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. [Footnote omitted.] Although the Poore court’s reliance on the Jackson decision possibly creates some ambiguity as to the Poore holding, our supreme court did clearly state, the “meaning of the phrase ‘held in jail on an indictment or affidavit’ as used in Rule 4(B) . . . clearly contemplates a defendant in custody on a pending criminal charge[.]” Poore, 685 N.E.2d at 38. Importantly, the court further explained that “incarceration due to the pending charge at issue need not be the only reason the defendant is in jail at the time the speedy trial is requested under Rule 4(b).” Id. at 40 (emphasis added).
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. . . . 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.
KIRSCH, J., and VAIDIK, J., concur.