concurring. I concur in the result reached in the majority opinion, but I adhere to the views expressed in my concurring opinion in Alexander v. State, 268 Ark. 384, 598 S.W. 2d 345. I do not entirely agree with the majority’s analysis of Harkness v. Harrison, 266 Ark. 59, 585 S.W. 2d 10. The result growing out of Harkness was not brought about by our decision to “effectively spread the judicial responsibility to expedite criminal matters”; it arose from the fact that divisions of court did not survive Act 432 of 1979, as I pointed out in concurring in Alexander. The idea that the circuit courts, regardless of the civil-criminal division dichotomy, had the responsibility for expediting criminal trials was first given force by this court’s adoption of Criminal Procedure Rules I and II (now superseded by Rule 27.1, Arkansas Rules of Criminal Procedure) adopted some 3-1/2 years prior to the decision in Harkness. I submit that we have never counted “overlapping” terms in making speedy trial determinations. Since January 1, 1979, there are no overlapping terms in the Second Circuit Chancery District or in most of the districts in the state. The Second Circuit-Chancery District is not the same as the Second Judicial District and no mass of rhetoric will make it so. Terms of court were not, and cannot be, set for either a judicial district or a circuit-chancery district. Theré never has been, and could not have been, a Circuit Court of the Second Judicial District. Each circuit court of each county was a separate and distinct circuit court. The fact that, in a judicial district, a circuit judge was elected to preside over the circuit court of each county in the district did not convert the courts in that district from seven separate and distinct circuit courts into one. The same may be said of the situation presently with reference to the newly created circuit-chancery district. The inevitable effect of Act 432 was to make the beginning dates of terms prescribed for divisions of the circuit courts of the counties of the district become the beginning dates for the terms of the circuit court of that county without giving any regard whatever to divisions. See my concurring opinion in Alexander. The majority apparently agrees with my position for it says that divisional terms became regular court terms after January, 1979- Consequently, the problems with which we are faced have little to do with county “overlapping terms of a division.”
A chronology of events in this case will demonstrate, however, that Messer has not been deprived of his right to speedy trial under Article VIII, Arkansas Rules of Criminal Procedure. The chronology discloses:
Date Occurrence
1978
October 13 Arrest of Messer
October 16 Messer’s first appearance. Bond fixed by magistrate.
October 23 Messer released on bond.
October 26 Messer moved for discovery.
October 31 State moved for discovery. Hamilton relieved as attorney for Messer and Todd, present counsel, appointed.
November 20 June term of Division III of circuit court ended and November term began.
December 7 Messer moved for a continuance for the term. (Messer concedes that this motion was for a continuance for the entire December 1978 term.)
December 11 December, 1978, term began. Messer’s motion for continuance was granted and the parties were directed to comply with pretrial discovery. (Messer admits that the December, 1978, term of court is an excluded period under Rule 28.3 (c), Arkansas Rules of Criminal Procedure.)
1979
March 5 A new term of court began in the Circuit Court of Greene County. This terminated the December, 1978, term of Division I, the September term of Division II and the November term of Division III. (Messer was arrested during the May, 1978, term of Division I, the September, 1978, term of Division II and the June, 1978, term of Division III. Because of this, and the continuance, no terms had passed, under Article VII, in Division I; because of the date of arrest, no terms had passed in Division II. Because of the continuance, no terms had passed in Division III. “Overlapping terms” become of no significance.)
May 5 Messer moved for a continuance for the May, 1979, term.
May 21 A new term of the Greene Circuit Court began and Messer’s motion for continuance was ■ granted. (Messer admits that this term is excluded because his motion was granted; however, no reason for not trying Messer during the March, 1979, term appears, so one term of court had expired without Messer having been tried. The state concedes that the March, 1979, term should not be excluded.)
June 4 May term ended and June term began.
September 3 June, 1979, term ended and September, 1979, term began. (The expiration of the June term meant that two terms had expired without Messer’s having been brought to trial.)
October 30 Messer case set for trial on November 20, 1979.
November 12 Messer’s motion to dismiss filed.
November 16 Circuit court order finding that September, 1979, term should be excluded because there were no facilities available for jury trial.
November 19 September, 1979, term ended and November, 1979, term began. (Because of the lack of facilities for trial, the September, 1979, term should be excluded under Rule 28.3 (h). If this is not “other good cause,” it would be difficult to imagine one. The trial court’s order had been entered during the September term.)
Novembe 20 Date set for trial of Messer. (It was agreed that the November, 1979, term is an excluded period because it was the term in which Messer was to have been brought to trial.)
Thus, I agree with the majority that only the March, 1979, term and the June, 1979, term had passed before the date the trial was scheduled to have been held. Since Messer was free on bond, he was not entitled to dismissal before three terms had passed, excluding periods of necessary delay. Rule 28.1 (b), Arkansas Rules of Criminal Procedure.
John I. Purtte, Justice, dissenting. The majority has taken a step backwards by this opinion today. It is unfortunate because we had reached a point in our speedy trial rulings where a trial judge could finally fairly well predict what we would hold in a particular case. Now, we have regressed to the point of Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342 (1972), and have certainly overruled Harkness v. Harrison, 266 Ark. 59, 585 S.W. 2d 10 (1979), and Alexander v. State, 268 Ark. 384, 598 S.W. 2d 395 (1980).
In order to demonstrate my point of view, I will set out the terms of court involved in the present case from the date of the arrest until the date of the granting of the motion to dismiss. These terms are as follows:
ACTION
DIVISION: STARTED: ENDED: TAKEN:
II September 4, 1978 November 20, 1978 Arrested
III November 20, 1978 December 11, 1978 None
I December 11, 1978 March 5, 1979 Continuance
II March 5, 1979 May 21, 1979 None
I May 21, 1979 June 4, 1979 Continuance
III June 4, 1979 September 3, 1979 None
II September 3, 1979 November 19, 1979 Motion filed
III November 19, 1979 December 10, 1979 None
December 10, 1979 (Not Ended) Dismissed
We can see from the illustration above that this arrest continued through all or part of nine terms of court. We stated in Alexander v. State, supra, that one term of court ended when another term commenced. Even if this rule is applied for the first time in calendar 1979, the appellee here was clearly entitled to the relief which was properly granted by the trial court. In looking at the above illustration, we can see that no action was taken in the November 1978 term, the March 1979 term, the June 1979 term, and the September 1979 term. Therefore, if we exclude the September 1978 term when he was arrested, the December 1978 term and the May 1979 term in which he requested a continuance, and the September 1979 term when the motion was made, we still have more than three terms of court that expired before the motion was granted.
I cannot understand why the majority continues to refer to divisions of the courts. I was of the impression that we had already decided that no divisions of the courts were to be considered in determining the matter of a speedy trial.
Whether a particular courtroom is ready for use has no bearing on the time-in which an accused is entitled to have the charges terminated by trial or release, and the fact that a motion for release has been filed does not extend the time for trial. If such motion has any effect at all, it should be to hasten the trial date unless the time has already expired. To hold otherwise would allow an accused to be held indefinitely if he filed a motion for release prior to the release date. For example, Alexander filed his motion, which was denied; yet, the court went ahead with the trial. We reversed because we held the time had expired before trial. The present position would, in my opinion, be different if we applied the same yardstick as we did in Alexander v. State, supra.
To me, there is no way we can logically come up with the decision reached by the majority and give any credence to Rule 30 and our past decisions. Therefore, I feel the trial court acted properly; and, this case should be affirmed.