In this case, the majority holds that appellant’s arrest in Faulkner County triggered the speedy-trial limitations period for the charges brought in Pulaski County. I disagree with that conclusion because appellant’s Faulkner County arrest was not based on the same offense or conduct and was not part of the same criminal episode as the events which took place in Pulaski County. Even if the majority were correct that the limitations period began with appellant’s arrest in Faulkner County, the time during which appellant remained in jail awaiting trial on the charges in Faulkner County is excludable from the speedy-trial limitations period pertaining to the Pulaski County charges.
On November 13, 1999, Fiona Mitchell and Teresa Witt were traveling in Mitchell’s Chrysler LeBaron when they stopped at an E-Z Mart in Little Rock. Mitchell went into the store, leaving Witt in the car with the motor running and the doors unlocked. Appellant got into the driver’s seat of Mitchell’s car and told Witt that he would shoot her if she yelled or moved. As appellant was backing the car out the parking space, Witt escaped by jumping out of the car. The appellant continued to drive away, and the women then called the police. This incident formed the basis for the charges of aggravated robbery, kidnapping, and theft of property in Pulaski County from which this appeal arises.
Near midnight on that same evening, Patrolman Bobby Harvill of the Conway Police Department received a report about a robbery at a local Blockbuster store and was told that the suspect was driving a white Chrysler LeBaron. Harvill was also advised that the vehicle and its tags matched the description of one that had been reported stolen out of Little Rock. Harvill spotted the described vehicle and stopped it after a brief chase. He arrested appellant for robbery and terroristic threatening, based on the events that took place at Blockbuster, and fleeing. Because appellant committed these offenses while driving a stolen vehicle, theft by receiving was included as an additional reason for the arrest. Harvill testified, however, that he did not know when the vehicle had been stolen and that he did not know anything about the circumstances surrounding its theft.
David Murphy, another police officer in Conway, presented the case to the local prosecuting attorney. As a result, appellant was charged the next day in Faulkner County with robbery, ter-roristic threatening, and fleeing. A charge of theft by receiving was not pursued by the authorities in Faulkner County, and Officer Murphy testified that appellant was held in the Faulkner County jail pending trial only on the charged offenses.
Appellant was arrested on May 12, 2000, on the Pulaski County charges of aggravated robbery, kidnapping, and theft of property, immediately after his conviction on the charges in Faulkner County. The information was filed on June 13, 2000.
Rule 28.2(a) of the Rules of Criminal Procedure provides that the time for trial commences to run:
(a) from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody ... to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest.
The issue in this case involves determining when the appellant was arrested for the purpose of calculating the speedy-trial period for the Pulaski County offenses. The majority concludes that the appellant’s arrest on November 13, 1999, for theft by receiving in Faulkner County marked the beginning of the limitations period. I submit that appellant’s arrest on May 12, 2000, was the date the speedy-trial period began to run.
The majority holds that the Faulkner County arrest began the limitations period because theft by receiving and theft of property are the same offense or involve the same conduct. The two offenses, however, are separate and distinct, and proscribe different criminal behavior. Theft of property is committed by a person who knowingly takes or exercises unauthorized control over the property of another with the purpose of depriving the owner of the property. Ark. Code Ann. § 5-36-103 (Supp. 2001). Theft by receiving is committed by a person who receives, retains or disposes of stolen property, knowing that it was stolen or having good reason to believe it was stolen. Ark. Code Ann. § 5-36-106 (Repl. 1997).
Arkansas Code Annotated section 5-36-102(a)(2) (Repl. 1997) does provide that a “charge of theft may be supported by evidence that it was committed in any manner that would be theft,” but that does not mean that the offenses are considered to be the same. In Coleman v. State, 327 Ark. 381, 938 S.W.2d 845 (1997), the appellant argued that, based on the theft consolidation statute, an amendment to the theft statute also amended the theft-by-receiving statute. In rejecting that argument, the supreme court noted that the purpose of the theft consolidation statute was to prevent a defendant from escaping conviction of one offense by proving he was actually guilty of another. The court recognized that the crimes of theft and theft by receiving remained different offenses.
The Pulaski County theft offense was based on the actual taking of the car. The theft-by-receiving arrest was based on the possession of a stolen car. I am unwilling to say that the appellant’s arrest for theft by receiving constitutes an arrest for the offense of theft of property. They are not the same offense, and they do not involve the same conduct.
Nor can I agree with the majority’s opinion that the arrest in Faulkner County arose out of the same criminal episode that occurred in Pulaski County. The incident in Pulaski County involved the aggravated robbery and kidnapping of Ms. Witt, and the theft of Ms. Mitchell’s vehicle. Appellant was arrested in Faulkner County based on the unrelated events that transpired at a Blockbuster store and the act of fleeing to evade arrest. Theft by receiving was included as a basis for the arrest only because appellant was driving a stolen vehicle at the time he committed the other offenses. The events for which appellant was arrested in Faulkner County simply did not arise out of the same criminal episode as the acts committed in Pulaski County.
Cases dealing with the issues of joinder and severance do not, in my view, have much relevance to speedy-trial questions. Under Rule 21.1, two or more offenses may be joined in a single information when the offenses are of the same or similar character or are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. As noted in the Commentary, the rule is “uncommonly broad.” The language of the joinder rule is far different and much broader than that found in Rule 28.2, and the application of the joinder rule is based on considerations that are not present in determining, as we are here, the precise date on which an accused is deemed to have been arrested.
It is true, as the majority states, that the authorities in Pulaski County placed a “hold” on the appellant while he was jailed in Faulkner County. But this does not start the running of the speedy-trial period for charges brought against an accused who is incarcerated for an unrelated offense. See Jackson v. State, 334 Ark. 406, 976 S.W.2d 370 (1998); Washington v. State, 31 Ark. App. 62, 787 S.W.2d 254 (1990).
Even if I could agree that the speedy-trial period began to run on November 13, 1999, I believe that the time between that date and May 12, 2000, the date the trial in Faulkner County was completed and appellant became available for transfer to Pulaski County, should be excluded. Rule 28.3(a) provides an exclusion for the period of delay resulting from other proceedings concerning the defendant, including “trials of other charges against the defendant.” The supreme court has applied this exclusion when a defendant has been tried on charges in a foreign jurisdiction before being tried on charges in Arkansas. See Patterson v. State, 318 Ark. 358, 885 S.W.2d 667 (1994); Allen v. State, 294 Ark. 209, 742 S.W.2d 886 (1988). However, the rule contains no language limiting its application to trials in “foreign” jurisdictions. In this case, the trials were situated in different counties, and thus involved different jurisdictions. I can see no basis for rejecting the exclusion here. Reed v. State, 35 Ark. App. 161, 814 S.W.2d 560 (1991), is distinguishable; there we declined to apply the exclusion because the defendant was charged with two sets of crimes in the same county and same court. Here, the appellant was charged with two sets of crimes in two different counties.
I respectfully dissent.
Bird, J., joins.