(dissenting) — The majority chooses to dismiss criminal charges against the defendant rather than fully address the applicability of a court rule. Not only does this holding subvert justice, it sends an ominous signal to the community.
Under JuCR 7.8(e)(2), a continuance in juvenile court may be granted under any one of the following circumstances:
(i) the alleged juvenile offender consents to a continuance or delay and good cause is shown; or
(ii) the State's evidence is presently unavailable, the prosecution has exercised due diligence, and there are reasonable grounds to believe that it will be available within a reasonable time; or
(iii) required in the due administration of justice and the alleged juvenile offender will not be substantially prejudiced in the presentation of his or her defense.
In this case, the juvenile court relied on subsection (ii) in granting the State's motion for a continuance. Finding that the State did not exercise due diligence within the meaning of this subsection, the majority reverses the juvenile court's ruling and dismisses the charges against the defendant. While I agree with the majority that due diligence, as defined by our cases, was not practiced here, there is another avenue to be explored.
JuCR 7.8(e) (2) (iii) allows for a continuance when it is required in the due administration of justice and when the juvenile offender is not substantially prejudiced thereby. This subsection clearly applies to the facts before us. *584Regarding the first part of this standard, justice would surely have been frustrated in this case had the continuance not been granted because of the absence of the prosecution's chief witness. As the prosecutor informed the court, the absence of this witness would have greatly weakened, if not destroyed, the State's chances of obtaining a conviction.
Although the State failed to follow the statutory requirements for service of the subpoena, it nonetheless demonstrated a good faith attempt to secure the witness. It is uncontroverted that the prosecutor telephoned the vocational home where the witness was living and learned the home's procedures for processing subpoenas. Those procedures involve mailing a subpoena to the home, where a logbook entry is made and the subpoena is delivered to the child. The majority's statement that "the inference from the record is that no subpoena was sent to the vocational home where the witness was living since the home had no record of a subpoena in its logbook" is simply wrong. Majority, at 581. The court file contains a notation which clearly states that the subpoena was mailed to the home in accordance with its procedures. We should not hold the prosecutor, and ultimately society, responsible for items lost in the mail.
The second requirement of subsection (iii), that the defendant not be substantially prejudiced in presenting his case, is also met here. The juvenile court specifically found that the continuance could not prejudice Adamski because he was being held in detention on another matter. Adamski has not assigned error to this finding and it becomes a verity on appeal. State v. Harris, 106 Wn.2d 784, 790, 725 P.2d 975 (1986), cert. denied, __ U.S __, 94 L. Ed. 2d 781, 107 S. Ct. 1592 (1987).
*585Accordingly, there is good reason to affirm the trial court on the basis of JuCR 7.8(e)(2)(iii).4 I now turn to the majority's criticisms of this analysis.
The majority states that my position is without authority and is inconsistent with the cases it cites as representative of 75 years of Washington case law. Majority, at 579-81. However, the rule itself supplies the necessary authority for my position. JuCR 7.8(e)(2) allows for a continuance under the "due administration of justice" subsection even if the requirements of the other subsections are not met. The rule could not be clearer in this regard. Moreover, the cases cited by the majority discuss only what constitutes due diligence. Therefore, although these cases are relevant to analysis of subsection (ii), they in no way preclude analyzing a continuance's propriety under a separate authority.
Additionally, the majority argues that fundamental fairness would be violated if the trial court were to be affirmed on the basis of subsection (iii), that issue not having been argued below. This argument completely overlooks the power of this court to seek additional briefing on an issue not raised by the parties. RAP 12.1(b); Crawford v. Wojnas, 51 Wn. App. 781, 786, 754 P.2d 1302 (1988). If it becomes clear that the parties need to develop additional facts relevant to the new theory, we can remand the case to the trial court for more fact-finding. See Bernal v. American Honda Motor Co., 87 Wn.2d 406, 414, 553 P.2d 107 (1976); In re Cross, 99 Wn.2d 373, 378 n.3, 662 P.2d 828 (1983). This court should call for additional briefing on this *586important issue rather than summarily dismiss criminal charges against the defendant.
Brachtenbach and Andersen, JJ., concur with Durham, J.
Ironically, my dissent would be unnecessary if the majority paid closer heed to its own pronouncement that n[t]o fulfill the purposes of the juvenile speedy trial rule, its provisions should be honored.11 Majority, at 582. The rule is not honored when the majority fails to acknowledge the applicability of one of its provisions.