The appellant was found guilty of committing a horrible first degree murder in Ravenden Springs. In this appeal he argues that the conviction must be reversed and dismissed for want of a speedy trial. Unfortunately, the argument is meritorious.
A.R.Cr.P. Rules 28.1(c) and 28.2(a), in the part applicable to this case, provide that a defendant who is charged with a crime and is out on bail “shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within eighteen (18) months” from the date the charge was filed. In this case the charge was filed on October 18, 1982. During the next eighteen months there were no excludable periods, see A.R.Cr.P. Rule 28.3, such as a period when the defendant asked for a continuance, see A.R.Cr.P. Rule 28.3(c). Even so, the defendant was not tried during that eighteen month period and the State offers no explanation whatsoever for the failure to try the defendant in a timely manner. On July 19,1984, three months after the April 18 deadline had passed, the defendant moved for a continuance. Still later, on October 29, 1984, the defendant moved for another continuance. On November 19,1984, the defendant moved to have the charge dismissed for want of a speedy trial. On December 17,1985, the trial court denied the motion, and the trial began on April 8,1985. The trial court’s denial of the motion to dismiss is now on appeal.
The State admits that it did not try the appellant within the time provided, but, in spite of that fact, asks us to affirm the trial court for either of two reasons: first, the appellant acquiesced to the late trial by asking for the continuances after the deadline had passed, and second, the motion was not filed as soon as possible, and, therefore, was not preserved for appellate review.
The State’s first argument, that the appellant acquiesced to the late trial, was addressed in a similar case by the Court of Appeals. In a well reasoned opinion that court wrote:
The only request for a continuance by counsel for the accused occurred long after the time for a speedy trial, as specified in rule 28.1(b), had passed. This raises the question whether an accused may waive his right to a speedy trial by failing to move for dismissal on that basis rather than asking for a continuance, or moving for dismissal or continuance in the alternative. We know of no Arkansas case on that point, but we are persuaded by the decision of a California District Court of Appeal in Gregory v. Justice Court, S. Sacramento Judicial District, 168 Cal. App. 2d 719, 336 P.2d 584 (1959). There, the court was dealing with a requirement that a misdemeanor allegation be tried within 30 days after arrest. The California court agreed with the appellant’s contention that, while one may waive one’s constitutional right to a speedy trial, the waiver must take place prior to the expiration of the statutory period. The court said:
If such were not the rule, there would be no limitation of time in which one charged with a crime could be brought to trial, although the statutory time limit had long since expired. Such a rule would defeat a defendant’s constitutional right to a speedy trial. Such is not the intent or purpose of the law.
[336 P.2d at 586, Citation omitted.]
Garrison v. State, 270 Ark. 426, 433, 605 S.W.2d 467, 470 (Ark. App. 1980).
In the same case the Court of Appeals addressed the State’s second argument that the motion to dismiss was not timely filed. That court wrote:
With respect to the judge’s observation that the motion to dismiss was not timely filed, we need only observe that rule 30.2 provides that a defendant waives his right to a speedy trial if he fails to move for dismissal “prior to a plea of guilty or trial,” and in this case the appellant did not plead guilty, and his motion was made before he was tried.
Id. at 431, 605 S.W.2d at 469.
Although Garrison was decided under the criminal rules as they existed prior to the 1980 amendments, the amendments do not affect the reasoning used, and the case is still sound.
Once the speedy trial rules have been prima facie violated, as they were in this case, the burden is on the State to show some good cause for the untimely delay. Lowe v. State, 290 Ark. 403, 404-05, 720 S.W.2d 293, 294 (1986). The State offers no reason for its failure to try the appellant within the eighteen month period. The motions for continuance made after the deadline had passed do not constitute an acquiescense in the delay, and, since the motion for dismissal was filed and brought to the attention of the trial court prior to trial, it was timely raised.
Reversed and dismissed.
Hickman, Hays, and Glaze, JJ., dissent.