dissenting. This manslaughter charge was dismissed by the circuit court on December 12, 1990, on double jeopardy grounds. As of that date no manslaughter charge existed against Thornton. The State appealed and this court reversed the dismissal and remanded the matter for a hearing on the motion to dismiss. The mandate from this court was entered in the circuit court on October 7, 1992. That mandate had the effect of reinstating the manslaughter charge against Thornton which means the mandate date is the date from which the speedy trial time should run. See Grable v. State, 649 P.2d 663 (Wyo. 1982). Thornton was tried on October 6, 1993, within the 12-month period.
The majority seeks to tack on time accumulated before the circuit court dismissed the charge in calculating a speedy trial violation. However, our criminal rules without question contemplate running the time for speedy trial purposes from the date that a charge is effective. In this case, that date was when the manslaughter charge was resurrected by court order.
Rule 28.2(b) of the Criminal Rules closely approximates the circumstances of this case:
The time for trial shall commence running, without demand by the defendant, from the following dates:
(b) 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;
Prior to this court’s mandate, the charge had been dismissed by the circuit court and was void and of no effect. The revival of the charge was comparable to a subsequent charge under Rule 28.2(b).
We have interpreted our Rules of Criminal Procedure in the past to accommodate the intent of the rule. See Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993). In Bolt, we held that the requirement that a defendant “personally” waive a jury trial did embrace a waiver by the attorney when the defendant was present. Similarly, in this case we should recognize the virtual sameness for speedy trial purposes between reviving a moribund charge and a subsequent charge under Rule 28.2(b).
Furthermore, the majority’s interpretation will adversely affect the State’s decision to appeal if time prior to the State’s appeal counts against the 12-month period. In some cases the accumulated period prior to a circuit court’s dismissal might be considerable which would render an appeal by the State a useless endeavor. The right of the State to appeal should not be encumbered in this fashion.
The majority’s rebuttal in part is that the State did not argue Ark. R. Crim. P. 28.2(b) to this court or to the circuit court. Yet, we can affirm for an alternative reason when the circuit court reaches the correct result. See Hagen v. State, 315 Ark. 20, 864 S.W.2d 856 (1993).
Again, the charge was reactivated when the mandate issued. The time should run from that date. I respectfully dissent.
Hays, J., joins.