dissenting: I believe the majority opinion has approached the issue from the wrong direction. Rather than mechanically adding the two prosecutions together and then determining whether, on June 7, 1982, the State had made an adequate showing of necessity as of that date to extend the 180-day speedy trial limitation of K.S.A. 22-3402, I believe the proper focus should be on the circumstances of the March 5, 1982, dismissal of the first case. If the first case was dismissed upon a showing of good cause, was not occasioned by the State’s *194lack of diligence, was not prejudicial to any rights of the defendant, and was not done as a part of any plan or scheme by the State to harass defendant, defeat the statutory speedy trial requirements, or in furtherance of other bad-faith motives, then the two prosecutions should not be added together in considering the speedy triál question.
In reviewing the circumstances leading to the dismissal of the first case, I find the following facts to be particularly pertinent.
On March 4, 1982, the State moved for a continuance of the March 11, 1982, trial date, filing the following affidavit in support thereof:
AFFIDAVIT
“Comes now Steven L. Opat, of lawful age, having first been sworn upon his oath, hereby states and avers:
“That he is the chief prosecutor in case number 81-CR-339, captioned in re: State vs. Peter Ransom and advises the Court of the following:
“That this matter is set for trial on the 11th and 12th days of March, 1982; that all witnesses were subpoenaed shortly after the last hearing, where the defendant obtained a continuance for the reason that a key witness was unavailable.
“That speaking with certain witnesses, affiant has learned that Doctors Alex Scott and Gerald Daniels will be out of the jurisdiction of this Court for the following reasons;
“That Doctor Alex Scott, who is vital to the chain of evidence concerning certain forensic evidence which will be introduced at the trial of this case, will be in New York City, New York, attending a professional meeting for which he has had a long standing commitment;
“That Doctor Daniels, who initially examined the victim in this case will be in the State of Minnesota taking his boards which must be accomplished in furtherance of his professional medical career;
“That affiant has also learned that Curtis Barefield, an essential witness, has absconded the jurisdiction of the Court, said Barefield being on probation from the District Court of Geary County, Kansas;
“That these witnesses are essential to the State’s case and without their testimony, the State cannot proceed to trial as scheduled;
“Further affiant saith naught.
Is/ Steven L. Opat
Geary County Attorney”
These statements, which have never been controverted, show necessity. Dr! Daniels was scheduled to take his “boards” in Minnesota, which is clearly a date not within his control to alter. The taking of “boards” by a physician is a significant event in his professional career. Dr. Daniels was a key witness for the State as he was the physician who had initially examined the victim and had taken the samples from her which comprised the “Rape *195Kit.” These samples were the basis for much of the testimony of the State’s expert from the Kansas Bureau of Investigation Laboratory.
Dr. Scott was the physician who, by Court order, had taken blood samples, saliva samples and pubic hairs from the defendant and submitted same to the Kansas Bureau of Investigation Laboratory. Based upon the testimony of these two physicians, K.B.I. chemist Eileen Burnau was prepared to show the victim’s attacker was within a certain percentage of the male population which included defendant. Dr. Scott was obviously an important witness in the case and there is ho showing that his commitment to the New York City meeting was a ruse, not of significant importance to him, or could have been rescheduled.
Curtis Barefield was a witness the State intended to call to testify as to defendant’s prior inconsistent statements and declaration against penal interest.
The March 5, 1982, hearing on the State’s motion for continuance is illuminating. The transcript of that hearing, in relevant part, is as follows:
“Now the Court wants to take up the matter of the proposed — or, requested continuance.
“Mr. Chartier [defense counsel]: Your Honor, in regard to the defendant, the only thing I can say is I know I went through this matter the last time and we requested a continuance because of some unavailability of witnesses and I understand Mr. Opat’s dilemma and so I am not going to personally object to it because — and there are some witnesses that are out of state that, in his affidavit, that we would, as far as the defendant is concerned, would like to have them present to testify personally in the matter.
“The Court: . . . My problem is, as I recall, this is a case that’s now been continued three times.
“Mr. Opat: It has.
“The Court: And we now have a computer friend that oversees us to the point that it even knows what the median time of disposition of our felony criminal work is.
“The Court finds that no prejudice will occur to the defendant if the matter is dismissed without prejudice; that the matter has been pending a sufficient length of time for trial but for the technical problems which do sometimes arise in the trial of criminal cases; the Court finds that it is neither the fault of the State nor of the defendant that the present technical problems present themselves. The Court does not believe that further continuance of the case is the proper way to handle the case, considering the guidelines furnished by the Supreme Court for the handling of criminal cases and the Court specifically finds that neither side is operating tactically to try to gain an advantage over the other in their positions stated here today.
*196“Since the matter has not been considered on its merits and since the Court has made the aforementioned findings and since the Court does not find lack of diligence on anybody’s part, the Court believes the appropriate handling of the case is to deny the motion to continue at this time.
“Mr. Opat: I would like to, at this time, make an oral motion that I be allowed to dismiss the matter without prejudice, pursuant'to the Court’s ruling.
“The Court: Mr. Chartier?
“Mr. Chartier: I have no objection to that.
“The Court: Again, reiterating the findings just announced with respect to the motion to continue, the motion to dismiss is granted.” (Emphasis supplied.)
As noted in the majority opinion, we said in State v. Cuezze, Houston & Faltico, 225 Kan. 274, 589 P.2d 626 (1979):
“As we said in Warren [224 Kan. 454, 580 P.2d 1336 (1978)], the purpose of K.S.A. 22-3402 is to implement and define the constitutional guarantee of a speedy trial and the statute establishes certain maximum time limits within which a defendant must be brought to trial. Absent a showing of necessity, the State cannot dismiss a criminal action and then refile the identical charges against the same defendant and avoid the time limitations mandated by the statute. As pointed out by the trial court, our prior cases relied upon by the State arose out of different factual situations or issues than those now before the court. It should also be noted that no attempt was made by the State to secure additional time in the first case to develop evidence as contemplated by K.S.A. 1978 Supp. 22-3402(3)(c).” 225 Kan. at 278. (Emphasis supplied.)
The trial court found: (1) technical problems had developed in the case which were not the fault of either party; (2) no prejudice to the defendant would result from a dismissal; (3) neither side was trying to gain a tactical advantage over the other; and (4) both parties had acted diligently. Inherent in these findings is the showing of “necessity” referred to in Cuezze.
Additionally the State did attempt to secure additional time — a significant factor referred to in Cuezze. Further, the defendant desired the presence of the witnesses. It was the trial court’s idea to dismiss the case out of concern for statistics kept by the Judicial Administrator. The trial court simply did not want to be charged statistically with a case whose termination would exceed the guidelines fixed by our court. These guidelines are purely intramural in nature and are merely guidelines which were developed for purposes of improving judicial administration. They do not and cannot alter or affect any rights of litigants. They are matters wholly within the court system itself.
The dismissal of the first case was clearly upon a showing of necessity. In my view, that finding is determinative of the issue *197before us and precludes adding the two cases together for statutory speedy trial purposes. The second case did not exceed the 180-day period, so no issue of speedy trial arises.
I would reverse and remand the case for trial.
Miller and Herd, JJ., join the foregoing dissenting opinion.