concurring in part, dissenting in part:
I agree in all respects with the Court’s excellent opinion and take exception only to the disposition. I dissent to the decision to remand the case for a new trial, and believe we should reverse with instructions to dismiss. The case should be dismissed for a variety of compelling reasons. Prominent among them is the fact that this case epito*1053mizes the effect of delay in our appellate system. The delay in this case was harmful, prejudicial and therefore unconstitutional.
Price, an indigent, filed his notice of intent to appeal in this case on November 27, 1989. Acquiring counsel who could timely reach his case complicated matters for Price. The Oklahoma Indigent Defense System first represented Price, then later his case was contracted out. His brief in support of his appeal was filed on November 16,1992. The State filed its brief on June 21,1993. Forty-three months elapsed before Price’s appeal was at issue in this court. When the appeal was finally perfected and this Court reviewed the proceedings, we found the trial court had committed reversible error by refusing to issue requested instructions which were necessary for any constitutional prosecution under this statute. Price was sentenced to eight years incarceration. He remains imprisoned on this invalid conviction.
This Court recently addressed the issue of appellate delay and decided we were “powerless to cure this problem”. Manous v. State, 797 P.2d 1005 (Okl.Cr.1990). I must respectfully disagree. This Court unquestionably has the jurisdiction and authority to grant relief to individuals in criminal appeals for violations of their Constitutional rights. Where appellate delay is unreasonable, harmful, and prejudicial to a defendant’s rights, the delay is unconstitutional and this Court should fashion appropriate relief. Not only should this Court act on its authority to grant relief in cases like this, it would certainly be preferable to any Federal District Court or Federal Circuit Court attempt to address the problem for us.
Upon remand, Price could be convicted, receive a mistrial, be acquitted, or have his case dismissed. If the case is remanded for another trial, the State will have to pay the expenses of prosecuting .and defending the case. Moreover, the State cannot realistically expect to get a greater sentence than that imposed at the first trial, and Price will receive credit for the time he is now serving. Thus, there is almost no possibility of additional sanctions should Price be convicted again. Price’s acquittal would mean, as a matter of justice, that he will have been convicted and served years in prison before his case was resolved in his favor, and that he will have labored under the disabilities of a felony conviction. Should his case be dismissed, the result would be the same as if we dismiss it now, without the attendant delay that will result from our remand.
Price did not raise the issue of unreasonable appellate delay as a proposition of error. However, he was clearly prejudiced by the delay; he has spent more than four years wrongfully incarcerated on an erroneous conviction, with all the attendant stigma and disabilities of the conviction itself. To subject him to another trial would, in my judgment, compound a serious constitutional wrong. For these compelling reasons, I would reverse with instructions to dismiss.