¶1Dissenting Opinion.
¶2I am not in agreement with the majority opinion herein and dissent to a portion thereof.
¶3The problem confronting the court in the case at bar arises by virtue of the fact that apparently there were two prosecutions instituted for the same offense, both by affidavit. The first affidavit was filed in Criminal Court of Marion County, Division 1, under the name and style of “State of Indiana v. Leon Johnson, Cause No. CR 28906Y,” on May 23, 1963. The affidavit charged appellant with violation of the 1935 *92Firearms Act. On July 11, 1963, appellant, in person and by counsel, appeared for arraignment on said charge and entered a plea of not guilty to the charge. Thereafter, on March 23, 1964, without notice to appellant or his counsel, the State filed a motion to nolle said charge on account of “insufficient evidence to sustain a conviction.” The motion to nolle was approved by the Honorable Eugene M. Fife, Jr., on said date and charge was nolled.
¶4Later, on August 10, 1965, there was filed in the Criminal Court of Marion County, Division 2, an affidavit charging appellant with Violation of 1935 Firearms Act, under the name and style of State of Indiana v. Leon Johnson, Cause No. CR 650648.
¶5The first affidavit, filed May 23, 1963, reads as follows, to-wit:
“BE IT REMEMBERED, That, on this day before me, NOBLE R. PEARCY Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came HARTWELL JARVIS who, being duly sworn, upon his oath says that LEON JOHNSON on or about the 28 day of MARCH, A.D. 1963, at and in the County of Marion in the State of Indiana, did then and there unlawfully and feloniously carry a pistol on or about his person in a place not then and there his abode nor fixed place of business, and without a license therefor, then and there being contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Indiana.”
¶6The second affidavit filed August 10,1965, reads as follows:
“BE IT REMEMBERED, That, on this day before me, NOBLE R. PEARCY Prosecuting Attorney of the Nineteenth Judicial Circuit, personally came HARTWELL JARVIS who, being duly sworn, upon his oath says that LEON JOHNSON on or about the 28th day of MARCH, A.D. 1963, at and in the County of Marion in the State of Indiana, did then and there unlawfully and feloniously carry a pistol on or about his person in a place not then and there his abode nor fixed place of business, and without a license therefor, then and there being contrary to *93the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.”
¶7The question presented by this appeal concerns the defendant’s right to a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution, and by Article 1 of Section 12 of the Indiana Constitution.
¶8I disagree with a part of the majority opinion wherein it states as follows:
“We note that in his appeal brief Appellant does not refer to the time between the filing of the first affidavit and the nolle. The transcript in this case does not reveal what proceedings took place that time under a different cause number. There is no sworn statement by Appellant or his counsel concerning that period of time. It is up to the Appellant to bring himself within the statute and he has not done so with this record. Sullivan v. State (1939), 215 Ind. 343, 19 N. E. 2d 739.
The Appellant himself does not urge that we count any time after August 10, 1965, the date of filing the second affidavit. If he were to do so he would be faced with showing the trial itself which took place on July 25, 1966, was not delayed by any dilatory motions by the Appellant. Rather he argues that no trial could take place even if it were had on the date of the filing of the second affidavit, therefore, what occurred after that date is not relevant here.
The only period relevant, then, is the period between the nolle on March 23, 1964, and the filing of the second affidavit on August 10, 1965. Appellee argues that this period should not be counted at all because there is no allegation that Appellant was held by recognizance during this period and, therefore, the statute does not apply. We do not agree. The right to a speedy trial is rooted in the Indiana Constitution, Art. 1, § 12, and the statute is an implementation of that right, State ex rel. Uzelac v. Lake Criminal Court, supra. The statute cannot operate to_ defeat the right or invalidly limit it. The value of the right to an accused must not be under-estimated. First, it sets a limit to the length of time he may be held by recognizance with all the restrictions on his life that being so held implies. A second important reason for requiring a speedy trial is that it insures a hearing while the incident *94is fresh in the minds of the witnesses and before they become unavailable to testify. This will be especially useful to an accused because his witnesses will normally not have written reports and records with which to refresh their memories. This consideration applies equally to those not held by recognizance. Thirdly, under the rule we adhere to in this case, an accused, after a nolle, does not have to labor for an undue length of time under the threat of a renewed prosecution for the same offense.
We hold, therefore, that where a prosecutor nolles and later refiles an affidavit or indictment charging the same offense, the period between the nolle and the refiling will be counted, in resolving the speedy trial issue, as if the accused had been held by recognizance during that period.”
¶9The majority opinion is predicated on the theory that the only right appellant may exercise to obtain relief in the case at bar is predicated on the three term statute, Bums’ 9-1403.
¶10I point out that appellant was charged by affidavit filed May 23, 1963, with the offense of Violation of the 1935 Firearms Act, that charge was in Marion Criminal Court, Division 1, the charge therein was nolled without the knowledge or presence of appellant on March 23,1964. Thereafter on August 10.1965, in Marion Criminal Court, Division 2, appellant was again charged by affidavit with Violation of the 1935 Firearms Act. A reference to the two affidavits, supra, discloses the acts of the alleged violation to be the same, the affidavit was signed by the same person each time and was filed in the same court, but different divisions.
¶11So far as disclosed by the record, appellant had not at any time fled the state, was not out of state at any time during the period from May 23,1963 to August 10,1965, but was available for trial during the period May 23, 1963 to March 23, 1964. The fact that during the period March 23, 1964 to August 9.1965, the State of Indiana did not see fit to file a new affidavit charging appellant with this offense does not, in my opinion, relieve the State of the burden of granting him a speedy trial when it on August 10, 1965, filed the identical charge it first filed on May 23, 1963. I reason that by so *95filing on August 10, 1965, the State in effect, voluntarily placed the appellant in position where the State by its delaying and harassing tactics deprived the appellant of a speedy trial under both the State and Federal constitutions.
¶12If, as the Supreme Court of the United States held in Smith v. Hooey (1968), U. S., 21 L. Ed. 2d 607, incarceration of a defendant in a Federal Penitentiary did not excuse the State from making an effort to secure the defendant for state prosecution, what excuse exists for depriving a resident defendant of a speedy trial to determine his guilt or innocence?
¶13I am of the opinion appellant was not and is not entitled to the relief he seeks under the three term statute (B.R.S. Sec. 9-1403). The reason for such opinion is that from March 23, 1964 to August 10, 1965, there was no charge for such violation pending and no forum existed wherein appellant’s guilt or innocence of such charge could have been determined. Hence on its face appellant’s action to implement his statutory relief must fail.
¶14He has however a constitutional right to a speedy trial, superior to the statutory remedy here sought to be enforced. That right was properly called to the attention of both the trial and this Court by his motion for discharge in that he calls attention to his deprivation of his constitutional rights. He further therein shows the deprivation thereof was caused by the state by its nolle of the first affidavit and the long delay of well over a year in the filing of the second affidavit for the same offense charged in the first affidavit. The defendant in a criminal case has no control over the state in the manner, time or forum in and by which the state institutes or carries on the prosecution and cannot be charged with any delay caused by the state in the filing of criminal charges.
¶15It is my opinion that appellant was entitled to a discharge on motion after the filing of the second affidavit more than *96two years after the alleged commission of the alleged offense and more than a year after the nolle of the first affidavit. It would seem that we are in the case at bar confronted with harrassment and persecution of the appellant rather than a good faith prosecution.
¶16The cause should be reversed and remanded to the trial court, with instructions to grant appellant’s motion for a new trial and thereupon said court should enter an order dismissing said charge for violation of appellant’s constitutional rights.
¶17Note.—Reported n 246 N. E. 2d 181.