(dissenting).
While the result reached by the majority in this case may be the desirable one, it *272flatly disregards the provisions of several statutes, and I therefore must dissent.
The majority now says that § 793.20, The Code, applies only when jeopardy has attached. However, that isn’t what the statute says; nor until now — some 115 years after it was first enacted — has it been what we said it says.
We set the statute out in full:
“If the State appeals, the supreme court cannot reverse or modify the judgment so as to increase the punishment, but may affirm it, and' shall point out any error in the proceedings or in the measure of punishment, and its decision shall be obligatory as law.”
There is no need to review or cite again the numerous decisions set out in the majority opinion, but it is clear from them that we have consistently held a successful appeal by the State in a criminal case may serve only to settle the law for the future. It cannot result in a remand for further prosecution.
In the present case, the State has appealed from an order dismissing a pending criminal charge for the State’s failure to provide a speedy trial. § 795.2. The majority has decided, correctly, I believe, that this order was erroneous. Defendant now says he cannot be prosecuted on this charge because the dismissal of the action under the speedy trial provision bars further proceedings.
We recently permitted a remand after such an appeal in State v. Albertsen, 228 N.W.2d 94 (Iowa 1975). However, in that case, the present issue was neither raised nor considered and it is no authority for the problem now confronting the court.
I believe this case is controlled by our recent opinion in State v. Johnson, 217 N.W.2d 609, 612 (Iowa 1974) where we said:
“We find that a dismissal pursuant to § 795.2, The Code, for failure to provide a speedy trial shall be an absolute dismissal, a discharge with prejudice, prohibiting reinstatement or refiling of an information or indictment charging the same offense.” (Emphasis supplied)
It is difficult to imagine language which could more clearly state the finality of a § 795.2 dismissal. Yet now the majority says such an order is final only if it is correct; but if it is correct, there is no issue at all. Only when a lower court ruling is incorrect, does § 793.20 become important. Today’s majority opinion renders that statute meaningless.
Some statutes governing appeals in criminal cases are couched in double jeopardy terms. Cf. United States v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250, 253 (1975). But § 793.20 is not one of these. It is an unqualified prohibition against repros-ecution by the State after a successful appeal from a final order. I need not belabor the question of finality because the State concedes this by appealing at all. See § 793.2. See also State v. Johnson, supra.
The majority relies on State v. Valeu, 259 Iowa 963, 146 N.W.2d 228 (1966) as affording some support for its conclusion. On the contrary, I believe it is authority for the opposing position. In Valeu, a demurrer to criminal indictment was sustained. Later it was determined it was incorrectly sustained and we held that, even though incorrect, the action of the trial court in sustaining the demurrer precluded further prosecution on that charge. The legislature quickly amended the statute to avoid such consequences by providing that in the future an order sustaining a demurrer, if incorrect, should not be a bar to further proceedings. See § 777.8, The Code.
Except that we are now dealing with a speedy trial provision, this case is exactly parallel to the Va leu situation before the demurrer statute was amended. Here, as there, our cases forbid further prosecution. Here, as there, if this result is to be avoided, the legislature must take appropriate measures to mend the statute.
*273The majority is usurping this legislative function by saying, because the general assembly took a certain course with respect to demurrers, it must necessarily feel the same way about a § 795.2 dismissal. This is a legislative, not a judicial decision.
Since it is conceded this appeal is from a final order and since § 793.20 precludes a remand after the State’s successful appeal from such an order, the trial court’s judgment, even though wrong, may be reversed but not remanded.
RAWLINGS, REES and HARRIS, JJ., join this dissent.