¶1Dissenting Opinion
¶2— I dissent to the decision of the majority upon issue I. I recognize that the circumstances here indicate that the defendant may have acquiesced to a trial date subsequent to the expiration of the time permitted under Criminal Rule 4(B)(1). However, this conclusion can be arrived at only by resorting to some speculation.
¶3The scheduling, on June 2nd, for a “readiness conference” on June 28th, a date only seven days prior to the deadline .date indicates that the defendant was aware that the trial setting would not meet the time limitation requirements. However, this was not a certainty. It was yet possible for the trial to have commenced prior to the critical date. Additionally, the record does not indicate that the defendant was even notified that the “readiness conference” had been so scheduled.
¶4*457We have previously held that a defendant is not required to take any steps to obtain an early trial, beyond filing of a proper motion. We have also held that a defendant is not entitled to discharge for failure of the court to bring him to trial within the period prescribed by our rules if he acquiesced in a late setting. Serrano v. State, (1977) 266 Ind. 126, 360 N.E.2d 1257; Utterback v. State, (1974) 261 Ind. 685, 310 N.E.2d 552; Bryant v. State, (1973) 261 Ind. 172, 301 N.E.2d 179; Buchanan v. State, (1975) 263 Ind. 360, 332 N.E.2d 213. In Bryant, we said “No valid distinction can be made between this and the rule requiring the complaining party to make timely objection, i.e. in time to allow the alleged error to be avoided or corrected.” 261 Ind. 172, 174.
¶5It is true that in the case before us, the defendant had made no objection to the trial setting until the readiness conference of July 26th, at which time he filed his motion for discharge. But, there is nothing in the record to indicate that the defendant either did anything or failed to do anything which contributed to the court’s error of failing to set the case for trial on or before the critical date of July 5th. Under such circumstances, he was entitled to discharge on July 6th; and, although he may, thereafter, have been remiss in failing to move for his discharge promptly, such failure, nevertheless could not have contributed to the error that entitled him to be discharged.
¶6Our prior decisions have simply protected the State against the loss of its right to bring a defendant to trial through error to which the defendant contributed. The decision of the majority in the case before us goes much further and restores to the State the right to try a defendant after such right has been lost. Our Court of Appeals recognized the distinction between the two situations in Wilson v. State, (1977) Ind. App., 361 N.E.2d 931, and I would be guided by their decision in that case.
¶7Note. — Reported at 381 N.E.2d 465.