(dissenting).
I concur in division I of the majority’s opinion, but dissent from the portion that prescribes habeas corpus as the sole remedy available to a person who is incarcerated, unadvised, and without counsel.
The majority’s recommendation for a person who is being illegally held without access to counsel or a judicial officer is to be “released from detention” through the vehicle of a habeas corpus action. Of course, the first step in such an action is presenting a petition “to some court ... authorized to allow the writ.” § 663.2, The Code. In the ordinary situation, the majority’s solution, from a practical standpoint, is the equivalent of advising a drowning person, going down for the third time, to take up swimming lessons.
The majority’s reliance on State v. Rouse, 290 N.W.2d 911 (Iowa 1980), blurs the distinction between a preliminary hearing, *99which was involved there, and a preliminary appearance, which concerns us here. In Rouse the defendant was brought before a magistrate the day after he was arrested. Id. at 912. There is no indication in the opinion that the judge did not then follow the mandate of Iowa R.Crim.P. 2(2):
The magistrate shall inform a defendant who appears before the magistrate after arrest, complaint, summons, or citation of the complaint against the defendant, of the defendant’s right to retain counsel, of the defendant’s right to request the appointment of counsel if the defendant is unable by reason of indigen-cy to obtain counsel, of the general circumstances under which the defendant may secure pretrial release, of the defendant’s right to review of any conditions imposed on the defendant’s release and shall provide the defendant with a copy of the complaint. . . . The magistrate shall allow the defendant reasonable time and opportunity to consult counsel.
Nor is there any indication that counsel was not provided the defendant at that time. The Rouse holding (that one who is promptly granted a preliminary appearance before a magistrate and is furnished counsel must thereafter rely on habeas corpus when not afforded a preliminary hearing within ten days, 290 N.W.2d at 913) furnishes no precedent in a case where one is illegally incarcerated and is neither allowed access to a magistrate nor furnished counsel.
Section 908.2, The Code, goes farther than indicated in the majority opinion. It essentially provides the same safeguards delineated by Iowa R.Crim.P. 2(2), quoted above:
908.2 Initial appearance. An officer making an arrest of an alleged parole violator shall take the arrested person before a magistrate without unnecessary delay for an initial appearance. At that time the alleged parole violator shall be furnished with a written notice of the claimed violation, shall be advised of his or her right to appointed counsel under rule 26 of the rules of criminal procedure, and shall be given notice that a hearing will take place and that its purpose is to determine whether there is probable cause to believe that he or she has committed a parole violation.
The magistrate may order the alleged parole violator confined in the county jail or may order the alleged parole violator released on bail under such terms and conditions as the magistrate may require.
It is apparent that our statutory provisions and rules that require arresting officers to produce arrestees promptly in court all arise out of the same concern: that such incarceration be subjected to judicial oversight without delay. See § 908.2, The Code (parole); § 908.11, The Code (probation); Iowa R.Crim.P. 2 (arrest generally); accord, ABA Project on Standards for Criminal Justice, Pretrial Release § 4.1, at 43 (1968). The concept was addressed by the Supreme Court in Mallory v. United States:
“The purpose of this impressively pervasive requirement of criminal procedure is plain. ... The awful instruments of the criminal law cannot be entrusted to a single functionary. The complicated process of criminal justice is therefore divided into different parts, responsibility for which is separately vested in the various participants upon whom the criminal law relies for its vindication. Legislation such as this, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard— not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society.”
354 U.S. 449, 452, 77 S.Ct. 1356, 1358, 1 L.Ed.2d 1479, 1482 (1957), quoting McNabb v. United States, 318 U.S. 332, 343-44, 63 S.Ct. 608, 614, 87 L.Ed. 819, 825-26 (1943).
The question involved in this appeal is how to enforce this “requirement of criminal procedure.” The court is in agreement that the answer is not dismissal with prejudice. Thus the alternatives are (1) habeas *100corpus or (2) dismissal without prejudice at any stage of the criminal proceeding in which the violation is made to appear.
Habeas corpus may be “tailored to fit the wrong,” as the majority suggests, but in these cases the law officers and prosecutors do not provide a fitting. Persons arrested generally, and especially persons arrested for parole and probation violations, are often without nearby friends, funds or counsel.1 Locked up, these arrestees are without available remedy. While the majority equates the arrestee’s lack of counsel with one who is without counsel after conviction, the distinction is palpable. The person concerned with postconviction remedies ordinarily has been or is represented by counsel, frequently at public expense. He or she has had the advice of counsel. The arrestee with whom we are concerned is deprived of counsel.
