¶47 (concurring in the result) — I write separately because I believe the majority’s decision *369rests on a hypertechnical reading of State v. Knapstad, 107 Wn.2d 346, 729 P.2d 48 (1986), and State v. Freigang, 115 Wn. App. 496, 502, 61 P.3d 343 (2002), and improperly holds that the only evidence a trial court may consider in deciding the propriety of a Knapstad motion is the deputy prosecutor’s sworn affidavit. I do not believe this to be the law.
Quinn-Brintnall, J.*369¶48 In announcing the proper Knapstad procedure, our Supreme Court stated:
A Washington defendant should initiate the motion by sworn affidavit, alleging there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt. The affidavit must necessarily contain with specificity all facts and law relied upon in justification of the dismissal. Unless specifically denied, the factual matters alleged in the motion are deemed admitted. The State can defeat the motion by filing an affidavit which specifically denies the material facts alleged in the defendant’s affidavit. If material factual allegations in the motion are denied or disputed by the State, denial of the motion to dismiss is mandatory. If the State does not deny the undisputed facts or allege other material facts, the court is required to ascertain in the omnibus hearing whether the facts which the State relies upon, as a matter of law, establish a prima facie case of guilt. If the motion is granted the court must enter a written order setting forth the affidavits and other materials it has considered and its conclusion regarding the insufficiency of the evidence.
107 Wn.2d at 356-57 (emphasis added).
¶49 Nothing in this procedure limits the trial court’s consideration of available evidence to the deputy prosecutor’s affidavit under all circumstances, and to the extent that the majority opinion does so, it errs. Although the procedure states that the State “can” deny the factual allegations by affidavit, the Knapstad court did not state the only way the State could deny the factual allegations is by affidavit and it specifically contemplates the trial court, when determining whether the State’s case is sufficient, will examine all of the evidence presented in the case up to *370and during hearing on the defendant’s motion. While there may be circumstances when a deputy prosecutor’s affidavit is the only factual basis available to the trial court when a defendant moves to dismiss, that is not the case here. Marcus A. Carter’s motion to dismiss was preceded by other court proceedings at which the parties presented evidence.
¶50 As Judge Morgan pointed out in his concurring opinion in Freigang,
“In a criminal case, a defendant may challenge the sufficiency of the evidence (a) before trial, (b) at the end of the State’s case in chief, (c) at the end of all the evidence, (d) after verdict, and (e) on appeal. In each instance, the court takes the evidence and the reasonable inferences therefrom in the light most favorable to the State.
“Before trial, a court examines sufficiency based on facts supplied by affidavit. At the end of the State’s case in chief, a court examines sufficiency based on the evidence admitted at trial so far. At the end of all the evidence, after verdict, or on appeal, a court examines sufficiency based on all the evidence admitted at trial. Each succeeding basis is more complete, and hence better, than the one before.
“Regardless of when a court is asked to examine the sufficiency of the evidence, it will do so using the best factual basis then available. For this reason, a defendant who presents a defense case in chief “waives” (i.e., may not appeal) the denial of a motion to dismiss made at the end of the State’s case in chief, and a defendant who goes to trial may not appeal the denial of a Knapstad motion. This does not mean that a defendant is barred from claiming insufficiency at a late stage of the proceedings merely because he or she failed to do so earlier; it does mean, however, that the claim will be analyzed using the most complete factual basis available at the time the claim is made.”
115 Wn. App. at 507-08 (Morgan, J., concurring) (emphasis added) (quoting State v. Jackson, 82 Wn. App. 594, 607-09, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006 (1997)).
¶51 Here, Carter filed his motion to dismiss after the Supreme Court reversed the trial court’s order suppressing *371evidence. The trial court had entered the suppression order after hearing evidence at a pretrial CrR 3.5 hearing. The most complete account of the State’s evidence against Carter, therefore, included the transcript of the testimony from that hearing. In an e-mail message referencing his testimony during the pretrial hearing, the witness, Bruce Jackson, disputed Carter’s claim that he did not have ammunition for the weapon. But the trial court expressly declined to consider the testimony at the CrR 3.5 hearing or Jackson’s e-mail referencing his earlier testimony. The trial court suggested that it was limited to considering the statements that the deputy prosecuting attorney had filed in response to Carter’s motion to dismiss. But no case requires such a hypertechnical procedure. To the contrary, a court addressing a challenge to the sufficiency of the evidence such as is required by a Knapstad motion is required to analyze the motion using the most complete factual basis available at the time the claim is made. Jackson, 82 Wn. App. at 607-09.
