(dissenting) — The basic premise of the majority is faulty. State v. Aleshire, 89 Wn.2d 67, 568 P.2d 799 (1977), did not announce a new rule of procedure. Rather, it was merely a proper interpretation of the application of CrR 3.3 to retrials following a mistrial. See Seattle v. Crockett, 87 Wn.2d 253, 255, 551 P.2d 740 (1976). The majority too easily glosses over what this court has done relative to CrR 3.3 and bases its argument on dissents and such irrelevancies as the number of appellate decisions in which we have considered the rule.
It is important to cite those cases and that language which the majority ignores. We have been strict in our application of the speedy trial provisions of CrR 3.3. "[P]ast experience has shown that unless a strict rule is applied, the right to a speedy trial as well as the integrity of the judicial process, cannot be effectively preserved." State v. Striker, 87 Wn.2d 870, 877, 557 P.2d 847 (1976).
Aleshire was an interpretation which had been foreshadowed by previous cases decided by this court. In 1976, we said, "A majority of this court has twice indicated that the ABA standards should be consulted where a hiatus appears in CrR 3.3." State v. Striker, supra at 873. See also State v. Parmele, 87 Wn.2d 139, 550 P.2d 536 (1976); State v. Elizondo, 85 Wn.2d 935, 540 P.2d 1370 (1975); Seattle v. Crockett, supra; State v. Bepple, 14 Wn. App. 491, 542 P.2d 1260 (1975).
In Striker, we went on to say:
While those cases [State v. Elizondo, 85 Wn.2d 935, 540 P.2d 1370 (1975); State v. Parmele, 87 Wn.2d 139, 550 P.2d 536 (1976)] do not dispose of the question presented here, they point to a source which this court should consult for guidance where a situation arises *622which was not contemplated by the rules and not covered by a statute which is in harmony with the rules.
The ABA standards not only indicate that the time for bringing a case to trial should date from the filing of the indictment or information, where it is filed prior to arrest, but they also provide that failure to bring the matter to trial within the time limited should result in absolute discharge. ABA Standards Relating to Speedy Trial § 4.1 (Approved Draft, 1968). This latter standard has been expressly adopted by this court (CrR 3.3(b)).
Striker, at 874.
We declared in 1975 that "[a] showing of prejudice to the defendant is unnecessary." State v. Williams, 85 Wn.2d 29, 32, 530 P.2d 225 (1975). We have not required an accused to demand the right to a trial within the prescribed time period, nor is this requirement contained in CrR 3.3. See ABA Standards Relating to Speedy Trial, Standard 12-2.2, Commentary at 7 (Approved Draft, 1978). Cf. CrR 3.3(d), 90 Wn.2d 1149, effective November 17, 1978.
For those who had followed the cases prior to Aleshire in which this court applied CrR 3.3, Aleshire should have been considered only an expected interpretation and expression of an existing rule. See State v. Barton, 17 Wn. App. 846, 565 P.2d 830 (1977) (McInturff, J., dissenting at page 849.)
If there were reasons for continuance or delay, as well may have been the case here, orderly procedures existed by which a continuance or delay might have been obtained. These procedures were not pursued, and it was not the responsibility of the defendant to do so. CrR 3.3(e)(2), (3). Neither has the prosecuting attorney brought to our attention any justification for failing to request a continuance. See State v. Williams, supra at 32.
As justification for the delay beyond 90 days — but not as a justification for failing to request a continuance — the State points to the testimony of the court administrator that the next ensuing jury term following the mistrial began January 10, 1977, and the earliest available date for the case was February 7, 1977, the date the retrial was set. The *623State further argues that a defendant should not be retried before the same jury panel and that a second trial should be set at the next jury term with a new jury panel. This argument as to calendar problems is not persuasive.
The criminal rules task force which prepared CrR 3.3 as adopted by this court specifically adopted the philosophy of the ABA speedy trial draft:
(1) the defendant can be prejudiced by delay, whatever the source; (2) such delays are contrary to the public interest in the prompt disposition of criminal cases; (3) if congestion excuses the long delays, there is lacking sufficient inducement for the state to remedy congestion; and (4) the calendar problems which arise out of trying to make maximum use of existing facilities do not ordinarily require time beyond that otherwise allowed.
Rule 3.3, Criminal Rules Task Force, Washington Proposed Rules of Criminal Procedure, Comment to ABA Draft-Speedy Trial § 2.3, at 39-40 (West Pub. Co. ed. 1971).
The State cites State v. Garman, 76 Wn.2d 637, 458 P.2d 292 (1969), which discusses the standards for allowable delay under the statute (RCW 10.46.010) and urges these standards upon us. The difficulty with this position is that we clearly and unequivocally stated in State v. Williams, supra, that cases decided under RCW 10.46.010 are no longer applicable under CrR 3.3.
In his dissent in the original Court of Appeals consideration of this case, which he reiterated upon remand, Judge Mclnturff stated:
I therefore cannot reason to any other conclusion that a retrial, after a mistrial, must occur within a maximum period of 90 days. It is inconceivable to me why a longer time span is necessary. The prosecution and the defense are prepared enough to have already engaged in one attempt to resolve the charges against the defendant. He, having endured the anxiety and public suspicion attendant to being charged, is twice more exposed to the mental anguish of, first, a trial without a verdict and, then, another delay prior to the second trial. Furthermore, in a mistrial there must have been enough reasonable doubt that the defendant committed the crime to prevent a 12-*624man jury from resolving the question of his guilt. And, of course, the interests of the public in a speedy disposition of criminal charges have not been served under our rules.
(Footnote omitted.) Barton, 17 Wn. App. at 852.
This court has spoken clearly and unequivocally on CrR 3.3 in the past. For whatever reason, the authorities in Benton County failed to bring defendant to trial within 90 days. Defendant is entitled to an order that the charges against him be dropped and dismissed with prejudice.
I dissent.
Rosellini and Horowitz, JJ., concur with Dolliver, J.
Reconsideration denied July 17, 1980.