(dissenting) — The majority conveniently disregards a recent decision of this court, State v. Schapiro, 28 Wn. App. 860, 626 P.2d 546 (1981), and cavalierly disposes of the decision in State v. Edwards, 94 Wn.2d 208, 616 P.2d 620 (1980), by holding that neither court meant what it said.
The majority concludes that Edwards changed CrR 3.3 and should be applied prospectively only, citing State v. Barton, 93 Wn.2d 615, 611 P.2d 789 (1980). The decision in Edwards, however, reflects a reading of the rule wholly consistent with the policy of strictly enforcing CrR 3.3. State v. McIntyre, 92 Wn.2d 620, 600 P.2d 1009 (1979); State v. Barton, 28 Wn. App. 690, 626 P.2d 509 (1981). Edwards holds that if a defendant is released from custody and no preliminary hearing occurs within 100 days of the arrest, the passage of 100 days from the arrest without a trial requires dismissal of the charges. A preliminary hearing more than 100 days after the arrest cannot recommence the time limits under CrR 3.3(b)(1)(a) because CrR 3.3(i)3 mandates dismissal once the first time limit in CrR 3.3(b)-(1) (b) passes. The State, therefore, cannot invoke CrR 3.3(b)(1)(a) unless it obtains a preliminary hearing before the expiration of the time limit for trial in CrR 3.3(b)(1)(b). Because no trial or preliminary hearing occurred within 100 days of Darden's arrest, the rule should be strictly enforced and the case dismissed.
There is no basis for the majority's decision that the State reasonably believed the rule could be used to delay *469the trial. The State was on notice that the rule protecting the accused's constitutional right to a speedy trial must be strictly enforced, State v. McIntyre, supra. We recently held in State v. Schapiro, supra at 864:
The effect of the Supreme Court's construction of a statute has been described as follows:
It is a fundamental rule of statutory construction that once a statute has been construed by the highest court of the state, that construction operates as if it were originally written into it. In other words, there is no "retroactive" effect of the court's construction of a statute; rather, once the court has determined the meaning, that is what the statute has meant since its enactment.
(Citations omitted.) Johnson v. Morris, 87 Wn.2d 922, 927-28, 557 P.2d 1299 (1976). Rules of court should generally be construed in the same manner as statutes. State v. McIntyre, 92 Wn.2d 620, 600 P.2d 1009 (1979). Thus, the rule in Edwards applies to cases tried before that decision was announced, including the present case.
(Some italics mine.) Prospective application is warranted only where the decision creates a new procedural rule, not where it applies an existing rule in a manner consistent with a previously formulated policy of strict enforcement. State v. McIntyre, supra. The decision in State v. Barton, 93 Wn.2d 615, is distinguishable because it prospectively applied a prior decision that created a new procedural rule by filling a hiatus in CrR 3.3.
On the issue of the delay in filing charges, Darden conceded in the trial court that he was not prejudiced by the delay. I, therefore, agree that we should not address the issue for the first time on appeal. My colleagues, however, discuss the substantive issue at length and I must express my disagreement with their analysis.
Contrary to the view of the majority, the United States Supreme Court has held that the due process clause is implicated by an oppressive delay in filing charges. Proof of actual prejudice to the accused does not necessarily demonstrate a violation of due process, but it requires the court to consider the prejudice and the reasons for the delay *470before deciding whether charges should be dismissed. United States v. Lovasco, 431 U.S. 783, 52 L. Ed. 2d 752, 97 S. Ct. 2044 (1977).
Had the charges in this case been filed before Darden's 18th birthday, the juvenile court could have issued an order extending jurisdiction beyond his 18th birthday for purposes of adjudicating the alleged offenses. RCW 13.40-.300(l)(c). The lost opportunity to be treated as a juvenile and the much harsher penalties of the adult system establish the prejudice in this case. State v. Hodges, 28 Wn. App. 902, 626 P.2d 1025 (1981). The majority incorrectly relies on State v. Setala, 13 Wn. App. 604, 536 P.2d 176 (1975), to demonstrate lack of prejudice. Setala was decided before the legislature created the authority to try an accused in juvenile court after he or she reached the age of 18. State v. Bradley, 20 Wn. App. 222, 580 P.2d 640 (1978).
Given the prejudice caused by the delay, the due process question requires an examination of the reasons for the delay. The majority opinion finds adequate reasons by accepting the representations of the State's counsel at oral argument. These representations, however, are not in the record, and we have no record of the reasons for the delay. If this issue were properly before us, we would have to remand for an evidentiary hearing and an application of the facts to the standard enunciated in United States v. Lovasco, supra. In my view, however, this issue is moot because the information should be dismissed due to the violation of CrR 3.3. State v. Edwards, supra.
I would reverse the judgment and dismiss the case.
Reconsideration denied November 10, 1981.
Review granted by Supreme Court January 22, 1982.
The applicable version of CrR 3.3(i) states: "A criminal charge not brought to trial as required by this rule shall be dismissed with prejudice."