dissenting.
It is a pity to see a bold and innovative statute emasculated by a gingerly and timorous judicial interpretation.
I have three points of disagreement with Judge Manford’s principal opinion and with Judge Wasserstrom’s concurring opinion. *931The points of disagreement could be summed up in a single point, namely, that they represent a “Retreat from Richmond,” State v. Richmond, 611 S.W.2d 351 (Mo.App.1980). If Richmond is too strong medicine, let it be forthrightly overruled, saving the time, ink and paper now spent in finding ways around it.
Either way — by overruling Richmond or by its circumvention — we rob this good statute of the remedial force the legislature intended it to have.
My first point of disagreement is with the principal opinion’s holding, contrary to the attorney general’s concession, that the delay of trial was not “occasioned by the state”. Underlying that holding is the wrong idea of the prosecutor’s and the court’s responsibility aggressively to advance a case to trial. It seems to say that if the defendant seeks a delay, or if he acquiesces in a delay, that the prosecutor and the court are excused from responsibility for the delay.
Secondly, I disagree with Judge Wasser-strom’s concurring opinion in its holding that the trial court’s ruling upon a defendant’s speedy trial motion to dismiss may be reviewed only for abuse of discretion. It does not recognize that the speedy trial statute introduces an innovation. The trial judge’s decision on the matter of continuances and on motions for dismissals are subject to close and skeptical scrutiny by this court. The trial court’s rulings must be justified by him upon the record and reviewed for the proper exercise of discretion. The difference is more than semantics.
Third, I disagree with the principal opinion’s casual treatment of the failure of the trial judge to explain upon the record the reasons for continuances granted in the case. It is not entirely clear to me whether the principal opinion agrees with our recent case of State v. Reed, 640 S.W.2d 188 (Mo.App.1982), which holds that continuances are not excludable which the trial court does not justify upon the record — but whether it does agree with Reed or not, it applies as its only sanction an impotent finger-shaking.
What I now have to say is in amplification of those three points:
One of the most persistent criticisms of our criminal justice system is that it is too slow. The Speedy Trial Statute is aimed at that fault. Still it allows six months “free” time to get a case to trial, plus the time necessarily consumed by a variety of pretrial procedures. Does anyone argue that is not enough time? But here before us is a case that took 361 days from arraignment to trial. The attorney general says that only 20 days of that 361 days was excluda-ble time, leaving 341 days — almost twice the unaccountable time allowed by the statute!
The attorney general does not even argue that the delay was not occasioned by the state, but expressly concedes that it was, by the definition of State v. Richmond, 611 S.W.2d 351, 357 (Mo.App.1980). We said there: “A delay may be ‘occasioned’ by the state by mere neglect, by failure actively to move the case forward, by simple inertia ...” That definition has been endorsed by our Supreme Court in State v. Franco, 625 S.W.2d 596 (Mo.1982), and in our most recent case of State v. Reed, supra. The majority opinion does not accept this concession by the attorney general, but finds to the contrary that the defendant has not shown that the delay was occasioned by the state.1
*932The majority opinion says: “The result of the events and particular facts and circumstances in the instant case is that delay of this matter was not ‘occasioned by the state’ ”. Let us leave out of consideration the concession by the attorney general, and let us look at the record.
The docket sheet shows the following with respect to trial settings and continuances:
March 6, 1980 — Arraignment. Case set for trial June 9.
April 14 — Defendant’s motion for early trial setting sustained and case set for trial May 6.
The case was not tried on May 6. The docket does not show why not. To fill in this gap in-our information, we go to the transcript of the hearing on the Speedy Trial Motion to Dismiss, held as the March 2,1981, trial date approached. The hearing consisted of a conference among the court, the prosecuting attorney and the defense attorney. Defense counsel Worthington said:
What occurred was that we were ready for trial on May 6, on the defense side, and that we requested the psychiatric information on Mr. Johnson (Johnson was a co-defendant and was the state’s principal witness-ed) from ⅛⅜ prosecutor’s office, and they didn’t have it, and we said we were ready to go to trial, but we wanted that information, and, therefore, he continued it in order to get it, if I remember correctly.
