BROWN, J.
We now turn to the cases relied upon by the parties regarding whether Fletcher’s pro se motion for fast and speedy trial was properly filed and begin with Jackson, which was cited by Fletcher. In Jackson, as acknowledged by Fletcher and argued by the State, the defendant filed his pro se motion for a speedy trial prior to the appearance of counsel. 663 N.E.2d at 768. Specifically, the defendant filed his motion on January 18, 1994, and his counsel entered his appearance on February 11, 1994. Id. In reversing the denial of the defendant’s motion for discharge, the Court observed that “Defendant’s counsel, appointed during February 1994, zealously attempted to get a trial date within the seventy-day period,” and that the defendant engaged in no activity that might be construed as waiver. Id. at 769.
In Underwood, a post-conviction court granted Herbert Underwood’s motion for summary judgment for post-conviction relief, vacated Underwood’s convictions, and ordered a new trial. 722 N.E.2d at 831. On June 20, 1995, Underwood filed a pro se motion for a fast and speedy trial. Id. On July 5, 1995, the trial court appointed counsel to represent Underwood and set a retrial date for August 14, 1995 (a date within the prescribed 70 days of Ind. Crim. Rule 4(B)). Id. On July 28, 1995, defense counsel explained at a pre-hearing conference, over what Underwood claimed was his objection, that he would not be adequately prepared for trial on August 14, 1995. Id. The trial court stated that Underwood’s right to counsel was more fundamental than the right to a speedy trial and rescheduled Underwood’s retrial for March 18, 1996. Id. On February 23, 1996, Underwood, again acting pro se but still represented by counsel, filed a “motion to dismiss all charges” on grounds that his right to speedy trial had been violated, which the court later denied. Id. On February 28, 1996, defense counsel filed a motion for continuance on grounds that he had to prepare and try other capital cases, and the court granted counsel’s request. Id.
On March 1, 1996, Underwood submitted a written letter to the court, reiterating his right to a speedy trial. Id. On April 19, 1996, defense counsel filed a memorandum of law requesting a continuance of retrial on grounds that it was necessary for effective assistance of counsel. Id. On June 13, 1996, Underwood, by defense counsel, filed another motion to continue retrial, or in the alternative, a motion to exclude the testimony of the co-defendant in Underwood’s first trial. Id. On June 14, 1996, the court rescheduled the trial for a second time, setting the retrial date for August 19, 1996. Id. Underwood was ultimately convicted of murder. Id.
On appeal, Underwood argued that the trial court violated his statutory right to a speedy trial under Indiana Criminal Rule 4(B) when it failed to retry him within seventy days of June 20, 1995, the date he filed a pro se motion for a speedy trial. Id. The Court held:
In the present case, the trial court was required to appoint new counsel for Defendant after he was granted post-conviction relief. It may be that Defendant sought a speedy trial on a pro se basis prior to counsel’s appointment and objected to counsel’s request for a continuance. But once counsel was appointed, Defendant spoke to the court through counsel. The trial court was not required to respond to Defendant’s request or objection. See Broome v. State, 687 N.E.2d 590, 594 (Ind. Ct. App. 1997) (citing Kindred v. State, 521 N.E.2d 320, 325 (Ind. 1988); Bradberry v. State, 266 Ind. 530, 537, 364 N.E.2d 1183, 1187 (1977)), summarily affirmed in relevant part, 694 N.E.2d 280 (Ind. 1998). To require the trial court to respond to both Defendant and counsel would effectively create a hybrid representation to which Defendant is not entitled.
Id. at 832.
In Jenkins, the State charged Derrick Jenkins with possession of cocaine and with being an habitual substance offender. 809 N.E.2d at 365. At the initial hearing on October 22, 2001, the trial court appointed Mark Jones of the Wayne County Public Defender’s Office and his partner, John Dorenbusch, to represent Jenkins. Id. Trial was set for February 25, 2002. Id. During the pre-trial conference on January 30, 2002, defense counsel requested a continuance of the trial date. Id. The court granted that request and reset the trial for April 29, 2002. Id. Jones and Dorenbusch filed a motion to withdraw, which the court granted on June 28, 2002. Id. at 365-366. That same day, the court appointed Jeffrey Arnold to represent Jenkins. Id. at 366.
On July 15, 2002, Jenkins filed a pro se motion for early trial. Id. The trial court refused the motion because Jenkins was represented by counsel. Id. Two days later, attorney Arnold filed his written appearance. Id. On August 2, 2002, Jenkins again filed a pro se motion for early trial, which the court also refused. Id. During a September 18, 2002 pre-trial conference, attorney Arnold orally moved for a continuance of the trial. Id. In a written motion for continuance, filed on September 23, 2002, attorney Arnold stated that he was seeking the continuance on behalf of his client to secure information which might be “vital to his defense.” Id. The motion further indicated that Jenkins had authorized attorney Arnold to request the continuance. Id. On September 26, 2002, the trial court rescheduled Jenkins’s trial for March 3, 2003. Id.
On October 23, 2002, attorney Dale Arnett filed a written appearance on behalf of Jenkins. Id. Thereafter, attorney Arnold made a request to withdraw, which the court granted on November 15, 2002. Id. On February 21, 2003, attorney Arnett filed a motion for discharge pursuant to Criminal Rule 4(B) and Article 1, Section 13 of the Indiana Constitution. Id. In his memorandum in support of the motion, attorney Arnett contended that Jenkins had properly asserted his early trial right through his pro se motions of July 15, 2002, and August 2, 2002. Id. Attorney Arnett further argued that although Jenkins was represented by counsel at the time, he was entitled to file the pro se motions because of the guarantee to be heard by himself in Article 1, Section 13. Id. Following a pre-trial conference held on February 26, 2003, the trial court denied that motion. Id. A jury found Jenkins guilty as charged. Id.
