¶1(dissenting)—The majority claims this is a case involving double jeopardy. I believe this claim is ill founded and I dissent.
¶2Capacity to commit a crime is an element of every criminal offense. Once a defendant's capacity is in issue, the State must show beyond a reasonable doubt that the defendant is capable of forming criminal intent. See In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). See also Burks v. United States, 437 U.S. 1, 11, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978). RCW 9A.04.050 states the presumption that children between the ages of 8 and 12 are incapable of forming criminal intent. It is a codification of the rebuttable common law presumption of criminal incapacity of children between the ages of 7 and 14. R. Perkins, Criminal Law 837, 840-41 (2d ed. 1969). Compare 5 W. Blackstone, Commentaries *22-24.
¶3A trial court's determination that the State has or has not overcome a presumption of incapacity is a determination on the merits of the State's case against a criminal defendant. See Burks v. United States, supra. A conclusion, however, as to whether a presumption applies in a particular case is a question of law which may be reversed by an appellate court if incorrect. If a trial judge's error on a question of law results in an acquittal, the double jeopardy clause would not prevent an appeal by the State which, if successful, would result either in a retrial or the *549reinstatement of an earlier decision on the merits. See United States v. Scott, 437 U.S. 82, 57 L. Ed. 2d 65, 98 S. Ct. 2187 (1978) (retrial); United States v. Wilson, 420 U.S. 332, 43 L. Ed. 2d 232, 95 S. Ct. 1013 (1975) (reinstatement). Contrary to the view of the majority, the determination by the trial court as to Dowling's incapacity was not a "factual resolution." It was a determination of law and it was in error.
¶4In Scott, the double jeopardy clause was held not to bar an appeal by the government when the defendant was granted a dismissal based on preindictment delay. The Court stated:
We think that in a case such as this the defendant, by deliberately choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a ruling of the trial court in favor of the defendant. . . . [T]he Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant from the consequences of his voluntary choice.
¶5Scott, 437 U.S. at 98-99. Prior to the court's final decision on the merits of the case, defendant raised the question of incapacity because of age in his motion for dismissal. He should not now be able to claim double jeopardy.
¶6As the majority correctly points out, the double jeopardy clause prohibits retrial where the trial judge's ruling represents a resolution (in the defendant's favor), correct or not, of some or all of the factual elements of the offense charged. See United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 51 L. Ed. 2d 642, 97 S. Ct. 1349 (1977). Even if a trial judge's action is characterized as a consideration of the factual elements of the offense, however, the double jeopardy clause would not bar retrial unless the judge's decision results in final termination of the case. United States v. Baker, 419 F.2d 83 (2d Cir. 1969). Cf. Forman v. United States, 361 U.S. 416, 4 L. Ed. 2d 412, 80 S. Ct. 481 (1960) (retrial allowed when appellate court first *550reversed original conviction with instructions for remand for acquittal, then withdrew on rehearing and remanded for new trial).
¶7Washington courts uniformly hold a case is not finally terminated until either a journal entry or, more preferably, a formal order is entered by the trial court. E.g., State v. Aleshire, 89 Wn.2d 67, 70, 568 P.2d 799 (1977) (criminal case); State v. Mallory, 69 Wn.2d 532, 533, 419 P.2d 324 (1966) (criminal case); Chandler v. Doran Co., 44 Wn.2d 396, 400, 267 P.2d 907 (1954) (civil case); State v. McClelland, 24 Wn. App. 689, 694, 604 P.2d 969 (1979), review denied, 93 Wn.2d 1019 (1980) (criminal case). But cf. McClelland, 24 Wn. App. at 695 (Dore, J., dissenting). Washington courts are especially reluctant to consider a case finally decided where further routine proceedings would be necessary to terminate the matter. See, e.g., Aleshire, 89 Wn.2d at 70 (distinguishing State v. Bastinelli, 81 Wn.2d 947, 506 P.2d 854 (1973)); McClelland, 24 Wn. App. at 694.
¶8Finally, even where a trial court enters a formal order of dismissal terminating a case, the double jeopardy clause is not offended by a government appeal where a reversal of the dismissal would not necessitate further proceedings. United States v. Wilson, 420 U.S. 332, 342, 43 L. Ed. 2d 232, 95 S. Ct. 1013 (1975); United States v. Brandon, 633 F.2d 773, 778-79 (9th Cir. 1980). See United States v. Dreitzler, 577 F.2d 539, 544 (9th Cir, 1978). It is not disputed that in this case no further proceedings were necessary once the trial court had withdrawn its oral ruling dismissing the information. No second trial would be required. See United States v. Scott, supra,as quoted by the majority at page 544.
¶9The underlying idea of the double jeopardy clause, derived from the common law pleas autrefois acquit, autrefois convict, and pardon, is prevention of multiple prosecutions of the acquitted defendant. See Bartkus v. Illinois, 359 U.S. 121, 151-55, 3 L. Ed. 2d 684, 79 S. Ct. 676 (1959) (Black, J., dissenting). Indeed, it was only when the *551defendant was indicted for a second time after either a conviction or an acquittal that he could seek the protection of the common law pleas. Wilson, 420 U.S. at 342. See 5 W. Blackstone, supra at *335-36. As the WilsonCourt stated:
Although review of any ruling of law discharging a defendant obviously enhances the likelihood of conviction and subjects him to continuing expense and anxiety, a defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial before a second trier of fact.
¶10Wilson, 420 U.S. at 345.
¶11In the present case, the trial judge's oral decision was based on the erroneous premise, later corrected, that RCW 9A.04.050 applies in juvenile offender proceedings. There was no multiple prosecution. If the trial judge had not corrected the conclusion of law himself, the double jeopardy clause would not bar an appeal reversal by an appellate court and subsequent correction of his dismissal by the trial court. United States v. Wilson, supra.Furthermore, the trial judge's oral decision terminating the case was not protected by the double jeopardy clause because further routine proceedings were necessary to terminate the proceedings. As the court stated in Mallory,
[a trial court's oral opinion] cannot be considered as the basis for the trial court's judgment and sentence. A trial court's oral or memorandum opinion is no more than an expression of its informal opinion at the time it is rendered. It has no final or binding effect unless formally incorporated into the findings, conclusions, and judgment.
¶12Mallory, 69 Wn.2d at 533-34.
¶13United States v. Baker, 419 F.2d at 89, was a case where the court granted a motion of acquittal to one count and upon reconsideration reinstated the count. As the court observed:
In the case before us, no final judgment of acquittal was ever entered, and certainly Baker was not subjected to the harassment of successive prosecutions. Nor did the *552prosecution seek a a delay in order to obtain a more favorable opportunity to convict. The only prejudice Baker suffered is psychological; his hopes were first raised, then quickly lowered. But so ephemeral and insubstantial an injury is not proscribed by the Constitution.
¶14There is no double jeopardy to Dowling in this case. I dissent.