dissenting. I agree with the trial judge that the State’s procedural objections should be rejected as untimely because the State neither appealed the court’s June 2001 order nor filed a motion for its reconsideration.
The majority holds that under RSA 651:20, the trial court “had no discretion to grant the defendant leave to refile his petition less than three years after the previous petition.” If they are correct, then the judge erred when he exercised that discretion in June 2001. Yet the majority concludes the judge did not err until he failed to dismiss the petition the defendant filed pursuant to the court order. The logic of that conclusion escapes me. What puzzles me is the concept that a judge does not err by issuing an order contrary to an unchallenged statute but does err by refusing to dismiss a petition allowed by an existing court order.
RSA 651:20 focuses upon two separate mandates. The first, against filing petitions more often than every three years, is imposed upon the defendant. The second, against granting relief from the filing restrictions, *215is imposed upon the court. The State failed to object to the court’s order granting relief, and then attempted to raise that issue two years later by objecting to the petition filed by the defendant. In fact, the State’s objection was not received by the court until three months after the defendant filed his petition in conformance with the court order — an order to which no objection was made and from which no appeal was taken. It was not until the hearing on July 23,2003, that the State even argued that the court did not have authority under RSA 651:20 to hear the defendant’s petition.
The reason for requiring timely objection to court orders is to allow the trial judge the opportunity to correct a claimed mistake, or transfer the issue to the supreme court, or consider alternatives. See, e.g. Transmedia Restaurant Co. v. Deveraux, 149 N.H. 454, 459 (2003). The majority takes pains to point out that the judge had other options to accomplish the result he wanted without granting relief from the statutory time limit. Yet by failing to object timely, the State not only deprived the judge of the opportunity to consider other options, but also prevented the defendant from requesting other alternatives. “For counsel, conscious of error, to be permitted to sit by without making objection until there is less probability the wrong can be cured, would be to turn a rule of justice and fairness into a mere trap.” Id. To me, the State’s conduct seems not only unfair under the facts of this case but contrary to the rule requiring timely objection.
In addition, I do not concede that the majority is correct when it says, as dicta, that “the legislature may circumscribe the court’s power to suspend ____” Thirty years ago, Justice Grimes expressed the view that any statute infringing upon a court’s power to suspend a defendant’s sentence would be unconstitutional as a violation of the separation of powers because the ability to suspend a sentence is part of the judiciary’s inherent authority. State v. Dean, 115 N.H. 520, 525 (1975) (Grimes, J., dissenting in part and concurring in part.) He cautioned the court to be mindful that to preserve the separation of powers, the judicial branch of government “must resist all encroachments upon its power whenever the issue is presented to it.” Id.
Although the issue of whether RSA 651:20 violates the separation of powers is not presented to us or resolved today, in light of the majority’s analysis I feel constrained to evoke the sage advice of Justice Grimes, once again.
For these reasons, then, respectfully I dissent.