SUPPLEMENTAL OPINION ON REHEARING
FEBRUARY 18, 1991
Autrey & Autrey, by: Wren Autrey, for appellant. Mary B. Stallcup, Att’y Gen., by: J. Denhammcclendon, Asst. Att’y Gen., for appellee. David Newbern, Justice.In his petition for rehearing, A.P. Cox, Jr., has pointed out that in denying his petition for a writ of prohibition the court created an exception to Ark. R. Crim. P. 28.2., an exception which imposed unfair prejudice in his case. As he states, the Court’s original opinion was premised on the fact that the Rule does not make a provision for the case in which a charge is filed, the case is nolle prossed, and the charge is filed again. Our original opinion, in effect, wrote a new provision. It should not have done so. It was a mistake of law for the Court not to follow the Rule as written. Rehearing is granted, and the writ of prohibition is granted.
Cox was twice arrested, and twice charged. His original charge was dismissed by the prosecution. He was rearrested and recharged after the 12-month speedy trial period had gone into effect. Rule 29.2.(a) provides that the time commences running:
from the date the charge is filed, except that if prior to that time the defendant has been continuously held in custody or on bail or lawfully at liberty to answer for the same offense or an offense based on the same conduct or arising from the same criminal episode, then the time for trial shall commence running from the date of arrest;. . . .
Cox was arrested first August 24,1987, and released on bail that day. He clearly was “prior to . . . [the time of the charge] . . . continuously held ... on bail or lawfully at liberty to answer for the offense” after that date. The charge upon which he was to be tried was dated September 19, 1989, and he was rearrested on that date. The fact that Cox was rearrested does not change the fact that he was on bail for over two years and that more than 12 months of that time was clearly chargeable to the State.
The 12-month speedy trial period applies because the charge on which he was to be tried was filed after October 1,1987. Ark. R. Crim. P. 28.1.; Asher v. State, 300 Ark. 57, 776 S.W.2d 816 (1989).
The facts of this case demonstrate the unfairness of allowing the prosecution to evade the Rule by nolle prosequi to cover a mistake in failure to comply with discovery orders. A person could be under a criminal charge for a time far in excess of that permitted by the Rule, and simply by dismissing and charging him or her again, the prosecution could get a new lease on the life of the case. The provision of the rule causing the speedy trial time to run from the date of arrest where one is incarcerated or free on bail or otherwise lawfully at liberty while under charges is obviously designed to prevent such an occurrence.
Rehearing granted. Writ of prohibition granted.
Dudley, Hays and Glaze, JJ., dissent.