Opinion
OPINION TO GRANTING REHEARING
[304 Ark. 234-B] GLAZE, Justice, dissenting.
I dissent. Neither the petitioner nor the majority court offers anything new to require reversal of this court's earlier decision. Admittedly, the makeup of this court is different than when it first decided this case on December 21, 1990. Nonetheless, Ark.Sup.Ct.R. 20(g) provides in relevant part that "the petition for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain ... [T]he brief on rehearing is not intended to afford an opportunity for a mere repetition of the argument already considered by the court."
Here the petitioner offers absolutely nothing new in legal or factual argument that this court did not already studiously and carefully consider. After all, the court was merely called upon to construe or interpret one of its own rules, A.R.Cr.P. Rule 28, and this court fully understood the legal issue argued then that arose out of the fact that petitioner's case was uniquely affected by our amending Rule 28 while his case was pending, dismissed and refiled. Thus, my first point of disagreement with the new majority court is that contrary to established law, it now recognizes petitioner's simple reargument of his case as a ground for rehearing.
[304 Ark. 234-C] My next point of disagreement is that this court's December 21, 1990 decision was absolutely correct. I will not again detail this court's rationale for reaching the decision it did, since the reader can satisfy himself or herself by a review of that court's opinion at Cox v. State,304 Ark. 231, 803 S.W.2d 555 (1990). However, I do point out that the petitioner's own argument to dismiss his case for violation of the Speedy Trial Rule 28 is based on inconsistent and conflicting reasoning. Petitioner was charged on August 21, 1987, and this is the date from which the Speedy Trial Rule commenced--then Rule 28 provided for an eighteen-month period. Given the undisputed excludable events that tolled or extended the eighteen-month period, the state still had three months to prosecute its charge against petitioner when it nolle prosequi its case on September 19, 1989. The state refiled the case on the same day the case was dismissed, therefore when the trial court set the case for trial on December 4, 1989, the state still was within the original eighteen-month period.
As has been pointed out, this court, on October 1, 1987, changed its Rule 28, reducing the Speedy Trial period to twelve months. Petitioner filed his petition for writ of prohibition arguing the shorter twelve-month period should apply but it should commence--not from the new September 19, 1989 refiling date when the new twelve-month period was in effect--but instead from the original August 21, 1987 charge when the eighteen-month period was in effect. In sum, petitioner is trying to have his cake and eat it, too. When applying the Rule 28 eighteen-month period in effect when petitioner was charged on August 21, 1987, no one disputes, given excludable toll periods, the December 4, 1989 trial date was within the eighteen-month period. By the same token, applying the amended Rule 28 twelve-month period in effect when petitioner was recharged on September 19, 1989, again, no one disputes the December 4, 1989 trial date was well within the reduced twelve-month period.
The only way petitioner can prevail in having his case dismissed is to apply the illogical reasoning that he is entitled to commence the new or amended twelve-month speedy trial time from the original charge date of August 21, 1987--the date when the eighteen-month period was in operation. Why the present majority court wishes to give Rule 28, as amended, such a contorted interpretation escapes me.
[304 Ark. 234-D] Here, petitioner was not prejudiced. When he was charged on August 21, 1987, he knew the state had eighteen months to bring his case to trial. That eighteen-month period remains the one the state and the trial court used when setting the December 4, 1989 trial. That period did not expire, thus the petitioner is not entitled to dismissal of his theft by receiving charge.
This court chose to amend Rule 28 to reduce the Speedy Trial period, but we should not attempt--by what I perceive as a distorted interpretation of Rule 28--to change the rule in midstream for the parties and trial courts that were relying on Rule 28 as it read when petitioner was first charged. If anyone was prejudiced in this case, it was the state and the trial court that were following (most reasonably I suggest) the rule in effect when petitioner was first charged. For these reasons, I disagree with this court's decision which effectively dismisses the state's case against the petitioner.
HAYS, J., joins this dissent.