This appeared to be an explanation of Mr. Worthington’s earlier statement that “Mr. Verdught (the then prosecuting attorney) asked that the trial setting be continued from May 6.” A further exchange between the court and Mr. Worthington disclosed that Worthington had wanted to take Johnson’s deposition in preparation for trial, and had served notice and a subpoena; that Johnson’s attorney had filed a motion to quash on the ground that Johnson was “mentally disturbed or handicapped”. The time of these events is not clear, but would have been before the May 6 trial setting. Said Worthington, “... And we at all times, I believe, asserted that we were ready for trial and were ready to assert our rights.” Then the following:
THE COURT: But you did want his deposition prior to going to trial?
MR. WORTHINGTON: Sure. We were ready to take it.
THE COURT: And we then had to wait to take his deposition until we had a declaration by the psychiatrist as to whether he was sane or insane.
MR. WORTHINGTON: Even if he were insane, I think I had a right to take his deposition.
If it be conceded that the passing of the May 6 trial date may be laid to the defendant — a doubtful proposition — there remained still plenty of time to bring the case to trial within the 180-day period. We do not know when the psychiatric examination was made, whether before the May 6 continuance or afterward. At any rate, the psychiatric report was actually received on August 25. What it showed we do not know. Mr, Johnson, the witness to be deposed, was in jail and therefore immediately accessible during the whole time. The 200 days from the arraignment (180 days free time plus 20 days excused time, according to the state’s calculations) came to an end on September 22.
We return to the docket. The next entry is October 20. On that date the following entry was made:
“October 20,1980 — Case set for trial January 6, 1981.”
Even by October 20,1980, the case was 22 days past the Speedy Trial time limit, but the case was set for a trial date yet two and a half months in the future.
The next entry was made January 6, 1981:
*933January 6, 1981 — Case set for trial March 2, 1981.”
The last continuance was requested by the defendant — but by this time the 180-day period was long since passed. The case was finally tried on March 2, 1981.
The prosecution offered nothing by way of justification for the delay. In the hearing on the Speedy Trial motion, from which we have quoted, prosecuting attorney Perry (who had evidently taken office January 1, 1981) said: “In that connection, Judge, most of these events that you have been discussing with defense counsel happened prior to my tenure here in office. So, I can’t really intelligently engage in the conversation.” The trial challenged none of Mr. Worthington’s assertions and seemed to agree to them. So there is no factual dispute about the trial delay. The prosecution is absolutely without any excuse on this record for the trial delay.
The principal opinion would say the tardiness of the trial was “occasioned by the state” only if the prosecution by obstructive action and by demonstrable delay tactics delayed the defendant in getting the trial he was insisting upon. (I exaggerate the principal opinion’s position only slightly in order to make a point.) The statute as interpreted by the principal opinion has made no change in the law as it was before the statute. There is not a single showing in this record that the prosecution ever requested an early trial, ever resisted a continuance, ever took any step to clear the path to trial. The prosecution was utterly passive. Small wonder the attorney general here acknowledges that the delay was occasioned by the state.
The trial court made the following ruling upon the defendant’s motion to dismiss: “Well, under the circumstances, then, I am going to overrule your motion, particularly in view of the fact that the case is set for Monday, and we have got the jury coming.” The court’s oral findings on the motion were as follows: “Well, that was basically the theory of my speech earlier that most of the delay in the cases of Johnson and Moore has been occasioned by the fact that we waited so long to get the psychiatric report on Johnson.”
Subsection 5 of § 545.780, RSMo 1978, says:
If a defendant is not brought to arraignment or trial within the time limit required by this section, the trial judge may dismiss the information or indictment upon motion by the defendant and a showing by defendant that the failure to have the trial commence within the time limit specified herein was occasioned by the state.... 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 court shall make a record showing the action taken in regard to the dismissal ... of the case and show on the record the reasons for such action.
With reference to that section, we said in Richmond that the purpose of this unusual requirement, i.e., “to show on the record the reasons for such action”, was to confine the trial judge’s discretion within a narrow range, and to make his discretionary action re viewable by the appellate court. State v. Richmond, 611 S.W.2d at 356. We ordinarily indulge in a presumption of right action on the part of the trial court in discretionary matters. We do not have that luxury under this statute. Whether we like or do not like this disturbance of our comfortable traditional appellate function, we are to judge the sufficiency of the trial judge’s reasons for his dismissal or failure to dismiss. The principal opinion impotently scolds and wheedles a compliance with this statute’s directives. It makes them preca-tory rather than mandatory. That is the mandate of this statute. Shorn of the presumption of right action, the reasons stated by the trial judge for overruling the motion to dismiss were wholly insufficient.
