concurring specially.
I concur in the result, but disagree with the majority’s footnote conclusion that the trial court erred by not ordering a stay. It is correct, as the majority states, that the language of Minn.R.Crim.P. 28.04, subd. 2(1), taken literally, provides for a mandatory stay. However, all rules have to be construed with reasonableness. It is not reasonable to allow the prosecution to delay until minutes before a trial is to commence, and then invoke its right to stay the entire proceedings.
An examination of the Rules of Criminal Procedure demonstrates clearly that the intent in framing the rules governing pretrial motions, suppression issues, and other matters handled at the omnibus hearings, was that those matters be handled in advance of the actual trial. Under Minn.R. Crim.P. 8.04(c) the omnibus hearing, at which the kind of issue presented here would be decided, is mandated to be on a date “not later than fourteen (14) days after the defense’s initial appearance before the court.” This time limit can be waived to serve the convenience of court and counsel, but the rule implies that evi-dentiary and suppression issues will be heard well in advance of trial. Felony trials just do not commence within 15-16 days of the first appearance.
Even if a defendant demands a speedy trial, the court has up to 60 days to commence that trial, and that 60 days cannot run any earlier than the date of the not guilty plea. Minn.R.Crim.P. 11.10. Thus, taking into account Rule 8.04 governing scheduling of omnibus hearings, and Rule 11.10 governing the trial date, the only logical conclusion is that pretrial motions are to be heard in advance of trial, giving both sides adequate opportunity to prepare *195the case based on the judge’s decision on those pretrial rulings.
If the State were relying on some type of local custom whereby certain pretrial issues were discussed just before trial, it had an obligation, if it intended to invoke its right under R.Crim.P. 28.04, to notify the court and defense counsel of its intention in advance so the court’s ruling could be handed down in advance of the trial date.
Here, a trial date was set. The defendant and his attorney were required to be there and to have their witnesses ready to proceed. It gives the prosecution an unfair advantage if it can delay its decision to invoke a stay, if an evidentiary ruling goes against the State, and not notify the court and defense counsel until just before the trial is to commence.
Also, although the precise issue of the State’s good faith is not before the court, I question the seriousness of the State’s contention that Svobodny was not an available witness because he was incarcerated. If there are any people over whom the State of Minnesota has control and the ability to dictate their movements, it is people incarcerated in prisons in this state. A careful examination of Minn, R. of Evid. 8.04(a) reveals nothing even remotely close to the State’s contention that because somebody is in prison his hearsay statements can go to a jury, thus denying the defendant the right of confrontation and cross examination.
On the special facts of this case, I would have found, as the majority did, that the witness was not unavailable, but would also have found that the trial court did not err in not ordering a stay on the day of trial.