The opinion
GREENE, J.,
dissenting: I respectfully dissent because I believe the majority’s construction and application of K.S.A. 22-3402 is inconsistent with if not contrary to Kansas authorities and does not *772 seem logical to me. In summary, I would not count against the defendant for speedy trial purposes the days between the grant of defendant’s motion for continuance of trial and the original trial date, because this time frame did not “delay” the trial, and certainly was not the “result of [defendant’s] application or fault of the defendant.”
For purposes of Brown’s speedy trial issue, the central question in this appeal is whether the time frame between the district court’s grant of his motion for continuance, August 1, 2003, and the original trial date of August 20, 2003, should be counted against him in determining whether he was brought to trial within the 90 days required by K.S.A. 22-3402(1). The majority has answered this question in the affirmative; I would answer negatively, counting this time frame against the State. The result of my interpretation and application is that, after charging to Brown only the time between the original and the continued trial dates, Brown was brought to trial after 101 days, requiring discharge from further liability under the statute.
Most of the Kansas authorities cited by the majority do not address these circumstances. In State v. Southard, 261 Kan. 744 , 933 P.2d 730 (1997), and in City of Dodge City v. Downing, 257 Kan. 561 , 894 P.2d 206 (1995), the issue was time attributable to defendant in connection with a motion to suppress. In State v. Crane, 260 Kan. 208 , 918 P.2d 1256 (1996), the issue was time attributable to defendant in connection with amotion for independent mental examination. In State v. Bafford, 255 Kan. 888 , 879 P.2d 613 (1994), the principal issue was time attributable to defendant in connection with a motion for psychiatric evaluation, where defendant disclaims understanding and consent to delay attributable to his counsel. None of these cases specifically address the manner of counting or attributing days for speedy trial purposes where the defendant’s motion to continue trial, without associated motion delay, is ruled upon prior to the original trial date. (Although the Bafford decision includes a general counting of attributable days, and does not count against the State a 4-day time period between grant of motion and the original trial date, this is no rehable or *773 controlling ruling because the 4-day period was inconsequential to the 90-day period.)
The more instructive if not controlling Kansas decision is State v. Hines, 269 Kan. 698 , 7 P.3d 1237 (2000), where our Supreme Court construed and applied a parallel subsection of the statute, K.S.A. 22-3402(3)(c) (now [5][c]). In counting days attributable to a continuance requested by defense counsel (over the strenuous objection of the defendant) on April 16, 1999, the court did not include the period of days between the date of request/grant of a continuance and the date of the then pending trial date of April 19, 1999. In so doing, the court expressly noted that “[tjhis time is counted under K.S.A. 22-3402(1).” 269 Kan. at 703 . Although subsection (3)(c) has language specifically directing that “the original trial date” is the measure for counting days for delay arguably related to a material evidence request by the prosecution, the Supreme Court clearly indicated that 22-3402(1) applied, and the count did not include the period between request/grant of continuance and the pending trial date. With due respect, I am not persuaded by the majority’s attempt to distinguish Hines .
Even more instructive than Hines is the Supreme Court’s decision in State v. White, 275 Kan. 580 , 67 P.3d 138 (2003), where the specific subsection at issue was K.S.A. 22-3402(3)(c) (now [5] [c]), the precise subsection at issue in Hines . In White the specific issue presented was whether the count of days attributable to a continuance for procurement of material evidence by the State should begin to run from the date the district court rules on the motion for continuance or the date the original trial was to begin. The court concluded that the original trial date was the appropriate measure, stating:
“Although not specifically addressing the issue raised by White, on previous occasions when calculating whether a defendant’s right to speedy trial has been violated, this court has utilized the trial date as the beginning date for counting. See State v. Hines, 269 Kan. 698, 703 , 7 P.3d 1237 (2000); State v. Green, 254 Kan. 669, 672 , 867 P.2d 366 (1994). Further, in reading the provisions as a whole, the legislative intent is clear that the trial date is to be the date from which the continuance is calculated.”
In hght of both Hines and White , I would argue that the Supreme Court has indicated that the entirety of K.S.A. 22-3402 be con *774 strued with consistency as to the use of original trial date as the operative date for counting days attributable to a defendant’s motion for continuance, even though it is ruled upon in advance of said date. Not only does Hines relate subsections (1) and (3)(c) (now[5][c]), the legislature amended the statute in 2004 adding subsection (3) which specifically requires that trial be rescheduled “within 90 days of the original trial deadline.” Repeated express utilization of the original trial date as the operative date indicates a legislative intent to construe the statute with consistency, thus requiring that original trial date be utilized in attributing delay. I simply cannot construe the statute and the applicable case law to support the construction and application endorsed by the majority.
Consider again the express language of the statute: a defendant must be brought to trial within 90 days after arraignment “unless the delay shall happen as a result of the application or fault of the defendant . . . .” If the original trial date was August 20, 2003, how can the majority imply that “delay” occurred prior to that date? Moreover, how can the majority imply that the period between motion/grant of continuance and the original trial date “result” from the defendant’s application or other “fault.” It is clear to me that Brown could not be tried prior to the original trial date; had he not sought a continuance, the entire period would be attributable to the State. The majority, however, concludes that the filing of a continuance not only requires attribution to the defendant of the time between the original and new trial dates, it requires attribution to the defendant of the additional time transpiring prior to the original trial date, counted from the grant of a continuance. This attribution is counterintuitive in that it causes a time period already attributed to the State to magically “jump back” to the defendant for purposes of attribution. Obviously, this period does not result from the application or any other fault of the defendant; it already has been counted against the State, does not “result” from the defendant’s motion, and should remain attributable to the State. With due respect to the majority, this magical “jump back” does not seem logical but rather contraiy to a coherent construction of the entirety of K.S.A. 22-3402.
*775 Finally, I believe that it should be apparent that the appropriate methodology for counting days under these circumstances presents a difficult, if not rather esoteric, question. Inasmuch as die right to a speedy trial is rooted not only in Kansas statute, but is also a fundamental right acknowledged in the Kansas and United States Constitutions, I would argue that such difficult or esoteric questions should be resolved in favor of the defendant, not in favor of die State.
I would reverse the district court, holding that Brown was not brought to trial within the period required by K.S.A. 22-3402 and ordering that he be discharged from further liability for the crimes charged.