BISTLINE, Justice, concurring separately.

Agreeing with the view of the Court's opinion that we should affirm, and agreeing further that the district judge, the Honorable Arnold T. Beebe, wrote an admirable memorandum decision but, at the same time believing that, if the Court adopts that opinion as its own, for the benefit of the trial bench and bar it should be made readily available, it will be found appended hereto in footnote print — my assumption being that the Court's hesitation to do so is founded solely on economical considerations. In my view it is also appropriate that the Court set forth its own view of Judge Beebe's holding — even as the Court often does in commenting or eludicating upon its own earlier decisions. The Court does not do so; as one member of the Court, I will.

As Judge Beebe points out, the magistrate dismissed the misdemeanor charge on the basis of I.C. § 19-3501 — which applies to felony offenses — with which Judge Beebe did not agree and on which point I join his view. In his view

"a magistrate considering dismissal of a misdemeanor charge on the ground that a speedy trial has not been provided, should employ a factual analysis such as that outlined in State v. Carter, [ 103 Idaho 917, 655 P.2d 434 (1982)] which was set forth initially in the U.S. Supreme Court Case of Barker v. Wingo, 407 U.S. 514 [ 92 S.Ct. 2182], 33 L.Ed.2d 101 (1972). Such an analysis necessarily rests within the sound discretion of the court based on the circumstances of the case in which the conduct of both the prosecution and defendant are weighed. The exercise of such discretion could include consideration of guidelines established for more serious crimes. See Barker, [ 407 U.S. at 529, 92 S.Ct. at 2191] 33 L.Ed.2d at 116. A balancing test compels an ad hoc approach to speedy trial cases."

R., pp. 18-19.

I do not see that the big guns of Barker v. Wingo need to be brought into action in resolving speedy trial claims in misdemeanor cases. But, accepting arguendo that it does shed light on federal constitutional claims of the right to a speedy trial, in State v. Carter, 103 Idaho 917, 655 P.2d 434 (1982), our most recent case involving that issue in a felony case, this Court relied upon State v. Lindsay, 96 Idaho 474, 531 P.2d 236 (1975). A reading of Lindsay brings forth the language of Justice Shepard which succinctly and nicely stated that the issue "must be decided by reference to considerations in addition to the mere passage of time." 96 Idaho at 475, 531 P.2d at 237. He went on to state this Court's view that:

"In Barker, the U.S. Supreme Court recognized that speedy trial cases must be dealt with on an ad hoc basis, held that a balancing test was the appropriate method to approach speedy trial questions and set forth four factors determinative of whether a speedy trial had been denied. Those factors were — length of delay, reasons for the delay, the accused's assertion of his right, and prejudice to the accused occasioned by the delay. It was also stated in Barker that the length of delay is said to be a `triggering mechanism' for the invocation of judicial scrutiny."

Accepting that view of Barker v. Wingo, and not disagreeing with Judge Beebe's formula for the guidance of magistrates confronted with the issue on a federal claim, it seems to me that the issue is wholly controlled by I.C. § 19-3909, and procedures taken thereunder should suffice on any claimed deprivation of a speedy misdemeanor trial:

"Before the commencement of a trial in any of the courts mentioned in this chapter [magistrate's division], either party may, upon good cause shown, have a reasonable postponement thereof."

That statute, although in earlier days applicable to justice courts and probate courts, has been part of the code of criminal procedure since fifteen years before statehood. Hence it was necessarily known to the framers of the Idaho Constitution and tells us exactly what they had in mind as to misdemeanors when they placed in our Constitution "the right to a speedy and public trial," as is guaranteed by Art. 1, § 13.

Under the facts of this case, the People, as represented by the prosecution, were clearly entitled to a reasonable postponement of the trial, but improperly obtained it.

Not disagreeing with Judge Beebe, I nevertheless believe we would better serve the trial bench and bar by referring them to the provisions of I.C. § 19-3909 which, for over one hundred years has authorized reasonable postponements in misdemeanor cases. In the record before us I am unable to see that either the prosecutor or defense counsel ever invited the attention of Judge Brower or Judge Beebe to the controlling statute. Judge Beebe on his own referred to it, but apparently did not rely upon it.

The deputy prosecuting attorney in his brief to the district court urged upon Judge Beebe that Judge Brower had acted inconsistently in granting the postponement and thereafter dismissing because of the delay, declaring that "we do not believe that a Court should grant a continuance and then later dismiss the case because of the continuance. If the Court does not feel good cause was shown for the continuance, it should have denied the same and required the State to present its case as scheduled." Earlier in the prosecutor's brief is the statement to the effect that on the filing of the prosecutor's motion for a continuance, it was granted. In that manner the prosecutor glossed over the fact that, as the record so shows, the motion was granted on the same day it was presented, without any notice or opportunity to appear afforded defendant or her counsel — a startling deficiency in due process of which it does not appear that Judge Beebe was made aware, although it stands out rather prominently in a very short record which shows that the order was so entered some nineteen days before the scheduled trial date.

Ignoring the fact that the prosecutor's motion was a rather unilateral affair, and excusing his apparent ignorance of different statutes, one for felonies, and one for misdemeanors, it is not understood why the office of the attorney general would not bring the proper statute to our attention. Its brief does not do so.

The brief of the State filed in this Court made a considerable point that "No objection was made by defense counsel of the State's motion for continuance." If that motion had been served, and properly noticed for hearing, the point would be valid. The State, while relying upon the unavailability of a critical witness as good cause reason for the delay, completely ignores the fact that good cause should have been decided on motion and notice prior to the order of postponement — and not ex parte as this record discloses was the case.

The holding of Judge Beebe was simply to set aside the order of dismissal erroneously predicated upon I.C. § 19-3501. On eventual remand to the magistrate court I assume that "further proceedings" will include the right to reargue the dismissal upon proper grounds. The magistrate in considering the reasonableness of the delay beyond a set trial date will give due consideration to the manner in which the prosecutor obtained the postponement.

APPENDIX

CASE NO. 3037

MEMORANDUM DECISION ON APPEAL REVERSED

AND REMANDED