Defendant-appellant was arrested on April 17, 1966, and charged with three counts of armed robbery in violation of sec. 943.32(1)(b) and (2), Stats. (cases G-1875, G-1876, G-1877). The defendant appeared on all three counts on April 18, 1966, before the Honorable F. RYAN DUFFY, JR., Milwaukee county court, branch 12, sitting as magistrate. The court set bail at $10,000 (subsequently reduced to $2,500) and transferred the cases to circuit court for determination of indigency, and appointment of counsel.

On April 25, 1966, the defendant appeared before the Honorable JOHN L. COFFEY, circuit court, branch 12, Milwaukee county, on cases G-1876 and G-1877. Judge COFFEY transferred the cases to branch 11 of the circuit court for the reason that case G-1875 was already assigned to that court.

On April 27, 1966, the defendant appeared before the Honorable HERBERT J. STEFFES, circuit court, branch 11, Milwaukee county, where counsel was appointed. The cases were then remanded to the county court for preliminary examination.

On May 17, 1966, the three cases were called by the Honorable F. RYAN DUFFY, JR., and preliminary examination was set for June 20, 1966. Neither the defendant nor his counsel was present in court at this time. The court records indicate that the jail was notified.

On June 20, 1966, case G-1877 was called by the Honorable F. RYAN DUFFY, JR., and was continued until July 15, 1966. Also on June 20th, cases G-1875 and G-1876 were called by Judge DUFFY. At this hearing, defense counsel requested (joining in a similar request made by the state) that the preliminary examination be postponed.

"Mr. Weiss: If it please the court: I concur in his motion that we can't put the witnesses on today due to the problems that will come up as a result of that.

"And I would like at this time to move to dismiss the warrants against Stoeckle for the following reason:

"That we feel the arrest is invalid under the fifth amendment. The fifth amendment states that no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.

"We have a number of arguments to support this contention and I don't know what the court's position is going to be; if the court will want written briefs or oral arguments at this time."

Thereupon, the preliminary on cases G-1875 and G-1876 was set for August 24, 1966.

On July 11, 1966, the defendant filed a written motion (his own as distinguished from his counsel's) to dismiss case G-1877, on the ground that the preliminary examination had been adjourned for a period of more than ten days without defendant's consent — thus violating sec. 954.05(1), Stats. This motion was argued at the time set for preliminary examination on G-1877 on July 15th (continued to July 19th) before the Honorable JOHN A. FIORENZA, county judge, sitting in the absence of Judge DUFFY. Counsel contended that a violation of the ten-day rule violated the constitutional right to speedy trial. On July 19th the motion was denied and after the preliminary was completed that day the defendant was bound over to circuit court on that case (G-1877).

Thereafter (still as to case G-1877) a writ of habeas corpus was filed in the circuit court for Milwaukee county and on July 21, 1966, a hearing was conducted by the Honorable HARVEY L. NEELEN, circuit court judge. A decision on this petition was not rendered until November 30, 1966, at which time the writ was quashed. Notice of this decision was served on Stoeckle on December 6, 1966. On that date Stoeckle filed a petition for leave to appeal and for the appointment of counsel with this court. The appeal was dismissed and the appointment of counsel denied on February 10, 1967, in State ex rel. Stoeckle v. Wolke.

During the approximately four months that the petition for writ of habeas corpus was pending before Judge NEELEN, the proceedings in the three cases were delayed on the motions of defendant. Following the bindover to the circuit court on July 19, 1966, in case G-1877, defendant appeared with counsel on August 3, 1966, before the Honorable ERWIN C. ZASTROW and objected to the jurisdiction of the trial court because of the pending writ of habeas corpus.

"The Court: You are asking for a continuance of the arraignment, Mr. Weiss?

"Mr. Weiss: That's correct, until such time as Judge NEELEN rules on the habeas corpus motion. The writ has been granted, but the decision is under advisement."

On motion of defendant, cases G-1875 and G-1876 were placed on the day-to-day calendar pending the decision of Judge NEELEN. On December 6, 1966, after notice of Judge NEELEN'S decision, the preliminary hearing in these two cases was held and defendant was bound over to circuit court. Before the taking of testimony at the preliminary on this date the defendant moved to have the cases put over until the appeal to this court was decided, but the motion was denied. (This bindover meant defendant was bound over on all three cases as of December 6, 1966.)

