(dissenting) — The majority argues that the defendant's right not to be placed in double jeopardy should not turn on "guesswork." That is a gross mischaracterization of the standard we defined in State v. Dowling, 98 Wn.2d 542, 656 P.2d 497 (1983), and it misrepresents that standard's application to this case. Dowling states a clear and reliable standard for determining when a defendant has been acquitted for double jeopardy purposes. In the absence of a compelling showing that Dowling is wrong, the majority's overruling Dowling cannot be justified.
Stare Decisis Requires Us To Adhere to Dowling
The rule of stare decisis requires us to stand by our decisions unless there are compelling reasons why we should not do so. For example, in State v. Stevick, 23 Wn.2d 420, 161 P.2d 181 (1945) and State v. McDaniels, 30 Wn.2d 76, 190 P.2d 705 (1948), we held that proof of ordinary negligence would suffice to support a conviction for negligent homicide. We were persuaded in State v. Partridge, 47 Wn.2d 640, 289 P.2d 702 (1955), however, that the Legislature clearly meant to require a showing of recklessness as an element of that crime. We stated:
We hesitate to overrule cases which have been in the books for some length of time, yet when we are confronted with a problem and are convinced that we have been wrong, it is our duty to do so.
47 Wn.2d at 645.
*310The cases overruled in Partridge were clearly wrong and were shown to be so in a carefully reasoned opinion. Here, in contrast, there has been no showing that our prior decision is clearly wrong. As demonstrated below, the majority supports its conclusion only by grossly overstating the difficulties associated with applying Dowling.
Nor has there been any showing that subsequent cases have exposed weaknesses or inconsistencies in Dowling. In this regard the case can be contrasted with United States v. Jenkins, 420 U.S. 358, 43 L. Ed. 2d 250, 95 S. Ct. 1006 (1975). In Jenkins, the Supreme Court held that the double jeopardy clause prevented the government from appealing a dismissal of criminal charges even if granted at the defendant's motion on grounds unrelated to guilt or innocence. Subsequent to Jenkins, however, the Court held in several cases that the clause did not bar retrial or appeal where dismissal had been obtained on a variety of grounds short of mistrial. See Lee v. United States, 432 U.S. 23, 53 L. Ed. 2d 80, 97 S. Ct. 2141 (1977); Serf ass v. United States, 420 U.S. 377, 43 L. Ed. 2d 265, 95 S. Ct. 1055 (1975). Therefore, within a few years the Supreme Court overruled Jenkins because these subsequent cases demonstrated that its rule was not sound. United States v. Scott, 437 U.S. 82, 95, 101, 57 L. Ed. 2d 65, 98 S. Ct. 2187 (1978).
There has been no such showing here. On the contrary, we have relied on Dowling at least once with no difficulties and without expressing reservations. State v. LeFever, 102 Wn.2d 777, 690 P.2d 574 (1984).
Dowling Indicates a Clear Defensible Result
The main reason the majority gives for overruling Dowling is that it requires "after-the-fact analysis of subtle distinctions preserved in the record of the proceedings." Majority, at 308. Just as a preliminary point, the same is true of almost every decision we make. If the need for meticulous evaluation of the record is a defect in standards *311of appellate review, then much of this court's work is suspect.
More to the point, it is clear the majority grossly overstates the difficulties involved in applying the Dowling standard. Dowling defines when a criminal defendant has been acquitted and may not be placed in jeopardy again:
A finding by the court as the trier of fact, without a jury,[1] when read conclusively into the record in such a manner as to indicate that it is neither tentative nor made with reservation or advisement nor subject to further consideration or proceedings in the same case, will support a judgment of acquittal or dismissal.
98 Wn.2d at 547 (quoting State v. Bastinelli, 81 Wn.2d 947, 950, 956, 506 P.2d 854 (1973) (Hale, C.J., concurring)). We derived this rule from the well established principle that, when an appellate court reverses a conviction based on insufficient evidence, a retrial is not permissible. 98 Wn.2d at 544. See Hudson v. Louisiana, 450 U.S. 40, 67 L. Ed. 2d 30, 101 S. Ct. 970 (1981); Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978). A trial court cannot grant, by way of a motion to reconsider, what the State cannot obtain from this court on appeal. 98 Wn.2d at 545.
Whatever speculative difficulties the majority may have in mind in its appraisal of Dowling, they are not present in this case. The application of the rule to this record is simple and straightforward. Contrary to the majority's representation, the trial judge did not merely state "a position" in "language that reflected a ruling." He ruled.
