dissenting, with whom RABINOWITZ, Chief Justice, joins.
Alaska Rule of Criminal Rule 45(d)(3)(a) permits the exclusion of time caused by a continuance granted to the state “because of the unavailability of evidence material to the state’s case . . ..” (Emphasis added). The majority opinion concludes that this provision of Rule 45 does not apply because the testimony of the witness Howe was not “in fact needed ... to convict Mullins” (opinion at p. 767) and thus was not “necessary” to the prosecution. (Opinion at pp. 766-767). The majority reads the rule as stating that time will be excluded where a continuance is granted the prosecution “because of the unavailability of evidence necessary to the state’s case. . ” I do not join in this misreading of the rule.
Howe’s potential testimony meets the standard of materiality actually expressed by the rule. Although he claimed to have been blacked out during the robbery, he remembered being driven by Mullins shortly before the robbery and shortly thereafter. This is not conclusive proof that Mullins was driving him during the robbery, but it tends to prove that fact and would have been important had Mullins elected to deny any role in the crime.
For this reason Mullins’ conviction should stand.