dissenting.
The defendant was jointly charged with one Lambert for armed robbery in May 1970.
The parties in the briefs agree to the following chronology:
“March 15,1970: Defendant arrested for armed-robbery.
“May 22,1970: The first indictment filed in two counts of armed robbery.
“June 19, 1970: State filed motion to dismiss this indictment on the grounds the case was resubmitted to the Grand Jury, and a third count of Receiving and Concealing was added.
“June 19, 1970: First indictment dismissed. “June 19, 1970: Second indictment returned against defendant.
“Sept. 15, 1970: Defendant arraigned, and not guilty plea entered.
“Oct. 14, 1970: Case was first set for trial, and set over by the State because it desired to try co-defendant Lambert first, but Lambert asked to set it over.
“Nov. 10, 1970: Case again assigned for trial, and again reset without defendant’s consent.
“Feb. 4, 1971: Case again set for trial, and assigned to Judge Robert E. Jones. Defendant filed affidavit of prejudice, and consented to a set over for another judge.
“March 15, 1971: Trial commenced.”
Based thereon, defendant, on March 15, 1971, filed a motion “to dismiss this case as a result of the un*134warranted delays causing this defendant to not have a speedy trial as guaranteed him by the Constitution.”
The motion was denied.
In State v. Downing, 4 Or App 269, 478 P2d 420 (1970), this court said:
“The right of every criminally accused to have a speedy trial is beyond dispute. State v. Sieckmann, 3 Or App 454, 474 P2d 367 (1970); Klopfer v. North Carolina, 386 US 213, 87 S Ct 988, 18 L Ed 2d 1 (1967). Furthermore, it is a well established rule in Oregon that the state has a duty to afford the accused a speedy trial and the accused is not required to take affirmative action to enforce this right. State v. Vawter, 236 Or 85, 386 P2d 915 (1963); Bevel v. Gladden, 232 Or 578, 376 P2d 117 (1962). * * *”
In State v. Harrison, 253 Or 489, 455 P2d 613 (1969), the Supreme Court said:
“The defendant has argued that he was entitled to have the indictment dismissed because of unreasonable delay in bringing him to trial. The record shows that approximately one year elapsed between his arrest and his trial. Most of the delay, however, was of the defendant’s own making. The defendant changed lawyers twice and requested delays each time. On other occasions he claimed to be ill and asked for continuances. There is no showing that any substantial delay was caused by the prosecution. Under ORS 134.120, the state must bring an accused to trial within a reasonable period of time. Reasonableness is a question of fact which must be answered in the light of the circumstances of each particular ease. State v. Gardner, 233 Or 252, 377 P2d 919 (1963); State v. Kuhnhausen, 201 Or 478, 513, 266 P2d 698, 272 P2d 225 (1954). And see Linde, Criminal Law—1959 Oregon Survey, 39 Or L Rev 161, 171 (1960)." 253 Or at 492.
*135Here the state at the time of the motion advised the court:
“I think the record is clear, the case has been set four times and we did elect every time to try Mr. Lambert first. Many of the times it was set over at the request of Mr. Lambert. The case was just set over. * *”
It is not disputed that this defendant at no time did any act which caused or contributed to the repeated putting over of his trial. Nor does the state contend that he was advised, consulted, or given an opportunity to be heard concerning any of those postponements.
The state urges and the court holds, relying on State v. Robinson, 3 Or App 200, 473 P2d 152 (1970), that the burden is on the defendant here to show prejudice before he can prevail on this motion. Thus, though the court concedes that at least eight and one-half months① of the delay were in no way the fault of the defendant, it concludes that since prejudice was not shown, the motion was correctly denied.
Here the repeated postponements of the trial of the co-defendant, Lambert, at the latter’s sole request, thus are made binding on a co-defendant, even though the state itself elected to try Lambert first.
I can find nothing in U.S. Const. amend. VI which veils the right of a defendant to a speedy trial behind the shadow of a co-defendant, unilaterally elected by the state to be tried first, who independently and for his own reasons seeks and obtains a series of postponements of his trial.
In Robinson, we said:
“As noted, the most substantial part of any de*136lay in the case at bar came about as a result of the defendant’s motions, regardless of how meritorious they were.” 3 Or App at 212.
No such situation exists here. I do not believe that under these circumstances the burden rests upon an in-custody defendant to prove that he has not been prejudiced thereby. The “reasonableness” of the delay called for by Harrison was not in my view established here.
I therefore respectfully dissent.
See State v. Kent, 5 Or App 297, 484 P2d 1109 (1971).