular case, whether the State may successfully raise an issue for the first time on appeal.
New Mexico courts generally define fundamental error as follows: “‘The doctrine of fundamental error * * * will be invoked by an appellate court only when the question of guilt is so doubtful that it would shock the conscience to permit the conviction to stand, or when the court considers it necessary to avoid a miscarriage of justice.’” State v. Rodriguez, 113 N.M. 767, 774, 833 P.2d 244, 251 (Ct.App.) (quoting State v. Ortega, 112 N.M. 554, 566, 817 P.2d 1196, 1208 (1991)), cert. denied, 113 N.M. 636, 830 P.2d 553 (1992). The first-listed standard for invoking fundamental error, that allowing a conviction to stand would “shock the conscience,” obviously does not apply where the State challenges a dismissal of criminal charges. However, we believe that the second-listed standard, that addressing error is necessary to avoid “a miscarriage of justice,” can be applied to the State. We disagree with Defendant’s argument that New Mexico case law “suggests] that [the doctrine of fundamental error] does not apply to the prosecution.” We do not believe that miscarriages of justice, by definition, affect defendants only and do not believe that we should lithify an injustice simply because it adversely affects the State, rather than a defendant.
Application to the State of the “miscarriage of justice” standard for invoking fundamental error would not be inconsistent with other definitions of fundamental error expressed by New Mexico courts. See, e.g., State v. Lucero, 70 N.M. 268, 272, 372 P.2d 837, 840 (1962) (fundamental error present when error “go[es] to the foundation of the case” and when “substantial justice” has not been done); State v. Garcia, 19 N.M. 414, 421-22,143 P. 1012,1015 (1914) (“If substantial justice has been done, parties must have duly taken and preserved exceptions in the lower court ... before we will notice them here.”); State v. Bencomo, 109 N.M. 724, 725, 790 P.2d 521, 522 (Ct.App.1990) (in context of guilty plea, fundamental error occurs where error is clear and it clearly affected the outcome of the case). These judicial definitions are neutral, and are not aimed at defendants only.
Moreover, we are not persuaded that the State and defendants should be given different procedural treatment when appealing from the final disposition of a case (as opposed to interlocutory appeals). See N.M. Const. art. VI, § 2 (aggrieved party has absolute right of appeal); SCRA 1986, 12-202 (Repl.1992) (requirements for taking appeal phrased in neutral terms; additional requirements for State appeals apply only to interlocutory appeals from suppression orders or orders to return seized property); SCRA 12-216; State v. Alvarez, 113 N.M. 82, 84, 823 P.2d 324, 326 (Ct.App.) (State is an aggrieved party and has a constitutional right of appeal from dismissal with prejudice), cert. denied, 113 N.M. 23, 821 P.2d 1060 (1991). But see State v. Baca, 92 N.M. 743, 745, 594 P.2d 1199, 1201 (Ct.App.1979) (indicating, in dicta and by implication, that the dismissal of appeals by the State should be treated differently from dismissals of appeals by defendants). We do not believe that Baca supports such differential treatment, for two reasons. First, the Baca Court’s statement that “[w]e doubt that a rule of liberal construction [of appellate rules, to the end that appeals are decided on their merits,] should be applied in favor of the State,” was pure dicta. Baca, 92 N.M. at 745, 594 P.2d at 1201. The Court expressly declined to “base [its] decision on the applicability or nonapplicability of a rule of liberal construction.” Id.
Second, we question the statement in Baca that “when a defendant’s appeal is dismissed, the dismissal only affects the defendant. Dismissal of the State’s appeal in this case would affect the defendant as well as the State because the State’s appeal seeks reinstatement of the criminal charge.” Id. The ultimate disposition of any criminal appeal, whether it be dismissal, some other procedural disposition, or a decision on the merits, affects both the appellant and the appellee, regardless of who is appealing. While Baca identified a potential effect of a State’s appeal, reinstatement of criminal charges, it failed to identify potential effects of a defendant’s appeal, such as retrial or outright dismissal of charges. Inherent in the idea that retrial or dismissal do not affect the State is a failure to recognize the State’s interest in having the opportunity to prove a defendant’s guilt. Moreover, we do not read State v. Linam, 90 N.M. 302, 303, 563 P.2d 96, 97 (1977), the case relied on by Baca for the proposition that a defendant’s appeal only affects the defendant, as addressing the effect of a defendant’s appeal on the State. Rather, we interpret Linam as simply making the point that dismissal of the defendant’s appeal in that case would have affected the defendant but not the defendant’s counsel, who, as determined by the Linam Court, was the person actually responsible for the appellate rules violations.