On January 16, 1967, at the arraignment of the defendant in cases G-1875 and G-1876, the following exchange took place:

"The Court: Are you prepared for an arraignment?

"Mr. Weiss: No, I would request that it be held off until Wednesday morning.

". . .

"The Court: All right, 8:45 in the morning, Wednesday, January 18th, is that agreeable?

"Mr. Weiss: Fine, Your Honor."

On January 18, 1967, defense counsel requested a one-month adjournment to file a brief on the theory that it would be improper to arraign the defendant while the defendant's appeal from Judge NEELEN'S court was pending before the supreme court (as to case G-1877).

On February 27, 1967, defense counsel once again requested that the arraignment be adjourned to March 13, 1967, in order to give this court ample time to decide the matter then pending before it.

On March 13, 1967, the three cases were called and adjourned by consent to March 16, 1967. On March 16, 1967, the defendant filed numerous motions and briefs with the court. The court (again with consent) then adjourned the matter to April 10, 1967, and on that date, to May 1, 1967.

On May 1st defense counsel moved for an adjournment. On June 12, 1967, the court stated that it would prefer to put the matter over to June 27th. Defendant and his attorney agreed. On June 27th defense counsel requested that the case be adjourned to July 3, 1967. On July 3d defense counsel and the state agreed to further adjourn the matter to August 2d, then to August 3d, and finally to August 23, 1967. On that date Judge STEFFES granted, in part, the defendant's motion to dismiss by dismissing all three cases under State ex rel. Klinkiewicz v. Dully, without prejudice to the state. The defendant appeals this order.

For the appellant there were briefs by Charne, Tehan Taitelman of Milwaukee, and oral argument by Irvin B. Charne.

For the respondent the cause was argued by Harold B. Jackson, Jr., assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Folette, attorney general, and David J. Cannon, district attorney.

WILKIE, J.

The state concedes that the three cases were called by the magistrate on May 17, 1966, and the preliminary examination ws set for June 20, 1966, and that netither the defendant nor his counsel was present at the time. The precise issue thus presented is whether sec. 954.05(1), Stats., is an implementation of the constitutional right to speedy trial thus making a violation of the statute (such as is conceded her) a denial of speedy trial requiring dismissal of charges with prejudice to the state.

The right to a speedy trial is guarnateed by art. I, sec. 7 of the Wisconsin Constitution and the sixth and fourteenth amendments of the United States Constitution. Wisconsin recognizes the right to a dismissal with prejudice to the state if this right is violated, but such right accrues only after a defendant has taken affirmative steps to bring his case to trial.

In State v. Sawyer, this court stated:

"We are of the opinion that the defendant, as a condition precedent to requesting dismissal of the criminal charge pending against him on the ground that he has been denied his constitutional right of a speedy trial, must first have taken some affirmative action demanding that the case be brought on for trial. This the defendant in the instant case did not at any time do."

Even if demand for speedy trial is properly made, a defendant may not be entitled to an immediate trial. In State v. Carli this court noted that a defendant, even after proper demand, must wait until a regular term of the court having jurisdiction of the offense with which he is charged. The opinion also provided that the right to speedy trial is not infringed by continuances in the discretion of the presiding judge, unless such discretion is arbitrarily exercised.

Also, it should be noted that the mere lapse of time does not, of itself, constitute a denial of speedy trial. Here there was an admitted postponement of the preliminary examination for thirty-three days, contrary to the express provisions of sec. 954.05(1), Stats., which provides:

"The magistrate may adjourn the examination from time to time, but not exceeding 10 days at one time without the consent of the defendant, and to any place in his county, and the defendant shall be committed in the meantime unless he is bailed."

In construing this statute in State ex rel. Klinkiewicz v. Dully, this court held that a magistrate loses jurisdiction both of the subject matter and of the person of the accused if a preliminary examination is delayed for more than ten days without the consent of the defendant. We specifically held, however, that the state is not precluded from "initiating a new prosecution for the same offense absent the running of the statute of limitations."

Defendant-appellant now contends that sec. 954.05(1), Stats., implements the constitutional right to speedy trial and that therefore a violation of the statute is an abridgment of the right to speedy trial, thus requiring that the cases be dismissed with prejudice to the state. Appellant cites no authority in support of this theory.

