dissenting: I respectfully dissent from the majority’s decision to overrule the district court’s dismissal of the complaint against the defendant for lack of speedy trial. The majority mistakenly determines that under the rationale of State v. Fraker, 12 Kan. App. 2d 259, 739 P.2d 940 (1987), the State was required to dismiss the unverified complaint because the district court had not acquired jurisdiction over the offense.
It is important to note the dates and decisions that control.
April 1, 1987 Defendant arrested for DUI.
April 2, 1987 Defendant arraigned on the unverified complaint.
July 9, 1987 Fraker decision filed by Court of Appeals— Prosecution for driving under the influence of alcohol can only be commenced by filing a verified complaint or information. Fraker’s conviction based on an unverified complaint was set aside because the district court lacked jurisdiction.
*309August 12, 1987 Based on Fraker, just prior to the commencement of Jamison’s jury trial, the State dismissed the complaint against the defendant.
January 15, 1988 State v. Fraker, 242 Kan. 466, 748 P.2d 868 (1988), which modifies the Court of Appeals’ decision of Fraker was filed. We determined that a prosecution for DUI should be commenced by the filing of a verified complaint or information. However, lack of verification of a complaint does not oust the court of jurisdiction, but is a defect which may be waived by the defendant.
June 21, 1988 More than 6 months after our decision in Fraker, almost 1 year after the State dismissed the complaint, and more than 14 months since the original unverified complaint was filed, the State filed a verified complaint charging the defendant with DUI on April 1, 1987.
August 18, 1989 Approximately 13 months after the verified complaint was filed, the defendant was arrested for DUI. The defendant’s arrest was 19 months after our decision in Fraker, 2 years and 1 month from the dismissal of the original complaint, and 2 years and 5 months since his first arraignment.
The State, in dismissing and refiling identical charges in a criminal action, may avoid the statutory speedy trial limitation only if there is an adequate showing of necessity and there is no evidence the State is attempting to manipulate the speedy trial requirement. The State may dismiss and refile charges without moving for a continuance pursuant to K.S.A. 22-3402(3) if the continuance would not accomplish the State’s goal. State v. Haislip, 234 Kan. 329, Syl. ¶ 2, 673 P.2d 1094 (1983).
During the hearing on Jamison’s motion to dismiss for lack of prosecution, the district court noted that, rather than dismissing the case on August 12, 1987, by following the rationale of Haislip, the State could have requested and received a continuance to file a verified complaint or it could have amended the complaint *310and proceeded to trial. Instead, it chose neither of the two paths available and dismissed the complaint.
I disagree with the majority’s statement that the district court did not have jurisdiction to allow the State to amend the complaint. In Topeka v. Durein, 78 Kan. 661, 663, 97 Pac. 967 (1908), we determined that when the complaint is defective it is not necessary to issue a new warrant which would serve no function except to bring the defendant before the court which already had jurisdiction of his person by virtue of a recognizance bond. Here, the district court correctly observed that, since the court had jurisdiction of Jamison, the State could have simply amended the complaint.
In addition, the majority fails to recognize that under the rationale of Haislip, the State is required to file a verified complaint within a reasonable time after it dismissed the unverified complaint and is prepared to go to trial. After it dismissed the complaint, the State waited more than 10 months to prepare and file the verified complaint. The district court properly determined that more than 180 days had elapsed between the dismissal of the original complaint and the filing of the verified complaint. Under such circumstances the prosecution is barred by K.S.A. 22-3402(2).
The majority also fails to recognize that trial courts have the inherent discretionary power to dismiss a case because of the State’s failure to prosecute with due diligence and when the circumstances warrant dismissal. This drastic power must be exercised with the utmost care. In City of Overland Park v. Pavelcik, 248 Kan. 444, 806 P.2d 969 (1991), several defendants, each of whom had been found guilty in separate cases in the municipal court, filed their appeals to the district court with the clerk of the municipal court. When the defendants appeared for arraignment in the district court, the municipal court clerk had not yet filed the defendants’ appeals in the district court. The district court found it did not have jurisdiction over the defendants and dismissed the cases at the City’s cost. The City appealed. We reversed the district court, finding that even though the clerk filed the appeals subsequent to the date the bonds required the defendants to appear the appeals had been perfected. We ob*311served that the district court may have felt frustration because the municipal court was not processing appeals with diligence and care, but then determined that the record on appeal failed to set forth the historical background sufficient to support the court’s extraordinary remedy of dismissal.