Thus, we believe that, whenever possible, the State and defendants should be given identical procedural treatment on appeal, including evenhanded application of the rules governing the scope of appellate review.
2. Factors Limiting the Application of Fundamental Error to the State: United, States v. Krynicki
Since we determine that the doctrine of fundamental error is applicable to the State, we now must determine whether there was fundamental error in the instant case. Before doing so, however, we believe it useful to put in context this exception to the ordinarily applicable preservation requirements. A leading case in the area, Hormel v. Helvering, 312 U.S. 552, 556, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941), clearly expresses the general rule governing scope of appellate review:
Ordinarily an appellate court does not give consideration to issues not raised below. For our procedural scheme contemplates that parties shall come to issue in the trial forum vested with authority to determine questions of fact. This is essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial tribunal is alone competent to decide; it is equally essential in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence.
However, Hormel also recognizes that:
There may always be exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below.
Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy. Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.
Id. at 557, 61 S.Ct. at 721 (citation omitted). Against this backdrop, we now turn to the question of whether fundamental error exists in the present case.
In developing the criteria necessary to answer this question, we find guidance in United States v. Krynicki, 689 F.2d 289 (1st Cir.1982). See also State v. Card, 48 Wash.App. 781, 741 P.2d 65, 67 (1987) (court addresses State’s argument, raised for the first time on appeal, based on notion of “fundamental justice”). But see Robert J. Martineau, Considering New Issues on Appeal: The General Rule and the Gorilla Rule, 40 Vand.L.Rev. 1023, 1035-45 (1987) (criticizing the rationale of Krynicki).
In Krynicki, the government appealed from a dismissal with prejudice that was based on the trial court’s determination that the government had violated the federal Speedy Trial Act (the Act). Krynicki, 689 F.2d at 290-91. On appeal, the government argued that the provision of the Act relied on by the trial court was inapplicable under another provision of the Act, a new argument not raised or preserved below. The circuit court agreed, stating that the provision newly cited by the government “squarely governs this case.” Id. at 292. In explaining why it reached the merits of the government’s argument, the court outlined four factors: (1) the new issue was purely legal and its resolution would not have been aided by further fact development; (2) the proper resolution of the issue was not in doubt; (3) the issue was almost certain to arise in other cases; and, “most important,” (4) declining to reach the issue would have resulted in a “miscarriage of justice” by denying the public’s “legitimate and significant interest in prosecuting suspected criminals.” Id. at 291-92.
We find Krynicki persuasive and apply its reasoning to the instant appeal. We acknowledge that the Krynicki court did not explicitly apply the doctrine of fundamental error, relying instead on the limited discretion of federal courts of appeals to examine issues raised for the first time on appeal where proper resolution is beyond any doubt or where injustice might otherwise result. Compare Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976) with SCRA 12-216. However, we view the Krynicki analysis as being completely consistent with fundamental error analysis. What is explicit in the Krynicki analysis is implicit in the fundamental error analysis: an appellate court may reach an issue not raised below when the court identifies clear error that can be corrected easily and accurately on appeal without prejudice to an opposing party arising from the failure to raise the issue below, when justice demands that the error be corrected.
As in Krynicki, the question here is purely legal and would not benefit from further fact development. The record pertinent to the Johnson issue is complete. The pertinent facts are that Defendant was charged in the same information with both aggravated assault on a peace officer and resisting, evading, or obstructing an officer; that Defendant pled no contest to the charge of resisting, evading, or obstructing an officer; that Defendant’s prosecution was terminated before a determination of guilt or innocence could be made on the charge of aggravated assault on a peace officer; and that the ground for terminating Defendant’s trial was double jeopardy, based on the claimed merger of the two charges. These facts are conclusively established by the record.
Also, the resolution of the Johnson issue is beyond dispute. As we discussed above, Johnson clearly dictates that the district court erred when it dismissed the State’s case on double jeopardy grounds.
The third Krynicki factor also is present here. The issue of whether a plea of no contest or guilty to a claimed lesser included offense bars further prosecution, in the same proceeding, on the claimed greater offense is almost certain to arise again. “Thus, declining to reach this straight-forward legal issue will neither promote judicial economy, nor aid the administration of the criminal justice system.” Krynicki, 689 F.2d at 292. It could be argued that the obvious applicability of Johnson to this issue will prevent the issue from arising again. However, we point out that Johnson, decided in 1984, was just as obviously applicable at the time of the proceedings against Defendant, and yet her case still was dismissed erroneously.
