concurring.
I agree with my brother Kennedy that the delay in bringing defendant to trial should be held to have been “occasioned” by the state. This conclusion rests upon the fact that the Attorney General’s brief filed in this case makes an express, formal admission to that effect. I see no reason to relieve the state from that deliberate concession.
However, that point does not close the inquiry which must be made in this ease. There remains for consideration the question of whether the trial court should have invoked the sanction of dismissal. Section 545.780.5 provides that if a defendant is not brought to trial within 180 days, then the trial judge “may” dismiss the information. That section goes on to provide that in determining whether to dismiss the case, “the court shall consider, among others, each of the following factors: The seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this section and on the administration of justice.”
The record in this case shows a trial setting for May 6, 1980. However defendant wanted to take the deposition of the key witness Johnson, who was scheduled to testify on behalf of the state. Johnson was a participant in this crime and had his own *930attorney, who resisted giving permission for Johnson’s deposition. Johnson’s lawyer advanced the reason for this refusal as being a substantial question with respect to Johnson’s mental competency. Because of that question, Johnson underwent psychiatric evaluation and the psychiatric report was not received until August 25, 1980. The argument between Johnson’s lawyer and defendant’s lawyer about taking Johnson’s deposition still continued, however, and Johnson’s deposition was not actually taken until February 12, 1981. Soon thereafter, on March 2, 1981, the trial commenced.
It seems quite clear from the record that this delay in taking Johnson’s deposition was the result of the controversy between defendant’s lawyer and Johnson’s lawyer, with the Prosecuting Attorney being reduced pretty much to a state of frustration. This appears from the following portion of the hearing before the trial court:
“THE COURT: —at one time, and we continued the case because you wanted to take Mr. Johnson’s deposition, and they said if he was crazy, that we couldn’t take his deposition. That was his attorney’s defense.
MR. WORTHINGTON: Right.
THE COURT: And you and his attorney played the ball back and forth between you, and to the State’s—
MR. WORTHINGTON: Consternation.
THE COURT: —consternation, that’s right, and—
MR. WORTHINGTON: Your Honor, that is exactly correct, that we did request the taking of the deposition of Mr. Johnson, and we even set the deposition and served him with proper subpoenaes, notices, and he filed a motion to quash that and appeared here in court with his attorney, Mr. William Merryman, in order to quash the taking of his deposition upon that very basis, that if he were in fact mentally disturbed or under some kind of emotional or mental handicap, that it wouldn’t be proper for us to take his deposition. ... ”
Under the peculiar facts of this case, there were certainly extenuating circumstances tending to excuse the state’s failure to get this case to trial within the 180 day statutory period. Also to be considered is the fact that defendant does not claim to have been prejudiced by the delay. While failure by a defendant to show prejudice is not decisive, a lack of prejudice may be considered by the court in determining whether to dismiss under Section 545.780.5. State v. Richmond, 611 S.W.2d 351, 355 (Mo.App.1981); State v. Lawson, 630 S.W.2d 185, 188 (Mo.App.1982).
Finally, we have for consideration “the impact of a reprosecution on the administration of this section and on the administration of justice.” As pointed out by the trial court, at the time defendant made his motion to dismiss, a jury had already been summoned and the case was ready for trial. The trial court was of opinion that justice would be better served by proceeding to trial immediately, rather than to dismiss the case without prejudice (which it had the authority to do under the statute) and thereby force postponement of the trial to still a later date. It is most difficult to perceive how the interest of speedy justice could be served by following the latter course.
The dissenting opinion states that the discretion of the trial judge under Section 545.780.5 is confined “within a narrow range.” That of course does not tell us very much. Whether narrow or wide, the trial court still has discretion; and appellate courts should not reverse an exercise of discretion unless the trial court has committed an abuse of discretion. See State v. Ratliff, 633 S.W.2d 267, 270 (Mo.App.1982). In my opinion, there was no abuse of discretion here. On that basis I join in the conclusion of the majority opinion.