This case was appealed to the Arkansas Supreme Court and transferred to the Court of Appeals pursuant to Rule 29(3).
The Appellant Jones was arrested on October 9, 1977 and on November 16,1977 was charged by information with two counts of aggravated robbery and two counts of theft of property. On February 23, 1978, an amended information was filed charging that Jones had previously been convicted of at least two felonies and requesting that sentences should be increased as provided by statute. He remained in custody from October 9, 1977 until March 28, 1978 when he was tried before the court, with jury waived, on two of the felony counts and sentenced to thirty-five years in prison.
From the time of his arrest until trial on the two felony counts Jones was represented by private counsel and thereafter by the Public Defender. After his conviction, he was sent to the penitentiary to serve his sentence.
On October 2, 1978, Jones was arraigned on the other two felony counts which had been severed from the counts previously tried. He was tried before the court, with jury waived, on the remaining two counts on January 31, 1979, after his motion to dismiss for lack of speedy trial had been overruled. He was convicted on both counts and sentences of ten years and three years were imposed.
The sole issue on appeal is whether appellant was denied a speedy trial in accordance with Arkansas Rules of Criminal Procedure and Constitutions of the United States and Arkansas.
As the Rules of Criminal Procedure were designed by the Supreme Court to comply with constitutional requirements we need look only to the rules and Arkansas Supreme Court decisions to determine the issue.
The appellant was tried on the charges now in issue on January 31,1979 following his arrest on October 9,1977. The terms of the Pulaski Circuit Court began on the fourth Monday of September and the first Monday of March. Thus, his trial was within the second full term of the court following his arrest.
Appellant relies on the maximum time of nine months prescribed by Rule 28.1(a), after allowing for exclusion of time periods as provided by Rule 28.3, and if the nine months provision were here applicable, his contention would be well taken.
However, the case falls within the scope of Rule 28.1 (b) which provides:
Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.
In this case the defendant was tried during the second full term of the court following the term in which he was charged.
The In Banc decision in Wade v. State of Arkansas, 264 Ark. 320, 571 S.W. 2d 231 (1978), settles the issue here. The court pointed out that where the defendant was not incarcerated incident to the pending charges, but was serving a prior sentence, that Rule 30.1 provides:
(a) • • •
(b) An incarcerated defendant not brought to trial as provided by Rules 28.1 — 28.3 shall not be entitled to an absolute discharge pursuant to subsection (a) hereof but shall be recognized or released on order to appear.
The Wade decision went on to say:
Therefore, it is ridiculous to contend that he should be “recognized or released on order to appear”. That provision would apply to a defendant who is being held in jail pending trial. However, should it be found by the trial court that petitioner is entitled to relief under Rule 28.1 (a), he would not be entitled to have the charges against him dismissed, but Rule 30.1 (c) would apply and the time for trial would be computed pursuant to Rule 28.1 (b) which provides: any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as authorized in Rule 28.3.
In Wade the court in applying the rules relating to speedy trial treated a situation in which the defendant is serving a sentence and not being held in jail on a pending charge as the equivalent of the defendant being held to bail or at liberty, since his confinement was not under the pending charge.
We hold that Rule 28.1 (b) applies under the facts in the case before us and that appellant’s right to a speedy trial has not been violated.
Affirmed.
Newbern and Hays, JJ., dissent.