concurring in part, dissenting in part, and concurring in the judgment:
The majority reverses the judgment of the district court and remands the ease to that court with directions to reinstate the defendant’s judgment of conviction and sentence. Maj. op. at 209, 212. I agree with part III of the majority opinion, reasoning that the suppression of evidence issue is not properly before us. I agree as well with the majority’s conclusion in part II that the defendant’s right to a speedy trial was not violated. The majority grounds that conclusion on three separate and independent bases. I agree that the speedy trial period was tolled while the appeal was pending, see maj. op. at 211, and that the defendant waived his ability to claim that his right to a speedy trial had been violated, see id. at 211 n. 7. However, I disagree with the majority’s conclusion that because the dismissal of the charge against the defendant constituted a final judgment, the speedy trial period terminated with that dismissal. Id. at 211. I therefore concur in part, dissent in part, and concur in the judgment of this court.
I.
The majority adequately presents the facts of the case. In Part II of its opinion, the majority presents three rationales that support the conclusion that the defendant, Robert W. Allen (Allen), was not denied his right to a speedy trial. Id. at 210-211. However, the majority relies principally upon the rationale that the dismissal of all charges against Allen constituted a final judgment, with the result that those charges became a nullity. Id. at 210-211. Relying upon one of our previous opinions and two opinions of the court of appeals, the majority concludes that *213Allen’s speedy trial period terminated -with that final judgment and began anew when the case was remanded after appeal. Id. (citing People v. Small, 631 P.2d 148 (Colo.), cert. denied, 454 U.S. 1101, 102 S.Ct. 678, 70 L.Ed.2d 644 (1981); People v. Kraemer, 795 P.2d 1371 (Colo.App.1990); People v. Dunhill, 40 Colo.App.137, 570 P.2d 1097 (1977)). I disagree with this analysis.
In Small, the prosecution, after first obtaining an indictment charging the defendant with first-degree murder and aggravated robbery, successfully moved for a nolle pro-sequi order. Small, 631 P.2d at 152. As a result, all charges against the defendant were dismissed without prejudice. Id. Charges were reinstated by a second indictment, but that indictment was later quashed. Id. Thereafter, an information was filed, and the defendant was tried and convicted of felony murder. Id. at 153. On appeal to this court, the defendant argued that he was denied his constitutional right to a speedy trial. Id. However, he did not raise a speedy trial claim under section 18-1-405, 8 C.R.S. (1978), or Crim.P. 48. Id. In evaluating the reasons for the delay of the defendant’s trial, this court noted that when the original indictment was dismissed, it became a nullity, and that the delay was the product of a valid purpose. Id. at 154-55. We concluded that under these circumstances, the reinstitution of identical charges did not violate constitutional speedy trial principles. Id. at 155.
In Kraemer, the defendant initially pled not guilty to one count of securities fraud and two counts of racketeering. Kraemer, 795 P.2d at 1373. On the defendant’s motion, the two racketeering counts were dismissed without prejudice. Id. On the prosecution’s motion, the securities fraud count was dismissed without prejudice. Id. All three counts were then refiled under a new case number. Id. On appeal, the court of appeals stated: “[I]f charges in an original information are properly dismissed without prejudice within the speedy trial limits for that case, they become a nullity, and the speedy trial period will begin anew upon defendant’s arraignment under a subsequent information.” Id. at 1374.
In Dunhill, the original information charging the defendant with vehicular homicide was dismissed for improper venue. Dunhill, 40 Colo.App. at 139, 570 P.2d at 1099. A second information was also dismissed for failure to prove venue. Id. Finally, after the filing of a third information, the defendant was tried and convicted. Id. On appeal, the court of appeals adopted a rule which it expressed in the following terms: “ ‘[T]he original indictment or information became a nullity upon its dismissal and ... the new indictment or information represents institution of a new and independent proceeding with respect to which the statute may be applied regardless of the occurrence of the original indictment or information.’ ” Id. at 139-40, 570 P.2d at 1099 (quoting R.P. Davis, Annotation, Effect of dismissal of original indictment or information with subsequent reindictment or information, under statute implementing right of accused to speedy trial, 30 A.L.R.2d 462, 465 (1953)).
The majority asserts that the dismissal of the charge against Allen constituted a final judgment and that upon that dismissal, the charge became a nullity. Maj. op. at 211. I agree that for purposes of appeal, the dismissal of the charge by the municipal court in this case resulted in a final judgment.1 See Bye v. Dist. Court, 701 P.2d 56, 61 (Colo.1985) (in context of appeal to court of appeals, a final judgment is one that leaves nothing for the court pronouncing it to do in order completely to determine the rights of the parties involved in the proceeding). In contrast, “[a] nolle prosequi order is not the final disposition of a criminal case, but leaves the matter in the same condition as before the charges were filed.” Small, 631 P.2d at 154.
*214I do not agree that in the present case, the dismissal of the charge against Allen resulted in that charge becoming a nullity. In Small, Kraemer, and Dunhill, after the charges were dismissed, no appeals were taken from those dismissals. Small, 631 P.2d at 152-53; Kraemer, 795 P.2d at 1373; Dunhill, 40 Colo.App. at 139, 570 P.2d at 1099. Under those circumstances, the charges became a nullity for speedy trial purposes. However, in the present case, the trial court dismissed the charge on Allen’s motion2 and the prosecution appealed the dismissal to the district court. Although for purposes of that appeal, the dismissal of the charge constituted a final judgment, the final disposition of the charge remained in question pending resolution of that appeal. Therefore, the statutory speedy trial period did not terminate with the dismissal of the charge and Allen’s speedy trial claim thus cannot be rejected on that basis.
