dissenting.
The majority holds that the trial court abused its discretion when it denied the state a continuance on the day of trial so that the state could attempt to appeal a pretrial order that (a) by statute was not appealable, and (b) under the Oregon Supreme Court’s decision in State v. Baker, 328 Or 355, 976 P2d 1132 (1999), was absolutely correct. The majority implicitly accepts that the state was wrong in every material respect in its legal position, and the trial court was correct in every material respect, but nonetheless somehow concludes that the state’s nonmeritorious refusal to go to trial on the scheduled trial date was excusable and that the trial court abused its discretion in dismissing the case when the state refused to proceed. I respectfully dissent.
In 1997, the legislature enacted Senate Bill 936, which provided, in part, that the state was entitled to demand a jury trial in criminal cases. ORS 136.001. In this case, defendant waived his right to jury trial, and the state attempted to assert its right to demand a jury trial under ORS 136.001. Defendant argued that ORS 136.001, as amended by Senate Bill 936, was unconstitutional under Article I, section 11, of the Oregon Constitution. The trial court agreed with defendant’s argument, and the trial court’s decision on this point ultimately proved to be correct. See Baker, 328 Or at 364 (“ORS 136.001(1) infringes on the right granted by Article I, section 11, of the Oregon Constitution.”). The state asked the court for a continuance “to appeal” the court’s ruling that ORS 136.001 was unconstitutional. The court denied that motion, and the state refused to proceed to trial. As a result of the state’s refusal to go forward, the trial court dismissed the case.
*56The state appealed to this court, arguing that the trial court erred in concluding that ORS 136.001 was unconstitutional and sought the following relief:
“[T]he trial court’s order of dismissal should be vacated and this case remanded for jury trial. In the alternative, the order of dismissal should be vacated and the case remanded to the trial court for entry of an order continuing the case for the purpose of allowing the state to seek review of the ruling denying a jury trial in mandamus.”1
After the Supreme Court decided the constitutional question in Baker adversely to the state, it filed a memorandum of additional authority in this case, in which it suggested for the first time that it was seeking a different remedy: “The trial court could have continued the case, thereby allowing the state to pursue its case against defendant in a bench trial[.]” Although the state did not explain why it needed a continuance for a bench trial when it apparently was ready to proceed with a jury trial, the majority concludes that the state was entitled to a continuance despite the fact that the state was wrong about the law in all respects. The majority is incorrect.
The majority attempts to avoid the inevitable legal conclusions that must flow from the series of events described above. The majority says that whether or not the state could, in fact, raise the issue of the constitutionality of ORS 136.001 on appeal is “moot” because Baker has established that the statute is unconstitutional. 162 Or App at 49. Although the constitutionality of ORS 136.001 is no longer in dispute, that does not mean that the appealability question necessarily is moot, as “appeal” was the only reason given by the state when it sought a continuance.
ORS 138.060 provides:
“The state may take an appeal from the circuit court to the Court of Appeals from:
*57“(1) An order made prior to trial dismissing or setting aside the accusatory instrument;
“(2) An order arresting the judgment;
“(3) An order made prior to trial suppressing evidence;
“(4) An order made prior to trial for the return or restoration of things seized;
“(5) A judgment of conviction based on the sentence as provided in ORS 138.222; or
“(6) An order in a probation revocation hearing finding that a defendant who was sentenced to probation under ORS 137.712 has not violated a condition of probation by committing a new crime.”
ORS 136.120 provides:
“If, when the case is called for trial, the defendant appears for trial and the district attorney is not ready and does not show any sufficient cause for postponing the trial, the court shall order the accusatory instrument to be dismissed, unless, being of the opinion that the public interests require the accusatory instrument to be retained for trial, the court directs it to be retained.”
The question of whether the trial court abused its discretion in dismissing the case pursuant to ORS 136.120 rests entirely on whether the state had “show[n] any sufficient cause for postponing the trial.” In seeking postponement, the prosecutor stated: “Based on your denial [of the request for a jury trial], Your Honor, because we wish to appeal this ruling of yours, we would ask — excuse me — we are not ready to proceed at this time.” Defense counsel then declared that he was prepared to proceed, that he had two doctors who had arranged their schedules in order to be there and that rescheduling would be difficult for them, and asked that the case be dismissed with prejudice. Defendant argues, and the state acknowledges, that the state could not actually have used the appeal process to obtain review of the trial court’s determination that ORS 136.001 was unconstitutional, as that decision, in and of itself, was not an appealable order under ORS 138.060.