Even a successful habeas corpus action may result in the arrestee being remanded to custody under the same charge but pursuant to a valid commitment procedure. See Birk v. Bennett, 258 Iowa 1016, 1021-22, 141 N.W.2d 576, 579 (1966); 39 Am. Jur.2d Habeas Corpus § 156, at 288-89; § 161, at 294 (1968).. This is more of a “hollow victory” than the majority ascribes to a dismissal without prejudice, which at least requires the prosecutors and law enforcement officers who have violated the law to go back to “square one.” Similarly, a dismissal and arrest on refiling would render the habeas corpus action moot. See In Interest of Meek, 236 N.W.2d 284, 288-89 (Iowa 1975); State v. Sefcheck, 261 Iowa 1159,1165,157 N.W.2d 128, 132 (1968). Habeas corpus plainly provides no solution to a recurring problem.
Nor should we deem it controlling that the legislature has not provided for dismissal as a sanction. This may have been an oversight, similar to its failure to make the section 908.2 “unnecessary delay” subject to the Iowa R.Crim.P. l(2)(c) definition, an omission the majority has no difficulty supplying. Certainly, the law violation which confronts us here is more serious than a failure to mark the indictment “filed,” or a defect in impaneling the grand jury, which, inter alia, provide grounds for dismissal.
In any event, Morrissey v. Brewer, 408 U.S. 471, 485-89, 92 S.Ct. 2593, 2602-04, 33 L.Ed.2d 484, 496-99 (1972), teaches that constitutional due process requires written notice of the claimed violations of parole, and a minimal inquiry as promptly as convenient after arrest.' See also Baldwin v. Lewis, 300 F.Supp. 1220, 1232 (E.D.Wis.1969), rev’d on other grounds, 442 F.2d 29 (7th Cir. 1971). Obviously, as indicated in division I of the majority opinion, section 908.2 was designed to implement these constitutional requirements. We may set aside an indictment on nonstatutory grounds upon a showing that constitutional rights have been violated. State v. Hall, 235 N.W.2d 702, 712 (Iowa 1975), cert. denied, 434 U.S. 822, 98 S.Ct. 66, 54 L.Ed.2d 79 (1977). We should not be deterred in these circumstances by the legislature’s failure to provide a sanction.
The additional sanction of dismissal without prejudice, while no more effective than habeas corpus in the individual case of a jailed person without counsel to make the motion, eventually would cause law officers and prosecutors to produce arrestees in court as required by law. The burden of time and effort would fall on them directly, and on the public indirectly, if at all. In the longer view, the dismissal without prejudice sanction would avoid trial and appellate court time and effort spent on actions praying for writ of habeas corpus, Sefcheck, 261 Iowa at 1165, 1171, 157 N.W.2d at 132, 135, false imprisonment damages, Perry v. Jones, 506 F.2d 778, 781 (5th Cir. 1975); 5 Am.Jur.2d Arrest § 76, at 763 (1962), and 42 U.S.C. § 1983 damages, Procunier v. Navarette, 434 U.S. 555, 556, 561, 98 S.Ct. 855, 857, 859, 55 L.Ed.2d 24, 27, 30 (1978); Wycoff v. Brewer, 572 F.2d 1260, 1266 (8th Cir.1978).
*101The dismissal without prejudice sanction ultimately would avoid the impermissibly long interrogations we deplored in State v. Cullison, 227 N.W.2d 121, 130 (Iowa 1975) (“[W]hen this statement was obtained from [the arrestee] he had been in custody for ten days without an opportunity to communicate with anyone but police and hospital personnel. Denial of access to the outside world continued throughout.”). It would prevent reversals of convictions necessitated when the incarceration of defendants permanently deprives them of material, exculpatory evidence. See Winston v. Commonwealth, 188 Va. 386, 394-97, 49 S.E.2d 611, 615-16 (1948). Recognition of this sanction would logically follow our decision in State v. Hill, 286 N.W.2d 32, 33 (Iowa 1979), where we permitted the State to dismiss without prejudice and refile when the defendant had not been produced before a magistrate within the 24-hour period following arrest. Finally, the automatic nature of this sanction would avoid time and expense (which the county usually would bear) in the protracted habeas corpus trial and appeal to examine each arrestee’s circumstances on an ad hoe basis.
I would affirm trial court’s ruling that section 908.2 was violated, reverse its holding that the complaint should not be dismissed, and remand with directions to dismiss the case without prejudice. Of course, absent motives of deliberate harassment or bad-faith delay, the State would be permitted to refile the complaint based on the same alleged violation.
McGIVERIN, J., joins this dissent.
. “[H]abeas corpus only comes into play if the incarcerated defendant, who is sometimes friendless and often indigent, himself initiates the necessary procedures.” Pulaski, Preliminary Examinations in Iowa: The Constitutional Considerations, 60 Iowa L.Rev. 462, 489 (1975).