It appears that the purpose of sec. 954.05(1), Stats., is not necessarily to protect a defendant's right to a speedy trial, but rather to limit the period of time a person accused of crime must be detained or incarcerated on the basis of an arrest warrant alone. The statute simply requires that within a relatively short period of time after arrest, an accused has the right to have a magistrate determine whether there is sufficient probable cause to bind him over for trial. If the state delays the preliminary hearing beyond the statutory time limit without the defendant's consent, this court in Klinkiewicz held that the charge must be dismissed and the defendant released, although he may be recharged if the statute of limitations has not run.

Given the purpose of the statute, the remedy of dismissal without prejudice is proper. We think it significant that neither by statute nor case law does Wisconsin set any precise number of days for the beginning of a trial after a bindover. Why should the law require dismissal with prejudice for failure to hold a preliminary examination in the required time and yet demand no exact time period for the conduct of the commencement of the trial itself? Appellant's contention that this statute is an implementation of the constitutional right to speedy trial must fail.

The second issue presented by this appeal is whether a four-month delay in the circuit court's disposition of the defendant's petition for habeas corpus and the subsequent deprivation of appellate review in this court constitute a denial of the constitutional right to speedy trial.

Specifically, appellant points to the delay of almost four months which occurred while the writ of habeas corpus was being considered by the circuit court. Appellant applied for the writ on July 21, 1966, and a circuit court decision in the matter was not obtained until November 30, 1966, with notice to appellant and his attorney on December 6, 1966. His appeal to this court was not dismissed until February 10, 1967.

The delay occurring while the writ was pending before the circuit court was not a denial of speedy trial. The appellant chose, on his own motion, to wait with his preliminary examination while that petition was still pending in circuit court and while defendant sought appellate review of the circuit court's negative decision in this court.

Appellant argues that this court wrongfully refused to appoint counsel or grant leave to appeal from that order of the circuit court. He claims that because of this error, it took from February 10, 1967, the date of this court's opinion, until August 23, 1967, to win dismissal. Thus appellant contends that another six months elapsed before he was able to obtain due process.

The propriety of the decision of February 10, 1967, is not properly before this court. The reason for the delay was that appellant chose to pursue his appellate remedies. The fact that he was unsuccessful in this endeavor does not amount to a denial of speedy trial.

The third issue presented on this appeal is whether defendant took the necessary affirmative action required to assert the denial of speedy trial.

Appellant contends that from the date of arrest on April 17, 1966, until January of 1967, a period of about nine months, he did not cause or request a delay. In fact, he contends that he took the necessary affirmative action as required by this court. Accordingly, appellant submits that the county court docket of July 15, 1966, shows that affirmative action was taken. The entry of that date indicates that defense counsel made a motion for speedy trial.

However, a close examination of the record reveals that on July 11, 1966, the appellant, in a handwritten motion, petitioned the trial court for dismissal of one of the three cases (G-1877) on the ground that sec. 954.05(1), Stats., had been violated. Thereafter, on July 15, 1966, when appellant and his counsel appeared for the preliminary hearing in that case, defense counsel argued the motion. Counsel contended at that time that a violation of sec. 954.05(1), was a violation of the right to speedy trial. Rather than requesting a speedy trial at that time, counsel was arguing that the right had already been denied and that the case should be dismissed. At that hearing the assistant district attorney stated: "Mr. Cannon: The state's position is this: the defendants apparently are claiming they are not getting a speedy trial. We are ready to proceed with the preliminary today. Any stipulation and request to the court to reserve ruling seems to me to be flying in the face of their very motion."

It is clear that the appellant did not take affirmative action as contemplated in the opinions of this court. He never petitioned the court for a speedy trial but rather moved for dismissal on the ground that he had been denied a speedy trial.

Even if appellant's motion to dismiss of July 11, 1966, and counsel's argument on July 15th and 19th could be construed as a motion for speedy trial, it is evident that such request was granted. After the motion was made, the trial court went ahead with the preliminary hearing and bound the defendant over for trial. The only thing that prevented the defendant from proceeding with a speedy trial was his own efforts to have the matter reviewed in the circuit court on a writ of habeas corpus.

We have painstakingly reviewed the very substantial record that has been made in county court and circuit court on this whole matter. The record is clear that the defendant could long ago have received his, trial and, if convicted and sentenced, could be serving that sentence. The fact that he is not is a matter of his own choosing — not a denial of speedy trial by the state.

By the Court. — Order affirmed.