dissenting.
I must respectfully dissent to the majority opinion in this case. The majority holds that, in a situation such as this, the time period under Ind.R.Crim.P. 4(C) is tolled by the dismissal of the charges. I believe, however, that the holding in State ex rel. Back v. Starke Circuit Court, (1979) 271 Ind. 82, 390 N.E.2d 643, was correct and that the majority was wrong in not applying the rule to this case.
To begin with, I believe the majority opinion gives the impression that the petitioner was primarily responsible for the *61delay in this case. This is not so. The record shows that the petitioner was charged in 1975 with murder, commission of a felony while armed, and robbery. In 1977 the petitioner was incarcerated in Tennessee on another, unrelated charge. Though officials in Indiana knew of this, no one picked the petitioner up to return him to this state. After being released in Tennessee, the petitioner eventually returned to Indianapolis, where he was arrested on June 15, 1977. The cause number at this time was CR 75-265 B. The record further shows that the charges under CR 75-265B were dismissed on July 7, 1977. The reason for the dismissal was that the prosecutor twice failed to make sure the arresting officer appeared in court. The judge at this time told the petitioner he was free to go. The petitioner left Indianapolis and returned in April of 1978. He was subsequently rearrested on June 10, 1978 and was recharged with the 1975 crimes. Early in 1979, the petitioner withdrew a guilty plea. The state, for reasons unexplained, dismissed the charges again. The charges were, however, refiled under cause number CR 79-65 D. CR 75-265 B and CR 79-65 D contain almost identical language. The petitioner was convicted on March 14, 1979, almost two years from the time of the petitioner’s first arrest.
The facts in this case demonstrate the two reasons I believe we should strictly adhere to the rule in State ex rel. Back. The first is that the majority rule here allows a prosecutor to play a game of cat and mouse with a defendant. The majority rule would allow a prosecutor to dismiss and refile charges several times, so long as the time does not add up to more than that allowed under Ind.R.Crim.P. 4(C). The prosecutor thus has been given the ability to call “time out” if he knows he cannot bring a defendant to trial within the time limitations imposed in C.R. 4(C). This circumvents the very intent of the rule.
My second reason for disagreeing with the majority is closely related to the first. The facts in this case show less than exemplary prosecutorial work. Through delays that were largely more the fault of the prosecutor than the petitioner, the petitioner was brought to trial nearly two years after the initial arrest. The majority rule only encourages further displays of careless prosecutor work. The rule in State ex rel. Back, however, would force the prosecutor to work within a time limitation and would require more efficient administration of justice.
In short, I believe that the court in State ex rel. Back did not “misconstrue” the holding in State ex rel. Hasch v. Johnson Circuit Court, (1955) 234 Ind. 429, 127 N.E.2d 600. I am even more hard-pressed to accept the majority’s view that State ex rel. Back placed “an undue burden upon the State.” The rule in State ex rel. Back, if strictly applied, better serves the purposes of our speedy trial rule. Therefore, to the extent the majority disagrees with this rule, I dissent.