(concurring) — The trial court suppressed certain evidence on the ground that it had been obtained by an unconstitutional search and seizure.
The State petitioned the Court of Appeals for an extraordinary writ and a stay of proceedings. The Court of Appeals denied the writ. Thereupon, the State filed in the Court of Appeals a notice of appeal from the trial court’s order to suppress. The case was then transferred to the Supreme Court.
CAROA 20 provides:
No withdrawal of an appeal, and no dismissal which does not go to the substance of or the right to the appeal, shall preclude any party from taking another appeal in the same cause, within the time limited by these rules.
(Italics mine.) The identical rule is expressed in ROA 1-20.
After the extraordinary writ had been dismissed by the Court of Appeals, the State could not thereafter proceed by direct appeal to relitigate issues which were or could have been argued during the former appeal. See Rochester v. Seattle, Renton & S. Ry., 75 Wash. 559, 135 P. 209 (1913); Tucker v. Brown, 20 Wn.2d 740, 150 P.2d 604 (1944); Larson v. Seattle, 25 Wn.2d 291, 171 P.2d 212 (1946).
An exception to the above stated rule might exist if the extraordinary writ were dismissed upon the sole ground that appeal was the proper method of seeking review. The record herein, however, is wholly silent as to the reason *52for dismissal of the extraordinary writ. We - cannot. and should not speculate as to why the writ was dismissed.
Hamilton, J., concurs with Wright, J.