Defendant was charged with second-degree murder as a result of a shooting which followed an altercation between the occupants of two motor vehicles. After trial on the charge, the jury was unable to reach a verdict and a mistrial was declared. A new trial was scheduled by the Superior Court administrator for February 7, 1977, 94 days after the date of the mistrial. On February 4, 1977, defendant filed a motion to dismiss the charge with prejudice since more than 90 days had elapsed. The motion was denied.
Discretionary review was granted by the Court of Appeals which, by a split decision, upheld the trial court. State v. Barton, 17 Wn. App. 846, 565 P.2d 830 (1977). Judge McInturff, in his dissenting opinion (17 Wn. App. at 849), stated the 90-day time limitation of CrR 3.3(b) applied to a retrial following a mistrial. Defendant then petitioned this court for review. While this petition was pending, we released our decision in State v. Aleshire, 89 Wn.2d 67, 568 P.2d 799 (1977). Subsequently, we granted the petition for review and remanded this case by notation order to the Court of Appeals "with directions to reconsider". The Court of Appeals reconsidered, and by another split decision again upheld the trial court, holding that, since Aleshire had been decided after the trial proceedings, it should not govern. State v. Barton, 19 Wn. App. 322, 575 P.2d 730 (1978). Upon reconsideration, the majority found our decision in Aleshire to be a "newly adopted procedural rule" and stated, referring to CrR 1.3(a), that it should not be applied to "[a]ny acts done before . . . [Aleshire was decided] in any proceeding pending under rules of procedure in effect prior to . . . [the decision in Aleshire]." Barton, 19 Wn. App. at 325.
*617We affirm the majority of Division Three of the Court of Appeals and deny the motion to dismiss.
The defendant presents no constitutional challenge to his second-degree murder conviction. Rather he complains of a 4-day violation of our voluntarily adopted time limits for a speedy trial as set out in CrR 3.3.
The question is whether the Aleshire case, supra, was a newly adopted procedural rule or whether it was an interpretation of the application of CrR 3.3 to retrials following a mistrial, not retrospective in nature. It is argued that the Aleshire rule should have been anticipated by the fact that we have examined previously the American Bar Association standards where a hiatus appears in CrR 3.3. State v. Elizondo, 85 Wn.2d 935, 540 P.2d 1370 (1975).
It is true that in State v. Elizondo, supra, we did look to the ABA standards for guidance in filling gaps inadvertently existing under CrR 3.3.
However, neither in Aleshire nor in Elizondo did we indicate, dictate or mandate that the ABA standards were the absolute and binding source of all solutions and answers to unstated issues of CrR 3.3. As Justice Rosellini said in dissenting in State v. Parmele, 87 Wn.2d 139, 143-45, 550 P.2d 536 (1976):
The majority assumes that the comments to the ABA Standards Relating to Speedy Trial have been incorporated in our rules. If so, it has been done sub silentio, and I do not believe that either lawyers or laymen should be expected to read into the rules qualifications or modifications which this court did not see fit to promulgate.
After all, we wrote the rules. We put there what we felt should be included, and presumably we omitted what we felt should be omitted. . . .
... If it [the court] thinks they are inadequate or inappropriate, it should rewrite them. But it ought not to read into them provisions which are not there and read out of them the words that are written. They are complicated enough as they are. To further obscure them is to bring into focus the question whether the court itself, in *618its rule making operations, is not bordering on the denial of due process of law.
CrR 3.3 was not promulgated without substantial study and controversy. Its purpose remains desirable and attainable. Like all rules it cannot and did not anticipate all of the possible factual situations which arise in the day-today trial of cases.
The rule was not all things to all questions. We have amended it several times and other amendments are under consideration. More than 90 appellate decisions have construed or applied CrR 3.3 since it was adopted.
These facts alone should militate against the argument that the Aleshire interpretation was merely a proper interpretation of CrR 3.3 to retrials following mistrials when that situation is not even mentioned in the original rule.
We agree with the concurring opinion of Chief Justice Utter who advances forceful arguments as to why the retroactive application of the Aleshire principle would not effectively serve the purpose of the rule.
Therefore, we affirm the majority opinion of the Court of Appeals and deny the motion to dismiss.
Stafford, Wright, Hicks, and Williams, JJ., concur.