¶52 During oral argument before this court, Carter stated that the trial court’s file contained a transcript of the pretrial hearing. At that CrR 3.5 hearing, Jackson testified that he had seen Carter using an ammunition magazine while demonstrating the illegal weapon during a class he had attended. The trial court should have considered this testimony when determining the merits of Carter’s motion to dismiss.
¶53 I believe the majority’s approach in this case is contrary to the premise upon which Knapstad motions were established. In Knapstad, the court determined that the trial court has the “inherent power” to dismiss a prosecution if the State fails to show it has evidence establishing a prima facie case, and that dismissal of a case where the State fails to show it had a prima facie case is in the interests of justice. 107 Wn.2d at 351-52. Considering the Knapstad court’s focus on the “interests of justice,” it is difficult to imagine that the State’s highest court intended to create a strict procedure that would prevent the State *372from going forward with a case for which it has prima facie evidence merely because the prosecutor’s affidavit did not contain all of the necessary information when all of the evidence available to the trial court ultimately established a prima facie case. See CrR 8.3(b).4 To require strict compliance with an affidavit process and not allow the trial court to examine the evidence as a whole would be to elevate form over substance.5
¶54 Accordingly, I respectfully dissent from that portion of the majority opinion purporting to limit the form of the State’s response to a defendant’s Knapstad motion to an affidavit from a deputy prosecuting attorney. As I read the controlling case law, such an affidavit is competent evidence, even though the affiant is not a competent witness, but the trial court is not required to ignore hearsay evidence from competent witnesses who previously testified under oath to matters about which they have personal knowledge. Thus, in this case, it was error for the court to ignore Jackson’s prior testimony and the e-mail communication with the deputy prosecutor reaffirming his availability to testify to the same information at trial without first determining whether this evidence would ultimately be admissible at trial.
¶55 For this reason, I would reverse the trial court’s order of dismissal and remand for trial on the merits.
*373¶56 In addition, I note that the dismissal order of the Kitsap County Superior Court in this case reads:
This matter having come on regularly before this court on the 22nd day of October, 2004, upon motion in the above entitled action, for an order of dismissal for and because the State has insufficient evidence to support a conviction and the court having heard argument and examined said motion and affidavits, and being fully advised in the premises, now therefore, it is hereby; Ordered that the instant matter is dismissed with prejudice, pursuant to State v. Knapstad.
Clerk’s Papers (CP) at 70 (emphasis added). The trial court’s authority to dismiss criminal charges under a Knapstad motion is limited, however, to dismissal without prejudice. Knapstad, 107 Wn. 2d at 357 (“A dismissal and discharge under this procedure is not a bar to a subsequent prosecution for the same offense based on additional evidence.”). By its terms, the trial court’s order here exceeded this authority.
¶57 Although the majority’s factual statement notes that the trial court dismissed the matter “ ‘with prejudice,’ ” majority at 355 (quoting CP at 70), it later purports to “construe the trial court’s dismissal to be without prejudice.” Majority at 368. Even if I agreed with the majority’s ultimate disposition of this case, I would clarify that the trial court’s order dismissing “with prejudice” was in error and that the State may refile the charges on a showing of probable cause should it see fit to do so.
CrR 8.3(b) states:
The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial. The court shall set forth its reasons in a written order.
Notably, the record also shows that the State filed its response to Carter’s Knapstad motion three days before Carter filed his written motion. Although I cannot tell from the record exactly why this occurred or the specific argument that prompted the State’s response, this procedure also does not strictly comply with the rules stated in Knapstad. Furthermore, because the State filed its briefing first and the record does not show why, it is impossible to tell whether the State was aware it had to contest a factual issue prior to filing its response and its supporting documentation.