Appellant, Brandon L. Prine, appeals the Jefferson County Circuit Court’s denial of his petition for writ of prohibition seeking to prohibit his trial in district court. We dismiss Appellant’s appeal.
On July 10, 2004, Appellant was issued a citation for driving while intoxicated and for speeding. His trial was set for March 8, 2005, in the Jefferson County District Court. After failing to appear, Appellant’s trial was reset for November 1, 2005. On October 31, 2005, Appellant filed a motion to dismiss for lack of speedy trial, arguing that 479 days elapsed between his arrest on July 10, 2004, and his trial date on November 1, 2005. The district court denied Appellant’s motion to dismiss in a letter opinion dated December 7, 2005. On December 27, 2005, Appellant filed a petition for writ of prohibition in Jefferson County Circuit Court, seeking to prohibit his trial in the district court. In a hearing on May 3, 2006, the circuit court denied his petition, and the order denying the petition was filedjune 12, 2006. Appellant now brings this appeal from the June 12, 2006, order.
For his first point on appeal, Appellant argues that the circuit court erred by denying his petition for writ of prohibition because there was no substantial evidence presented by the State to support the circuit court’s finding that Appellant was unavailable, as required by Rule 28.3 of the Arkansas Rules of Criminal Procedure. Appellant contends that, while it is undisputed that neither he nor his counsel were present for trial on March 8, 2005, there has been no argument made nor any evidence presented to establish that he was absent or unavailable for any period other than March 8, 2005. Appellant further argues that there was not substantial evidence to support the circuit court’s finding that the State met its duty of making a diligent, good-faith effort to bring Appellant to trial prior to the reset-trial date of November 1, 2005.
The State responds, arguing that Appellant was unavailable for trial on March 8, 2005, thus excluding the time period between his failure to appear, March 8, 2005, and the filing of his motion to dismiss, October 31, 2005, for speedy-trial purposes. The State asserts that Appellant incorrectly includes November 1, 2005, in his speedy-trial calculation because the date the speedy-trial motion is filed by a defendant tolls the running of the time for speedy trial. See Dodson v. State, 358 Ark. 372, 382-83, 191 S.W.3d 511, 517 (2004). The State also contends that the exclusion of this time period results in only 241 non-excludable days, and therefore, the speedy-trial rule was not violated. The State further argues that this issue was not preserved, and in the alternative, the issue was a factual dispute for which a writ of prohibition will not issue.
We have held that a defendant may bring a petition for a writ of prohibition when the trial court denies the defendant’s motion for dismissal under the speedy-trial rules. Swartz v. Piazza, 354 Ark. 334, 123 S.W.3d 877 (2003) (citing Gamble v. State, 350 Ark. 168, 170, 85 S.W.3d 520, 522 (2002)). However, the denial of a writ of prohibition is not an appealable order. McFarland v. Lindsey, 338 Ark. 588, 2 S.W.3d 48 (1999); Casoli v. State, 302 Ark. 413, 790 S.W.2d 165 (1990). In McFarland, the petitioner sought a writ of prohibition to prevent the municipal court from trying him for driving while intoxicated and driving off the pavement on the ground that the municipal court wrongly denied his motion to dismiss on speedy-trial grounds. The Washington County Circuit Court denied the writ, and the petitioner appealed to this court. We held that the denial of a petitioner’s writ of prohibition is not appealable, but that we may treat the appeal as a petition to this court. Id.
In the present case, the circuit court denied Appellant’s petition for writ of prohibition, therefore, it is not appealable. Accordingly, we dismiss the case before us and overrule McFarland, supra, to the extent that it says we may treat the appeal as a petition to this court for a writ of prohibition.
Dismissed.
Hannah, C.J., and Danielson, J., dissent.