(dissenting).
I dissent. I would affirm the trial court’s application of the Barker v. Wingo criteria. Additionally, because of the far-reaching, widespread possible ramifications of the majority decision, I must make the following points:
1.
The characterization of SDCL 23A-44-5.1 by the majority as a statutory provision is somewhat misleading. It is a procedural rule adopted by this Court as Rule 85-4 (the so-called “180-day rule”). In holding that dismissal under this rule is “with prejudice,” the majority has, in essence, partially, if not fully, repealed SDCL ch. 23A-42, wherein the legislature created statutes of limitations in criminal actions.
2.
To hold that the motion must be filed before the expiration of the 180 days is too strict and harsh. If good cause for delay truly exists, why can it not be presented to the court within a reasonable time after the expiration of the 180 days, with timeliness to be considered along with the other factors applying the usual tests for due diligence, excusable neglect and reasonability? The majority’s draconian interpretation will, I fear, come back to haunt this Court. I envision the day that some murderer, rapist, or child molester will be discharged under the 180-day rule because of some clerical error or bona fide, good cause oversight, leaving the People (who also have rights in our society) with no remedy in the courts. It is truly fortunate that the cases involved here are principally DWIs and not serious felony cases with injured or dead victims.
3.
We must remember that this rule was principally passed to address and respond to the unfortunate and ineffective scheduling practices of the magistrate court in Sioux Falls (which, as pointed out by the Chief Justice, have apparently been now corrected). Little, if any, blame for the delay in these cases can be attributed to the prosecutor’s office, yet they have the burden under the rule and the sanctions under the majority opinion. This is truly unfortunate, especially since they have little or no input into the scheduling practices of the courts.
The scheduling practices of the magistrate court, in addition to other obvious frailties in causing and extending these delays, laid prey to defendants and defense counsel who recognize that delay is one of the best defenses and therefore attempt to use the system to their own benefit by causing or perpetuating delays. We should recognize that there are two sides to every controversy and be realistic in our application of such an important issue. Rather, *379the majority goes beyond the already strict rule and pronounces a requirement that is unnecessary and unreasonable.