dissenting:
The essential issue in this special action is whether the time between December 22, 1982, and March 24, 1983, should have been excluded or whether it must be considered part of the 180 days in which the defendant could be tried by the State of Arizona under the Interstate Detainer Act.
The trial judge in his March 27, 1987, order addressed this question and held that the effort of the state in 1983 to exclude the time because of the unavailability of the defendant for trial failed because the then trial judge did not grant the request. He stated:
*369Defendant Burrus was in custody when he invoked the provisions of Article 3 of the IAD. When a defendant is out-of-state under Article 3, the time continues to run. Article 6 of the IAD requires the State to make a motion, and obtain a ruling, in order to exclude time when the defendant is unavailable, as is the case here. The State’s only effort to secure such a ruling appears in its Motion to Exclude, dated January 17, 1983, which, though argued, was never granted by Judge Patterson or any other judge, so the time has not been excluded. As a result, under the provisions of Article 3, where the State has 180 days in which to try the defendant, the time limits have expired.
Accordingly, for the foregoing reasons, defendant’s Motion to Dismiss is granted.
There is no dispute over the fact that during this period in 1983 the defendant could not be brought to trial in Arizona because during that time he had instituted proceedings in the U.S. District Court in California to prevent federal prison authorities from transferring him to Arizona.
The trial judge in 1983 denied without prejudice the state’s motion to exclude because “a collateral matter” was then pending before the Arizona Supreme Court. By denying the motion “without prejudice,” no rights or privileges of the state were waived or lost. Right or wrong, this is where the matter was left for the next four years while defendant was under Federal custody. The matter was returned to the Arizona court system in 1987 after federal proceedings were concluded.
Thus, the question of excluded time was once again before the Maricopa Superior Court in 1987. The trial judge refused to exclude the time, as noted earlier, because apparently he did not believe he had authority to do so. In his view, as set forth in his order quoted earlier, the 180 day period to start trial ran out in 1983 and the court in 1987 could not now make the determination to exclude part of it. In my view, the trial judge was the judge “having jurisdiction of the matter,” and had the authority to do so and should have excluded the time in question.
Contrary to the majority view, this case is not similar to Stroble v. Anderson, 587 F.2d 830. In Stroble, the defendant was returned to Michigan for trial. The trial was continued through informal procedures not in open court and without defendant or his counsel present. Therefore, the continuance did not serve to toll the time, and the indictment was dismissed for the state’s failure to bring defendant to trial within 180 days.
In this case, following oral argument attended by defense counsel, the defendant’s motion to dismiss was denied and the state’s motion for excluded time was dismissed without prejudice on January 31, 1983. Thus, the informal procedures disapproved of in Stroble are not present here.
Since the defendant was unable to stand trial during the period from December 22, 1982, to March 24, 1983, the language of Article VI(a) of the Interstate Agreement on Detainers mandates that the time be tolled. That being the case, the dismissal of the indictment should be set aside and the trial should proceed.