(dissenting).
The majority opinion disregards settled law of this state on the 180-day rule.
In State v. Hoffman, 409 N.W.2d 373 (S.D.1987), this court specifically held that once a defendant establishes that the 180-day time period has expired, a prima facie case for dismissal has been made. Further, in order to toll or extend the 180-day period, State must file a motion for good cause delay prior to the running of the 180-day period. Id. at 375. This is mandatory language. Even when considering such a motion for good cause, the trial courts have been admonished not to give a “carte blanche type of permission” to the moving party. See State v. Kerkhove, 423 N.W.2d 160 (S.D.1988).
In this case, there is no dispute that the first trial ended in a mistrial. A mistrial is equivalent to no trial. People v. Jamerson, 196 Colo. 63, 580 P.2d 805 (1978). After a mistrial, the defendant remains in the same position as he/she was in prior to the mistrial. United States v. Gladding, 265 F.Supp. 850 (D.C.N.Y.1966). In this case, defendant was still facing the same charges for which she was indicted on August 17, 1989, upon which she made her first appearance on September 6,1989. After a mistrial has been declared, the case can be retried, dismissed, or a plea can be negotiated to a different charge. The decision of which of those options to elect is strictly in the hands of State. State, in this case, elected to retry the defendant. The scheduling is the responsibility of the attorneys and court officers. State v. Ven Osdel, 462 N.W.2d 890 (S.D.1990).
Under the facts of this particular case, two simple questions need be answered. First, was the defendant’s case disposed of within 180 days from the date of defendant’s first appearance before a judicial officer? No. Second, did State file a motion for good cause delay prior to the expiration of the 180-day time period. No. With these undisputed facts, I cannot in good conscience join the majority.
The majority opinion, by its holding on Issue 1, is giving retrospective application to the reenactment of the new 180-day rule adopted by this court prior to its effective date of July 1, 1991. The decisions cited above are clear and unambiguous in their directives and certainly put State on notice that it should be able to count to 180 commencing with the date of a defendant’s first appearance, or file the appropriate motion. State v. Head, 469 N.W.2d 585 (S.D.1991).
Finally, I cannot state that the findings and conclusions made by the trial court after the late request of State to find good cause for this delay, are in error except for the fact that this ruling was made on March 7, 1990. The request was tardy and the court was without authority to entertain such a motion due to the dilatory and ineffective scheduling of the required motion for delay. Such are the practices this statute was intended to eradicate. As stated in the special writing of Justice Henderson in State v. Cross, 468 N.W.2d 419, 422 (S.D.1991) (Henderson, J., specially concurring), “the ‘old 180-day rule’ has served this state very well” since its adoption. Justice Henderson further wrote:
Lastly, I wish to express that in all of my reading on speedy trial rules, the reoccurring principle is set forth that it is the state’s responsibility to prosecute cases; it is not the defendant’s responsibility, nor his counsel, to prosecute the case.
Id. at 422 (Henderson, J., specially concurring) (citations omitted).
Nor should it be the duty of the defendant or her counsel to advise the court or the prosecutor that a trial date agreed to is beyond the 180-day time period. The tolling of this time constraint can easily be addressed by simply filing the required motion with the trial court in a timely manner. As previously stated, it was not filed in this case. Therefore, I would reverse.