dissenting. Alexander was brought to trial within three terms of court and I would affirm his conviction. He was tried during the third term of court as we count terms in Harkness v. Harrison, 266 Ark. 59, 595 S.W. 2d 10 (1979). It is my understanding that an individual incarcerated may apply for release from incarceration if he is not tried within two terms but is not entitled to an absolute discharge unless he is not brought to trial within three terms of court. Rules of Crim. Proc., Rule 30.1 Alexander did not apply for release.
The majority has, in my judgment, read into our decision in Harkness a manner of fixing terms that is not expressed, nor implied, in Harkness. Indeed, the majority’s method of computing terms of court in Crittenden County is contrary to our decision in Harkness.
Being the author of Harkness, I accept the responsibility for it, its clarity, and its soundness. Perhaps our decision should have specifically overruled two prior decisions, Gardner v. State, 252 Ark. 828, 481 S.W. 2d 342 (1972) and State v. Knight, 259 Ark. 107, 533 S.W. 2d 488 (1976), because there is no doubt Harkness overruled these cases as to counting terms of court in the Second Judicial Circuit. The reason Harkness gave for changing the determination of terms was the fact that Act 432 of 1977 no longer provided for three divisions of court in this circuit but only three judges. The three judges of this circuit had been designated as judges of a division of circuit court; Division I being a judge for criminal cases, and Divisions II and III were designated to try civil cases.
In applying Rules of Crim. Proc., Rule 28 to determine if a person has a speedy trial, it is usually necessary to count terms of court. In Gardner and Knight we only counted terms in any one division, never “overlapping” terms of the various divisions. If three terms had not run in any one division, then Rule 28 did not become effective.
Harkness changed that method of counting terms by providing that the terms of each division must be counted in applying Rule 28 and if a total of three terms of court had run in any of the divisions, whatever their designation, then Rule 28 would be applied.
However, we specifically said in Harkness that terms of the circuit court were not affected. Then, we went on to set out the terms as they exist in Crittenden County which are designated by divisions. This designation is by statute and we approved it. On rehearing, we were asked to clarify Harkness so the state would know exactly how to count terms after Harkness. We clarified our decision and related exactly what terms had run. We said:
. . . The 1978 Term of Division I had passed; the January, 1978 and November, 1978 terms of Division 2 had passed. All of these are full terms of circuit court that had lapsed without any action on the charge. [Emphasis added].
Consequently, it is clear to me that Harkness stands for the proposition that while divisions of circuit court no longer exist in that one can be designated criminal and another civil - there is but one circuit court, the terms of the court as set by the General Assembly were not affected.
It is a complicated procedure to count terms of court in Crittenden County. However, I think that Harkness is clear as to what method will be used. That is, as clear as it can be. Now, the majority is saying that while terms of court may begin in Crittenden County as provided by the General Assembly, they may not end as provided by the General Assembly. Now, the majority is saying that a term ends when another circuit judge from another division begins his term. While that may sound reasonable, that is not what the law provides.
Ark. Const. art. 7 § 12 says that the General Assembly has the authority to set terms of court. Ark. Stat. Ann. § 22-312 reads in part:
. . . The circuit court of each county, and of each division in each county having two [2] or more divisions of circuit court, shall be open, by operation of law, at the beginning of each regular term of such court, as fixed by law, and shall remain open until the beginning of the next such term of court;. . . [Emphasis added.]
The same statute goes on to state:
. . . Two [2] or more circuit courts of the same circuit may be concurrently in session. . . .
These laws, in my judgment, provide that a term of court begins and ends at the beginning of the next term of court in that division.
It is a paradox that the majority finds that the General Assembly can begin terms, by division, in Crittenden County but cannot end them by division.
There is no doubt that the situation in the Second Judicial Circuit is unique and it has given us some problems. We changed the rule in Harkness and for good cause. But to again change the rules, in my judgment, cannot be justified. Harkness, for good or ill, stands and it should stand unless it is overruled for good cause and that, I submit, the majority is not doing.
