dissenting.
It is my view that the trial court properly exercised its discretion in considering defendant’s out-of-time motion to suppress. Further, it cannot be said that the trial court erred in granting defendant’s motion to suppress evidence since the State’s attorney failed to present any evidence in opposition to defendant’s unrefuted allegations of fact showing that his arrest, search and seizure were unlawful.
Defendant was arraigned on August 17, 1988, and entered a plea of not guilty. On August 22, 1988, defendant filed a motion to sup*475press evidence. The State, on September 16, 1988, moved “to dismiss the Motion to Suppress . . . because it was not timely filed as required by Rule 31.1 of the Uniform Superior Court Rules.” On August 22, 1988, the trial court set a hearing to be conducted on September 22, 1988, for the State to show cause why defendant’s motion should not be granted. The trial court conducted a hearing on the opposing motions and, in an order entered September 22, 1988, the trial court denied the State’s motion to dismiss and granted defendant’s motion to suppress.
(a) The State contends the trial court erred in considering defendant’s untimely motion to suppress.
Although Rule 31.1 of the Uniform Rules for the Superior Courts (253 Ga. 853) requires that “[a]ll motions, demurrers, and special pleas . . . be . . . filed at or before time of arraignment,” it also provides that the time for filing such motions may be lengthened if a written extension of time is given by the trial court before trial. Mills v. State, 187 Ga. App. 79, 80 (2) (369 SE2d 283). The trial court’s discretion in granting such an extension will not be disturbed on appeal absent abuse. See Hall v. State, 181 Ga. App. 92, 93 (1, b) (351 SE2d 236); Roman v. State, 185 Ga. App. 32 (1), 33 (363 SE2d 329); and Thompson v. State, 186 Ga. App. 421, 422 (2) (367 SE2d 586).
In the case sub judice, the trial court’s order, denying the State’s motion to dismiss defendant’s untimely motion, effectively extended the time in which defendant was permitted to file his motion to suppress. Consequently, since the record shows that the State had more than ample time to prepare for defendant’s motion to suppress before hearing, I find no abuse in allowing defendant to proceed with his motion to suppress. See Thomas v. State, 118 Ga. App. 359, 360 (2) (163 SE2d 850). Compare Stansifer v. State, 166 Ga. App. 785, 787 (3), 788 (305 SE2d 481).
(b) Next, I turn to whether the trial court erred in granting defendant’s motion to suppress.
After denying the State’s motion to dismiss, the trial court instructed the State to proceed on defendant’s motion to suppress. The State’s attorney responded, “Your honor, the State has no evidence to present on the motion to suppress. We stand on the motion to dismiss the motion to suppress.” The trial court then ruled that the State “failed to carry its burden” and granted defendant’s motion to suppress.
The burden of proving that a search was lawful is on the State. OCGA § 17-5-30 (b). Consequently, as the State failed to carry its burden of proof and since there was no question that defendant’s motion to suppress stated sufficient unrefuted allegations of fact showing that his arrest, search and seizure were unlawful, it is my view that the trial court did not err in granting defendant’s motion to suppress. *476See William W. Daniel, Ga. Crim. Trial Prac. (1986 ed.) 415, § 14-54.
Decided July 14, 1989 Rehearing denied July 26, 1989 Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellant. Herbert Shafer, for appellee.I am authorized to state that Judge Sognier joins in this dissent.