This is a second appeal following our decision in State v. Thornton, 306 Ark. 402, 815 S.W.2d 386 (1991) (Thornton I). In Thornton I, Ranger Thornton had pled guilty in municipal court to the traffic offenses of speeding, reckless driving, and drinking on the highway. Although he pled not guilty to the added offenses of running a red light and destruction of public and private property, he was later convicted of those two misdemeanor offenses as well.
Six months after disposition of the five offenses in municipal court, the state filed an information in circuit court, charging Thornton with felony manslaughter. The court dismissed the felony charge on double jeopardy grounds, stating that to prove manslaughter the state had to prove conduct that constituted an offense(s) for which Thornton had already been convicted. The state appealed, and this court reversed, holding that the trial court erred in dismissing, prematurely, the manslaughter charge without first giving the state the opportunity to respond to Thornton’s dismissal motion. We suggested the trial court was wrong in assuming the state would not be able to prove the elements of the crime of manslaughter without relying on Thornton’s same conduct for which he had previously been convicted in municipal court. In this respect, we cited Grady v. Corbin, 495 U.S. 508 (1990), and the two tests set out therein determining whether double jeopardy bars a prosecution.1
On remand, and at the end of the state’s case, the trial court held that the state met its evidentiary burden under Grady in showing that double jeopardy did not attach so as to bar its prosecution of Thornton for manslaughter. The trial court also denied Thornton’s second defense raised on remand, asserting his right to speedy trial had been violated. In this appeal, Thornton seeks reversal of his conviction based upon the double jeopardy and speedy trial issues he raised below. We consider Thornton’s speedy trial argument first, since it is dispositive of this appeal.
Under Arkansas’s speedy trial rule Ark. R. Crim. P. 28.1(c), any defendant charged in circuit court and held to bail, or otherwise lawfully set at liberty, shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve months from the time provided in Rule 28.2, excluding only such periods of necessary delay authorized under Rule 28.3. Thornton bases his argument on Ark. R. Crim. P. 28.2(a), which provides that a defendant’s speedy trial time generally begins to run from the date a charge is filed in circuit court, unless the defendant has been arrested and is in custody, out on bail, or has been lawfully set at liberty, in which case time runs from the date of arrest.
Here, Thornton was arrested on May 2, 1990 — the date he contends is controlling from which the twelve-month period should commence. This being so, the state had until May 2, 1991 to bring Thornton to trial unless certain periods of delay authorized under Rule 28.3 were excludable from the initial twelvemonth period. In other words, the initial twelve-month period can be extended by the length of time of any of the excluded periods authorized in Rule 28.3. Thornton was not tried on the manslaughter charge until October 6, 1992 — 886 days from his date of arrest on May 2, 1990. Accordingly, under Thornton’s argument, the state had the burden to show excludable periods of delay, totalling 521 or more days (886 - 365). The state failed to meet that burden.
From our review of the record, the following excludable periods of delay are allowed under Rule 28.3 and can be used by the state in calculating Thornton’s twelve-month speedy trial time:
October 8, 1990 through November 13, 37 days
1990 (Thornton’s motion for mental exam)
December 12, 1990 through October 4, 297 days
1991 (Trial court’s initial dismissal order of manslaughter charge and supreme court’s reversal and issuance of mandate in Thornton I appeal)
January 3, 1992 through February 10, 30 days2
1992 (State’s November 5, 1991 motion seeking excludable periods of delay and Thornton’s November 6, 1991 pretrial motion to dismiss — ruled on by trial court on January 3, 1992, but order was not entered until February 10, 1992)
February 14, 1992 through June 8, 1992 114 days
(Delay resulting from Thornton’s petition for writ of prohibition before supreme court, challenging trial court’s denial of Thornton’s motion to dismiss and supreme court’s denial without prejudice)
September 10, 1992 through October 6, 1992 27 days
(Thornton’s motion for continuance) _
505
excludable
days
After allowing the foregoing 505 excludable periods and deducting them from the 886-day period from Thornton’s date of arrest and his trial date, the state was sixteen days late in bringing Thornton to trial.3
The state does not question the excludable periods of delay listed above, nor does it offer any new ones. Instead, it simply argues that Thornton’s reliance on Rule 28.2(a) and the speedy trial commencement date from the date of Thornton’s arrest is inapplicable here. The state points to its earlier appeal in this case, Thornton I, and citing Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993), argues Rule 28.2(c) controls and provides for a new twelve-month speedy trial period to commence from the date this court issued its mandate on October 4, 1991. Under the state’s argument, Thornton’s trial on October 6, 1992 was held 367 days (twelve months, two days) after the new commencement date, and the excludable days during that period were more than sufficient to bring the state’s prosecution of Thornton within the required twelve-month period.4 The state’s argument, while creative, is somewhat misguided.
Rule 28.2(c), the rule relied on by the state, provides that, if the defendant is to be retried following a mistrial, an order granting a new trial, or an appeal or collateral attack, the time for trial shall commence running from the date of mistrial, order granting a new trial or remand. Before Rule 28.2(c) applies, the provision plainly presumes, at the least, the state had commenced trying its case against the defendant and the trial concluded in a mistrial or the defendant had been tried but his conviction had been set aside, appealed, or collaterally attacked. In the Clements case relied upon by the state, the defendant had been tried, convicted and sentenced, but his conviction was overturned on appeal and remanded for a new trial.