There are other considerations. The Rules of Criminal Procedure were adopted by this court and if they cannot be uniformly applied throughout the State of Arkansas, then they should be changed. What we have is a situation where a criminal defendant will have to be tried in Crittenden County in about six months whereas the same criminal defendant may not have to be tried in Pulaski County for over a year. Furthermore, we have the majority deciding that a term of court in Crittenden County may last only three weeks.
While we must deal with this specific case, we should address the total problem since we have authority to do so. We should change our rules. While that is not an easy task, since terms of court vary throughout the state, a uniform standard should exist so that all criminal defendants have the same right to a speedy trial in all parts of the state.
There is another alternative and that is that the General Assembly can deal with this matter by making terms of court uniform. For example, terms of court in the Second Circuit should be changed so that we do not have the problem of overlapping terms. In Pulaski County there are five circuit judges but all of the terms begin and end at the same time and the problem does not arise in Pulaski County as it does in Crittenden County.
There were other allegations of error in the case of Alexander but I find no merit to them and I would affirm the judgment.
John F. Stroud, Justice.The majority has counted terms of Crittenden County Circuit Court in a manner so strained that I cannot agree with the opinion. For the first time this court is holding that, for purposes of applying the speedy trial rules, a term of court ends in multi-judge districts when the term of another circuit judge begins in that county. I think it is an interpretation that was never contemplated nor intended by the legislature when it adopted Act 432 of 1977 abolishing divisions in circuit court. As was pointed out in Harkness v. Harrison, 266 Ark. 59, 585 S.W. 2d 10 (1979), without dissent less than a year ago, the abolition of the distinction between civil and criminal divisions did not affect the terms of circuit court. The majority is using the date, set forth in Ark. Stat. Ann. § 22-310 (Repl. 1962) to determine the beginning of a term of circuit court in Crittenden County, but is not applying the date for the end of that term set forth in the same statute. The opinion of the majority is also inconsistent with the language of Rule 28 of the Rules of Criminal Procedure. The Rule requires the defendant to be brought to trial “before the end of the third full term of court.” (Emphasis added.) The reference to full term surely does not mean the early termination of the term because the term of another circuit judge begins.
I urge amendment by this court of Rule 28 to create clarity and bring uniformity to its application throughout the state. I see no justification for a rule requiring a criminal trial in Crittenden County in half the time allowed in some other counties of Arkansas. I would amend the rule by specific reference to the calendar and not to terms of court. Rules 27/ 28,29 and 30 of the Rules of Criminal Procedure follow with very few exceptions the Standards, Speedy Trial published by the American Bar Association. The most notable exception, however, is the expression of time requirements in terms of court rather than by a fixed period of time. Whether the time limitations be nine months for an incarcerated defendant and twelve months for a defendant on bail, or some other time limitations, I feel this type of change would substitute stability and understanding for confusion. The rights of a criminal defendant to a speedy trial should be determined by how long he is incarcerated pending trial and how long he must wait for trial. I also believe the true concern of criminal defendants is with the length of time involved and not with how many terms of court have passed or how many judges have come to town.
We cannot expect the circuit judges and prosecuting attorneys of this state to abide by the rules governing speedy trials when this court keeps changing the rules by court interpretation and then applies them retroactively. In Harkness v. Harrison, supra, felony charges were dismissed due to the adoption of a new method of counting terms of court in Crittenden County. In the case here on appeal, a convicted murderer will be discharged from prison by the same retroactive application of a rules change. The defendant was tried on February 27, 1979, but the Harkness decision was not rendered until June 18, 1979. There is no question but that Alexander was given a speedy trial under the language of State v. Knight, 259 Ark. 107, 533 S.W. 2d 488 (1976), which was the latest pronouncement of this court concerning the counting of terms of court in Crittenden County at the time of his trial. Normally, we do not retroactively apply amendments made to the Rules of Criminal Procedure, and I think it wrong to amend the rules by court interpretation and apply that change retrospectively under the guise that it is jurisdictional. How can it be jurisdictional when our rules provide that a right to a speedy trial is waived if not raised before a plea of guilty or trial? Ark. Stat. Ann. Vol. 4A, Rules of Criminal Procedure, Rule 30.2 (Repl. 1977).
I would affirm the trial court because I feel the defendant was given a speedy trial under the applicable law of Arkansas, and because I find no merit to the other allegations of error raised by appellant.