dissenting.
This is an unusual case which presented unusual legal complications. It took nearly three years for this case to come to trial. The first major delay in the case occurred when Sundberg filed a motion to suppress evidence on the ground that excessive force had been used to effectuate his arrest. Judge Carlson granted this motion. The state petitioned for review to the supreme court which reversed Judge Carlson’s decision. State v. Sundberg, 611 P.2d 44 (Alaska 1980). The state was granted a stay of Sundberg’s trial on this motion from November 22, 1978 to May 19, 1980 when the supreme court issued its mandate. After the case was returned to the trial court, another legal battle took place over whether Sundberg would be allowed, under the supreme court’s decision, to attempt to prove that the state troopers and the Anchorage Police Department had frequently used excessive force in effectuating arrests. Sundberg moved to discover evidence relevant to this point and argued that he was entitled to have an evidentiary hearing on this issue. The trial court denied Sund-berg’s motions, and Sundberg again petitioned for review, this time to the court of appeals. The court of appeals refused to grant the petition. Sundberg’s motion was filed on August 7,1980, and his petition for review was denied on November 7, 1980. Following that legal battle, Sundberg’s counsel filed a motion to withdraw from the case. Apparently Sundberg became dissatisfied with his attorney and wished to have another attorney appointed. The court then had Sundberg examined by a psychiatrist to determine if he was competent to stand trial. This was apparently done to determine whether Sundberg was competent to make a reasonable decision concerning his representation. The defense motion was filed on December 17, 1980, and Sund-berg was found competent on January 20, 1981. Sundberg’s case was set for calendar call on January 27, 1981. On that date, his trial was set for March 16, 1981.
Sundberg argues that out of the approximately three-year period that it took this case to come to trial, 176 days are chargeable to the state and thus the case should be dismissed for a violation of Alaska Criminal Rule 45. When this motion was presented to Judge Carlson, he concluded that when a trial is delayed for a period of time by a *849petition for review, a certain amount of additional time should be chargeable to the petition for review other than the actual time during which the petition is pending in the appellate court. Judge Carlson ruled that the state should be allowed an additional period of time to assemble witnesses and to get the case set for trial after a petition for review. This is a well reasoned, common sense approach. The state represented, and the fact is not contested, that in order to try the case it had to call several out-of-state witnesses, including FBI agents. Criminal Rule 45(d)(1) provides that “[t]he period of delay resulting from other proceedings concerning the defendant, including but not limited to motions to dismiss or suppress, examinations and hearings on competency, the period during which the defendant is incompetent to stand trial, interlocutory appeals, and the trial of other charges” are to be excluded. (Emphasis supplied.) In Russell v. Municipality of Anchorage, 626 P.2d 586 (Alaska App.1981), this court recognized that the period of delay caused by the absence or unavailability of the defendant was a time period greater than just the time when the defendant was absent. In that case, we held that where the defendant did not appear for trial, the 120-day period began again when he was arrested following his failure to appear for trial. In order to decide this case it is not necessary to rule that the 120-day period starts again after each petition for review. However, it certainly appears that the petitions for review in this case resulted in delay beyond the actual time during which the petitions were pending. When a party takes a petition for review to an appellate court, neither party knows when that petition will be resolved. The first petition for review took a year and one-half. As Judge Carlson pointed out, trials do not start instantly after such a long and unpredictable delay. Therefore, I would find, as did Judge Carlson, that more time was attributable to the petitions for review because of the difficulties in setting the case for trial and in scheduling out-of-state witnesses. In the instant case, even with all the delays caused by all the motions and petitions for review, the case is less than sixty days over the 120-day period. This is a case which has been delayed for approximately three years by various motions and petitions. I think Judge Carlson was correct in concluding that this sixty days was attributable to the delays caused by the petitions for review because of the difficulties in rescheduling the trial.1 I would affirm Judge Carlson’s ruling refusing to dismiss the case against Sundberg on speedy trial grounds.2
. The state disagrees with Judge Carlson on exactly which time periods should be excluded because of the petitions for review. However, the state argues the same theory which Judge Carlson applied: that more delay is attributable to the petitions for review than the actual time during which they were pending. For instance, the state argues that after the first petition for review was decided, the court should have ruled that the 120-day period started over. Instead, Judge Carlson concluded that a forty-four day period of time from when the mandate was issued until a trial date was set should have been excluded from the 120-day period. Given the fact that this case was in the supreme court for a year and one-half on the first petition for review, it seems to me that a thirty-day period of delay in addition to the time the case was actually pending in the supreme court would be a reasonable period of additional delay to attribute to that petition for review. I conclude that the trial judge could assume this period of delay resulted from the first petition for review without any additional proof from the state.
Similarly, it seems clear that at least an additional thirty-day period of time should be allowed to restart the proceedings after the second petition for review. This is particularly clear when the confusion created by Sundberg trying to discharge his counsel is considered along with the problems of trying to reset a trial which involves several out-of-state witnesses and which has been delayed for one reason or another for nearly three years.
. The decision of the majority to dismiss on Criminal Rule 45 grounds disposes of this case. It is therefore unnecessary to decide the other issues Sundberg raises in his appeal.