concurring.
I believe this case represents an appropriate fact pattern to test the propriety of a legislative fixing of so-called speedy hearing time limits. Our review should touch upon the separation of powers doctrine, as was done in United States v. Howard (1977), 46 U. S. L. W. 2266, and upon the issue of a possible conflict between the statutes and the Buies of Criminal Procedure. Section 5(B) of Article TV of the Constitution of Ohio.
Under the law stated by the dissenting opinion, persons charged with serious crimes and released on bond must be discharged unless they are accorded either a preliminary hearing or are indicted, both within 15 days of their arrest. It must be emphasized that this result would obtain even though an accused has never been incarcerated upon the pending charge and despite the fact that there has been no showing of any prejudice to his position. Furthermore, the dissenting opinion would cause appellant to be discharged from custody, even though his trial was free of error. He could not be retried because of constitutional proscriptions against double jeopardy. It would be a mistake for this court to permit itself to be forced to establish such a rule of law.
As stated in Howard, supra:
“The court is cognizant of the defendants’ right to a speedy trial, just as it is cognizant of all their rights under the Constitution, and it is satisfied that the even-handed scrutiny of the appellate courts will not only preserve those
*156The concurring opinions, in my judgment, would require either the overlooking of the clear mandate of the statutes involved or the ignoring of appellant’s persistent motions to dismiss.
When statutes pertaining to criminal proceedings cause immense problems in the administration of justice, foster the release of felons convicted in error-free trials and splinter the studied opinions of the members of the state’s highest court, it is apparent that something has gone awry in the way in which our institutions of government are functioning. In my opinion, what has occurred in the present ease is quite clear. In its zeal to serve the people, one branch of government has engaged in activity which, in modern times, is the obvious responsibility of another branch. Although the effort to help is certainly laudable, the result has been predictably unfortunate.
As judges have often stated, courts should always be mindful of the constitutional prerogatives of the General Assembly and should refrain from legislating. We are not equipped to legislate and we are not constitutionally entitled to legislate.
Occasionally, however, we are called upon to reiterate that this doctrine of separation is a two-way street, and when such rare situations arise we should not be loath to point them out.