dissenting.
I dissent to the overruling of appellant’s first two grounds of error for the reasons expressed by Judge Clinton in his dissents in this case and in Luna v. State, 602 S.W.2d 267 (No. 61,862, this day decided). The majority’s reading of § 3 of the Speedy Trial Act is patently absurd, and I can only conclude that this case represents a further attempt on the part of the majority to judicially repeal the statute.
I write, however, chiefly to point out that the majority opinion’s treatment of appellant’s supplemental contentions directly conflicts with an en banc opinion by this Court that was written scarcely six months ago. For some reason the majority does not take note of this case, although appellant expressly relied on it in his supplemental brief.
In Riggal v. State, 590 S.W.2d 460 (1979, Opinion on State’s Motion for Rehearing), Judge Odom wrote as follows:
By motion for rehearing the State presents two arguments to affirm this conviction. First, it argues that appellant’s guilty plea should constitute a waiver of the right to speedy trial, i.e., of the matter urged in the pre-trial motion that was denied ex parte. As appellant points out in his response to the State’s motion, Article 44.02, V.A.C.C.P., expressly permits an appeal after a guilty plea from a matter raised by a pre-trial motion. In Ferguson v. State, 571 S.W.2d 908, we held that the amendment to Art. 44.02, supra, abolished the rule that a valid guilty plea waives all non-jurisdictional defects in cases where there is a plea bargain and punishment is assessed within the terms of the agreed recommendation. Appellant’s guilty plea did not waive his pre-trial motion to dismiss for denial of a speedy trial, [emphasis added]
I fail to see how Riggal can be viewed as anything but wholly inconsistent with the present majority opinion. Only Judge Douglas, the author of the present majority opinion, registered a dissent in Riggal on the ground that a guilty plea waived the defendant’s rights under the terms of the Speedy Trial Act. I suggest that Riggal is good law and ought to be followed. In the event that the new-found majority disagrees, however, I suggest that under the principle of stare decisis Judge Odom’s opinion in Riggal is controlling and requires us to reach the same result in this case, unless and until it is overruled.
I dissent.
ONION, P. J., and ROBERTS, J., join.