dissenting. The policy underlying the Double Jeopardy Clause is that the state “* * * should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity * * *.” Green v. United States (1957), 355 U.S. 184, -187. The Supreme Court has also stated that “* * * [t]he danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.” Arizona v. Washington (1978), 434 U.S. 497, 504-505. These policy considerations are ill-served by the result reached today.
The rules regarding the protections of the Double Jeopardy Clause are somewhat cryptic, but this much is certain: If a prosecutor’s motion for a mistrial is granted over the defendant’s objection, the prosecutor carries the burden of demonstrating the “manifest necessity” of the mistrial in *378order to avoid the double jeopardy bar. See Arizona v. Washington, supra, at 505. If a defendant’s motion for mistrial is granted, there is no bar to reprosecution. See United States v. Jorn (1971), 400 U.S. 470, 485; United States v. Scott (1978), 437 U.S. 82, 93. Likewise, if a trial judge aborts a proceeding during the course of the trial without the defendant’s consent, the defendant has been denied his “ ‘valued right to have his trial completed by a particular tribunal,’ ” and retrial is barred absent a showing of “manifest necessity.” See Jorn, supra, at 484-485.
The facts of the instant case place it squarely within the third standard enunciated above. In fact, the trial court on remand specifically determined that the dismissal was done on the trial judge’s own motion over the defendant’s objection. In making our determination of whether there was “manifest necessity” for the abortion of the proceeding, we are guided by the balancing test of United States v. Scott, supra, wherein the Supreme Court stated that we must balance “ ‘the valued right of a defendant to have his trial completed by the particular tribunal summoned to sit in judgment on him,’ * * * against the public interest in insuring that justice is meted out .to offenders.” United States v. Scott, at 92.
A careful application of these standards yields only one result: There was no “manifest necessity” for the termination of the proceedings because the trial judge had at his disposal less extreme alternatives that would have effectively dealt with the problem. The trial judge could have applied the prosecutor’s interpretation of the statute and allowed the trial to proceed to its conclusion and thereby protected the defendant’s “valued right” in having his case determined by a particular tribunal. If the jury had convicted defendant, the issue of the constitutionality of the statute would have been reserved for appellate review and the defendant’s rights would have been protected. However, the judge considered no option other than dismissal. The Supreme Court stated in United States v. Perez (1824), 22 U.S. (9 Wheat.) 579, 580, that the power of discharging a jury before verdict “* * * ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes, * * *.” The actions at bar obviously do not meet that standard. The Supreme Court has also stated that “* * * [tjhe important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed * * United States v. Dinitz (1976), 424 U.S. 600, 609. Defendant herein had no control over his destiny. Instead, this case presents a situation where a proceeding was taken from the jury against defendant’s will when there was a more appropriate course of action available.
The majority concedes that jeopardy attached in the first proceeding and that the trial court ended the proceeding sua sponte over defendant’s objection. Since there was no manifest necessity for the trial judge’s actions, I cannot concur in the majority’s result. The prosecution of an al*379leged wrongdoer should be allowed whenever possible, but not in a case where constitutional provisions prohibit same.
Accordingly, I respectfully dissent.
C. Brown, J., concurs in the foregoing dissenting opinion.