On appeal, this court addressed whether Jenkins’s pro se early trial motions triggered the time limits of Criminal Rule 4(B). Id. at 367. The court observed that “Jenkins attempted to file his first request for an early trial a couple of weeks after his first court-appointed attorneys were allowed to withdraw and two days before attorney Arnold, his second court-appointed attorney, filed his appearance with the court.” Id. The court observed that “while attorney Arnold had not yet filed his written appearance with the court, he had been appointed as attorney for Jenkins by the court’s order of June 28, 2002.” Id. The court noted that “[i]t further appears that the trial court mailed a copy of its order that same day both to attorney Arnold and Jenkins.” Id. at 367 n.2. The court stated: “Our supreme court has stated that ‘once counsel [is] appointed, [a d]efendant sp[eaks] to the court through counsel.’” Id. at 367 (quoting Underwood, 722 N.E.2d at 832). The court held that “[a]s counsel had been appointed before Jenkins filed either of his early trial motions, the court was not required to accept the motions for filing.” Id. The court also observed that Jenkins never expressly asserted his right to proceed pro se and seemingly accepted the appointment of his second attorney, who indicated in the motion for continuance that Jenkins had given his authorization for that filing. Id. at 367. The court concluded that Jenkins did not clearly and unequivocally assert his right to self-representation. Id. at 367-368.
To the extent that the State relies upon the language in Underwood that “once counsel was appointed, Defendant spoke to the court through counsel,” we acknowledge that this language may suggest that appointment is the relevant time period for determining whether a defendant may file a pro se motion for a speedy trial. [Footnote omitted.] However, Underwood was addressing a situation in which counsel filed motions to continue following the defendant’s pro se motion for a speedy trial. Further, the issue of a distinction between the time a court appoints an attorney and the time an attorney files an appearance was not at issue. Accordingly, we disagree with the holding in Jenkins to the extent that it implies that the appointment of counsel and not the appearance of counsel is the relevant time.
We also find Jenkins and Underwood distinguishable. Initially, we observe that the trial court in Jenkins “refused [Jenkins’s pro se motion for early trial] for filing because Jenkins was represented by counsel.” 809 N.E.2d at 366. Here, the State filed a motion to strike Fletcher’s motion for fast and speedy trial on March 15, 2010, but the record does not reveal that the court ever explicitly struck Fletcher’s motion. Further, unlike in Jenkins and Underwood, where the attorneys filed a motion for continuance following the motion for a speedy trial, Fletcher’s attorney objected during the April 19, 2010 status hearing “to resetting trial date past the May 11, 2010 jury trial date,” which was seventy days after Fletcher’s pro se motion for fast and speedy trial. Appellant’s Appendix at 8. Also, Fletcher’s attorney filed a motion for discharge pursuant to Ind. Criminal Rule 4(B) on May 12, 2010. Thus, Fletcher’s attorney effectively affirmed Fletcher’s request. Under the circumstances, we conclude that trial court improperly denied Fletcher’s motion for discharge.
BAILEY, J., concurs.
FRIEDLANDER, J., dissents with separate opinion:
The basis of my disagreement centers upon the Majority’s interpretation of Jenkins v. State, 809 N.E.2d 361 (Ind. Ct. App. 2004), trans. denied, and its rejection of Jenkins to the extent that Jenkins provides authority for the trial court’s denial of Fletcher’s motion for discharge. The Majority indicates that certain language in our Supreme Court’s decision in Underwood v. State, 722 N.E.2d 828 (Ind. 2000), as cited and discussed in Jenkins, “may suggest” that appointment of counsel, not counsel’s entry of an appearance, is the relevant time for purposes of determining whether a defendant may file a pro se motion for speedy trial. Slip op. at 13. I interpret Jenkins to hold that the Underwood language means precisely that, and I agree with Jenkins in this respect.
As explained in Jenkins, for purposes of a pro se Crim. R. 4(B) motion to dismiss, a defendant’s representation may take one of three forms: pro se, representation by counsel, and hybrid representation. A pro se defendant clearly may speak for himself or herself via a motion for speedy trial and therefore such a motion is valid. As to the latter two alternatives, the court noted that by failing to “clearly and unequivocally assert his right to self-representation” when the court appointed counsel to represent him, Jenkins acquiesced in counsel’s presentation of the defense. Jenkins v. State, 809 N.E.2d at 367. The court stated that a “clear and unequivocal” request for self-representation in this context would require an objection to the appointment of counsel by Jenkins. Id. The court held that, following the appointment of counsel, Jenkins would similarly be required to clearly and unequivocally indicate his wish to proceed via the third form, i.e., by hybrid representation, and that “filing … pro se motions did not amount to a request to proceed with hybrid representation.” Id. at 368. Thus, the court concluded, because “Jenkins did not adequately assert his right to self-representation or desire to proceed with hybrid representation, he was entitled only to be heard through his attorney[.]” Id.
In the instant case, Fletcher did not clearly and unequivocally object to the appointment of counsel and thus to proceed pro se. Neither did he clearly and unequivocally express a wish to proceed with hybrid representation. This leads inescapably to the conclusion that Fletcher acquiesced in representation by appointed counsel. To paraphrase the Jenkins court’s conclusion on this issue, because “counsel had been appointed before [Fletcher] filed … his early trial motion[], the court was not required to accept the motion[] for filing”, much less grant it. Id. at 367. I would affirm the trial court in all respects.