[The Court]: Counsel, I can't see anything else but she prevented her own restraint, physical restraint within the drunk tank, per se. In her activity of striking out at one time, outside the attorney's room, it would appear to be, again, hostile assault, but not in the sense of prevention of detention; it was just an assault per se. Looking at all of the evidence most favorable to the State, I don't think *312the requirements of State versus Green [94 Wn.2d 216, 616 P.2d 628 (1980)] are met, and I will dismiss regarding 3rd degree assault. Do you want some time to consult with each other regarding the other two matters?
Report of Proceedings, at 100. The judge summarized the relevant evidence, stated the applicable legal standard, applied that standard to the facts, stated a conclusion and moved on to the next issue. No subtle analysis or guesswork is needed to identify such a statement as a clear, unambiguous ruling.
Furthermore, not only did the trial court make an unequivocal ruling, the State recognized it as such. In making the motion to reconsider, counsel for the State began by saying:
[Counsel]: Your Honor, I realize you have ruled, but I would like to draw your attention to State v. Jury, [19 Wn. App. 256, 576 P.2d 1302, review denied, 90 Wn.2d 1006 (1978)] . . .
Report of Proceedings, at 101.
In short, the trial court's ruling that the State had not met its burden was "neither tentative nor made with reservation or advisement nor subject to further consideration . . .”98 Wn.2d at 547. Under Dowling, Collins was acquitted at the moment the decision was announced, and the State's motion for reconsideration simply could not be granted without running afoul of the prohibition on double jeopardy. There is no "guesswork" involved in reaching this conclusion. The majority overstates the difficulties associated with applying the Dowling rule because it is bent on overruling it.
The Trial Court's Decision Acquitted Collins Even If It Was Incorrect
The majority also argues that, while the trial judge stated his ruling "albeit in language that reflected a ruling" it was not a ruling because he heard further argument and changed his mind. Majority, at 308. This, like the argument refuted above, is meant to suggest that Dowling is indefinite and difficult to apply. In fact, it amounts to saying that *313the trial court had the power to grant a motion to reconsider because it granted a motion to reconsider — which plainly begs the question.
The question before us is whether the trial court could proceed at all beyond the point at which it determined that the State had not met its burden. If the defendant was acquitted at that point, the court could proceed no further without placing her in double jeopardy. To say that the trial court did so proceed is no argument for the proposition that it did so properly.
The majority's argument sounds plausible only because the trial court's initial decision to dismiss apparently was incorrect. It is well established, however, that double jeopardy is prohibited even where the defendant has been acquitted in error. For double jeopardy purposes, an acquittal is defined as: "a resolution, correct or not, of some or all of the factual elements of the offense charged." United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 51 L. Ed. 2d 642, 97 S. Ct. 1349 (1977).
For example, in Fong Foo v. United States, 369 U.S. 141, 7 L. Ed. 2d 629, 82 S. Ct. 671 (1962), the trial court interrupted the questioning of the government's fourth witness and directed a verdict of acquittal on the ground that the government's witnesses were not credible and because the United States Attorney allegedly had committed prosecutorial misconduct. The Court of Appeals reversed. The Supreme Court, however, reinstated the original judgment of acquittal:
The trial did not terminate prior to the entry of judgment, as in Gori v. United States, 367 U. S. 364 [6 L. Ed. 2d 901, 81 S. Ct. 1523 (1961)]. It terminated with the entry of a final judgment of acquittal as to each petitioner. The Court of Appeals thought, not without reason, that the acquittal was based upon an egregiously erroneous foundation. Nevertheless, "[t]he verdict of acquittal was final, and could not be reviewed . . . without putting [the petitioners] twice in jeopardy, and thereby violating the Constitution." United States v. *314Ball, 163 U. S. 662, 671 [41 L. Ed. 300, 16 S. Ct. 1192 (1896)].
369 U.S. at 143.
The same reasoning applies here. If the trial court committed an error in ruling that the State had not proven its case against Collins — an error far less obvious than that in Fong Foo — the State could not remedy that error by a motion to reconsider. The consideration of that motion itself, like an appeal, would constitute double jeopardy. The fact that the trial court recognized its own mistake has no bearing on the effect of its earlier ruling. Regardless of the brief period of time intervening between the trial court's ruling and the State's motion, Collins was acquitted at the time the court first ruled, and was beyond the power of the State. The acquitted defendant is an innocent woman and cannot be made guilty by the majority.
Conclusion
We are justified in overruling our prior cases only when we have clearly been wrong, as demonstrated by subsequent experience or intervening case law. The majority's exaggerated account of the difficulties in applying Dowling do not constitute such a showing. Since, under Dowling, Collins was acquitted at the time the trial court granted the State's motion to reconsider and continued with the trial, I would reverse the conviction and dismiss the information.
1As the majority acknowledges, the Dowling standard applies to this case, despite the fact that trial was by jury, because the trial court evaluated the evidence in the course of finding that the State had not met its burden of presenting evidence. Majority, at 306-07.