¶12 (dissenting) — The purpose of CrR 3.3 is to prevent undue and oppressive incarceration prior to trial. State v. Kingen, 39 Wn. App. 124, 692 P.2d 215 (1984). Despite this mandate, Anthony Flinn, a mentally-chal*202lenged defendant, was kept in jail for almost five and one-half months before his trial began, at least three weeks of which were probably unnecessary. Because the trial court failed to make an adequate record demonstrating that the delay was unavoidable under the circumstances, I cannot conclude that the length of the delay was reasonable. I dissent.
Chambers, J.*202¶13 I do not dispute the majority’s assertion that the trial court had “good cause” to continue Flinn’s trial on September 9, 2002. Allowing the prosecutor additional time to prepare against Flinn’s diminished capacity defense was a legitimate reason to continue the trial. It is the court’s failure to make appropriate findings and the length of that continuance to which I take exception. Flinn argues credibly that the sole reason for the length of the continuance was the difficulty of scheduling a trial around the judicial conference. This court has held that mere docket congestion and the unavailability of a judge do not constitute “good cause” to delay the commencement of a criminal trial. See State v. Mack, 89 Wn.2d 788, 576 P.2d 44 (1978). The unavailability of a judge because of a judicial conference is simply a form of docket congestion. The Court of Appeals has held that in order to allow meaningful appellate review of such delays, the trial court must establish a record of why “each superior court department is unavailable and whether a judge pro tempore could reasonably be used.” State v. Warren, 96 Wn. App. 306, 310, 979 P.2d 915, 989 P.2d 587 (1999). Thus, even where good cause is shown to continue the trial initially, the trial court must show on the record that the delay is unavoidable.
¶14 To demonstrate that the five week delay of Flinn’s trial was reasonable under the circumstances, the trial court should have made a finding that no other judges, judges pro tempore, or courtrooms were available to accelerate Flinn’s trial. Without such a finding, we have no way of knowing whether such a lengthy continuance was unavoidable.
*203¶15 On September 9, 2002, the State indicated that it would need “a couple of weeks” to do an independent psychological evaluation of Flinn. The trial court then continued the trial by five weeks. While there is no bright-line test for determining whether the length of a proposed continuance is appropriate, the majority is correct that reasonability should guide the trial court’s discretion. Unless delay is required in the administration of justice, however, the criminal court rules provide the default standard for gauging reasonableness: an in-custody defendant shall be brought to trial within 60 days of his arraignment. Former CrR 3.3 (2002).
¶16 Despite the majority’s implication, the fact that Flinn had previously requested three continuances is no indication that he was not anxious to get the trial started.2 During the September 9, 2002, hearing, after the court asked counsel whether October 15, 2002, would be an acceptable date for the trial to begin, Flinn himself stated, “No, I’m in custody . . . [s]o, I would like to speed this up as soon as possible.” Clerk’s Papers at 22. Thus, the trial court was aware that Flinn himself did not consent to the length of the delay. The trial court’s proposed solution to Flinn’s concern was to allow the prosecution to accelerate the trial if it was ready to proceed before the five weeks were up. This utterly failed to prevent undue and oppressive incarceration prior to trial. Merely allowing the State unilaterally to decide to speed up the trial does not make the five week continuance reasonable since it is the court’s responsibility to ensure compliance with the rule, not the prosecutor’s.
¶17 The trial court’s suggestion that it wanted to give the State ample time so as to avoid the need for another continuance also does not impute reasonability into the length of the delay. It is the oppressive nature of lengthy incarceration prior to conviction with which we ought to be *204concerned, not the minor inconvenience of holding a hearing to determine if sufficient cause exists to give the parties additional preparation time.
¶18 Since the trial court did not explore on the record other alternatives that might have obviated the need for or length of the continuance, nor did it explain why the defendant would not be prejudiced by being kept in custody for an extra 43 days,3 the charges against the defendant should have been dismissed with prejudice.
¶19 I respectfully dissent.
Madsen, Sanders, and J.M. Johnson, JJ., concur with Chambers, J.Reconsideration denied July 7, 2006.
Those continuances were used by Flinn’s counsel to prepare his defense of diminished capacity, a defense that ultimately led to his acquittal on two of the three offenses with which he was charged.
Minn's trial commenced on October 22,2002. State v. Flinn, 119 Wn. App. 232, 237, 80 P.3d 171 (2003).