State v. Holien , 47 Wash. App. 124 ( 1987 )

Petrich, J.

(concurring)—Although I concur with the result and with the essential holding of the majority opinion, I feel obligated to comment on the majority's discussion of the defendant's unavailability for trial as a means of extending the time of the rule. Consistent with my position expressed in State v. Baxter, 45 Wn. App. 533, 726 P.2d 1247 (1986), I do not believe that the time the defendant is unavailable for trial can be used to extend the time within which the defendant must be brought to trial. The current rule does not include the defendant's unavailability as one of the excluded time periods in calculating the required time for trial.

Nevertheless, the majority's discussion of this matter is understandable in view of State v. Allen, 36 Wn. App. 582, 676 P.2d 501 (1983), in which Division One of this court assumed the continued validity of the defendant's availability in calculating the time limits of the rule. Perhaps in an appropriate case the Supreme Court will settle the question of whether the defendant's unavailability as refined by earlier case law is of any validity under the present rule.