concurring.
I concur in the result reached by the majority opinion. I would affirm because defendant’s first claim of error based upon federal and state constitutional grounds was not raised at the earliest opportunity and for that reason was waived. State v. Thompson, 627 S.W.2d 298 (Mo. banc 1982). Defendant’s second point relying on the former provisions of § 545.780 RSMo 1978 were incorporated in a motion to dismiss based entirely on that section which was timely filed but never ruled by the trial court. I adopt the reasoning of the majority opinion on the claims of error discussed as points three and four.
A claim of violation of constitutional rights must be made at the earliest opportunity or it will be considered waived. Thompson, 627 S.W.2d at 303. In this case, the fourth case based on the same charges, defendant was charged on March 24, 1984. He was arrested on July 7,1984, and arraigned on July 17, 1984. A motion to dismiss based entirely on § 545.780 was filed on August 10, 1984. A supplemental motion to dismiss based on constitutional claims under the federal and state constitution was not filed until November 26, 1984. It was overruled on January 4, 1985. The grounds on which the trial court overruled the supplemental motion to dismiss are not stated. I find that the denial of relief is justified by the failure of defendant to raise constitutional issues at the earliest opportunity and find no error in the order overruling the motion on that ground. Accordingly, it is unnecessary to reach or discuss whether defendant’s rights to a speedy trial were denied on constitutional grounds. See State ex rel Williams v. Marsh, 626 S.W.2d 223, 227 (Mo. banc 1982).
The state never made an effort to justify a delay from the date of defendant’s first arrest on October 22, 1981 to the date of trial on February 4, 1985. The state concedes that the delay is presumptively prejudicial but made no effort to overcome the presumption. Under these circumstances, it should be unnecessary to consider the nature and extent of actual prejudice. Further, defendant never requested a continuance at any time in any of the four cases that were filed based upon these criminal charges. On the contrary, he insisted on his right to a dismissal under the state’s speedy trial act which was notice to the state that he was not acquiescencing in the loss of his fundamental right to a speedy trial. The United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 32 L.Ed. 101 (1972), rejected the concept that a defendant must demand a speedy trial or waive his constitutional rights on that issue. 407 U.S. at 530, 92 S.Ct. at 2191-92. It determined that a defendant has no responsibility to assert the right but the failure to assert the right is a factor to be considered in an inquiry under deprivation of the right. In the present case, and the preceding three cases based on the same facts, defendant’s interest in a speedy trial was established by repeated motions asserting denial of speedy trial. The primary burden was on the court and the prosecutor to assure that the case was brought to trial. Barker, 407 U.S. at 530, 92 S.Ct. at 2191-92. Under these circumstances, the failure to demand cannot be considered a waiver. If the issue were alive in the present case it appears that defendant was denied constitutional rights, was presumptively prejudiced, and in the absence of justification, entitled to relief. The facts in Barker are distinctly different from the present facts because in that case the state had a clearly demonstrated reason for delay consisting of the necessity of convicting a co-defendant before trying defendant Barker. Without the conviction of the co-defendant and the resulting removal *850of Fifth Amendment privileges it would not have been possible to try and convict Barker. Six trials and numerous appeals were required to convict the co-defendant and make it possible to try Barker. Defendant acquiesced in the delay. In the present case, the defendant never requested a continuance and never acquiesced in the delay. He repeatedly informed the trial courts that the state was violating his statutory right to a speedy trial. Constitutional implications were or should have been obvious.
Defendant claims error on the ground that the trial court erred in not granting a dismissal of all charges for violation of § 454.780.5 RSMo 1978. He filed a motion on that ground setting forth all of the procedural facts of the three previous cases which resulted in dismissal without prejudice. However, that motion was never ruled by the trial court. The supplemental motion was not based on the Speedy Trial Act although the repeal of the Act was alleged to be inapplicable on due process grounds. Defendant contends that the trial court erred in failing to sustain the motion. He does not contend that the trial court erred by overruling the motion. Defendant was tried without obtaining a ruling on the motion and should not now be heard to claim error where the trial court made no error. It neither sustained or overruled the motion.
For the reasons discussed I concur in the result only affirming the convictions and sentences.