(specially concurring).
Willingly and proudly I served under the Fosheim Court *. As I write this special writing, the “old 180-day rule” will be supplanted with a new look. This “new 180-day rule” was lifted, by and large, from our legal brothers in the State of Nebraska where it has served them well. There is a great deal of settled law, in Nebraska, under the “new 180-day rule.”
With the advent of this “new 180-day rule,” on the horizon in this state, I wish to join this opinion; however, I do so with reservations. First of all, I concurred in result in Tiedeman due to one principal reason, namely that the charges which Tie-deman first faced were not the charges upon which he was ultimately convicted. However, I did not think the State clearly substantiated their cause for the delay in prosecution of that case.
In Ven Osdel, this special writer wrote the majority opinion, which was joined by Justices Wuest and Morgan, both of whom served on the Fosheim Court. Justice Sabers and Chief Justice Miller both dissented in Ven Osdel. The Court in the present case, is comprised of Chief Justice Miller, Justice Wuest, Justice Sabers, Acting Justice Hertz (who is a senior circuit court judge in this state), and myself. The holding in Ven Osdel was to reverse the circuit court because the trial court permitted a case to be prosecuted to a conviction, *422shunting aside the 180-day rule, even though there was docket congestion and ineffective scheduling practices which took the prosecution beyond the 180-day rule. Justice Morgan has retired since the Ven Osdel decision and did not participate in the decision to establish the “new 180-day rule.”
All of this background brings me to my total disagreement with a quote within the Genovese citation from Pennsylvania in 1981. I refer to such phrases as “good faith prosecution” and “no misconduct” with respect to the Commonwealth (in other words, the prosecution).
The “old 180-day rule” has served this state very well. We have experienced delay — nightmares in the prosecution of cases in this state. The “Fosheim Court” moved to eradicate these nightmares so that the courts of this state were not clogged with stale criminal cases. As a result of the “old 180-day rule,” hundreds of stale cases were disposed of and the prosecutors of South Dakota became cognizant of a rule that had teeth; they learned that they had to go about their prosecutorial business in good, workmanlike practice. I do not believe that it serves this Court or the administration of justice well in this state, to allow prosecutors an “escape hatch” to avoid their failure to abide by a speedy trial rule to permit them to express “we acted in good faith” or there was “no misconduct on our part;” “good faith” is, in my opinion, an improper criteria; likewise, “no misconduct,” expressed in that context. The speedy trial rule is to further the prosecution of cases in an effective manner and to afford defendants a right to have their case tried within a reasonable time. The .citizens of this state, who are witnesses and victims, should not have to wait interminably for a case to come to trial. These victims and witnesses have rights, also. Genovese, therefore, has language, which this Court quoted with approval, that I find far too liberal and causes the weights of justice to be balanced in favor of the State on a speedy trial rule, which is inherently inconsistent with that which is being sought to be accomplished, namely a speedy trial just like the United States Constitution prescribes. United States Constitution, Amendment 6, expresses:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense, (emphasis supplied mine).
Lastly, I wish to express that in all of my reading on speedy trial rules, the reoccurring principle is set forth that it is the state's responsibility to prosecute cases; it is not the defendant’s responsibility, nor his counsel, to prosecute the case. United States v. Didier, 542 F.2d 1182, 1187 (2d Cir.1976); People v. Deason, 670 P.2d 792 (Colo.1983); Commonwealth v. McLaughlin, 338 Pa.Super. 615, 488 A.2d 63 (1985). The “old 180-day rule” in no way, in this state, served to expand the “bloated arsenal of the unscrupulous criminal determined to manipulate the system;” rather, that rule served to update, in current fashion, the hundreds of cases that lingered on the vine, in this state, which was a disgrace to the administration of justice. Proudly, I had a part of that rule and notwithstanding the whining, weeping and wailing which floated across the prairie from Wyoming to Iowa from many prosecutors, while the “old 180-day rule” was in existence, simply because they had to keep their nose to the legal grindstone, an effective prosecution of criminal cases took place — not for days — not for months — but for several years. We shall see what the “new 180-day rule” births. Hopefully, it will be as effective as the “old 180-day rule.” History teaches you where you’ve been so you know where you’re going.
Jon Fosheim of Huron, South Dakota, served on the South Dakota Supreme Court from 1979 to 1986, serving as Chief Justice for this Court four of those years.