(concurring in part, dissenting in part) — While I agree with the result the majority reaches, I cannot agree with the majority’s analysis of the issue presented in these cases under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986) and Blockburger *110v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932). Since 1896, this state has had its own double jeopardy analysis under article I, section 9 of the Washington State Constitution. See State v. Reiff, 14 Wash. 664, 45 P. 318 (1896). In this context, the majority’s analysis is incorrect because it completely ignores this state’s preexisting, independent analysis of double jeopardy. See State v. Wittenbarger, 124 Wn.2d 467, 493, 880 P.2d 517 (1994) (Johnson, J., dissenting).
The two-pronged aim of Gunwall is to assist this court in assuring (1) adequate briefing from counsel where a decision based on independent state constitutional grounds is urged, and (2) that where such independent grounds are appropriate, the resulting decision "will be made for well founded legal reasons”. Gunwall, at 62-63. Gunwall was merely intended to be a tool in the development of a principled analysis in cases where an issue is undecided under the state constitution. Where this court has already determined the particular state constitutional issue, Gunwall has no application because this court has its own preexisting law to guide its interpretation.
Yet the majority treats Gunwall as a talisman, to be invoked simply because the parties raise an issue under the state constitution. The fact that the parties present a Gunwall analysis, however, should not be an open invitation to substitute our current notion of justice, or the notion currently embraced by the United States Supreme Court, for that of our predecessors. Instead, this court must itself critically examine whether such an analysis is justified in the case before it.
Any other result ignores the purposes of Gunwall and causes a number of problems. For example, disregard of longstanding state constitutional analysis introduces unnecessary confusion and endangers the stability of state law. When this state’s analysis is tied to the whims of the federal courts, state law may have to be modified frequently to adjust to later circuit splits on the issue and the United States Supreme Court’s retraction of its earlier *111decisions. See, e.g., United States v. Dixon, 509 U.S. 688, 125 L. Ed. 2d 556, 573, 113 S. Ct. 2849 (1993) (overruling Grady v. Corbin, 495 U.S. 508, 109 L. Ed. 2d 548, 110 S. Ct. 2084 (1990)). Judicial efficiency will be lost because every time the Supreme Court changes its mind, this court will be called to revisit the issue. Finality is also sacrificed because state decisions tied to federal law may be open to reversal by the Supreme Court. Most importantly, independent state constitutional analysis is lost somewhere in the ever-shifting shadow of the federal courts which are no less political and perhaps more so than our own state courts. See generally James W. Talbot, Comment, Rethinking Civil Liberties Under the Washington State Constitution, 66 Wash. L. Rev. 1099 (1991); Linda White Atkins, Recent Developments, Federalism, Uniformity, and the State Constitution—State v. Gunwall, 106 Wn. 2d 54, 720 P.2d 808 (1986), 62 Wash. L. Rev. 569 (1987). This court should, instead, preference independent resolution of state constitutional questions under a longstanding body of state law.
Specifically, this state has a double jeopardy analysis under the state constitution predating the United States Supreme Court application of its double jeopardy analysis to the states through the Fourteenth Amendment in Benton v. Maryland, 395 U.S. 784, 794, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969), and has continued to apply this independent analysis until the majority’s holding today. In 1896, this court first set out Washington’s "same evidence” rule of construction. State v. Calle, 125 Wn.2d 769, 777, 888 P.2d 155 (1995); Reiff, at 667-68. Under this rule, a defendant’s double jeopardy rights are violated if he or she is convicted of offenses which are identical in both fact and law. See, e.g., Calle, at 777; In re Fletcher, 113 Wn.2d 42, 47-49, 776 P.2d 114 (1989); State v. Caliguri, 99 Wn.2d 501, 512-13, 664 P.2d 466 (1983); State v. Vladovic, 99 Wn.2d 413, 423, 662 P.2d 853 (1983); State v. Johnson, 96 Wn.2d 926, 933, 639 P.2d 1332 (1982); State v. Morlock, 87 Wn.2d 767, 771, 557 P.2d 1315 (1976); State v. Roybal, 82 Wn.2d 577, 581-82, 512 P.2d 718 (1973); State v. La Porte, *11258 Wn.2d 816, 818-19, 365 P.2d 24 (1961); Huffman v. Smith, 34 Wn.2d 914, 920, 210 P.2d 805 (1949); State v. Barton, 5 Wn.2d 234, 237-38, 105 P.2d 63 (1940); State ex rel. Foley v. Yuse, 191 Wash. 1, 3, 70 P.2d 797 (1937); State v. Phillips, 179 Wash. 607, 611, 38 P.2d 372 (1934); State v. Kingsbury, 147 Wash. 426, 432, 266 P. 174 (1928); State v. Peck, 146 Wash. 101, 107-08, 261 P. 779 (1927); State v. Elliott, 69 Wash. 62, 64, 124 P. 212 (1912); State v. Campbell, 40 Wash. 480, 483, 82 P. 752 (1905); Reiff, at 667-68. While this test at the present time is effectively "very similar” to the rule set forth in Blockburger and reestablished by Dixon, tying state analysis to shifting federal analysis makes no sense legally or as a matter of policy when this state has had its own analysis under the state constitution for a great number of years. Calle, at 777. Furthermore, if left standing as independent tests, these tests may very well diverge in the future.
The peculiar problems, which the dissent points out, with subsequent prosecutions are not without remedy even where double jeopardy is not implicated. While not alluded to by either the majority or the dissent, counsel can challenge and remedy multiple charging problems like those of State v. Crisler, 73 Wn. App. 219, 868 P.2d 204 (1994) by making a timely motion to dismiss the charges for failure to join related offenses pursuant to CrR 4.3(c). See State v. Pelkey, 109 Wn.2d 484, 491, 745 P.2d 854 (1987); State v. Anderson, 96 Wn.2d 739, 740-41, 638 P.2d 1205, cert. denied, 459 U.S. 842 (1982). Such motions are to he granted unless the court finds that the ends of justice would be defeated because the prosecuting attorney was unaware of the facts supporting the related offense or did not have sufficient evidence at the time of the first trial or because of other reasons. CrR 4.3(c)(2), (3).
For the reasons set out above, I cannot agree with the majority. I strongly believe that we should adhere to our longstanding, independent state analysis. Under that analysis, I do agree with the majority’s ultimate result. I would therefore uphold the Court of Appeals under Reiff and its state progeny.