(concurring in part, dissenting in part)
I agree that because the issues presented in Olson’s petition for postconviction relief were never actually reviewed in his direct appeal, he is not precluded from raising them here.
I also agree that because the attorney against whom Olson raised the insufficiency of counsel claim was discharged prior to both the mistrial activity and the Lothen-bach trial, there is no issue for this court to address, except to the extent, if any, that Olson’s discharge of that attorney may be weighed in the analysis of the request for a continuance and, ultimately, in the consideration of the double jeopardy issue.
Further, I agree with the majority that on the record before us we cannot conclude that Olson impliedly consented to the mistrial by failing to object to the trial court’s decision to grant it. I must, as did the majority, conclude that the mistrial was declared over the opposition of Olson.
There is actually very little in the majority’s analysis in Section II with which I take issue. But, I must dissent from the majority’s ultimate conclusion that Olson’s constitutional right not to be placed twice in jeopardy was violated.
The majority discusses at some length the perils inherent in denying a request for a continuance when the seeker of the continuance is an accused without legal counsel. I agree with that discussion, and I suppose the trial court would, too. To the extent that the trial court acted in haste in denying the continuance, it repented fully during the “leisure” afforded after the jury was impaneled.
The trial court recognized the very substantial likelihood that it had erred seriously (and probably reversibly, too) in insisting that Olson go forth in circumstances providing fragile, if not non-existent, legal counsel. And the trial court concluded that a conviction obtained under such circumstances would very likely be reversed and remanded on appeal — a result that would involve court, prosecution, and defendant alike in a new trial. Steering between Scylla and Charybdis, the trial court declared a mistrial sua sponte.
I believe this case can be distinguished from Long v. Humphrey, 184 F.3d 758 (1999). In Long, the Eighth Circuit reversed the Minnesota Supreme Court and granted a writ of habeas corpus, determining that
[g]iven the range of available and viable alternatives to mistrial, the trial court simply was not faced with the sort of urgent circumstances or the high degree of necessity contemplated by the manifest necessity standard.
Id. at 761.
A review of the trial court’s discussion in this case (covering several pages of transcript) demonstrates its conclusion that the .only alternative available was a mistrial. *305That conclusion is a valid one. A review of the record also demonstrates the trial court’s careful and deliberative consideration of the importance to Olson of having the charge against him decided in one trial and the importance of providing a fair trial to both the state and Olson.
I find no abuse of discretion in this case and would affirm the decision of the post-conviction court denying Olson’s petition.