dissenting.
[¶ 31] I respectfully dissent from the majority opinion. First, the State never argued the district court was without authority under N.D.R.Crim.P. 48, because a complaint had never been served or filed. Second, I agree with that part of Justice Kapsner’s analysis of N.D.R.Crim.P. 48 in her concurrence in the result concluding that Rule 48 applies in this case. I differ, however, with Justice Kapsner’s analysis of the district court’s inherent power to dismiss cases for prosecutorial delay under Rule 48 and conclusion that the district court abused its discretion by dismissing the cases.
[¶ 32] In City of Jamestown v. Snellman, 1998 ND 200, ¶¶ 9-11, 586 N.W.2d 494, our Court held that before the district court could dismiss the cases it must give the parties notice of its intent to do so and an opportunity to respond. Here, the district court failed to give prior notice to the State and an opportunity to respond. I do note that surprisingly the record indicates that, at the time of the dismissals, the State never even objected to the action taken by the district court sua sponte. I would reverse the order of dismissal because the district court did not give notice to the State of its intent to dismiss.
[¶ 38] I would remand the case to the district court to give proper notice and to provide both parties the opportunity to respond. The State could present at that time the reasons there has not been unnecessary delay in filing an information or complaint. The defendants could present evidence of prejudice.
[¶34] I disagree with Justice Kaps-ner’s analysis and application of the four factor balancing test in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) to the present case. This Court has never addressed what test should be applied to a right to a “speedy” indictment, information or complaint post arrest. I am of the opinion that the district court should hold a hearing after notice to the parties and make its own findings. I also am of the opinion that “a court’s power to dismiss under Rule 48(b) is more expansive than a defendant’s Sixth Amendment right to a speedy trial. See 28B Moore’s Federal Practice § 648.03[3] at 648-18 (3d ed.1997) (recognizing Rule 48(b) allows courts to dismiss cases for prosecutorial delay even though the delay does not amount to a constitutional violation).” Snellman, 1998 ND 200, ¶ 11, 586 N.W.2d 494; see also 28 James Wm. Moore et al., Moore’s Federal Practice § 648.03[3][a] at 648-18 to 648-19 (3d ed. 2008) (“Although most dismissals for delay in prosecution are grounded on the constitutional provision, Rule 48(b) serves a somewhat broader purpose, and there are instances of dismissal involving no denial of constitutional rights. Facts that show lack of a speedy trial under the Sixth Amendment would a fortiori demonstrate that there was unnecessary delay under Rule 48(b), but the converse is not true; dismissal does not necessarily establish a constitutional violation.”).
[¶ 35] The order of dismissal should be reversed and the cases remanded-to the district court to provide notice to the parties and for further proceedings in accordance with the law.
[¶ 36] Mary Muehlen Maring, Daniel J. Crothers