(dissenting)—I again respectfully dissent in this case from the opinion of my friends and colleagues.
The application of CrR 3.3 to retrial, following a mistrial, does not require a new rule. It merely involves a commonsense interpretation of our state's speedy trial rule as recognized in the following dicta in State v. Aleshire, 89 Wn.2d 67, 69, 568 P.2d 799 (1977):
We believe it preferable that certainty prevail by adopting a definite time period for the retrial. That period should be the same applicable period set for the original trial. And, the time for retrial should commence running from the date of the mistrial. Thereafter, all provisions of CrR 3.3 should be applicable. Other courts have reached comparable results.
I adhere to my earlier dissent in State v. Barton, 17 Wn. App. 846, 565 P.2d 830 (1977), and reiterate the following from page 852:
I therefore cannot reason to any other conclusion that a retrial, after a mistrial, must occur within a maximum period of 90 days. It is inconceivable to me why a longer time span is necessary. The prosecution and the defense are prepared enough to have already engaged in one attempt to resolve the charges against the defendant. He, having endured the anxiety and public suspicion attendant to being charged, is twice more exposed to the mental anguish of, first, a trial without a verdict and, then, another delay prior to the second trial. Furthermore, in a mistrial there must have been enough reasonable doubt that the defendant committed the crime to prevent a 12-man jury from resolving the question of his guilt. And, of course, the interests of the public in a speedy disposition of criminal charges have not been served under our rules.
(Footnote omitted.)
Reconsideration denied March 31, 1978.
Review granted by Supreme Court September 22, 1978.