II.
Although I disagree with the majority’s conclusion that the speedy trial period ended with the dismissal of the charge against Allen, I do agree with the majority’s two alternative rationales for rejecting Allen’s speedy trial claim. In its opinion, the majority notes that because Allen, through his attorney, agreed to the trial setting and failed to raise his speedy trial objection until the day of trial, he waived his speedy trial claim under section 18-1-405(5.1), 8B C.R.S. (1986). Maj. op. at 211 n. 7. Allen’s waiver is alone sufficient to dispose of his speedy trial claim.
The majority opinion also includes a second rationale for rejecting Allen’s speedy trial claim. Citing People v. Jamerson, 198 Colo. 92, 596 P.2d 764 (1979), the majority notes that a pending appeal tolls the speedy trial period and that even if the case had not been dismissed, Allen’s speedy trial period would not continue to run during the appeal. Maj. op. at 211. Not only do I agree with this conclusion, but also I interpret the Municipal Court Rules (Rules), under which Allen was tried, to require this result. C.M.C.R. 248(b).
The Rules contain an exclusion to the speedy trial period that is virtually identical to an exclusion found in section 18 — 1— 405(6)(f), 8B C.R.S. (1986). The Rules state:
If there is unnecessary delay in the trial of a defendant, the court may dismiss the case. If the trial of a defendant is delayed more than ninety days after the arraignment of the defendant, or unless the delay is occasioned by the action or request of the defendant, the court may dismiss the case and the defendant shall not thereafter be tried for the same offense....
C.M.C.R. 248(b) (emphasis added). Section 18-l-405(6)(f) provides:
(6) In computing the time within which a defendant shall be brought to trial ... the following periods of time shall be excluded:
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(f) The period of any delay caused at the instance of the defendant;
§ 18-1-405(6)®, 8B C.R.S. (1986) (emphasis added); see also, Crim.P. 48(b)(6)(VI) (excluding from speedy trial period “[t]he period of delay caused at the instance of the defendant”).
Under both the Rules and the statute, therefore, a delay caused by the defendant shall not be considered in calculating the speedy trial period. In Jamerson, after failing once to prevail on a motion to dismiss for lack of a speedy trial, the defendant was found guilty of two counts of theft by receiving. Jamerson, 198 Colo, at 94, 596 P.2d at 766. After the statute under which he was convicted was declared unconstitutional, the defendant was granted a new trial. Id. On December 20, 1977, the date of his new trial, the defendant successfully moved to dismiss the case against him for lack of a speedy trial. Id. The prosecution appealed that dismissal, obtained reversal, and the case was remanded with instructions to hold a new trial. Id. Prior to his new trial, the defendant again successfully moved to dismiss the case for lack of a speedy trial. Id. at 95, 596 P.2d at 766. In reviewing this last *215dismissal under section 18 — 1—405, this court stated:
The resolution of this issue lies in the fact that the defendant, not the state, presented the motion to dismiss which led to the appeal. The defendant moved to dismiss the charges against him on December 20, claiming he had been denied a speedy trial. The court agreed. The prosecution must be allowed to respond to this action by testing the trial court’s ruling on appeal. The delay was not occasioned by the prosecutor’s action, but by the defendant’s own motion. We therefore hold that the period of time necessary to go through the appellate process, where the appeal stems from a dismissal upon the defendant’s motion, tolls the statutory speedy trial period. The provision governing this situation is section 18-1 — 105(6)(f):
“(6) In computing the time within which a defendant shall be brought to trial ...,' the following periods of time shall be excluded:
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“(f) The period of any delay caused at the instance of the defendant.” See also, Crim.P. 48(b)(6)(VI).
Id. at 95-96, 596 P.2d at 767 (second emphasis added).
Thus, in Jamerson, we interpreted the exclusion in section 18-1 — 405(6)(f), which tolls the speedy trial period when a delay is caused by the defendant, to apply to situations where the defendant successfully moves to dismiss charges after which the prosecution appeals. Because the Rules contain a nearly identical exclusion, I conclude that in the present case the speedy trial period was tolled under the Rules when the proceedings were delayed by the appeal occasioned by Allen’s motion to dismiss the ease.
III.
For the reasons discussed in Part I above, rejection of Allen’s speedy trial claim cannot be based upon the rationale that because the charge against him became a nullity when it was dismissed, the speedy trial period terminated with the dismissal. However, it is not necessary to employ this rationale because each of the two alternative rationales presented by the majority independently and sufficiently supports the conclusion that Allen’s right to a speedy trial was not violated. Therefore, I would restrict our ruling to these two alternative grounds.
Accordingly, I concur in part, dissent in part, and concur in the judgment of this court.
. The judgment was appealable to the Arapahoe County District Court. See § 13-10-116(2), 6A C.R.S. (1987) (appeals from judgments of a qualified municipal court of record shall be made to district court of county in which such municipal court is located, with practice and procedure to be the same as provided in § 13-6-310, 6A C.R.S. (1987)). Appeals under § 13-6-310, relating to appeals from county courts, are to be from "final judgments and decrees.” § 13 — 6— 310(1). On appeal, the district court may “affirm, reverse, remand, or modify the judgment.” § 13-6-310(2).
. After suppressing the testimony of the undercover police officer and the officer who was monitoring the solicitation of the undercover officer, the municipal court granted Allen’s motion to dismiss, stating that "the prosecution simply cannot provide a case and present one.”