dissenting.
On April 11, 1994, the trial court vacated the earlier habitual offender determination and the sentence enhancement which resulted therefrom. On May 10, 1994, Poore filed his request for a speedy trial upon the revitalized habitual charge. On May 16, 1994, the court set the matter for trial on August 9, 1994. Poore objected to that trial date on June 6, 1994. The objection was overruled and notwithstanding Poore's request for discharge filed July 19, 1994, upon grounds that the 70 day period had expired, the court proceeded to trial on August 9, 1994.
The majority opinion holds that Crim.R. 4(B) is not applicable to an habitual offender determination because that determination is a matter of sentencing. I respectfully disagree.
The habitual offender determination is a determination of status and does not constitute a conviction of a separate offense. Its effect, therefore, is felt with regard to the sentence imposed for the underlying felony. It is not, however, strictly a matter of sentencing which is left to the sole discretion of the trial court. The habitual offender charge involves factual determinations which are within the prerogative of the trier of fact. The controlling statute, I.C. 85-50-2-8(d), clearly requires that the habitual offender status must be proved by the state beyond a reasonable doubt. If the felony charges were submitted for trial by jury, the habitual determination is likewise made by the jury. 1.C. 35-50-2-8(c).
Layne v. State (1977) 172 Ind.App. 570, 361 N.E.2d 170, relied upon by the majority, was a pure sentencing issue involving only the imposition of a sentence already imposed. Furthermore, the case upon which Layne relied, Smith v. Howard (1934) 206 Ind. 496, 190 N.E. 169, also a pure sentencing matter, was effectively overruled by Woods v. State (1992) Ind., 583 N.E.2d 1211. Again, however, those cases involve pure sentencing issues and did not involve the application of the right to speedy trial. In Bell v. State (1993) Ind., 622 N.E.2d 450, our Supreme Court extensively discussed the sufficiency of the evidence to prove the habitual offender charge although it reversed that determination for trial error, rather than evidence insufficiency. In doing so the court noted that double jeopardy considerations did not therefore preclude "retrial" of the habitual offender charge. Although the Bell court noted that "a new sentencing hearing" was permissible it clearly stated that such hearing involved "retrial of the habitual offender charge." 622 N.E.2d at 456.
The majority states that C.R. 4(B) is inapplicable, in large measure because "in habitual offender determinations, the defendant is generally being held because of his conviction for the underlying felony." Op. at 595. This position has superficial appeal because the defendant is indeed usually under confinement for the underlying conviction. The fact remains, however, that he is being held upon the habitual charge as set forth in the indictment or information. See Cash v. State (1990) Ind., 557 N.E.2d 1023. He is, without question, being held to answer to the habitu*598al offender charge. Until that issue is resolved, his sentence and commitment upon the underlying conviction remains in fieri
Because an unresolved habitual offender charge must be resolved by trial or retrial, it is not a pure sentencing matter and in terms of a retrial, a new speedy trial motion filed under Crim.R. 4(B) entitled the defendant to retrial within 70 days. State v. Roth (1992) 2d Dist.Ind.App. 585 N.E.2d 717. The majority accurately observes that not every failure to bring a defendant to trial within the time constraints of C.R. 4(B) is a per se deprivation of constitutional rights. Hornaday v. State (1994) Ind.App., 639 N.E.2d 303. Nevertheless, Poore was entitled to be discharged when he was not retried upon the habitual offender charge within 70 days of his motion.
I would reverse and remand with instructions to vacate and set aside the habitual offender determination and the resultant sen- - tence enhancement.