¶1dissenting.
¶2Admittedly, this ease is a close one. However, I believe the district court’s ruling on the motion to dismiss under I.C. § 19-3501(2) should be upheld. It appears to me that the failure to schedule a trial within six months was caused, or at least acquiesced in, by the defendant. As noted in the lead opinion, the Information was filed on May 8, 1984. At the arraignment on May 9, the court set June 14 for pretrial motions. On June 14, consistent with an oral representation made to the court, defendant’s counsel filed a written motion to dismiss on the grounds of insufficient evidence at the preliminary hearing to bind the defendant over for trial (I.C. § 19-815A). In this motion, the defendant also requested preparation of a transcript of the preliminary hearing, requested oral argument on the motion and reserved the right to file a brief. Accordingly, the court ordered preparation of a transcript of the preliminary hearing by June 28. The court also ordered the defendant to file a brief in support of the I.C. § 19-815A motion by July 12 and allowed the state until July 26 to file a responsive brief. Finally, the court scheduled a hearing on the motion for August 9. In respect to a trial date, the court stated: “I don’t think I’ll set a trial date until following such time as a decision is rendered on the 19-815(a) [sic] motion.” This latter determination seems reasonable; if the motion were granted, there would be no need for a trial date. The defendant voiced no objection to this plan.
¶3No hearing was ever held on the defendant’s motion to dismiss under I.C. § 19-815A. Nor was the motion ever decided by the trial court. In her brief on *498appeal, the defendant asserts that “the motion appears to have been abandoned.” However, nothing appears in the record to show that the trial court was ever alerted or notified that the motion was “abandoned” or withdrawn. All the record shows is that the motion was filed and awaited hearing until after the filing of briefs. Only after the state requested and received a trial date, and six months had expired from May 8, 1984, did the defendant assert the applicability of I.C. § 19-3501(2).
¶4I cannot buy the defendant’s position. In State v. Campbell, 104 Idaho 705, 710, 662 P.2d 1149, 1154 (Ct.App.1983) (citing State v. Talmage, 104 Idaho 249, 253, 658 P.2d 920, 924 (1983)), we said: “It is clear that where delays in bringing a defendant to trial are caused or consented to by the defendant, he is considered to have waived the right to be tried within the time fixed by statute or required by constitution.” We noted that “Campbell’s acquiescence in the procedure [followed by the trial court in disposing of pretrial motions filed by Campbell and a co-defendant] reasonably could be interpreted as a consensual waiver of his right to speedy trial.” Id.I believe the same observation could be made in the instant case. The defendant filed a motion which, if successful, would have avoided the necessity of a trial. The defendant requested oral argument on the motion and reserved the right to file a brief. The court accommodated the defendant, leaving the defendant’s motion pending and awaiting determination, which eventually fell well past the six-month limitation of I.C. § 19-3501(2). I would hold that the defendant’s conduct reasonably could be interpreted as a consensual waiver of her statutory right to speedy trial.
¶5Arguably, the court could have scheduled a trial date notwithstanding the pendency of the defendant’s motion to dismiss, and thus have avoided the problem arising in this case. However, I think the court was entitled to assume that the defendant’s motion was sincere, not spurious, and would actively be pursued. Consequently, in the management of its caseload, the court should not be faulted for reserving trial dates for other cases to be tried, absent a request for early trial setting from this defendant.
¶6I would affirm the trial judge’s order denying the motion to dismiss.