In the present case, no trial had been commenced, much less concluded, against Thornton. Rather, Thornton’s pretrial motion to dismiss had been granted barring his prosecution and trial. In this respect, the trial court’s order dismissing the state’s charge against Thornton was a final one and one from which the state could and did appeal. See Edwards v. State, 310 Ark. 516, 838 S.W.2d 356 (1992). It is also settled that, for Sixth Amendment purposes, the appeal time, during which Thornton’s felony charge had been dismissed freeing him of all liberty restrictions, should be excluded from the length of delay considered under the Speedy Trial Clause. See United States v. Loud Hawk, 474 U.S. 302 (1986).
Because the dissenting opinion confusingly alludes to some dates and events it suggests are excludable, we are obliged to correct and clarify those references. The dissenting opinion refers to the defense’s November 6, 1991 speedy trial motion to dismiss which it suggests warrants another excludable period. It also refers to an amended motion to dismiss filed by the defense on January 3, 1992. The January 3, 1992 amended motion is one which the trial court considered on the same date the motion was filed. Actually, the state initiated this period by filing its November 5, 1991 motion to determine excludable periods to which Thornton responded with his motion to dismiss filed on November 6, 1991. By order dated December 6, 1991, the trial court set these motions (and others) for hearing on January 3, 1992, when it denied Thornton’s motion (and amended motion) by erroneously ruling the state had one year from the Arkansas Supreme Court’s reversal and issuance of mandate in Thornton I. In sum, while the dissenting opinion refers to the foregoing dates and events as warranting different excludable periods, only one thirty-day excludable period is involved under Rule 28.3(a) — from January 3, 1992 and the following thirty-day period it withheld its order denying Thornton’s motion to dismiss.
Next, the dissenting opinion suggests an excludable period of forty-two days should be attributable to Thornton’s motion for continuance filed on August 26, 1992. By its own order, the trial court specifically determined this excludable period runs from September 10, 1991 until October 6, 1992 — twenty-seven days.
The dissenting opinion also summarily asserts an eighteen-day period should be excluded from the speedy trial rules because of the defense’s October 11, 1991 motion for bill of particulars which the trial court granted on November 4, 1991. Again, the state did not argue this period below or on appeal. The state, of course, is required by way of a bill of particulars to state its action in sufficient certainty to apprise the defendant of the specific crime with which he is charged in order to enable the defendant to prepare his defense. Ark. Code Ann. § 16-86-301 (1987). The record, including the trial court’s docket entries, fails to reflect any delay resulted from Thornton’s request for a bill of particulars which the state was obliged to provde in the first instance. And if any delay can be said to have resulted, certainly no good cause was provided by the state for it.
Finally, the dissenting opinion asserts the state in this case made timely and repeated attempts to bring Thornton to trial, leaving the impression that the state did all it could to comply with the speedy trial rules. We would first point out that, after this case was remanded for trial, the state requested no trial date and none was set for more than ten months. This court ’s appellate mandate was issued on October 4, 1991, and it was August 12, 1992 when the trial court set the first trial (after remand) to be held on September 17 and 18, 1992. The dissenting opinion erroneously refers to a date of March 30, 1992, but that date was set for a hearing, not a trial. We would also note that, before Thornton I and when the trial court had the state’s case against Thornton set for trial on November 14, 1990, the state chose to nolle prosse its case on November 13, 1990. The state then refiled charges against Thornton on November 20, 1990.
In sum, we conclude that, under the facts presented here, the state’s speedy trial rules patently bar Thornton’s prosecution. Even though the state’s time to bring Thornton to trial was legally extended from his date of arrest by 505 days (giving the state allowance for its appeal and delays due to Thornton’s pretrial trial motions after remand), the state still failed to meet the required twelve-month speedy trial deadline provided under Rule 28.5 For the reasons given above, we must reverse and dismiss.
Hays and Brown, JJ., dissent. Newbern, J., concurs.in U.S. v. Dixon, 113 S.Ct. 2849 (1993), the Supreme Court overruled Grady stating, among other things, that the “same-conduct” rule it announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common-law understanding of double jeopardy.
Excludable as period of delay resulting from hearing on pretrial motions under Rule 28.3(a). Period of time in excess of thirty days such motion is held under advisement is not to be considered as excludable period.
The 886-day period minus 505 days is 381 days. In deducting the 365 days or twelve-month speedy trial period from 381 days, sixteen days arc left.
It appears undisputed that the three excludable periods listed previously in this opinion were chargeable to Thornton and occurred after this court’s remand on October 4, 1991 in Thornton 1. These periods totalled 171 days.
We note one of the dissenting opinion’s reliance upon Rule 28.2(b) — a provision not mentioned by the state in its argument. That provision, by its plain wording, becomes effective when a defendant is either arrested or charged a second time after the charge had been dismissed upon the defendant’s motion. Thornton was neither arrested nor charged again by the state, and Rule 28.2(b) is simply inapplicable.