dissenting. I would reverse Mark Yancy’s theft-by-receiving conviction for lack of speedy trial because I believe that it is part of the same criminal episode as the breaking-and-entering offense charged in the same amended information. See Ark. R. Crim. P. 28.2(a). Here, the criminal episode involved the theft of a Ford Ranger pickup from a used car lot, appellant’s possession of this vehicle in a Wal-Mart lot in the early morning hours shortly after it was stolen, and his unauthorized entry into a second vehicle shortly afterward. When the first vehicle broke down on the Wal-Mart lot, Yancy sought help from a security guard there, who became suspicious and called the police. Officers who immediately came to the scene found Yancy inside a Ford Bronco in an adjoining parking lot and arrested him only for breaking and entering the Bronco. The charge of theft by receiving with regard to the Ford Ranger was later added by amendment. This is clearly a single criminal episode, in which Yancy successively attempted to steal or possess two vehicles in a single evening, or was attempting to avoid detection with regard to the first vehicle by entering the second.
This case is clearly distinguishable from Nelson v. State, 350 Ark. 311, 86 S.W.3d 909 (2002), the speedy trial case relied upon by the majority. The supreme court does acknowledge in Nelson that the offenses involved widely different crimes and were committed and filed in two different counties, but does not further explain why the various offenses were not a part of the same criminal episode. The opinion simply recites the facts and states its conclusion, with no analysis. However, in Nelson, a vehicle was stolen in one county and was simply used by the appellant to travel to a second county where he robbed a video store. Thus, the similarity and connection to each other of the offenses in Yancy’s case are not present in Nelson. Moreover, unlike Nelson, the State chose to amend the information and combine the two charges against Yancy. Arkansas Rule of Criminal Procedure 21.2, joinder of offenses, provides:
Two (2) or more offenses may be joined in one (1) information or indictment with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both:
(a) are of the same or similar character, even if not part of a single scheme or plan; or
(b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.
(Emphasis added.) Arkansas Rule of Criminal Procedure 28.2(a) delineates the date from which speedy trial begins to run, and it provides in relevant part:
The time for trial shall commence running, without demand by the defendant, from the following dates:
(a) from the date the charge is filed, except that if prior to that time the defendant, has been continuously held in custody or on bail or lawfully at liberty 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.
(Emphasis added.) I note that the supreme court has differentiated between “single scheme or plan’- and “criminal episode,” in upholding a trial court’s refusal to sever offenses, as follows:
They argue that the offenses are not part of a single scheme or plan. That assertion is debatable, but whether they were part of a single plan or simply random, disconnected crimes, is beside the point, because they constitute one criminal episode and when a series of acts are connected, that is enough to give the state a right to join them in a single information.
Ruiz v. State, 273 Ark. 94, 99, 617 S.W.2d 6, 9 (1981).
One who burglarizes an office on January 1 and a home on February 1 may be charged in the same information with both offenses, since they are “of similar character.” He would be entitled to a severance under Rule 22.2(a), however, unless the offenses were part of a single scheme or plan or criminal episode. Even though roughly the same type of conduct might be argued to be involved in both burglaries, justifying joinder under Rule 21.1(b), the term “same conduct” in Rule 21.1(b) was probably intended to be read literally to refer to contemporaneous events and to permit joinder in a situation where, for example, a defendant robs three persons simultaneously.
See Commentary to Ark. R. Crim. 21.1 (2003).
Thus, the same acts that would unquestionedly be viewed as part of one criminal episode or a single scheme or plan for purposes of joinder and severance issues are somehow not connected when the spectre of a “speedy trial” reversal rears its more troublesome head. Undoubtedly, the State would take the opposite position on the facts of this case had Yancy sought severance of the charges. It is just not reasonable to attempt to characterize Yancy’s actions on the evening in question as “simply random, disconnected crimes,” rather than a single criminal episode or single scheme or plan. The majority seems to suggest that because Yancy was not charged with an offense involving the Ranger until “months later” and was seen on a “different parking lot,” there is no connection between the two offenses and Nelson is controlling; the majority employs no more analysis than did the Nelson court in reaching this conclusion. Nelson, supra, may allow the State to take this untenable position, but it does not compel this court to go even further down the path the supreme court took in Nelson.
Griffen, J., joins.