concurring.
Our Criminal Rule 4 was designed to implement the right of an accused to a speedy trial, although its provisions do not constitute constitutional guarantees. Cooley v. State (1977), Ind.App., 360 N.E.2d 29. Thus, it has been frequently observed that the purpose of the rule is to provide prompt trials and not the discharge of defendants. See, e. g., Utterback v. State (1974), 261 Ind. 685, 310 N.E.2d 552. We have held on the one hand that the burden is upon the state to provide a speedy trial, State ex rel. Brown v. Hancock Sup. Ct. (1978), Ind., 372 N.E.2d 169; and on the other that the defendant may waive his rights under the rule if he stands by without objection when a trial is set out of time, Smith v. State (1977), Ind., 366 N.E.2d 170.
Within this context it appears to me appropriate to make the following observations about the plain language of the provisions of CR 4(C) and (F).
CR 4(C) requires that a defendant be brought to trial within one (1) year with three exceptions:
(1) Where a continuance was had on his motion;
*685(2) Where the delay was caused by his act; or
(3) Where there was not sufficient time to try him daring such period because of congestion of the court calendar.
While the rule provides that the congested calendar exception be made to appear by affidavit of the prosecutor, our cases early held that the court could utilize this exception on its own motion. See, e. g., Harris v. State (1971), 256 Ind. 464, 269 N.E.2d 537. It should be noted, however, that the language of the rule refers to congestion that prevents trial within the entire one year period.
That does not mean that if a defendant could be tried the week following his arrest but at no other time during the year he would be entitled to discharge. The operation of the rule is fact oriented, and factually it may take considerable time to prepare for trial where all parties are diligently seeking prompt trial. On the other hand, I do not believe that either the spirit or the letter of the rule have been complied with if the state permits a case to totally languish for eleven months and then in a flurry of activity discovers the court’s calendar too congested to permit trial within the remainder of the period.
Moreover, CR 4(F) extends the time period within which trial may be had by the amount of delay only for (a) a continuance granted on motion of the defendant; and (b) for delay in trial caused by the defendant.
When seeking discharge for violation of CR 4 the defendant must establish the lapse of time necessary to invoke operation of the portion of the rule he relies upon and his timely objection. However, when this is done I believe the burden must rest with the state to establish the trial as timely through the operation of one or more of the exceptions.
Pillars established the lapse of one year. While his motion for discharge was not made until eleven days after the May 17 trial date was continued, it appears that neither he nor counsel were present when the continuance was ordered. I would find his objection timely.
Was the June 7th setting permissible within the rule? The one year period was clearly extended for seven (7) days by the continuance Pillars had secured May 21, 1976. CR 4(F).
The state argues that both the attorney’s motion to withdraw and the order to make more specific disclosure on discovery were delays which should also extend the time for trial pursuant' to CR 4(F). We are reminded that it is not the motive for the delay but its effect that triggers the extension provided by CR 4(F). Bradberry v. State (1977), Ind., 364 N.E.2d 1183. But what was the effect?
Counsel’s motion for leave to withdraw was filed after the court entered its order for discovery and set the date for an omnibus hearing. It was disposed of seventeen days before the omnibus hearing was held as originally scheduled. There is no showing that it contributed to the order for more specific discovery. In short, there is no factual basis for finding that it caused “delay in trial.”
Our consideration of whether the order for additional discovery caused a delay in trial is hampered by the fact that although the clerk certified the transcript as the complete record of the proceedings, it contains neither the original discovery order nor the proceedings or order of April 18. Nevertheless, the entry of April 18 does not indicate that Pillars delayed the trial. It appears the continuance of May 16th was improper unless congestion of the calendar prevented the trial.
The continuance entered by the court, apparently on its own motion, on May 16th did not recite that the reason was congestion. The court speaks only through its order book. State ex rel. Taylor v. Offutt (1956), 235 Ind. 552, 135 N.E.2d 241. It is my belief that the court must disclose at the time the continuance is granted that the reason is congestion. In addition the case had already been set for trial May 17. Thus, merely reciting congestion would *686have been meaningless. The continuance might be permissible if it occurred because the case was set as an alternative case to be tried on the same day as another criminal case, and the other case, which was set for trial first, actually went to trial. It would also be permissible if a trial commenced before the date was not completed as anticipated and thus precluded commencing the trial in question. However, no such entry was made May 16th. Nor was any reason or explanation suggested for the more than nine months that elapsed between arraignment and the date the court on its own motion ordered discovery and omnibus hearing.
I would conclude that the continuance on the court’s motion from May 17 until June 7 was improper and Pillars was entitled to discharge on Count I.
I concur with Judge Staton regarding the double jeopardy bar as to Counts II and III, and the affirmance of Count IV.