concurring. The State appealed from an order dismissing charges against Ranger Thomas Thornton. The dismissal was based on former jeopardy. This Court reversed, and thus Mr. Thornton was again subject to trial. As the majority opinion explains, more than a year of delay chargeable to the State occurred from the time Mr. Thornton was charged.
The State argues Ark. R. Crim. P. 28.2(c) applies and causes the one year period within which he must be tried to recommence with the return of the mandate to the Circuit Court. The majority opinion correctly explains that Rule 28.2(c) does not apply because there is not to be a “retrial.”
Justice Brown’s dissenting opinion states we should affirm the conviction because the correct result was reached by the Trial Court in view of Rule 28.2(b) which provides, “when the charge is dismissed upon motion of the defendant and subsequently the defendant is arrested or charged with an offense, the time for trial shall commence running from the date the defendant is subsequently arrested or charged, whichever is earlier.” Justice Brown suggests that language should apply, even though there has been no subsequent arrest or charge, because the original charge has been the subject of a “resurrection.”
If Rule 28.2(b) were clearly applicable, I would not hesitate to apply it in this case even though it has not been argued to us. Application of the Rule here, however, requires forcing or stretching the language of the Rule to fit the facts of this case. We should reserve our prerogative of affirming on the basis of a point not argued for cases in which affirmance is clearly justified rather than one in which we engage in a somewhat questionable, first impression interpretation of a court rule.
While the suggested interpretation of Rule 28.2(b) is tempting, in the circumstances presented 1 must concur and agree fully with the majority opinion.