dissenting.
I respectfully dissent from the Majority’s conclusion that the trial court should have granted Pelley’s motion to dismiss and for discharge under Indiana Criminal Rule 4(C). Although Pelley presents other issues, I address only this one, as it is the basis of the decision to reverse.
As a preliminary matter, I agree that the denial of Pelley’s Petition for Writ of Prohibition and Writ of Mandamus did not constitute a ruling on the merits of his Crim. R. 4(C) claim. As the Majority notes, the Supreme Court could have denied the petition upon several bases, only one of which was a ruling on the merits of the Crim. R. 4(C) argument. Thus, res judicata does not bar our consideration of this issue.
We start with the principle that the State has an affirmative duty to bring a defendant to trial within one year. State v. Huber, 843 N.E.2d 571 (Ind.Ct.App.2006), trans. denied. The trial court is charged with the task of making the factual determinations regarding who should be charged with any delays that occurred in going to trial. Id. The dispositive question in this ease, as framed by the Majority’s decision, is whether, for purposes of Crim. R. 4(C), the delay occasioned by the State’s interlocutory appeal should be “charged” to Pelley or the State. The difficulty here is that the interlocutory appeal stemmed from the legal actions of a third party — the Family and Children’s Center (FCC). Thus, we are confronted with a question of first impression in Indiana: for purposes of Crim. R. 4(C), against whom should the delay occasioned by the legal maneuvers of a third party be charged — the defendant or the State? The Majority concludes that it cannot be charged to Pelley and thus must be charged to the State. I disagree.
*887It appears at first blush that we have only two choices in resolving this issue: the delay caused by the interlocutory appeal (1) was charged to Pelley or (2) it was charged to the State. As I read Crim. R. 4(C) and the cases interpreting it, we seem to be dealing with, in essence, the concept of fault, or something akin to it. The Majority ably sets out the boilerplate deci-sional law that has developed in interpreting the rule. In each case, it boils down to a single question: who “caused” the delay in question? At the risk of oversimplification, we have determined generally that the clock stops running where the defendant affirmatively asks for a delay, see, e.g., State ex rel. Bramley v. Tipton Circuit Court, 835 N.E.2d 479 (Ind.2005), affirmatively acquiesces in a continuance or delay, see, e.g., Ford v. State, 706 N.E.2d 265 (Ind.Ct.App.1999), trans. denied, or acts in such a way as to necessitate delay, such as through a motion to dismiss counsel, see, e.g., Foster v. State, 795 N.E.2d 1078 (Ind.Ct.App.2003), trans. denied, or discovery-related matters, see, e.g., Paul v. State, 799 N.E.2d 1194 (Ind.Ct.App.2003).
Thus, it would seem that the trial court’s task in assessing delays for purposes of Crim. R. 4(C) is an either-or proposition. The Majority’s analysis is consistent with this approach. In point of fact, however, when considering challenges under this rule, we should not ignore a third category mentioned therein, i.e., court congestion and emergency. This category recognizes that there are circumstances in which it is not possible to conduct a trial within the prescribed time-frame. This exception has heretofore primarily involved the ability of a trial court to accommodate the speedy trial right in the context of its court calendar. Simply put, a congested court calendar sometimes renders it impossible to conduct a trial within the one-year “deadline.” I place that word in quotation marks because the one-year anniversary of the filing of charges is not a deadline for trial in the strictest sense of that term. It is not immutable. There are circumstances in which a defendant must wait longer, even when he or she did not cause or contribute to the delay, such as in the case of the aforementioned congested calendar.
This brings me back to the issue at hand; who should be charged with the delay attributable to the State’s interlocutory appeal? I believe the answer is that neither party should. In a slightly different context, i.e., the speedy trial right under Crim. R. 4(B)(1), our court was asked to decide whether a continuance necessitated by the inability of the State to comply with a late-filed (but not untimely) discovery request in time for the originally scheduled trial date should be charged to the State. See Paul v. State, 799 N.E.2d 1194. The trial court denied the request for discharge upon its finding that an emergency existed, the emergency being that the court could not reschedule trial before the speedy-trial deadline after the State was permitted a reasonable time to comply with the request. We concluded that the defendant’s motion for discharge was properly denied upon the following rationale: (1) “[W]e do not envision the unique factual situation of this case arising with any frequency”, id. at 1199; (2) the State was not derelict in its duties and acted expeditiously under the circumstances; and (3) “[a] greater problem would be created by holding otherwise as defendants would be encouraged to file motions for speedy trials under Rule 4(B)(1) and then delay requesting discovery, recognizing that the State’s inability to comply in advance of trial will result in successful motions for discharge”, id. at 1200. Although there are differences between the setting in Paul and the setting in the instant case, I believe the issues are *888similar enough for that case to be instructive.
First, the facts of this case are unique and not likely to recur with any frequency. Second, there is no suggestion here that the State could have done anything to speed up the process of determining the legality of its request to discover the FCC records, short of abandoning it. Third, and most significantly, the delay here is attributable to the judicial process itself, i.e., the movement of cases through the appellate courts, which is entirely beyond the litigants’ control in precisely the same way that a congested trial court calendar is beyond their control. Thus, I believe the time necessary to pursue an interlocutory appeal to its conclusion may be characterized as an “emergency” or caused by court “congestion” within the meaning of Crim. R. 4(C) so as to justify a continuance of the trial date for a reasonable time beyond the one-year limit. In view of the time it takes an appeal to wend its way through the appellate process, to hold otherwise could and in many cases would effectively deny the State the option of pursuing an interlocutory appeal of an unfavorable evidentiary ruling.
I would affirm the trial court’s ruling on this motion.