concurring:
I agree with the majority that the outcome of this appeal is dictated by Alabama v. Bozeman and KRS 440.450. Furthermore, I agree that dismissal with prejudice is our only remedy for the Commonwealth’s violation of the IAD in this instance. I write separately because I do not believe that the one month and a half period that passed before Scroggins was *236returned to Kentucky from Indiana materially prejudiced Scroggins or resulted from an intentional act by the Commonwealth. In such an instance, I believe it would be preferable for our circuit courts to have the option to dismiss with or without prejudice. This option is not currently available in Kentucky.
In contrast, the federal government, also a party to the IAD, has provided its courts with the ability to order dismissals to be without prejudice. In 1988, Congress amended the federal counterpart to the IAD vesting in receiving courts the discre-. tion to dismiss charges, based on the anti-shuttling provisions, “with or without prejudice.” 18 U.S.C.A app. 2 § 9(1). The amended provision provides:
Notwithstanding any provision of the agreement on detainers to the contrary, in a case in which the United States is a receiving State—
(1) any order of a court dismissing any indictment, information, or complaint may be with or without prejudice. In determining whether to dismiss the case with or without prejudice, 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 the agreement on detainers and on the administration of justice; and
(2) it shall not be a violation of the agreement on detainers if prior to trial the prisoner is returned to the custody of the sending State pursuant to an order of the appropriate court issued after reasonable notice to the prisoner and the United States and an opportunity for a hearing.
18 U.S.C.A. app. 2 § 9(1)(2)
Kentucky, which originally adopted the IAD in 1974, has not modified the anti-shuttling language in accordance with the change in federal law. In this state, the IAD continues to require that dismissals, based on violations of the anti-shuttling provision, be with prejudice. Our state circuit courts lack the power to consider the factors federal district courts are required to consider in determining whether to dismiss with or without prejudice: “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 the agreement on detainers and on the administration of justice[.]” Id. § 9(1). I believe these factors are appropriate and worthy of consideration.
Moreover, I believe that, in a case like the present, these factors would militate in favor of dismissal without prejudice if our courts were permitted to consider them. Unfortunately, our current statute does not give our courts this discretion. It mandates dismissal with prejudice regardless of the factual circumstances.
DIXON, Judge, concurs by separate opinion.