dissent">David Newbern, Judge,

dissenting. Wade v. State, 264 Ark. 320, 571 S.W. 2d 231 (1978), should not form the basis of the majority decision. In that case, the remedy sought was a writ of prohibition. The Arkansas Supreme Court recited the guarded circumstances in which it would find jurisdiction of the trial court lacking and grant the writ. It was said the writ would not be granted where a fact upon which jurisdiction depended was in dispute. The defense and prosecution disagreed as to some delay time allegedly attributable to the defense. Jurisdiction depended on whether a speedy trial had been granted, and the court simply found a jurisdictional fact to be in dispute. Thus, the case is entirely different from the one presented here, as far as its holding goes.

In Wade, however, the court went on, in dicta, to reach the conclusion outlined in the majority opinion here. It is apparent that the Supreme Court found no procedural rule setting a time beyond which a defendant serving a sentence could not be prosecuted for an offense with which he is charged. Thus the court had to choose from among rules not intended to be applied to ascertain the time limit.

Of course, one has to agree that an accused serving a sentence cannot be released because the state has failed to give him a speedy trial on an allegation having nothing to do with the sentence he is serving, and that Rule 30.1 (b) is not applicable. The choice thus becomes whether to use Rule 28.1 (a) which contemplates a defendant incarcerated and awaiting trial on the charge to which the speedy trial motion applies, or Rule 28.1 (b) which contemplates a defendant “held to bail, or otherwise lawfully set at liberty.” The Supreme Court chose the latter, incorrectly, I believe.

As between these two sub-sections of Rule 28.1, the prosecution is given less time to bring to trial a defendant who is in jail. It is appropriate to give less time to the state where a defendant’s material and psychological assets, to say nothing of his evidence, are dwindling because of his incarceration. Yet, in Wade, and in the majority opinion in this case, it is said that the state should be given more time in the case of a defendant serving a prison or jail sentence than in the case of a defendant who is in prison or jail awaiting trial but not serving a sentence.

In the case of United States v. Ewell, 383 U.S. 116, 86 S. Ct. 773 (1966), a landmark case on the subject of speedy trial, the reasons for the speedy trial requirement were said to be:1

[To] prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusations and to limit the possibilities that long delay will impair the ability of the accused to defend himself. 383 U.S. at 120

This decision ignores at least the last of those reasons.

Again, I believe the Wade case is easily distinguishable here and that it should be distinguished whenever possible because it applies a rule in a way its drafters did not envision and in a way it should not be applied. The rule should, of course, be revised to provide for the situation presented here. Until that occurs, incarcerated criminal defendants should be tried within 9 months, as provided in Rule 28.1 (a), regardless of the reason for their incarceration.

I am authorized to say Judge Hays joins in this dissenting opinion.

Although the case was one in which the U.S. Supreme Court found the speedy trial requirement of Amendment VI to the U.S. Constitution to have been satisfied, the strength of the reasons given in the dictum cited is not diminished. See Cook, Constitutional Rights of the Accused, Pre-Trial Rights, 499. (Lawyers Co-op, 1972).

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