The trial court based his denial on the motion to dismiss upon the inconvenience *934attending a dismissal when the case was at the ready for trial. In State v. Harris, 639 S.W.2d 122 (Mo.App.E.D.1982), this feature was considered. A dismissal at that late date would have a negative impact upon the administration of justice in that case. But I think the statute has a broader meaning than that. The “impact of a reprosecution on the administration of this section and on the administration of justice” looks at this case, to be sure, but it looks past this case. It looks also at the prophylactic effect of a dismissal. Let a few cases be dismissed and rare will be the case which is not brought to trial within the generous statutory period. The effect upon the administration of § 545.780, supra, and upon the administration of justice, looking at the system, can only be salutary ... if indeed it is a worthwhile social objective to bring criminal cases to an early, but not hasty, disposition. Taking into account the seriousness of the offense, which the trial judge and we must consider upon a motion to dismiss for tardiness of trial, the trial court gave that consideration no weight one way or the other. If the crime were one of particular and notable heinousness, it would be entitled to much greater weight in the equation. The defendant was free on a $5,000 bond upon which his grandparents were sureties. The crime of armed robbery was committed by Leonard Johnson with the aid of Peter Kahre, by use of an unloaded gun. He committed the robbery at the behest of defendant Moore, made more than a week before the robbery under threat of physical harm by Moore. As serious cases go, this was not serious enough to shield the case from dismissal for trial delay.
It is no answer under § 545.780, supra, to say that the defendant acquiesced in the delay, if that be the case, or even that he benefited from it. He cannot “waive” the statutory Speedy Trial requirement. It is a rare case indeed where the defendant (if the prosecution has a good case against him, and if he is not incarcerated) will not “waive” his right to a speedy trial. He does not want a trial at all, let alone a speedy one. It is the public right to have criminal cases speedily tried, which is the object of this statute’s solicitude. This statute says to the courts and to the prosecution, in mandatory terms, “Give the defendant a trial within 180 days’ free time, whether he wants it or not. If you do not do so, you risk having to start from scratch and do it all over again and, if the case has gone to judgment, you run the risk of losing your conviction. And to see that you do it, we place a tool in the hands of one who will be interested in taking advantage of your tardiness — the defendant. We make him the enforcer of this statute.” The enforcement of this statute will do something for the administration of justice. If the statute is to have its intended long-range salutary effect, we are going to have to lift our eyes from the case immediately before us, and look at the greater good to be achieved by expedition of the trial of criminal cases. We must have the stomach to give a defendant a windfall in order to achieve a more important objective.
There is no doubt in my mind that we should dispose of this case as we did the Richmond case: “We have concluded that the defendant has met his burden of showing that the delay in the commencement of his trial was occasioned by the state. The trial court has not justified upon the record the continuances or the denial of the dismissal.
“The cause is remanded with directions that the court order the dismissal of the case either with prejudice or without prejudice as he may determine in his discretion under subsection 5 of the statute.” 611 S.W.2d at 357.
. As to the meaning of the word “state” in the phrase “occasioned by the state”, note Judge Wasserstrom’s footnote No. 2 in State v. Reed, supra, wherein he said:
It is suggested by some, although not argued in this case nor specifically dealt with by any Missouri case, that in the Speedy Trial context the “state” (in the phrase “occasioned by the state”) is not the prosecuting attorney alone but includes also the court. Cf. State ex rel. Saxton v. Moore, 598 S.W.2d 586, 590, 592 (Mo.App.1980); State ex rel. Hammett v. McKenzie, 596 S.W.2d 53, 58-59 (Mo.App.1980). Federal decisions under the Federal Speedy Trial Act, 18 U.S.C.A. Sections 3161-3174 (West Supp.1982) and Fed.R.Crim.P. 50(b) emphasize the joint responsibility of prosecutor and court to advance criminal cases by affirmative action. The court may not leave the expedition of crimi*932nal trials to the initiative of prosecuting attorneys. See United States v. Didier, 542 F.2d 1182, 1187 (2d Cir.1976); United States v. Roemer, 514 F.2d 1377, 1382 (2d Cir.1975); United States v. Drummond, 511 F.2d 1049,6 1054 (2d Cir.), cert. denied, 423 U.S. 844 [96 S.Ct. 81, 46 L.Ed.2d 65] (1975); United States v. Rodriguez, 497 F.2d 172, 175-76 (5th Cir.1974).