The trial court revoked the appellant’s probationary sentence. After the parties concluded their presentation of evidence at the revocation hearing, Summers orally moved to dismiss the petition for revocation because the hearing was not held within 60 days of his arrest. The trial court took that motion and another oral motion under advisement and the next day ruled the hearing was timely held. He should have ruled the motion was made too late.
Summers pleaded guilty to writing hot checks in August, 1985, and was placed on probation for five years. A petition to revoke his sentence was filed March 7, 1986, alleging several violations of his probation conditions: Summers had failed to keep monthly appointments with his probation officer, failed to pay his monthly probation fee and failed to make payments on his fine and restitution. A warrant was issued for Summers’ arrest on March 7, 1986, and served on April 29, 1986.
Counsel was appointed and a pretrial hearing was held in May, 1986, and a hearing on the petition was held June 4,1986. The state only called one witness, the probation officer. He testified about the conditions of probation and Summers’ breach of those conditions. Summers testified that he was arrested in Arizona on March 24 or 25 for “probation violations.” He said he was in jail in Arizona for five weeks before he was returned to Arkansas.
After the parties had concluded the presentation of evidence, the appellant moved orally to dismiss the petition because the hearing was not held within the 60 day time period as required by Ark. Stat. Ann. § 41-1209(2) (Repl. 1977), which provides:
A suspension or probation shall not be revoked except after a revocation hearing. Such hearing shall be conducted by the court that suspended imposition of sentence on defendant or placed him on probation within a reasonable period of time, not to exceed 60 days, after the defendant’s arrest.
The attorneys briefly argued the matter to the trial judge. Summers argued his arrest in Arizona began the running of the 60 day period. The state argued the arrest in Arkansas began the running of the time for the hearing because the record only reflected that arrest. The trial judge took the matter under advisement and the next day he ruled that Summers was arrested on April 29, 1987, and the hearing was held within the statutory time period.
On appeal Summers argues the 60 day limitation requires the petition be dismissed. The state argues the motion was untimely. We agree with the state because the state was never placed on notice before the hearing that this objection would be raised. There was no good reason given why the motion was not filed before the hearing. In both Lark v. State, 276 Ark. 441, 637 S.W.2d 529 (1982), and Cheshire v. State, 16 Ark. App. 34, 696 S.W.2d 322 (1985), a motion to dismiss a revocation petition was filed before the hearing. The state was on notice the 60 day statutory period would be invoked.
I n this case the state had no such notice. The state was prejudiced by this lack of notice because it did not have the opportunity to present any evidence regarding whether there was a delay in returning Summers to Arkansas and whether he was unavailable during that time period. The state had a right to assume that would not be an issue. This court has referred to the speedy trial rules to determine if a defendant received a speedy revocation hearing. Lark v. State, supra; Boone v. State, 270 Ark. 83, 603 S.W.2d 410 (1980); Cheshire v. State, supra. Those same rules govern when that question can be raised. A.R.Cr.P. Rule 28.1(f) provides the defendant’s failure to move for the dismissal of a charge for lack of speedy trial prior to trial constitutes a waiver of his rights under these rules. See Walker v. State, 288 Ark. 52, 701 S.W.2d 372 (1986). Since Summers did not raise his motion to dismiss the revocation petition for lack of a speedy hearing before the hearing, he waived his rights. We do not reverse a judgment because a trial judge uses the wrong reason to reach the right result. Marchant v. State, 286 Ark. 24, 688 S.W.2d 744 (1985).
Affirmed.
Purtle and Newbern, JJ., dissent.