MATHIAS, Judge.
Mickey Cundiff ("Cundiff") was convicted of Class D felony operating a vehicle while intoxicated. He appeals his conviction raising only the following argument: whether the trial court erred when it denied his Criminal Rule 4(B) motion for discharge. Concluding that Cundiff was not entitled to a speedy trial pursuant to Criminal Rule 4(B) despite his incarceration on an unrelated cause, we affirm.
On December 22, 2009, Cundiff was charged with three misdemeanor operating while intoxicated offenses and one class D felony operating while intoxicated offense. Cundiff was arrested, but on January 11, 2010, he posted bond and was released from jail.
On some date prior to March 15, 2010, Cundiff was incarcerated due to a probation revocation in a separate cause. On March 15, 2010, Cundiff filed a motion for speedy trial pursuant to Criminal Rule 4(B). But he also filed a motion to continue a hearing scheduled for March 25, 2010. The trial court granted the motion and
Cundiff filed a motion for discharge due to a violation of his right to a speedy trial on some date prior to July 22, 2010.
We review de novo a trial court's denial of a motion to discharge a defendant. Kirby v. State, 774 N.E.2d 523, 530 (Ind.Ct.App.2002), trans. denied. "The right of an accused to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution and by Article I, Section 12 of the Indiana Constitution. This fundamental principle of constitutional law has long been zealously guarded by our courts." State v. Huber, 843 N.E.2d 571, 573 (Ind.Ct.App.2006), trans. denied (citations omitted). "To this end, the provisions of Indiana Criminal Rule 4 implement the defendant's speedy trial right." Id.
Specifically, in this appeal, Cundiff relies on Criminal Rule 4(B), which provides in pertinent part:
Cundiff was not incarcerated on the pending charges in this cause when he filed his motion for discharge, but was incarcerated for violating his probation under a separate cause. He argues that due to his incarceration, the State was required to bring him to trial within seventy calendar days of his motion for speedy trial, and because it failed to do so, the trial court erred when it denied his motion for discharge.
To address Cundiff's arguments, we must descend into the murky waters of our Indiana Criminal Rule 4(B) jurisprudence. We start with Jackson v. State, 663 N.E.2d 766, 770 (Ind.1996), in which our supreme court concluded that the defendant was entitled to discharge pursuant to Criminal Rule 4(B) because the delay in his trial was not due to a finding of court congestion or delay attributable to the defendant. Important to the resolution of the issue presented in this appeal, the court made note of the fact that Jackson was incarcerated in the Indiana Department of Correction serving a sentence on unrelated charges during the proceedings at issue in the appeal. Id. at 768. Although the court briefly stated that Jackson was arrested on the charges at issue, it is not clear from the opinion whether Jackson was incarcerated on those charges when he filed his motion for speedy trial.
One year later, in Poore v. State, 685 N.E.2d 36 (Ind.1997), our supreme court concluded that Criminal Rule 4(B) applied
The Poore holding strongly supports the conclusion that if a defendant is incarcerated for an unrelated offense, the defendant must also be incarcerated on the pending charges for Criminal Rule 4(B) to apply. But the court then stated "[e]ven assuming, however, that Poore would have been in jail anyway due to his sentence on the burglary conviction, he still would have been entitled to the benefit of Rule 4(B)." Id. at 40. Further, the court observed, "We recently implicitly reaffirmed this aspect of Rule 4(B) in Jackson, which ordered that the defendant be discharged due to failure to comply with the Rule's time limits. In that case, Jackson was serving a sentence on unrelated charges at the time he demanded and failed to receive a speedy trial." Id. (citing Jackson, 663 N.E.2d at 768). Finally, the Poore court concluded:
Id.
Relying on Jackson and Poore, in Brown v. State, 825 N.E.2d 978 (Ind.Ct. App.2005), trans. denied, our court concluded that the defendant was entitled to discharge pursuant to Criminal Rule 4(B) where the defendant was incarcerated for a prior conviction, but not for the pending charges, when he filed his motion for speedy trial. Specifically, when the defendant
After noting that in Jackson there was no indication that the defendant had been arrested on the pending charges prior to filing his speedy trial motion, our court concluded that Brown was entitled to discharge because he was incarcerated when he filed his speedy trial motion. Specifically, the Brown court stated:
Id. at 982 (record citation omitted).
More recently, we reached the opposite result in Mork v. State, 912 N.E.2d 408 (Ind.Ct.App.2009). In that case, the defendant had been released on his own recognizance for the charges at issue in the appeal, but after those charges were filed, he was convicted of a separate offense in another cause and was incarcerated as a result of that conviction. Id. at 410. In addressing Mork's argument that he was entitled to discharge, our court observed:
Id. at 411. Therefore, our court concluded that once the trial court released Mork from custody on the pending charges, "he was no longer entitled to the benefits of" Criminal Rule 4(B). Id. at 411 (citing Williams v. State, 631 N.E.2d 485, 487 (Ind.1994)) (holding that "[o]nce released from custody, a defendant receives no further benefit from Crim. R. 4(B)").
Likewise, in Upshaw v. State, 934 N.E.2d 178 (Ind.Ct.App.2010), trans. denied, the defendant was released on his own recognizance on the pending charges, but shortly thereafter, his bond was revoked due to his arrest in an unrelated matter. On appeal, Upshaw argued that his "new, unrelated incarceration should tack onto his initial incarceration for the instant offenses for the purpose of the Rule 4(B) deadline." Id. at 182. We rejected Upshaw's argument and held:
Id. (emphasis added).
We agree with our court's Mork and Upshaw decisions and conclude that under Criminal Rule 4(B), a defendant must be incarcerated on the pending charges to be entitled to the benefits of the seventy-day speedy trial rule.
In this case, Cundiff was incarcerated for a probation violation in a separate cause and possibly a battery charge, but Cundiff was not incarcerated on the pending charges because he had been released on his own recognizance. See Tr. pp. 21, 24-25. For this reason, we conclude that the Criminal Rule 4(B) seventy-day deadline does not apply to the circumstances presented in this appeal. And therefore trial court did not err when it denied Cundiff's motion for discharge.
Affirmed.
KIRSCH, J., and VAIDIK, J., concur.