dissenting separately.
Besides joining in the dissent of Spencer, J., I wish to add the following:
I
Subsection (3) of section 29-1207, R. R. S. 1943, provides: “(3) If such defendant is to be tried again following a mistrial, an order for a new trial, or an appeal or collateral attack, such period shall commence to run from the date of the mistrial, order granting a new trial, or the mandate on remand.” (Emphasis supplied.)
The statute requires the defendant be brought to trial (not a completed trial) within 6 months (not counting excludable time). He was “brought to *335trial” on February 16, 1977. He failed to appear then or on February 24, 1977, when the trial judge, out of an abundance of consideration and caution, entertained his counsel’s motion to continue the case and fix a new trial date. Under either the literal wording or spirit of the statute, this action by the defendant to “cover” his failure to appear, must be within the meaning and intent of the statute. To me, it is clear that, in the words of the statute, “such period [6 months] shall commence to run from the date of the * * * order granting a new trial * *
Further, could anyone doubt that this calculated absence and action to delay, to secure a new trial date, was not the result of the absence or unavailability of the defendant? Subsection (4) (d) of section 29-1207, R. R. S. 1943, excludes “The period of delay resulting from the absence or unavailability of the defendant.”
To me, it is almost incredible in reviewing the record, that this court would permit a defendant to play games with a court’s docket and the orderly disposition of cases in this manner. No suggestion or showing of prejudice is offered or argued. The result is a miscarriage and abuse of justice, an obstruction of the orderly administration of justice, and a flagrant abuse of the right of the judge and the public to enforce the law evenhandedly.
II
The right to a speedy trial has its Nebraska origin in Article I, section 11, Nebraska Constitution. As to the posture of legislatively created speedy trial statutes, we have consistently held that the interpretation of this constitutional provision is for this court, and that the guidelines set by such a statute are advisory in nature. In the basic case, Maher v. State, 144 Neb. 463, 13 N. W. 2d 641, we stated as follows: “As stated in Critser v. State, 87 Neb. 727, 127 N. W. 1073: ‘There is room for the exercise of sound discretion on the part of the trial court, always bearing *336in mind that the right to a speedy trial is the constitutional right of any citizen who is accused of crime.’ The legislature of our state has interpreted the Constitution on the matter of a speedy trial by fixing what, in certain cases and under certain conditions, is to be regarded as a maximum time within which a defendant must be tried. The interpretation of this constitutional provision is for the court> but since the time fixed by the legislature is not unreasonable, we adopt it as our own. The defendant, having failed to bring himself within the provisions thereof, is not entitled to be discharged under its terms. But the legislature has not undertaken to fix any minimum time in such matters. What is a fair and reasonable time in each particular case is always in the discretion of the court. No hard and fast rule can be applied in all cases.” (Emphasis supplied.) See, also, Svehla v. State, 168 Neb. 553, 96 N. W. 2d 649; State v. Ogden, 191 Neb. 7, 213 N. W. 2d 349; State v. Stevens, 189 Neb. 487, 203 N. W. 2d 499; State v. Russo, 187 Neb. 348, 190 N. W. 2d 853; State v. Ford, 186 Neb. 109, 180 N. W. 2d 922; State v. Washa, 185 Neb. 639, 177 N. W. 2d 740; State v. Ellis, 184 Neb. 523, 169 N. W. 2d 267; State v. Warner, 181 Neb. 874, 152 N. W. 2d 30; State v. Fromkin, 174 Neb. 849, 120 N. W. 2d 25.
We are reversing, as an abuse of discretion, the judgment of two experienced trial judges in this case. Of particular significance in the record is the showing of extreme judicial indulgence by the court where the defendant absented himself from the state, at the time of trial, and sought sanctuary outside the jurisdiction of the court. There was no prejudice and could be none because he was the one who asked for a continuance.
Under either the statute or our constitutional power to review the circumstances of each particular case (Maher), the judgment finding the defendant guilty should be affirmed. Does a judge enter*337tain and grant a defendant’s own motion for a continuance and new trial date at Ms peril?
Spencer, J., joins in tMs dissent.