dissenting.
Í respectfully dissent, because I think the majority has not really reached the gist of appellant’s alternative argument. He correctly contends that more than three terms of court elapsed after he was available to the Arkansas authorities for trial. Extradition sought by the State of Arkansas was granted. Appellant’s resistance terminated on July 29, 1975, when appellant’s petition for habeas corpus was denied and the extradition order remained in effect. This was during the June, 1975, term of the Circuit Court of Sebastian County. Faulk was then available to the Arkansas authorities at any time during the remainder of that term and, more importantly, during the ensuing three terms of court, i.e., the October, 1975, term, the February, 1976, term and the June, 1976, term. See Ark. Stat. Ann. § 22-310 (Supp. 1975). The June, 1976 term expired on the first Monday in October, 1976. There was no trial setting prior to October 14 and his trial was not held until October 20. The only step taken by Faulk which could have delayed the trial, after his petition for habeas corpus was denied July 29, 1976, was his motion to dismiss because of a denial of a speedy trial, filed October 6, 1976, after the case had been set for trial on October 14. The period excluded under the Rules of Criminal Procedure ended on July 29, 1975, in my opinion. As I have pointed out, three terms of court commenced and ended between that date and the trial date of October 14, 1976, which was a flay of the fourth term after the excluded period. I find nothing in the speedy, trial rules which mandated a demand for trial by Faulk after he was available to the Arkansas authorities. The record discloses no reason why he could not have been brought to trial during any of the three terms that came and went. The court is, improperly in my opinion, imposing a burden on an accused to show when an excluded period ended. In effect, we are saying that a person available for trial at any time must demand trial or he cannot avail himself of the provisions of our speedy trial rules. This is certainly contrary to the spirit of Holland v. State, 252 Ark. 730, 480 S.W. 2d 597, which I took to end for all time the necessity for such a demand by one available for trial.
1 would reverse the judgment and dismiss the case.
I am authorized to state that Mr. Justice Byrd joins in this opinion.