(dissenting) — CrR 3.3 provides that a criminal charge shall be brought to trial within 90 days following the preliminary appearance. JCrR 2.03 provides:
(1) Any person arrested for any offense, including capital cases and other felonies and not released shall be taken without unnecessary delay before a judge. The term “without unnecessary delay” means as soon as practically possible. In any event, delay beyond the close of business of the judicial day next following the day of arrest shall be deemed unnecessary. The court may, for good cause shown and recited in the order, enlarge the time prior to preliminary appearance.
(2) The judge shall inform the person of the crime for which he is arrested and of the rights of a person charged with a crime and shall provide for pretrial release pursuant to JCrR 2.09.
CrR 3.3 calculates the time within which a criminal charge must be brought to trial from the date of the preliminary appearance. The only provision for a preliminary appearance is found in JCrR 2.03. It will be observed that by its terms, JCrR 2.03 requires such a proceeding only *939where the arrested person remains in custody. Yet CrR 3.3 is not restricted in its scope to cases in which the defendant is held in custody.
Since the rule calculates the time from the date- of the preliminary appearance, without taking account of the fact that a preliminary hearing may not be held, in order to give it effect in every case it must be construed as requiring that the matter be brought to trial in 90 days from the date upon which a preliminary hearing would be held, were one required. Otherwise, the speedy-trial requirement would have no applicability at all in cases where the defendant is released on bail. If this had been our intent in promulgating the rule, it would have been more exactly expressed. To my knowledge, such a result was never contemplated, and it would be highly inconsistent with the purpose of the provision.
JCrR 2.03 requires that such appearance shall occur within 1 day after arrest (unless the time is enlarged by the court). The rules as thus interpreted declare that with certain enumerated exceptions not pertinent here (see CrR 3.3), if a defendant is released on bail he shall be brought to trial within 90 days after his arrest, plus the period which ends on the first -judicial day thereafter, e.q., see RCW 1.16.050.
. The defendant in this case was not brought to trial within this period, and none of the excuses for delay provided for in the two rules is present. In accordance with CrR 3.3 (f), the charge should be dismissed.
CrR 3.3 was designed to effect speedy justice. State v. Williams, 85 Wn.2d 29, 530 P.2d 225 (1975). The majority, however, has adopted an interpretation which would, in effect, reinstate the rule as it existed under RCW 10.46.010: That statute provided that an indictment dr information' should be dismissed if the defendant was not brought to trial within 60 days after it was filed. Delays in filing charges were among the dilatory practices .which, we sought to discourage in adopting these new rules. It would seem that that purpose was not accomplished.
*940The majority, seeking to rationalize this revision of the rule, adopts a novel theory that the defendant was released from the control of the court, and his bond exonerated ipso facto, when it was announced by the prosecutor that charges had not yet been filed. I am aware of no authority for this proposition. The case cited by the majority, State v. Fidelity & Deposit Co., 133 Wash. 565, 234 P. 274 (1925), held, with undoubted propriety, that a bail bond was exonerated when the prosecution was dismissed by order of the court. There was no order of dismissal in this case.
The majority points to no rule or statute directing the release of an arrested person and the exoneration of his bond if the prosecutor has not filed a charge before the next scheduled arraignment day. CrR 8.8 provides that upon acquittal, or whenever the court shall direct any criminal charge to be dismissed, the bail shall be exonerated.1 There is no provision for exoneration of bail before a charge has been filed. Clearly, if no charge is filed before the end of 90 days, the defendant can move for and obtain an order exonerating his bail, since the case would be subject to dismissal under CrR 3.3(f) if a charge had been filed, and the time had not been extended pursuant to other provisions of the rule.
As I understand the law, the defendant remained under the control of the court and subject to its orders until his bond was exonerated by order of the court. That had not occurred before the charge was filed. If the prosecutor needed additional time to prepare his case, he should have made his showing to the court and moved for its approval, in accordance with CrR 3.3 (e) (2). Since no continuance was sought or granted, and the matter was not brought to trial within 90 days after a preliminary hearing would have been held, had such been required, the court was obliged to grant the defendant’s motion for dismissal. That motion *941was made before the case went to trial, so there is no question of laches. See State v. Williams, supra.
We said in the last cited case:
The purpose of the rule is to insure speedy justice in criminal cases, insofar as reasonably possible. If continuances are necessary, they should be sought or entered upon formal motion, with the reasons therefor being made a matter of record.
State v. Williams, supra at 32.
If there are reasons to delay the filing of charges until a date which leaves inadequate time for the parties to prepare for trial, those reasons should also be made a matter of record. If the prosecutor can defeat the purpose of CrR 3.3 by delaying the filing of charges while the defendant is released on bail, he has at his hands an instrument of harassment not consonant with the spirit of this rule.
I would hold that the time within which a case must be brought to trial begins to run from the date the preliminary hearing is required to be held, which under JCrR 2.03 is no later than 1 day after the defendant’s arrest.
Stafford, C.J., and Hamilton and Utter, JJ., concur with Rosellini, J.An arrested person comes under the jurisdiction of the court when bail is set. See JCrR 2.09; RCW 10.19.010.