(dissenting)—Since I find no manifest abuse of the trial court's discretion in continuing the trial date to November 14, 1983, under CrR 3.3(h)(2), I respectfully dissent.
The court in its order of continuance found:
Both parties are ready for trial; Due to unforeseen circumstances there are no courts available; One of the state's witnesses will be unavailable until 11/14/83; Continuance is necessary in the due administration of justice and there is no prejudice to Defendant.
CrR 3.3(h)(2) provides:
On motion of the State, the court or a party, the court may continue the case when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of his or her defense. . . . The court must state on the record or in writing the reasons for the continuance.
Recently, in State v. Campbell, 103 Wn.2d 1, 14, 691 P.2d 929 (1984), the court affirmed the well established principle that "a trial court's grant or denial of a motion for continuance will not be disturbed absent a showing of manifest abuse of discretion." I find no abuse here for several reasons.
First, as required by CrR 3.3(h)(2), the court stated its reasons in its order of continuance. These reasons are supported by the record and are adequate.
The court stated unavailability of courts as a reason for the continuance. This was an unforeseen circumstance, and although not explained in the record, it is apparent cases then in trial had not concluded as expected. When the judge considered what to do about it, he discovered the *739State's victim witness would be unavailable until November 14. Aside from defendant's demand he be tried that day, there was no claim of prejudice asserted by him. In fact, he waived a speedy trial in September. Additionally, the prosecutor assigned to try this case was scheduled to try a first degree murder case on October 24. Considering all of these facts, the court decided to continue the trial to November 14, the first date all the participants would be available and present. I do not find this determination to be unreasonable nor an abuse of discretion.
The majority premises its result on the assertion of court congestion. I do not find evidence of court congestion in the record. As in State v. Mack, 89 Wn.2d 788, 576 P.2d 44 (1978), the type of court congestion condemned by decisions under CrR 3.3 occurs when a court cannot timely set a case in the first instance because of a congested calendar. State v. Palmer, 38 Wn. App. 160, 162, 684 P.2d 787 (1984). That is not the situation in this case. Here, the defendant waived a speedy trial setting within the rule in September; the case was then set for October 19, a date beyond the rule. Then only because of unforeseen circumstances calling for the exercise of discretion in the due administration of justice, the court continued the trial until all participants were available. This was an act of discretion properly exercised.
Second, I do not find the failure to grant 5-day extensions under CrR 3.3(d)(8) a compelling reason to dismiss the charges against the defendant. Under the facts of this case, the victim witness was unavailable until November 14. This would have meant a series of extensions until the victim witness became available—a useless act.
Finally, a dismissal of the charge would not further the due administration of justice—it would frustrate it. In my view, CrR 3.3 must be construed to allow some flexibility in situations like the instant one where the defendant is not prejudiced and the court has not abused its discretion but made a practical decision.
*740I dissent.
Review denied by Supreme Court May 6, 1986.