(dissenting in part, concurring in part) — The trial court’s order dismissing the three trafficking counts indicated the dismissal served "the ends of justice . . . .” As best as I can discern from the court’s oral opinion, the charges were dismissed pursuant to CrR 8.3(b) because:
1. Trafficking charges are not filed on a regular basis every time a theft charge is filed. The trafficking here was to facilitate the pawning of the items.
The gun, fish-finder and scanner were left in a 2. *780vacated residence. "[I]t isn’t as if [Joseph R.] Michielli went out, went to somebody’s home and stole this property.”
3. Mr. Michielli "got himself painted into this corner with regard to not wishing to plead guilty to the original charge of second-degree theft which simply involved the weapon. Now [he’s] got all these other charges facing him.”
4. All the property was returned to the owner.
5. The pawn company has been paid off.
6. "Mr. Michielli should be given the opportunity to rethink his original misguided position on what his criminal culpability is for finding some rather expensive items in somebody’s house and proceeding to pawn them . . . .”
I dissent because I do not believe these reasons support dismissal in the furtherance of justice, as required by CrR 8.30b), under our current case law.
A trial court’s discretionary authority to dismiss a criminal prosecution is not unlimited. State v. Whitney, 96 Wn.2d 578, 637 P.2d 956 (1981); State v. Boldt, 40 Wn. App. 798, 700 P.2d 1186 (1985). Dismissal in the furtherance of justice is an extraordinary remedy. State v. Cantrell, 111 Wn.2d 385, 388, 758 P.2d 1 (1988); State v. Laureano, 101 Wn.2d 745, 762, 682 P.2d 889 (1984), overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P.2d 588 (1988); State v. Knapstad, 41 Wn. App. 781, 788, 706 P.2d 238 (1985), aff’d, 107 Wn.2d 346, 729 P.2d 48 (1986).
To justify the dismissal of a prosecution, the record must show governmental misconduct or arbitrary action. Laureano, 101 Wn.2d at 762; State v. Coleman, 54 Wn. App. 742, 748, 775 P.2d 986, review denied, 113 Wn.2d 1017 (1989). The court may not substitute its judgment for that of the prosecutor. Cantrell, 111 Wn.2d at 390 (CrR 8.3(b) is designed to protect against arbitrary action or misconduct but does not grant the court the authority to substitute its judgment for that of the prosecutor).
*781Mr. Michielli does not argue, nor does the record support a finding that the prosecutor’s action in filing the three trafficking counts constituted misconduct. A defendant may be convicted of both theft and of trafficking the same stolen property. State v. Strohm, 75 Wn. App. 301, 310-11, 879 P.2d 962 (1994), review denied, 126 Wn.2d 1002 (1995). He does not argue that he was denied a fair trial. Whitney, 96 Wn.2d at 580. Because the record is devoid of any evidence of arbitrary action or governmental misconduct, I would reverse the decision of the trial court dismissing the trafficking offenses.
I agree with the majority that the court erred in dismissing the second degree theft count.
Review granted at 130 Wn.2d 1007 (1996).