dissenting: My concern in the present case arises primarily from the majority opinion’s application of K.S.A. 22-3604. For convenience, the statute is repeated herein:
“(1) A defendant shall not be held in jail nor subject to an appearance bond during the pendency of an appeal by the prosecution.
“(2) The time during which an appeal by the prosecution is pending shall not be counted for the purpose of determining whether a defendant is entitled to discharge under section 22-3402 of this code.”
Section (2) of the statute states when an appeal by the prosecution is pending the time shall not be counted for purposes of the speedy trial statute. Section (1) prohibits bonding and incarceration of the defendant during an appeal by the prosecution. I do not read Section (1) as a limitation upon Section (2).
Further, although not expressly so stating, the majority opinion infers that an unauthorized appeal is not an appeal within the purview of Section (2). The statute speaks of an appeal. Whether authorized or not, an appeal is still an appeal.
If the appeal by the State from the order granting a new trial had been merely to harass the defendant or to gain time I would have no quarrel with the result reached.
In hindsight, the trial court’s granting of a new trial was clearly an erroneous decision. PIK Crim. 54.01 has repeatedly been upheld since the decision in Sandstrom v. Montana, 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450 (1979), was announced (starting with State v. Egbert, 227 Kan. 266, 606 P.2d 1022, cert. denied 449 U.S. 965 [1980]). At the time the trial court made its decision, however, the appellate courts of Kansas had not had the issue before them.
The issue of the effect of the Sandstrom decision upon what was a stock instruction across Kansas was of concern in this case and in many criminal cases across the state. The issue was *151certainly one of significant statewide interest — particularly as to the validity of convictions obtained under the PIK instruction.
State v. Puckett, 227 Kan. 911, 610 P.2d 637 (1980), cited in the majority opinion, was decided subsequent to the order appealed from in the case before us. The State, accordingly, cannot be faulted for failure to know the Puckett determination that the prosecution is not authorized to appeal from an order granting a new trial.
For the reasons expressed herein I would reverse the trial court’s discharge of the defendant.
Herd, J., joins the foregoing dissenting opinion.