dissenting.
Even though the state was ready to go to trial on April 11, 1990, the majority penalizes it by dismissing the indictment because of defendant’s inability to be ready for trial by that date. That holding constitutes an absurd construction of ORS 135.763. This court should overrule State v. *45Whiley, 84 Or App 385, 734 P2d 8 (1987), and construe the statute to comport with common sense.
On March 26, 1990, the trial court allowed defendant’s appointed counsel to withdraw and appointed new counsel. When new counsel was appointed, a member of the court staff took the trial off the court docket and noted that the “trial needs to be reset.” That action occurred despite the district attorney’s communication with the court that the April 11 trial date needed to remain in effect, because of the ORS 135.763(1) 90-day time limit. At the hearing on the motion to dismiss the indictment, the trial court found that neither the district attorney nor the defendant had requested a continuance. In its order denying defendant’s motion to dismiss, it said:
“If there is any fault in this case not going to trial on April 11[,] it is with Mr. Hickam [the first appointed counsel], Mr. Willes [the second appointed counsel], and the Court staff.
( (if: >-c íjí i}c %
“The Court finds there was no fault by the State of Oregon and the District Attorney’s Office regarding the trial not being conducted on April 11, 1990.
“This change in the scheduled trial date from April 11, 1990, was created by ethical conflicts with Mr. Hickam and an essential State’s witness Mr. Michael Hendricks, which matter was called to the attention of Mr. Hickam by the Deputy District Attorney assigned to this case.”
The majority relies on State v. Gilliland, 90 Or App 477, 752 P2d 1255 (1988), to support its decision. However, this case, unlike Gilliland, does not concern a district attorney’s failure to respond in a timely request for trial under ORS 135.760. Rather, it concerns the failure to commence a trial within the 90-day period mandated by ORS 135.763(1), even though the district attorney was ready to go to trial within the statutory period.
In construing ORS 135.763, our task is to discern the legislature’s intent. ORS 174.020. We begin by examining the statutory language. State ex rel Juv. Dept. v. Ashley, 312 Or 169, 185, 818 P2d 1270 (1991). ORS 135.763 provides:
“(1) The district attorney, after receiving a notice requesting trial under ORS 135.760, shall, within 90 days of *46receipt of the notice, bring the inmate to trial upon the pending charge.
" (2) A continuance may be granted upon the request of the district attorney and with the consent of the inmate. The court shall grant any continuance with the consent of the defendant. The court may grant a continuance on motion of the district attorney for good cause shown. The fact of imprisonment is not good cause for the purposes of this subsection.”
Reading that statute to require the district attorney to move for a continuance even though the state is prepared to proceed to trial within the 90-day period produces an absurd result, because district attorneys have no direct control over court docketing. See ORS 1.010; ORS 8.630;1 UTCR 7.010; see also ORS 1.175; UTCR 6.030; UTCR 6.040. Accordingly, we look beyond the words to the purpose of the act as expressed by extrinsic evidence, such as legislative history and the statutory scheme as a whole. See State ex rel Cox v. Wilson, 277 Or 747, 750, 562 P2d 172 (1977). When the legislative purpose is unclear from the language of the statute and its history, we try to construe a statute in a way that comports with common sense. See Didier v. S.I.A.C., 243 Or 460, 465, 414 P2d 325 (1966).
ORS 135.763(1) imposes the duty on the district attorney to “bring the inmate to trial” within 90 days of the receipt of the notice, subject to any continuances under ORS 135.763(2). It does not require the district attorney to insure that the trial is held within 90 days. The legislative history of ORS 135.760 to ORS 135.7652 reveals that the statutes were intended to authorize
“[t]he inmate [to] request the District Attorney to make prosecution for such other crimes [with which he is charged] while he is imprisoned so that upon parole he will have a clean record.” Minutes, House Judiciary Committee 1 (Apr. 18, 1955 —statement of Sen. Francis, SB 412’s sponsor).
There is no expression in the legislative history that the legislature contemplated that a charge would be dismissed *47when circumstances beyond the control of the district attorney caused the delay. Requiring the district attorney to move for a continuance when the state is ready for trial is inconsistent with the principle that the burden of moving for a continuance should fall on the party who caused the delay.
To the extent that the holding in State v. Whiley, supra, is inconsistent with what the legislature intended, it should be overruled. There is evidence to support the trial court’s finding that the district attorney did everything within his power to comply with defendant’s request for a trial within the 90-day period. I would hold that the state’s actions satisfied the requirements of ORS 135.763 and that defendant is not entitled to a dismissal of the indictment under the circumstances.
I dissent.
Rossman, Deits, and Riggs, JJ., join in this dissent.Essentially the same versions of ORS 1.010 and ORS 8.630 were in effect in 1955.
It was enacted as ORS 134.510 to ORS 134.530 and subsequently renumbered as ORS 135.760 to ORS 135.765.