In this case, the historical background needed to sustain the district court’s dismissal of the charges against Jamison is not lacking. The district court sets out a clear record of the prosecutor’s delay in refiling the complaint. Under the facts, the district court did not abuse its discretion by dismissing the case against the defendant with prejudice.
In his motion to dismiss, the defendant claimed that his statutory right to a speedy trial under K.S.A. 22-3402(2) had been violated. In addition to more than 180 days having expired from the time Jamison was first arraigned and his jury trial finally set in September 1989, more than two years had expired since the crime was committed. At the time the defendant was arrested for DUI, K.S.A. 21-3106 provided:
“(3) Except as provided by subsection (4), a prosecution for any other crime must be commenced within two years after it is committed.
“(5) .... Time starts to run on the day after the offense is committed.
“(6) A prosecution is commenced when a complaint or information is filed, or an indictment returned, and a warrant thereon is delivered to the sheriff or other officer for execution. No such prosecution shall be deemed to have been commenced if the warrant so issued is not executed without unreasonable delay.” (Emphasis added.)
The statute of limitations in a criminal case is an affirmative defense which can be waived by the knowing, voluntary, and intelligent act of the defendant. Lowe v. State, 14 Kan. App. 2d 119, 783 P.2d 1313 (1989). In Lowe, the Court of Appeals determined that when a defendant enters a plea of nolo contendere he voluntarily waives any limitation that could be claimed under K.S.A. 21-3106.
Since Jamison has neither been tried nor waived any affirmative defense, is prosecution of Jamison barred under K.S.A. 21-3106(3)? In State v. Washington, 12 Kan. App. 2d 634, 752 P.2d 1084 (1988), the defendant fraudulently endorsed and cashed a welfare check on November 7, 1983. The complaint and the *312warrant were issued on March 5, 1984. The warrant was served on the defendant on September 21, 1986, more than thirty months after the crime was committed. Under the facts of the case, the Court of Appeals determined that the delay in serving the warrant was not reasonable; therefore, since the prosecution had not been commenced within two years after the offense was committed, the prosecution was barred by K.S.A. 21-3106(3).
Our facts are similar to the facts in Washington. Here, the alleged offense occurred on April 1, 1987. The State filed its unverified complaint and Jamison was arraigned on April 2, 1987. On August 12, 1987, the day that the jury trial was scheduled to commence, the State dismissed the unverified complaint. At the time the State dismissed the complaint, the district court had jurisdiction of the defendant. The State could have (1) amended the complaint and proceeded to jury trial or (2) dismissed the unverified complaint and immediately filed a verified complaint. The State would have then had 180 days to bring Jamison to trial. The State took neither course. It dismissed the complaint and waited until June 21, 1988, approximately 10 months after dismissing the unverified complaint, to file the verified complaint. Jamison was not arrested until August 18, 1989, more than two years after the crime had been committed. Jamison is entitled to dismissal under K.S.A. 21-3106(3).
In his motion to dismiss, Jamison claimed that the prosecution is barred by the limitation imposed under K.S.A. 22-3402(2). The district court ruled in his favor. Does the fact that Jamison had an affirmative defense under K.S.A. 21-3106(3) but instead claimed the limitation set out in 22-3402(2) invalidate the district court’s dismissal of the complaint as time barred? No, it does not. Because Jamison has not waived his right to the affirmative defense, until his case actually comes to trial he is entitled to claim that K.S.A. 21-3106(3) bars the State from proceeding. And, in addition, where the trial court reaches the correct result based on the wrong reason, this court will affirm the trial court. State v. Shehan, 242 Kan. 127, 131, 744 P.2d 824 (1987).
I would affirm the district court’s dismissal of the complaint for all the reasons stated.
Allegrucci, J., joins the foregoing dissent.