(concurring) — I concur with the majority opinion because I believe the trial court’s grant of retroactive five-day extensions of the speedy trial period due *824to unavoidable circumstances is sustainable. I am concerned, however, that the majority has extended a defendant’s responsibility to assert his right to a speedy trial far beyond that demanded by case authority, in effect eviscerating the speedy trial rule. Under the majority analysis, in order for a defendant to take advantage of the speedy trial rule codified in CrR 3.3, he or she must be responsible throughout all stages of the proceedings for ensuring that the trial commences within the appropriate period.
The majority, relying on court of appeals decisions, asserts the proposition that "defendants effectively waive their right to speedy trial under CrR 3.3 if they do not raise the issue when action could still be taken to avoid a speedy trial violation.” Majority at 818-19. In each of the decisions cited that find a waiver, however, the defendant had failed to object when the trial date had either been set or reset beyond the speedy trial period, thus triggering the defendant’s responsibility to object under the express terms of CrR 3.3.72 State v. Malone, 72 Wn. App. 429, 432, 864 P.2d 990 (1994) (defendant did not object within 10 days of initial trial date set beyond speedy trial period as required by CrR 3.3(f)(1)); State v. Becerra, 66 Wn. App. 202, 205, 831 P.2d 781 (1992) (defendant did not object to trial being continued to date beyond speedy trial period); State v. Austin, 59 Wn. App. 186, 196, 796 P.2d 746 (1990) (defendant did not make timely objection to trial date being reset beyond speedy trial period).
Inexplicably, the majority also rests its waiver analysis on a case with nearly indistinguishable facts from the present case in which the court rejected that very analysis. Majority at 819 n.59 (citing State v. Raper, 47 Wn. App. 530, 538, 736 P.2d 680, review denied, 108 Wn.2d 1023 (1987)). In Raper, as in the present case, the initial *825trial date was set within the speedy trial period. 47 Wn. App. at 531-32. On the final day of the speedy trial period, defense counsel appeared in court, but the case was not called for trial. Id. at 531, 538. Defense counsel did not inform the court that the speedy trial period was due to expire that day. Id. at 538. Three days after expiration of the speedy trial period, defense counsel learned of the speedy trial violation and moved for dismissal. Id. The Raper court upheld a five-day retroactive extension of the speedy trial period granted by the trial court but found "meritless the State’s argument that Raper waived his speedy trial right by not objecting to a trial date violative of CrR 3.3 before the expiration of the CrR 3.3 time period.” Id. at 539.
These opinions are therefore consistent with CrR 3.3, which allocates responsibility to a defendant only when the trial date is set or reset beyond the prescribed time limits. Moreover, we have recently declined to review Court of Appeals opinions, not cited by the majority, that hold that a defendant’s duty extends no further. In State v. Jenkins, 76 Wn. App. 378, 383, 884 P.2d 1356 (1994), review denied, 126 Wn.2d 1025 (1995), the court held that the defendant did not have a duty to raise a speedy trial issue before expiration of the speedy trial date where the trial date had never been set. Likewise, in State v. Lemley, 64 Wn. App. 724, 726-28, 828 P.2d 587, review denied, 119 Wn.2d 1025 (1992), the court held that the defendant did not waive his speedy trial objection where the initial date was set within the speedy trial period, trial neither commenced nor was reset within the period, and the defendant did not object until after the speedy trial period had expired.
As the majority correctly points out, defense counsel bears some responsibility for assuring that a defendant is brought to trial within the speedy trial period. Majority at 815 n.50 (citing State v. White, 94 Wn.2d 498, 502-03, 617 P.2d 998 (1980); State v. Malone, 72 Wn. App. 429, 433, 864 P.2d 990 (1994); State v. Raper, 47 Wn. App. 530, 538, *826736 P.2d 680, review denied, 108 Wn.2d 1023 (1987)). However, the recognition that a defendant has some responsibility derived from a reading of CrR 3.3, which establishes circumstances under which a defendant is obliged to object to a speedy trial violation. By adopting a blanket rule that a defendant must object when his trial does not begin on time when the trial date has been set within the speedy trial period, the majority extends a defendant’s duties beyond that envisioned by CrR 3.3 and beyond that demanded by common sense. Must a defendant object on the penultimate day of the speedy trial period if it appears that the trial will not actually proceed the next day? Must a defendant object if there is a 60 percent chance that the trial will not proceed? Must a defendant object if the case is never called or set for trial at all? Entering this morass is unnecessary if we are faithful to CrR 3.3 and its interpretation by existing case law.
