(dissenting).
In my view, neither the magistrate nor the circuit court were clearly erroneous. The State made its motion before the 180-day period expired in accordance with Hoffman and there is no error.
This case does not involve the chronic congestion or dilatory practices for which the 180-day rule was adopted. See Hoffman, at 376 (Wuest, C.J. concurring specially). Ven Osdel’s preliminary hearing was set for January 12,1989. On that day, both the State and Ven Osdel were present and ready to proceed with the preliminary hearing. However, the magistrate did not have a clerk available at 5:00 p.m. to assist in conducting the preliminary hearing. The magistrate determined that the better course of action was to reschedule the hearing for another day. Neither State nor Ven Osdel requested the rescheduling. Following the preliminary hearing, court personnel set the case for trial to occur on May 24, 1989. At the time of the scheduling of the trial, neither the magistrate nor the State realized that the scheduled trial date fell outside the 180-day time limit. However, Ven Osdel’s attorney later acknowledged that he was aware of that fact and planned to file a motion to dismiss at the trial.
In State v. Cooper, 421 N.W.2d 67 (S.D.1988), we identified three circumstances which might constitute “good cause” justifying continued prosecution beyond the 180-day limit: (1) unique, nonrecurring events; (2) nonchronic court congestion; or (3) unforeseen circumstances, such as the unexpected illness or unavailability of counsel or witnesses. Id. at 70 (citations omitted). Both (1) and (3) can apply here.
Here, the magistrate examined the facts and decided that good cause existed to extend the time limitation. The magistrate’s conclusions of law provided:
1. The 180-day rule is a procedural rule, but it has a substantive basis, i.e., that an accused has a right to a speedy trial and should not suffer the anxiety of a pending prosecution for an indefinite period of time.
2. [Magistrate] Neiles reset the preliminary hearing date in good faith.
3. [Magistrate] Lieberman set the trial date for 5-24-89 in good faith and without realizing it was beyond the 180-day period.
4. Although it is not incumbent upon a defendant to object when a trial is scheduled outside the 180-day period, the fact that the defendant neither objected nor moved to expedite the proceedings is a relevant factor.
5. The motion for extension of the 180-day rule was filed and a hearing was held on the motion before the 180-day period had run.
6. Although a showing of prejudice to the defendant is not required, it is also a factor to be considered, and the defendant has demonstrated no prejudice resulting from a trial to be held 3 days beyond the 180-day period.
On appeal, the circuit court affirmed the magistrate’s decision. I cannot say that the magistrate’s determination was contrary to law or clearly erroneous as to fact.
*893Defendant does not challenge his conviction on the merits. He does not even claim he was denied a fair trial. He simply says it was three days late and he should go free. I say that there was sufficient cause for being three days late and there was no error. Even if we assume, for the purpose of argument, that the three day delay was error, it has to be harmless error. The 180-day rule did not repeal the harmless error rule and this defendant should not go free.
It seems ironic that a majority of this court will set this defendant free when in State v. (Debra) Jenner, 451 N.W.2d 710 (S.D.1990), substantive violations of constitutional rights were involved but the defendant could not even get a new or fair trial.
Therefore, good cause exists ** and I would affirm.
This case demonstrates the lack of balance thoroughly explored in Note, State v. Hoffman: The 180-Day Rule and a Lack of Balance, 33 S.D.L.Rev. 165 (1988).