dissenting.
I dissent to the majority’s conclusion upon Issue II. This case marks the first time we have ever disposed of a claimed violation of the right to a speedy trial solely upon a perception that the motion therefor was not bona fide. The record discloses a violation of Defendant’s right to a speedy trial under Ind.R.Crim.P. 4(B), which was timely brought to the court’s attention.
The majority is correct to the extent that under Rutledge v. State, (1981) Ind., 426 N.E.2d 638, the October 30, 1979 early trial motion superseded the August 9, 1979 early trial motion. However, by adopting the State’s untenable position, it ignores the mechanics of Ind.R.Crim.P. 4(F), which provides in pertinent part:
“When a continuance is had on motion of the defendant, or delay in trial is caused by his act, any time limitation contained in this rule shall be extended by the amount of the resulting period of such delay caused thereby.”
Under Criminal Rule 4(F) the time during which Defendant’s motion to suppress pended (October 29,1979 until January 23,1980) was a delay chargeable to Defendant. McGary v. State, (1981) Ind.App., 421 N.E.2d 747, 750. However, the pendency of such motion is not a circumstance from which we can conclude that Defendant did not really want a speedy trial.
In this case the motion simply tolled the seventy day limitation until January 23, 1980 and the State had seventy (70) days from that date until April 2, 1980 to bring Defendant to trial. On March 8, 1980, the date Defendant objected to the trial setting of June 16, 1980, there remained twenty-five (25) days in which to bring him to trial under Ind.R.Crim.P. 4(B)(1), but the trial court overruled the objection and stated no reason for the ruling.
The provisions of criminal rule 4 provide several bona fide bases for delaying the trial beyond the arbitrary time limit of the rule, and this Court has acknowledged that the trial court has discretion to extend the date where exigent circumstances warrant. Loyd v. State, (1980) Ind., 398 N.E.2d 1260, 1265, cert. denied, (1980) 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105. However, the record is devoid of any justification for overruling the timely objection to the setting.
Although the State has not done so, it might be argued that inasmuch as Defendant’s objection to the trial setting referred specifically to a violation of his August 9, 1979 early trial motion, rather than to his subsequent, and prevailing, motion of October 30, 1979, the trial court may have been misled. The record, however, demonstrates that the trial setting of June 16, 1980 was also in violation of the August 9, 1979 motion. Hence the erroneous reference is of no significance.
Following the formula mandated by criminal rule 4(F) and counting from the August 9, 1979 motion, the following delays were chargeable to Defendant by his act:
ACT TOTAL DELAY
Two continuances of arraignment requested by
Defendant July 26, 1979 (August 9, 1979) to
September 7,1979 29 days
September 7,1979 to September 21,1979 14 days 1
*681ACT TOTAL DELAY
Defendant’s motion for change of Judge September 25,1979 to October 17,1979 22 days
Defendant’s motion to suppress filed October 29,1979; denied January 23,1980 86 days
Total delay chargeable to Defendant 151 days
Counting from August 9, 1979 the record demonstrates that the State had a total of two hundred twenty-one (221) days, or until March 18, 1980 to bring Defendant to trial. Consequently, the setting of June 16, was an impingement upon Defendant’s rights under the rule, which the court was bound to recognize when he brought the matter to its attention by his objection on March 8, 1980.
The majority’s reliance upon the dicta in Serrano v. State, (1977) 266 Ind. 126, 360 N.E.2d 1257, is also misplaced. In that case the Court stated that there was nothing in the record to show that the defendant had sought an early trial where it appeared that he had not objected at the time the trial court had set the trial for a date beyond the seventy (70) day limitation. Clearly in that case, it was the defendant’s failure to make a timely objection to the trial setting, not his having previously filed assertedly dilatory motions, which warranted the court in denying his motion for discharge. A Defendant who moves for an early trial is not required to elect between his early trial rights and his right to file pretrial motions, dilatory or otherwise. Cf. State ex rel. Wickliffe v. Marion Criminal Court, (1975) 262 Ind. 219, 222, 328 N.E.2d 420, 422 (Defendant is not required to take affirmative action to bring himself to trial under criminal rule 4(B) other than to object, in a timely fashion, to a trial setting which violates the rule and to file a timely motion for dismissal.) It has never been held that causing a delay operates as an abandonment of an early trial motion.' Rather, it merely extends the time allowed to the State. Ind.R.Crim.P. 4(F).
The majority’s opinion effectively eviscerates the provisions of Criminal Rule 4(F) from the scheme of the accused’s speedy trial rights. It denigrates the entire rule by forcing a Defendant to elect between preserving his right to a speedy trial and litigating before the trial the many issues, including Federal questions, which may arise prior to trial. In the alternative the majority imposes an onerous burden upon defense counsel, who will now have to reassert a request for a speedy trial on a regular, perhaps daily, basis to prevent the court from construing his pre-trial motions as a relinquishment of the request for a speedy trial. The language of Criminal Rule 4(F) extends the time limits contained in all of the rule’s subdivisions. It does not posit an investigation into the intent behind a Defendant’s motion, and in conjunction with our prior case law, it does not authorize the visitation of a waiver upon a defendant, who, in this case, could not complete the hearing on a motion to suppress in one day due to the absence of a witness. An accused’s desire to assert all the rights which the system affords him and his subsequent actions in support thereof do not constitute a position inconsistent with the request for a speedy trial. The only condition precedent to preserving a Criminal Rule 4(B) motion is that Defendant object in a timely fashion if the trial court proposes a trial date beyond the seventy day limitation. Utterback v. State, (1974) 261 Ind. 685, 687-88, 310 N.E.2d 552, 553-54.
In the ease at bar, Defendant objected within four (4) days following the trial setting,2 at which time, twenty-five (25) days remained to bring him to trial under the October 30, 1979 motion. The State makes *682no claim that this objection was not timely, and the record contains nothing to suggest that it was not timely.
The State’s arguments are without merit. The record discloses that Defendant objected, in a timely fashion, to a trial setting which, after allowances for all delays chargeable to him, was for a date beyond the seventy day limitation of both his speedy trial motions. Consequently, overruling Defendant’s timely May 1, 1980 motion to dismiss was error, which, in my judgment, requires the judgment of the trial court to be reversed.
HUNTER, J., concurs.
. We have charged a defendant, who filed a speedy trial motion, with delay caused by a continuance that he requested without reference to the reason for the continuance. Little v. State, (1981) Ind., 415 N.E.2d 44, 45; Parks v. State, (1979) Ind., 389 N.E.2d 286, 289; Easton v. State, (1972) 258 Ind. 204, 206, 280 N.E.2d 307, 308; Moreno v. State, (1975) 166 Ind.App. 441, 454, 336 N.E.2d 675, 683. See Coffey v. State, (1973) 156 Ind.App. 363, 296 N.E.2d 663 (three year delay held against defendant’s claim of a constitutional violation of *681the right to a speedy trial.) This is not to say that all delays occasioned by continuances requested by a defendant are immediately chargeable to him, see Collins v. State, (1975) 163 Ind.App. 72, 75, 321 N.E.2d 868, 871 (delay caused by continuance to allow defense counsel to prepare adequately for trial is not chargeable to a defendant under Criminal Rule 4(A)) (dicta); however neither Defendant nor the State has argued that he should not be charged with the delay of the arraignment which he requested.
. Defendant’s objection to the trial setting bears a file stamp of March 8, 1980 and a certificate of service by mail dated March 5, 1980.