dissenting.
Idaho law imposes a high duty upon the State to see that a person is afforded all of his rights in a criminal action, including his right to a speedy trial. In interpreting I.C. § 19-3501, this Court has held that the State holds primary responsibility for bringing a case to trial. State v. Hobson, 99 Idaho 200, 579 P.2d 697 (1978). It is also the responsibility of the State to enforce a defendant’s right to a speedy trial. A defendant has no duty, to demand a speedy trial at the expense of waiving that right. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
I.C. § 19-3501, in pertinent part, provides:
The court unless good cause to the contrary is shown, must order the prosecution or indictment to be dismissed, in the following cases:
(3) if a defendant, charged with a misdemeanor offense, whose trial has not been postponed upon his application, is not brought to trial within six (6) months from the date that the defendant enters a plea of not guilty with the court.
Sindak was charged with a misdemeanor offense only, and the record indicates that Sindak was tried April 24,1986, six months and twenty-three days after he entered his not guilty plea on October 1, 1985. Sindak’s first trial date had been set for November 21, 1985. This setting was vacated and reset for trial on February 6, 1986. When the parties appeared for trial, once again the trial was vacated and again reset. There is no showing in the record that the delay was attributable to any action or waiver by the defendant. Accordingly, the defendant established a prima facie showing that his statutory right to a speedy trial under I.C. § 19-3501(3) has been denied. Thus, the burden to show “good cause” for the delay is upon the State. State v. Hobson, 99 Idaho at 202, 579 P.2d 697, 699; State v. Stuart, 113 Idaho 494, 745 P.2d 1115 (Ct.App.1987); State v. Gabrielson, 109 Idaho 507, 708 P.2d 912 (Ct.App.1985).
In the opinion of the majority, the delay in this case was attributable to a crowded court calendar, and as such, is justification for the lack of speedy trial. In my opinion, the mere fact that other cases of unde*190termined age demanded priority consideration of the magistrate, does not excuse the delay, absent a showing of total inability to bring the case to trial within the requisite time before another judge or magistrate, or that all the other cases then before the magistrate were of higher priority than defendant Sindak’s. At the time of trial there were 10 magistrates assigned to Ada County, and fourteen assigned to the Fourth Judicial District of Idaho.
I.R.Cr.P. 50 allows “[a]ny hearings or proceedings [to] be continued at a time and place certain by order of the court upon motion of any party, upon stipulation of the parties, or upon motion of the court.” (Emphasis added.) A motion on the part of the prosecution or the court necessitates notice to the defendant, and an opportunity to be heard. There is nothing in the record of this case to indicate compliance with this rule by either the prosecution or the court.
The courts, as an arm of the State, are obligated to comply with this statute as is any other party. Consequently, the Court cannot now exploit their own inaction in excusing non-compliance . with I.C. § 19-3501.
In my opinion, the provisions of 19-3501(3) require dismissal of the misdemean- or offense charged against the defendant Sindak, which dismissal would be a ban to any further prosecution. I.C. § 19-3506.