(concurring in part, dissenting in part).
It is the preaccusatorial delay which is so very disturbing in this case. We hold, as I understand it, that this appellant may have suffered some prejudice as the result of preaccusatorial delay. Nonetheless, applying two relevant and fairly recent United States Supreme Court decisions, viz Marion and Lovasco, to the facts of this case, we ultimately conclude that there was a valid, good faith reason for the delay in filing the complaint against appellant. I *285agree that the burden is upon the State to establish justification for delay once delay and prejudice have been demonstrated. People v. Johnson, 62 Cal.App.3d Supp. 1, 133 Cal.Rptr. 123 (1976). Conceding that there was prejudice here from this delay, the State must show that the delay was explainable, unintentional, and did not cause any undue prejudice to this appellant. People v. Fraker, 63 Mich.App. 29, 233 N.W.2d 878 (1975).
This takes us to the critical question: Has the State of South Dakota met its burden of proof? Relying upon Agent Ev-erson’s statement, the majority concludes that the State has met its burden. I would be remiss if it were not brought out that the state’s attorney answered the trial judge’s question, in open court, as to why there was a delay in signing the complaint, thusly:
Mr. Everson did indicate that the crime in McCook County, the investigation was completed sometime ago; however, he said this was a multiple State investigation, and exactly when the investigation was completed, I’m not sure. I don’t think Mr. Everson did give an exact date when asked the question. He was asked the question why did he wait so long, and when was the entire case completed as far as the investigation is concerned. But, he said it involved three or four states and it was an ongoing thing. Granted, one segment of the case or the commission of the crime may have been established, but since it was a multiple State thing, the investigation continued on and on. Because of that your Honor, the investigation certainly did not consummate what establishment of the crime in McCook County. Other crimes were being established or investigation in that. That was the reasoning behind the delay and the Defendant was under the Federal prosecution or in the Federal pen.
Surely, an on-going investigation involving defendant was, if that is the truth, a legitimate reason for delay. However, the fact that the defendant was under the federal prosecution or in the federal penitentiary is not a legitimate reason for delay. A federal prisoner has a right to a speedy trial on a state charge. Weiss v. Blackwell, 310 F.Supp. 360 (N.D.Ga.1969). If a state files a detainer against a federal prisoner, that state is under a constitutional obligation to make a good faith effort to try the accused within a reasonable time. Ordinary expedition, not mere speed, is essential in bringing a federal prisoner to trial on state charges. Lawrence v. Blackwell, 298 F.Supp. 708 (N.D.Ga.1969). The entire purpose of the Interstate Agreement on Detainers is directed toward the prompt and orderly disposition of untried charges brought against a person currently in confinement. Robison v. State, 278 N.W.2d 463 (S.D.1979). See SDCL 23-24A-1.
There are two general types of prejudice arising from pretrial delay. One is related to anxiety over a pending charge accompanied with the prejudice inherent in his person in the form of incarceration. The other is prejudice to a defense from the loss of evidence or witnesses. People v. Harris, 110 Mich.App. 636, 313 N.W.2d 354 (1981).
It appears that on August 31, 1981, DCI Agent, Wayne Everson, the complainant, Leon Cantin of the FBI, and the sheriff of Yankton County went to the premises of this appellant with the knowledge that the appellant had a stolen vehicle. On September 20, 1981, the investigation in McCook County had been completed by South Dakota DCI Agent Wayne Everson. It appears, just as the state’s attorney told the trial court, that the investigation had been completed. Preaccusatorial delay then commenced. It thereafter continued. The jury trial in this case would establish that the testimony and evidence introduced at the time of trial to convict this appellant was in the State’s possession by September 20, 1981. It appears to this writer that when the DCI agent discovered that the appellant had been released from the federal penitentiary in Oxford, Wisconsin, unto a place called the “Glory House” in Sioux Falls, South Dakota, the agent was quite dissatisfied with the federal penal system *286or it triggered a desire within him to then prosecute defendant and he decided to file the complaint against this appellant for purposes of additionally punishing the appellant. In fact, to apparently avoid the service of concurrent time, the McCook County Sheriffs Office sent a warrant to the United States Marshall’s Office on February 17, 1983, but with a request that it not be served on this appellant prior to May 1983, the date that he was to be paroled from federal custody. This looks bad.
The general right to a speedy and public trial guaranteed by the Sixth Amendment to the United States Constitution is encompassed within the Due Process Clause of the Fourteenth Amendment and is thus applicable to the states. Townsend v. Superior Court of Los Angeles County, 15 Cal.3d 774, 126 Cal.Rptr. 251, 543 P.2d 619 (1975). It is the right to due process which my writing attends. Due process attends between the time when the offense is committed and the arrest or filing of the complaint (this is distinguished from the constitutional speedy trial doctrine). As the majority opinion recognizes in Jackson, there can be a breaking point in a so-called continuing undercover investigation. If that breaking point has been exceeded, due process must prevail and the accused’s right thereto must be honored. Do we really have a record before us, in this case, which can justify a piercing judicial inquiry into the reasons as to why law enforcement took so long to bring this case against this appellant? An admission to the trial judge that the defendant was either under federal prosecution or in the federal penitentiary is not a legitimate reason for non-prosecution. See State v. Opheim, 84 S.D. 227, 169 N.W.2d 716 (1969). Had appellant Stock been tried relatively promptly, he very well could have received a concurrent sentence. Therein, alone, lie prejudice. As scholars of the law, do we simply dismiss this?
I do not disagree with the majority’s treatment of Issue Two. The real nub of this case involves the preaccusatorial delay. As I earlier pointed out, the State of South Dakota carries the burden of establishing a legitimate justification for preaccusatorial delay. This is a question of fact and the record is too skimpy for me to rule from an appellate loft. Therefore, I would remand this case back into the trial arena for an evidentiary hearing which would develop, under oath, all of the facts behind this delay, and thereupon have the trial judge enter findings of fact and conclusions of law. so that a just determination could be made as to whether the State of South Dakota met its burden of proof in the trial court.
I am authorized to state that Judge McKEEYER joins in this writing.