In extending a defendant’s responsibilities as the majority does here, the court and prosecutor are relieved of any responsibility to see that a defendant is brought to trial within the speedy trial period.73 This is in direct contradiction to the dictates of CrR 3.3 and prior cases, which, as the majority acknowledges, establish that it is the court that is primarily responsible for assuring that the speedy trial requirements are satisfied. Majority at 815-16; CrR 3.3 ("It shall be the responsibility of the court to ensure a trial in accordance with this rule . . . .”); State v. White, 94 Wn.2d 498, 503, 617 P.2d 998 (1980) (court has "ultimate responsibility” to select proper trial date); cf. State v. Jenkins, 76 Wn. App. 378, 383, 884 P.2d 1356 (1994) (as between defendant and the State, the State has primary duty to see that defendant is tried in timely manner), review denied, 126 Wn.2d 1025 (1995). Accordingly, I would adhere to the courts’ prior interpretations of CrR 3.3 and *827hold that a defendant has a duty to object only when a trial is set or reset beyond the speedy trial period.
If we are intent on eroding this judicially created court rule to the point where it no longer serves any purpose, we should consider eliminating it altogether, leaving a defendant with the more flexible constitutional guaranty of a speedy trial. If, on the other hand, we wish to retain the rule, we should be prepared to abide by its language.
Finally, I also disagree with the majority’s reasoning that a trial begins on the day when a motion for a continuance is heard. For speedy trial purposes, a trial begins when the case is assigned or called for trial and the trial court hears and disposes of preliminary motions. However, characterizing a motion for a continuance as a "preliminary motion” to a trial makes the stringent standards for granting five-day extensions set out in CrR 3.3 superfluous, providing yet another means of circumventing the speedy trial rule. If presenting a motion for a continuance signifies the beginning of the trial, it follows that the trial is considered as having begun whether the continuance is granted or denied. In this manner, a judge may grant a continuance on the final day of the speedy trial period, ignoring the rule requiring a finding of a delay due to unavoidable circumstances. Under the majority’s reasoning, there would be no speedy trial problem as the trial is considered to have already begun. This result not only defies common sense but is not supported by the authority cited.
In all the cases cited by the majority, the matter had been called for trial and the court addressed motions relating to the comportment of the trial. State v. Andrews, 66 Wn. App. 804, 806-08, 832 P.2d 1373 (1992) (consolidated cases all involving cases called for trial, and court heard motions to exclude witnesses), review denied, 120 Wn.2d 1022, 844 P.2d 1017 (1993); State v. Redd, 51 Wn. App. 597, 599-600, 754 P.2d 1041 (case assigned to trial, and court heard motions to sever trial, to sever defendants, and to disclose identity of confidential informant), review *828denied, 111 Wn.2d 1008 (1988); State v. Mathews, 38 Wn. App. 180, 181, 685 P.2d 605 (case sent down from presiding court for trial, and court heard motions to amend information and to exclude prior convictions), review denied, 102 Wn.2d 1016 (1984). In contrast, the motion heard by the trial court in this case was one solely relating to whether the trial should commence at all. Nor is there any indication in the record that the case had been called for trial. Indeed, as the majority recognizes, both the State and Carson believe that the trial began on August 6th, the day after the majority believes the trial began.
Although trial and appellate courts should not have to decide whether a motion is substantive or pro forma, a motion for a continuance simply cannot be considered in the same category as the trial motions considered in our previous cases. Consequently, I would hold that where the case has not been called for trial and where the "preliminary” motion relates solely to the date of commencement for the trial, the trial has not begun for purposes of speedy trial calculations.
Nevertheless, I concur in the result because Carson ultimately waived his objection based on the speedy trial rule.74 On the final day of the speedy trial period, it was defense counsel who moved for a continuance of over three weeks. Defense counsel asserted that he would like additional time to prepare the case and to locate a defense witness. Verbatim Report of Proceedings (Aug. 5, 1992) at 4-5. Defense counsel also stated that Carson would be willing to waive a speedy trial objection for an additional two months. Id. at 5. Given Carson’s request for a continuance and offer to waive speedy trial objections, in part because the defense was not sufficiently prepared to begin trial, he cannot now complain of a one-day continuance to which he did not object.
*829Madsen and Alexander, JJ., concur with Pekelis, J. Pro Tem.
Justice Rosselle Pekelis is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. IV, § 2(a) (amend. 38).
CrR 3.3 states that a defendant waives any objection that a trial did not begin within the speedy trial period outlined by the rule if the defendant does not object within 10 days of the trial being set or being reset beyond the prescribed time limits. CrR 3.3(f)(1), (2).
Indeed, the majority goes so far as to imply that any failure to bring a defendant to trial within the speedy trial period is excusable unless the court and prosecutor "deliberately create a delay to oppress” the defendant. Majority at 816. The majority cites no authority indicating that deliberate oppression is in any way relevant to our analysis, nor am I aware of any.
The waiver here refers only to the one-day differential not covered by the retroactive five-day extensions, not to the expiration of the original speedy trial period. As I have discussed, Carson did not waive his objection to the initial speedy trial problem.