Finally, failing to reach the Johnson issue would result in a miscarriage of justice. The public has a strong interest in seeing suspected criminals prosecuted. Moreover, the record in this case seems to indicate an effort by defense counsel to surprise the State and the district court. While we have no reason to view defense counsel’s actions as anything other than valid trial tactics, but see State v. Garner, 90 Md.App. 392, 601 A.2d 142, 143 (1992) (where the defendant sought to avoid more serious charge by pleading guilty to lesser charges, court stated that double jeopardy “was never intended to be a sword with which a defendant could opportunistically manipulate or disrupt proper charges properly filed against him”), we also recognize that the defense counsel’s timing may have been one cause of the prosecutor’s failure to raise Johnson and the trial judge’s decision to make a dispositive ruling mid-trial. Also, appellate defense counsel, at oral argument, seemed to agree that Defendant’s trial counsel had a duty to call the judge’s attention to authority which could be considered controlling. This was not done. In view of these factors, and the concomitantly strong public interest in prosecuting Defendant, it would be a miscarriage of justice to deprive the State of the chance to submit its case to a fact-finder for a determination of guilt or innocence.
3. Conclusion
While we offer several factors we find to be significant in determining whether fundamental error should be applied to the State in a particular case, we announce no general rule. Rather, we simply attempt to heed the admonishment of a fellow jurist: “No appellate court should ever break through the formal design [for limiting the scope of appellate review] without taking conscious account of the conflicting values necessarily implicated in the decision to do so.” J. Dickson Phillips, Jr., Circuit Judge, United States Court of Appeals, Fourth Circuit, The Appellate Review Function: Scope of Review, 47 Law & Contemp. Probs., Spring 1984, at 1, 4 (emphasis deleted). After taking such an account, we conclude that the district court’s dismissal of the State’s case against Defendant was contrary to the public’s strong interest in seeing suspected criminals prosecuted and resulted in a miscarriage of justice. By so concluding, we are required to address Defendant’s argument that double jeopardy bars remand for a new trial.
C. Reprosecution on Remand
Defendant argues on appeal that, even if the district court’s dismissal were error, the State’s appeal should be dismissed because double jeopardy would bar reprosecution of Defendant on the charge of aggravated assault on a peace officer with a deadly weapon. We disagree.
Defendant argues that County of Los Alamos v. Tapia, 109 N.M. 736, 790 P.2d 1017 (1990), should not control here, and she distinguishes Tapia from the instant appeal on several grounds. However, we perceive only two possibly significant differences. First, in Tapia, the defendant waited until jeopardy had attached before making his motion, while here Defendant made her motion before jeopardy attached on the aggravated assault charge, but asked the district court not to rule until the end of the State’s case (by which time, of course, jeopardy had attached). Second, here the State arguably shares some of the responsibility for the district court’s failure to rule on Defendant’s motion until after jeopardy attached. As stated above, the State did not object to the district court’s withholding its ruling until the close of the State’s case.
Despite these differences, we are not persuaded that Tapia does not allow for reprosecution on remand. The essential facts remain that the charge against Defendant was dismissed at her behest, not the State’s, and that the district court’s dismissal on double-jeopardy grounds did not amount to an adjudication of Defendant’s factual guilt or innocence. See id. at 739-44, 790 P.2d at 1020-25. We note that, despite the timing of Defendant’s initial motion to dismiss, she sought in that motion to have her trial terminated before the case reached the jury — at the close of the State’s case. Defendant’s failure to “pursue [her] valued right to have [her] trial completed by the first tribunal” fatally weakens her claim to protection of her double jeopardy interest. Id. at 744, 790 P.2d at 1025.
III. CONCLUSION
In summary, even assuming without deciding that Section 30-22-1 (resisting, evading, or obstructing an officer) is a lesser included offense of Section 30-22-22(A)(l) (aggravated assault on a peace officer with a deadly weapon), the district court erred when it dismissed the aggravated assault charge at the close of the State’s case. We hold that, under Johnson, single-prosecution double jeopardy had not been implicated at the time of the dismissal because Defendant had not been convicted of aggravated assault. The State should have had the opportunity to obtain a determination of Defendant’s guilt or innocence. Also, we hold that double jeopardy does not bar Defendant’s retrial on the charge of aggravated assault on a peace officer with a deadly weapon. See Tapia, 109 N.M. at 739-44, 790 P.2d at 1020-25.
We reverse and remand for retrial of Count I, aggravated assault on a peace officer with a deadly weapon. Nothing in this opinion should be interpreted as precluding the possibility that, if Defendant is convicted on remand, the district court may be required to revisit the multiple-punishment double-jeopardy issue. See Johnson, 467 U.S. at 499-500, 104 S.Ct. at 2540-2541. We wish to thank amici for their valuable assistance in briefing the preservation issue and participating at oral argument.
IT IS SO ORDERED.
HARTZ, J., concurs. PICKARD, J., dissenting.