(specially concurring).
After the defendant’s attorney notified the State that he would be filing a motion to dismiss,' because the 180-day rule had run under SDCL 23A-44-5.1, the State then filed its motion for dismissal without prejudice under SDCL 23A-22-2. It is patently obvious that the State was trying to circumvent the 180-day rule.
In Tiedeman, this Court relied upon the Genovese holding, formulating the rule that the speedy trial period, pursuant to SDCL 23A-44-5.1, runs anew upon the refiling of criminal charges if the initial charges were (1) dismissed by a competent judicial officer and (2) no attempt was made by the State to circumvent or avoid the effects of the 180-day rule. This was also the rule announced in Lowther.
Here, requirement number 2 has been violated by the State. State employed diligence, prosecuting the case, after the 180-day rule had run. The motion to dismiss without prejudice, although crafty advocacy, was used to extricate itself from the dictates of the 180-day rule. Were we to permit this, a mockery would be made of the 180-day rule. State could, under its theory, permit the 180 days to run and then recharge the defendant with a series of charges, arising out of the same set of facts and circumstances, which the State had knowledge of when it filed its initial complaint or secured its indictment. In this case, the effect of the State’s legal posture could conceivably lead to four periods of 180 days. Folly this would be, for it would abrogate the very purpose behind the 180-day rule.
My notes reflect, during the course of argument, counsel for the State conceded that the attempted rape could not theoretically be lodged against the defendant. As the majority opinion points out, the State does not contest the conclusion that it is forever barred from re-filing first degree rape charge. Perforce, were the State correct in its various contentions in this case, only the aggravated assault and kidnapping charge would survive.
State argues that it has fulfilled the standards set forth in Tiedeman and Lowther. I disagree. State slept on its rights and the rights of the victim. There are, unquestionably, competing social aspects of this decision, as Chief Justice Miller expresses, and my competing thesis is fully set forth in my special concurrence in State v. Cross, 468 N.W.2d 419 (1991). True, no “misconduct” has been committed by the State herein (which is not governing criteria); however, the State was negligent in prosecuting this action. As I expressed therein:
The speedy trial rule is to further the prosecution of cases in an effective manner and to afford defendants a right to have their case tried within a reasonable time. The citizens of this state, who are witnesses and victims, should not have to wait interminably for a case to come to trial. These victims and witnesses have rights, also.
I am authorized to state that WUEST, J., joins this special writing.