specially concurring, with whom RAPER and ROSE, Justices, join.
I agree with everything that is encompassed in the opinion of the majority in this case. In my view this is an appropriate instance in which to speak also to the authority of the trial court to dismiss the complaint “with prejudice.” It is my position, sustained by the law, that the county court had no authority to dismiss the complaint “with prejudice,” without regard to whether it might have properly dismissed the complaint for some defect.
The only rule or statutory authority for dismissal of criminal cases by the county court in our state was found in Rule 45(b) of the Wyoming Rules of Criminal Procedure, the rule which governed this particular case, and now found in Rule 39 of the Wyoming Rules of Criminal Procedure for County Courts. That authority is intended to permit dismissals in order to protect the constitutional right of the defendant to a speedy trial. Presumably it would be futile for the State to refile a criminal charge once it had been dismissed for that reason. Similarly, when other paramount constitutional considerations such as the right not to be twice put in jeopardy or the right to due process of law lead to dismissal, the futility of refiling also would be apparent. In such instances a dismissal “with prejudice” would aid in securing the individual right, and on the assumption that the refiling would be unlawful, there would be no infringement of the executive prerogatives.
Beyond that, when no constitutional inhibition against further prosecution is involved, any attempted dismissal of a criminal charge with prejudice by a trial court contravenes the provisions of Art. 2, § 1 of the Constitution of the State of Wyoming. It there is provided as follows:
“The powers of the government of this state are divided into three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted.”
*377The prosecutive decision traditionally has been exercised by the executive department, Confiscation Cases, 74 U.S. (Wall.) 454, 19 L.Ed. 196 (1869), and an attempt by the judicial branch of government to exercise that authority by purporting to foreclose the refiling of a criminal charge in the absence of a constitutional or statutory proscription is constitutionally prohibited as a violation of the separation of powers doctrine.
Other jurisdictions have recognized that a trial court is without power to enter a nolle prosequi over the objections of the prosecuting attorney. While they have not necessarily articulated that rule in terms of a constitutional standard, still the essential thrust of their statements of the rule is consistent with this proposition.
As the Texas court said in State v. Anderson, 119 Tex. 110, 26 S.W.2d 174, 175, 69 A.L.R. 233 (1930):
“The courts of Texas must look to the Constitution of this state, the enactments of the Legislature, and the common law for their authority to summarily dismiss criminal cases over the protest of the district attorney in charge of such prosecution. And, if the authority does not exist at common law, and has not been conferred by the Constitution nor by the statutes of this state, then the attempted exercise of such power by the court in this instance is ineffectual and void. [Citations.]”
The Texas court cites a number of cases as authority for that proposition. In addition the same proposition appears in Hammers v. State, 261 Ark. 585, 550 S.W.2d 432 (1977); State v. Summa, 5 Conn.Cir. 78, 242 A.2d 94 (1968); and State v. Hodsdon, Del. Super., 289 A.2d 635 (1972). The logical extension of a rule that the trial court cannot dismiss a criminal charge over the protest of the prosecuting attorney has to be that it cannot inhibit the refiling of a criminal charge even though technically a dismissal is found to be proper. Such an assumed power, as noted earlier, would contravene the separation of powers doctrine provided in our constitution.