Opening Brief at 21-23. On the other hand, citing State v. Soto, 63 Haw. 317, 627 P.2d 279 (1981), and State v. Ho, 7 Haw. App. 516, 782 P.2d 29 (1989), the prosecution counters that the appellate courts in this jurisdiction "have . . . recognized that such time is excludable." Answering Brief at 16.

"[I]n computing the time within which the trial of [the] defendant must commence, any delay resulting from any pretrial motion concerning the defendant shall be excluded from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion." State v. Soto, 63 Haw. 317, 320, 627 P.2d 279, 281 (1981). On March 10, 1993, the trial court granted Samonte's motion for a mistrial in his second trial, and, three hundred and seven days later in his subsequent third trial, on January 11, 1994, Samonte filed his motion to dismiss charges for violation of HRPP Rule 48. Subtracting one hundred eighty-seven excludable days from the three hundred and seven days that had passed, the trial court concluded that only one hundred twenty days were non-excludable and denied Samonte's motion.

State v. Estencion, 63 Haw. 264, 268, 625 P.2d 1040, 1043 (1981) (footnote omitted). In State v. Soto, 63 Haw. 317, 321, 627 P.2d 279, 281 (1981), we said "the prosecutor, the court and the accused share[d] responsibility for carrying out the speedy-trial requirements of Rule 48." Here, counsel for the accused unquestionably was delinquent in carrying out his responsibility of presenting an order of dismissal.

Here, the defendant was arrested on April 22, 1979. He was not indicted until July 3, 1979 but in the meanwhile, on June 6, 1979, the defendant had filed a notice of intention to rely on the defense of physical or mental disease, disorder or defect pursuant to § 704-404, HRS. As we noted in State v. Soto, 63 Haw. 317, 627 P.2d 279 (1981), the exclusion in Rule 48(c)(1), HRPP, of periods of delay should be taken from the filing of the motion through the conclusion of the hearing on or other prompt disposition of the motion. The motion here was filed June 18 and heard November 21, 1979.

Appellant contends that the one-year and three-week delay between arrest and trial violated the requirement of Rule 48(b), HRPP, that trial be commenced within six months of his arrest. However, appellant's claim bears little merit in light of our recent decision in State v. Soto, 63 Haw. 317, 627 P.2d 279 (1981), wherein we construed Rule 48(c) to exclude from computation of this six-month period "any delay resulting from any pretrial motion concerning the defendant . . . from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion."Id. at 320, 627 P.2d at 281. Rule 48(c), HRPP, provides in pertinent part as follows:

State v. Sujohn, 64 Haw. 516, 520-21, 644 P.2d 1326, 1328-29 (1982). "Every pretrial motion is subject to prompt disposition through due diligence by all concerned."State v. Soto, 63 Haw. 317, 320, 627 P.2d 279, 281 (1981) overruled on other grounds by Hoey, 77 Hawai‘i 17, 881 P.2d 504. Thus, the prompt disposition requirement is subject to a due diligence standard, not an exceptional circumstance standard.

Our caselaw, however, has emphasized that the prosecution shares with the court and the defendant the "responsibility for carrying out the speedy-trial requirements of [HRPP] Rule 48." Coyaso, 73 Haw. at 356, 833 P.2d at 68 (quoting State v. English, 68 Haw. 46, 53, 705 P.2d 12, 17 (1985) ); State v. Faalafua, 67 Haw. 335, 339, 686 P.2d 826, 829 (1984) (quoting State v. Soto, 63 Haw. 317, 321, 627 P.2d 279, 281 (1981) ).Accordingly, the court, the prosecution, and the defendant have a responsibility to facilitate timely resolution of proceedings, including discovery issues involved in a case and moving the case forward. The rule governing discovery, HRPP Rule 16, helps to expedite the discovery process, thereby allowing parties to get to trial more quickly.

(2) The relief mandated by HRPP 48(b), which is designed to "ensure" defendants (including Jackson) a speedy trial, is triggered as a per se matter when the period of nonexcludable time from arrest or charging to trial exceeds six months (construed as one hundred eighty days), regardless of the reasons for the nonexcludable delays or whether a given defendant can demonstrate actual prejudice. Hoey, 77 Haw. at 28, 32, 881 P.2d at 515, 519; Hutch, 75 Haw. at 330, 861 P.2d at 23; Ikezawa, 75 Haw. at 214, 857 P.2d at 595; Coyaso, 73 Haw. at 355, 358, 833 P.2d at 69; Caspino, 73 Haw. at 257, 831 P.2d at 1335; Hanawahine, 69 Haw. at 626, 629, 632, 755 P.2d at 467, 469-70; English II, 68 Haw. at 47, 50, 53, 705 P.2d at 13, 15, 17; Faalafua, 67 Haw. at 336-37, 686 P.2d at 828; Nihipali, 64 Haw. at 71-72, 637 P.2d at 413-14; State v. Soto, 63 Haw. 317, 320, 627 P.2d 279, 281 (1981); State v. Estencion, 63 Haw. 264, 268, 625 P.2d 1040, 1043 (1981); Jackson, 8 Haw. App. at 629, 817 P.2d at 134; Ho, 7 Haw. App. at 517, 519, 782 P.2d at 30-31; see majority opinion at 82, 85; and (3) Defendants, including Jackson, are entitled to have the "substantive right," which is codified in HRPP 48, enforced by the trial courts in the first instance, so that they will be protected against the possibility of an untimely trial, "fair" or otherwise.

The State acknowledges that the court should have considered the period dating back to the conclusion of the hearing on the first Rule 48 motion, October 21, 1991. See State v. Soto, 63 Haw. 317, 320, 627 P.2d 279, 281 (1981) (per curiam). The State also concedes that the court erred in excluding the entire period of time between the denial of Wasson's first Rule 48 motion and the hearing on his second motion, acknowledging that only a relatively small portion (29 days) of that 198 day period was "excludable" for purposes of Rule 48.

As we have stated previously, "the prosecutor, the court and the accused share responsibility for carrying out the speedy-trial requirements of Rule 48." State v. English, 68 Haw. 46, 53, 705 P.2d 12, 17 (1985) (quoting State v. Soto, 63 Haw. 317, 321, 627 P.2d 279, 281 (1981)). In United States v. Taylor, 487 U.S. 326, 333-34 (1988), the U.S. Supreme Court examined the legislative history of the Speedy Trial Act provision upon which the factors in Estencion are based. Before the Act's passage, it was suggested that prejudice to the defendant should be added as a factor.