dissenting. Appellant was convicted of drinking on a highway, driving 80 miles per hour in a 35 mile per hour zone, reckless driving, running a red light and destruction of public and private property, all arising from conduct occurring on May 2, 1990. A passenger in a vehicle that had waited for the light to turn green before entering the intersection was killed. On July 23, 1990, appellant was charged with manslaughter, a felony. He was tried, convicted, sentenced to five years and fined $2,000. He is now exonerated of that offense, not because the state was derelict in bringing him to trial, but because he successfully avoided trial time after time.
This is another sad example of the fallacy of a speedy trial rule based simply on the calculus of time and nothing more. I have expressed my views on a mechanical approach to speedy trial in Dupree v. State, 316 Ark. 324, 891 S.W.2d 570 (1994) and Weaver v. State, 313 Ark. 55, 852 S.W.2d 130 (1993), and need not repeat them here. I merely point out that the state made timely and repeated attempts to bring the appellant to trial. The case was first scheduled for trial on October 16, 1990. That trial was avoided by appellant’s asserted defense of mental disease or defect and motion for a mental examination. The case was reset for trial on November 14, 1990, and the state subpoenaed its witnesses. That attempt was met with a motion by the defense to dismiss on the grounds of former jeopardy, resulting in a motion to nolle prosequi by the state which was granted on November 8, 1990, with no objection by the defense. The case was promptly refiled. After being reversed and remanded by this court the case was next set for a hearing on March 30, 1992, and that attempt was met with a motion by the defense for a continuance. On August 12, 1992, the case was set for trial on September 17, 1992. Again, that attempt'was avoided by appellant’s motion for a continuance. In sum, on four separate occasions trials or hearings met with delays requested by the appellant. This court has said, “It is not the responsibility of a defendant to bring himself to trial.” I agree, but I also suggest that claims by a defendant that he has been denied a speedy trial should be measured in the light of whether diligent efforts by the state to bring him to trial have been repeatedly circumvented until time becomes his weapon. See Barker v. Wingo, 407 U.S. 514 (1972).
Nor can I reconcile the majority’s calculation of sixteen days with the record. The majority excludes thirty days attributable to Thornton’s pretrial motion to dismiss after remand (January 6 through February 5, 1992). However, the motion was filed on January 3 and the order is dated February 7, reducing the sixteen days to eleven. Nelson v. State, 297 Ark. 58, 759 S.W.2d 215 (1988). Moreover, the majority excludes twenty-seven days attributable to Thornton’s motion for a continuance (September 10 through October 6, 1992). But the motion to continue the September 17 trial setting was filed on August 26, and thus, an excludable period of forty-two days rather than twenty-seven, eliminating the sixteen days entirely with four days to spare. The majority opinion notes that the state does not argue these discrepancies before the trial court or on appeal. But it is the appellant’s burden to demonstrate error, not vice versa, and we affirm the trial court even if for a different reason. Moreover, it is our consistent practice to consult the record to affirm the trial court. Since the trial court sustained the state’s contention that after remand the speedy trial began anew under A.R.Cr.P. 28.2(c), there was no particular reason to count days precisely.
Even using the calendar method, there are excludable periods not mentioned by the majority in calculating that the state was sixteen days late in bringing Thornton to trial: on October 11, 1991, (after remand) the defense filed a motion for a bill of particulars, which was granted on November 4, 1991, an excludable period of eighteen days under Rule 28.3. On November 6, 1991, the defense filed a motion to dismiss for lack of a speedy trial, which the state moved to dismiss and which culminated in the recusal of the sitting special judge and the assignment of the case to another circuit judge. On December 5, Judge Ligón notified Judge Roberts of the transfer and on December 6, 1991, the appellant’s motion to dismiss was set for a hearing on January 3, 1992, some part of which (arguably all) is an excludable period under Rule 28.3(h). On January 3, 1992, the defendant filed an amended motion to dismiss based on former jeopardy. On February 7, 1992, the motions to dismiss were denied. Some of the periods may vary, depending on one’s interpretation, but even a conservative count more than offsets the majority’s sixteen days.
The majority opinion states that “for more than ten months” (October 4, 1991 to August 12, 1992) the state requested no trial date and none was set. That not only ignores numerous motions and counter motions filed in October, November, December, and indeed up until the day of the January 3, 1992, hearing (some of which have been noted), the recusal and replacement of the trial judge, but more particularly, it disregards the fact that on February 14, 1992, the appellant filed a notice of appeal from the denial of his motion to dismiss on grounds of double jeopardy. He then obtained permission to proceed in forma pauperis and obtained a record on May 4, 1992. When the record was lodged here on May 20 it was presented, not as an appeal, for obvious reasons, but as an original action in prohibition, which this court denied on June 6, 1992. During this interval the trial proceedings were suspended. The state is hardly chargeable with this gap in time.
For the reasons stated here and in Justice Brown’s dissenting opinion, with which I fully agree, I would affirm the judgment.