Dissenting Opinion
DeBruler, J.I vote to grant the writ in this case. Petitioner was entitled to discharge on January 20, 1976, upon his motion for such relief filed on that date. The parties agree that petitioner was entitled to discharge on December 6, 1975. However, the majority contends that the right to discharge was waived because petitioner raised no objection, on November 24, 1975, to the setting of the arraignment date for January 22, 1976, a date beyond December 6, 1975. The return of respondent and the record of trial court proceedings show that on November 24, 1975, the prosecutor filed a praecipe for arraignment. The trial court responded on November 24, 1975, by setting the arraignment for January 22, 1976. Neither the petitioner nor his counsel was present in court on that occasion. On the record, the judge instructed the clerk to notify attorneys. That entry reads:
*651“11/24/75 State of Indiana files praecipe for arraignment (H.I.). The court sets defendant’s arraignment at 10:30 a.m. Jan. 22, 1976. (Clk notify attys) ”
Presumably, this notice was given by mail. Upon receipt of it, counsel would have had to research the issue of whether the old charge which had been dismissed in October was the same as the new charge for Ind. R. Crim. P. 4 purposes. After that, he would have had to prepare an objection and get it before the trial court before December 6, 1975. November 24, 1975, was a Monday. November 27, 1975, the Thursday following, was Thanksgiving Day. Under these circumstances, I do not believe the petitioner had a fair opportunity to assess his speedy trial rights and present an objection before December 6, 1975. The petitioner did not waive his right to discharge under the Rule.
More importantly, the purpose served by the rule requiring the defendant in a criminal case to object to a setting beyond a discharge date is to alert the prosecutor to the effect of the delay, so that the State can comply with the speedy trial rules. Even if petitioner had objected by petition prior to December 6th, that purpose could not have been served in this case, as the petitioner could not have been put to trial by that date.
Note. — Reported at 348 N.E.2d 644.