*58In sum, the state’s position in the trial court was both procedurally incorrect (because appeal was not an available option) and substantively incorrect (because it was not entitled to insist on a jury trial). Despite the fact that the state’s “appeal” of the trial court’s decision was doomed from the outset, the majority finds an abuse of discretion when the trial court dismissed after the state refused to proceed to trial. Defendant and the trial court were ready to go to trial on schedule. The state did not want to go to trial and therefore sought a continuance. The only reason the state gave for requesting a continuance was to appeal from a nonappeala-ble order.
The majority holds that the trial court abused its discretion in denying a continuance because the court should have guessed that, once the prosecutor figured out that an appeal was not possible, he might have decided to seek a writ of mandamus against the trial judge. 162 Or App at 50-51. The majority’s mandamus discussion is strained, to say the least. It asserts, in essence, that, because appeal involves review by an appellate court, and because certain mandamus actions also involve proceedings before an appellate court, the trial court should have intuited that the prosecutor who said he wanted to “appeal” the trial court’s ruling really meant that he wanted to seek a writ of mandamus in the Oregon Supreme Court against the judge. 162 Or App at 50-51. For its expansive view of the word “appeal,” the majority cites Webster’s Third New Int’l Dictionary. 162 Or App at 50-51 n 3. Although the dictionary certainly is a fine general reference work and often provides useful definitions to the court, it is not a definitive or even a helpful source for what the word “appeal” means in the context of a state’s appeal in a criminal proceeding. The state’s right to appeal is neither created nor limited by a dictionary definition of the word “appeal,” and, instead, is created by, and limited by, the terms of ORS 138.060.
In sum, the state asserted a right to a jury trial under an unconstitutional statute and refused to proceed to trial when the trial court correctly determined that the statute was unconstitutional. The only reason for the state’s refusal to proceed was that it wanted to appeal from a non-appealable order. In a vast number of cases, appellate courts *59have concluded that trial courts did not abuse their discretion in denying a criminal defendant’s motion for a continuance on or near the day of trial under circumstances much more sympathetic than those presented here.2 Today the majority appears to create a double standard in favor of the state.
Whether the state has shown “sufficient cause” for postponing a trial, ORS 136.120, must be tested objectively. From an objective standpoint, the state’s reason for seeking a postponement was not “sufficient cause.” Because the state did not “show any sufficient cause for postponing the trial,” ORS 136.120, the trial court did not abuse its discretion in denying the state’s motion for continuance and in dismissing the case when the state refused to proceed. The majority errs in concluding otherwise.
I respectfully dissent.
Actually, contrary to the state’s and the majority’s assumptions, nothing prevented the state from pursuing a mandamus remedy at the time of the dismissal. See, e.g., State ex rel Huddleston v. Sawyer, 324 Or 597, 600-08, 932 P2d 1145, cert den 522 US 994 (1997) (state could pursue mandamus remedy while also pursuing appeal, under circumstances where it was unclear whether the issue would be reviewable on appeal).
See, e.g., State v. Parker, 317 Or 225, 231-32, 855 P2d 636 (1993) (no abuse of discretion in denying defendant’s motion for continuance on ground that his expert was not available to present live testimony); State v. Brenner, 151 Or App 159, 947 P2d 1139 (1997) (no abuse of discretion in denying defendant’s motion for a continuance to retain counsel); State v. Keerins, 145 Or App 491, 932 P2d 65 (1996) (same); State v. Beaty, 127 Or App 448, 873 P2d 385, rev den 319 Or 406 (1994) (no abuse of discretion in denying defendant’s motion for continuance to prepare to rebut testimony of surprise witness); State v. Burns, 121 Or App 373, 854 P2d 961 (1993) (no abuse of discretion in denying defendant’s motion for continuance although newly appointed lawyer had no chance to meet defendant until three days before trial and did not have adequate time to prepare for trial); State v. Monsebroten, 106 Or App 761, 809 P2d 1366 (1990), rev den 311 Or 482 (1991) (no abuse of discretion in denying defendant’s motion for continuance on ground that subpoenaed witness failed to appear).