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The single issue on appeal is whether the trial court erred in denying the defendant’s motion to dismiss on the ground that the State failed to indict him within sixty days after his arrest, in violation of State v. Hastings, 120 N.H. 454, 417 A.2d 7 (1980).

The issue presented in this case is whether the earlier dismissal of a felony indictment against the defendant under the rule enunciated in State v. Hastings, 120 N.H. 454, 417 A.2d 7 (1980), bars this subsequent misdemeanor prosecution initiated by an information and alleging a lesser-included offense of the felony.

The defendant appeals his convictions on the grounds (1) that the police lacked probable cause to search the vehicle, and (2) that the cocaine indictment, returned eighty-three days after his arrest, should have been dismissed pursuant to State v. Hastings, 120 N.H. 454, 417 A.2d 7 (1980).

On appeal, he contends, first, that the felonious sexual assault charge should have been dismissed by the Trial Court {Temple, J.) because the indictment was not brought within a sixty-day period as required by State v. Hastings, 120 N.H. 454, 417 A.2d 7 (1980), and second, that the court abused its discretion in consolidating the two indictments for trial.

The defendant filed a pretrial motion to dismiss, arguing at the hearing on the motion that the indictment returned more than sixty days after his arrest violated the sixty-day requirement of State v. Hastings, 120 N.H. 454, 417 A.2d 7 (1980).

We will first address the defendant’s contention that the set of indictments for negligent homicide predicated on the poor condition of the defendant’s car, brought after the mistrial in 1985, violated the rule in State v. Hastings, 120 N.H. 454, 417 A.2d 7 (1980).

We turn now to the defendant’s claim that the rule set forth in State v. Hastings, 120 N.H. 454, 455-56, 417 A.2d 7, 8 (1980) was violated in this case, in that the subsequent indictment caused him surprise and prejudiced his defense.

The State has a constitutional duty to make such an effort to bring a defendant to trial, State v. Hastings, 120 N.H. 454, 455, 417 A.2d 7, 8 (1980), which is ‘“not excused merely because the prisoner is incarcerated in another jurisdiction.’” Strickler v. State, 55 Md.

The defendant first claims that the State violated the rule of State v. Hastings, 120 N.H. 454, 417 A.2d 7 (1980) in failing to indict him on the operation by an habitual offender charge until eighty-two days after it became aware that he was so indictable.

I. Accomplice to Burglary Conviction The defendant’s first argument on appeal concerns the applicability of the rule of State v. Hastings, 120 N.H. 454, 417 A.2d 7 (1980) to the facts of this case.

The defendant claimed that the first was invalid on its face, and that the second was not brought within sixty days of the defendant’s arrest, in violation of the rule in State v. Hastings, 120 N.H. 454, 417 A.2d 7 (1980).

The defendant moved to dismiss the charge, arguing that the 85-day interval between his recapture and indictment violated the Hastings rule, which requires that an indictment be brought within sixty days of arrest unless the State can demonstrate that the delay was not unreasonable.

I. Pre-Indictment Delay On April 8, 1982, the defendant moved to dismiss the indictments based on the failure of the State to present an indictment within sixty days of his arrest as required by State v. Hastings, 120 N.H. 454, 455-56, 417 A.2d 7, 8 (1980).

Issues concerning the following matters are presented: (1) construction of the term “sale” in the New Hampshire Controlled Drug Act, RSA chapter 318-B; (2) request for mistrial resulting from possible prosecutorial error; (3) violation of the rule of State v. Hastings, 120 N.H. 454, 417 A.2d 7 (1980), and of the right to speedy trial; and (4) disclosure of the confidential informant’s identity.

Alleging that he had been arrested on February 14, 1982, the defendant moved to dismiss based on the failure of the State to bring an indictment within sixty days of arrest, as required by State v. Hastings, 120 N.H. 454, 455, 417 A.2d 7, 8 (1980).

Prior to the defendant’s arraignment in superior court on November 7, 1980, the defendant’s motion to dismiss the indictment due to the State’s failure to comply with the requirement set forth in State v. Hastings, 120 N.H. 454, 455, 417 A.2d 7, 8 (1980), was heard and denied by the Superior Court (Goode, J.).