(concurring)—I concur in the result. Here, the defendant waived his objection to the date of arraignment and measuring the time from the date of actual arraignment to the date of trial there was no violation of the time for trial rule, CrR 3.3. Although my reason for affirmance was not the one relied on by the trial court, this court may affirm on any theory within the pleadings and proof. Gross v. Lynnwood, 90 Wn.2d 395, 583 P.2d 1197, 96 A.L.R.3d 187 (1978); State v. Davis, 29 Wn. App. 691, 630 P.2d 938, 17 A.L.R.4th 53, review denied, 96 Wn.2d 1013 (1981).
While the time for trial rule is a means of implementing the constitutional right to a speedy trial, it is not of constitutional magnitude. The provisions of the rule demand strict compliance and when not followed, dismissal with prejudice is required. State v. White, 94 Wn.2d 498, 617 P.2d 998 (1980). Unlike a requirement of prejudice before relief may be had under the constitutional guaranty of a speedy trial, a defendant need not make a showing of prejudice to support dismissal when the rule has been violated. State v. Williams, 85 Wn.2d 29, 530 P.2d 225 (1975). However, in order to take advantage of the rule the defendant must abide by its requirements otherwise the protection afforded may be considered waived. State v. Bernhard, 45 Wn. App. 590, 726 P.2d 991 (1986), review denied, 107 Wn.2d 1023 (1987).
CrR 3.3(e) provides specific means of objecting to the arraignment. Objections must be stated at time of arraignment and must be specific enough to apprise the trial court of the type of error claimed. State v. Bernhard, 45 Wn. App. at 600. Failure to object amounts to a waiver of the objection, and the date of arraignment shall be conclusively *378established as the date the defendant was actually arraigned. CrR 3.3(e).
Hanson was arraigned on or about the fourth day of April 1986. No objection was made to the date of arraignment. He only complained about the trial date. Neither did his written motion for dismissal nor his supporting affidavit filed May 13 make any challenge to the date of arraignment. Measuring the time from date of arraignment to the trial there is no violation of the rule. In my view Hanson waived his objection to date of arraignment and for this reason I would affirm.
I disagree with the majority's opinion because it is based on the mistaken premise that absence or unavailability of the defendant is still a viable means of extending the time for trial notwithstanding the State Supreme Court's express elimination of this means effective August 1, 1980. CrR 3.3, 90 Wn.2d 1149. The majority's reliance on State v. Pacheco, 107 Wn.2d 59, 726 P.2d 981 (1986) as authority for reviving the absence or unavailability of the defendant as a means of extending the time is misplaced.
In Pacheco, the court was concerned with whether the proceedings initiated by complaint in district court and superseded by information and arraignment in superior court violated the time for trial rule, CrR 3.3, as amended effective August 1, 1980. This amended version of the rule expressly incorporated proceedings in which criminal charges were initiated in district court. In Pacheco, arraignment in superior court occurred 3 days after defendant's arrest and appearance in district court and was well within the 14-day limit from the filing of the information. CrR 3.3(c)(2) (i). However, there was a delay of over 10 months between the filing of the complaint and arraignment. During the last 4 months the defendant was incarcerated in a county adjoining that in which proceedings under review were initiated. In the face of a specific challenge to the date of arraignment, the court found no violation of the rule. In reaching this conclusion, the Pacheco *379court focused on the express provisions of the rule. The rule specifically provides that the time elapsed in district court for the purpose of shortening the 60- or 90-day time limit for trial commences on the date the defendant first appears in district court if the defendant is not detained in jail when the complaint is filed. CrR 3.3(c)(2)(ii). There, the defendant was not in jail when the complaint was filed. Reading the rule literally, the court concluded there was no violation of the rule.7
The majority mistakenly assumes that the court in Pacheco has revived the absence or unavailability of the defendant as a means of extending the time for trial by its discussion of the State's good faith and due diligence to bring the defendant to trial. Unfortunately the court did refer to the State's good faith and due diligence and did cite cases predating the amendment to the rule which was effective August 1, 1980, namely, State v. Alexus, 91 Wn.2d 492, 588 P.2d 1171 (1979) and State v. Bledsoe, 31 Wn. App. 460, 643 P.2d 454, review denied, 97 Wn.2d 1026 (1982). These cases did require a showing of the State's good faith and due diligence before the defendant's absence or unavailability could be a means of extending the time for trial. However, the court in Pacheco did not mention the defendant's absence or unavailability as a means of extending the time for trial. In any event, any reference to the State's good faith and due diligence was unnecessary to the opinion since the court had already determined that there was no violation of the rule.
Furthermore, if the court in Pacheco intended to revive the unavailability and absence of the defendant as a means of extending the time one would expect a clearer expression *380of the court's intention in face of its earlier explicit elimination of this means from the rule by the amendment effective August 1, 1980.
Admittedly, unavailability and absence of the defendant as a means of extending the time for trial rule seems to have crept into the case law at the Court of Appeals level. See State v. Allen, 36 Wn. App. 582, 676 P.2d 501 (1983); State v. Hunnel, 52 Wn. App. 380, 760 P.2d 947 (1988) (Alexander, J., concurring); State v. Holien, 47 Wn. App. 124, 734 P.2d 508 (1987) (Petrich, J., concurring); State v. Nelson, 47 Wn. App. 579, 584, 736 P.2d 686, review denied, 108 Wn. 2d 1024 (1987). However, none of the cases which conclude that unavailability and absence of the defendant is still a means of extending the time for trial have devoted any analysis to how such a proposition survives the amendment to the rules. This issue is an appropriate one for the Supreme Court to resolve.
Review denied by Supreme Court November 29, 1988.
In its opinion the Pacheco court made no reference to its earlier decision in State v. Peterson, 90 Wn.2d 423, 585 P.2d 66 (1978) (decided before the amended version of the rule) which declared that in the application of State v. Striker, 87 Wn.2d 870, 557 P.2d 847 (1976) to the time for trial rule, there was no legal significance in the distinction between charges initiated by complaint in district court rather than by information.