¶1dissenting. In this criminal case the state concedes error. The state is wrong and unfortunately this court has failed to correct that wrong.
¶2The majority opinion fairly sets out the facts and law, but I believe the court misconstrues and misapplies A.R.Cr.P. Rule 21.3 in reaching its result. Rule 21.3 reads as follows:
(a) Two (2) or more offenses are related offenses for the purposes of this rule if they are within the jurisdiction and venue of the same court and are based on the same conduct or arise from the same criminal episode.
(b) When a defendant has been charged with two (2) or more related offenses, his timely motion to join them for trial shall be granted unless the court determines that because the prosecuting attorney does not have sufficient evidence to warrant trying some of the offenses at that time, or for some other reason, the ends of justice would be defeated if the motion is granted. A defendant’s failure to so move constitutes a waiver of any right of joinder as to related offenses with which the defendant knew he was charged.
(c) A defendant who has been tried for one (1) offense may thereafter move to dismiss a charge for a related offense, unless a motion for joinder of these offenses was previously denied or the right of joinder was waived as provided in subsection (b). The motion to dismiss must be made prior to the second trial, and shall be granted unless the court determines that because the prosecuting attorney did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted. (Emphasis added.)
¶3Everyone agrees that two of the six offenses with which appellant was charged were related, viz., one count of conspiracy to commit theft of property and one count of accomplice to capital felony murder. When appellant moved on January 10, 1989, to sever the four unrelated offenses, the trial court erroneously severed, as well, the conspiracy theft of property charge. Appellant never objected to this unrequested judicial act, nor did he later move to join both the conspiracy theft of property offense with the capital felony murder charge so they could be tried together. Instead, appellant stood mute, on the issue, defended later unsuccessfully against the conspiracy theft charge (for which he received no sentence) and then moved to dismiss the capital murder charge because it had not been joined and tried together as required under Rule 21.3.
¶4Rule 21.3 places the burden on the appellant to move to join related offenses and if he fails to do so, he waives his right of joinder. See also Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986). Here, appellant never moved for joinder of the two related offenses — those who had already been joined with four other offenses. Instead, he moved to sever those four unrelated offenses from the two related ones and the judge severed one too many. Somehow, the majority concludes that the appellant met his burden because his motion to sever also contained a motion to join. I thoroughly disagree. But even if this were so, the appellant failed to get a ruling from the trial judge on the motion to join. As we have stated numerous times, the burden to obtain a ruling is on the movant, and questions left unresolved are waived and may not be relied upon on appeal. See, e.g., Williams v. State, 289 Ark. 69, 709 S.W.2d 80 (1986). The burden, in these circumstances, should be no less in our review of an appellant’s request for a writ of prohibition.
¶5I submit that if the prosecutor had separately filed those same six charges against the appellant, and the appellant failed to move to join the two related crimes, the court would hold appellant waived his right of joinder. In this case, the trial court erred — not the prosecutor — when severing all the offenses, and I strongly believe the appellant had the affirmative duty to request the court to join the two related offenses as a prerequisite to his requesting dismissal later, citing double jeopardy as his reason.
¶6The Arkansas Rules of Criminal Procedure are intended to provide for a just, speedy determination in every criminal proceeding. We are bound to construe them so as to secure simplicity in procedure, fairness in administration, the elimination of unnecessary delay and expense and to protect the fundamental rights of the individual while preserving the public interest.
¶7In the present case, appellant’s fundamental rights could have been preserved if he had requested the related conspiracy theft and murder charges to be tried together. If, after such a request, the trial judge denied such joinder, appellant clearly would have grounds to claim double jeopardy and dismissal of the second related charge. Here, appellant made no such request regardless of how the majority may characterize the appellant’s motion to sever. This court’s failure to require the appellant to comply with the plain language of Rule 21.3, in my view, ignores the public’s interests in this matter. The appellant observed the trial court’s error in its ruling, he never objected nor did he ask the court to correct its mistake by joining the two related offenses. I would deny appellant’s request for writ of prohibition.