DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR00-775

May 16, 2001

DAVID ALLEN HORNE AN APPEAL FROM GREENE

APPELLANT COUNTY CIRCUIT COURT

[CR99-50]

V. HON. CHARLES DAVID BURNETT,

JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

David Allen Horne appeals from his convictions for manufacture of a controlled substance, possession of a controlled substance, and possession of drug paraphernalia. His sole argument is that he was denied a speedy trial. We hold that appellant's right to a speedy trial was not violated, and therefore, affirm his convictions.

Appellant was arrested on January 7, 1999. His case was originally set for trial on June 22, 1999. On that date, the trial court granted appellant's oral motion for a continuance and rescheduled the case for trial on September 14, 1999. On September 3, 1999, appellant failed to appear for a pre-trial hearing, and the trial judge issued a bench warrant for his arrest. The bench warrant was served on appellant on September 26, 1999, and his trial was eventually rescheduled for March 28, 2000. However, due to court congestion, the trialjudge again rescheduled that trial for May 2, 2000. Appellant's trial was apparently held on May 3, 2000.1 Immediately prior to trial, the trial court noted on the record that appellant had moved for dismissal based on the denial of his right to a speedy trial, which the court denied.

Appellant received a jury trial. After the jury retired to deliberate, he again raised the speedy trial argument. The court again denied appellant's motion, noting that two periods of delay were due to his motion for continuance and his failure to appear. Appellant was convicted on all charges and sentenced to serve a total of twenty years in the Arkansas Department of Correction. His trial counsel lodged this appeal, but was subsequently granted permission by the trial court to withdraw.2 A new attorney was later appointed to represent appellant on appeal.

The State first asserts that appellant's speedy trial argument is not preserved for appellate review because his record on appeal does not demonstrate that he raised the issue prior to trial. Neither the record nor appellant's abstract reflects any pretrial proceedings in which this issue was raised. However, the record demonstrates that immediately prior to trial, the trial court stated that "the record should reflect that I previously dismissed on the basis of speedy trial and that we each calculated that the State had a few days left before the period would expire." The court further noted that appellant had been granted twocontinuances and again stated that "the speedy trial hasn't run. The State's still got a few days left to try you . . . ."

It is true that a defendant's failure to raise the speedy trial issue prior to trial waives the issue on appeal. See Ark. R. Crim. P. 28.1(f); Wilkerson v. State, 53 Ark. App. 52, 920 S.W.2d 15 (1996). It is also true that it is the appellant's responsibility to bring forth a record that demonstrates error. See Cole v. State, 68 Ark. App. 294, 6 S.W.2d 805 (1999). While neither the record nor appellant's abstract reflects any pretrial proceedings in which this issue was raised, the trial court's notation on the record that it previously denied appellant's speedy trial motion is sufficient to show the trial court was apprised of and made a ruling on this issue prior to trial. Therefore, we hold that the issue of whether appellant's right to a speedy trial was violated was adequately preserved for appeal. As to the merits of appellant's argument, we affirm his convictions because we hold that his right to a speedy trial was not violated.

Rules 28.1(c) and 28.2(a) of the Arkansas Rules of Criminal Procedure require the State to bring a defendant who is incarcerated to trial within twelve months from the date the charge is filed in circuit court or from the date of arrest, if the defendant is released pending trial. See Scott v. State, 337 Ark. 320, 989 S.W.2d 891 (1999). Once the defendant shows that a trial has been held outside the applicable speedy-trial period, the State has the burden of showing that the delay was the result of the defendant's conduct or was otherwise justified. See id.

Appellant was arrested on January 7, 1999. He was not brought to trial until May 3,2000, 118 days beyond the twelve-month period within which his trial should have been prosecuted. Accordingly, appellant made a prima facie showing of a violation of the speedy trial rules, and the burden shifts to the State to show good cause for the 118-day delay. See Chenowith v. State, 341 Ark. 722, 19 S .W.3d 612 (2000). The State argues that it met its burden because at least 248 days3 of the delay were excludable due to appellant's request for a continuance and his failure to appear.

Appellant concedes that the time-frame from June 22, 1999, until September 26, 1999, (eighty-four days) should be excluded from the computation, because that continuance was at his request. See Ark. R. Crim. P. 28.3(3)(c); Scott v. State, supra. However, appellant also maintains that the 184-day period between September 26, 1999, when he was arrested for failure to appear and March 28, 2000, the date for which the trial was rescheduled, should not be excluded from the computation because during that period he was in the State's custody awaiting trial. However, the record does not show that appellant objected to the excludability of this period at the time the trial court determined this period was excludable. Appellant was required to make a contemporaneous objection to this court-ordered excludable period in order to preserve the issue for appeal. See Dean v. State, 339 Ark. 105, 3 S.W.3d 328 (1999); Mack v. State, 321 Ark. 547, 905 S.W.2d 842 (1995). Moreover, our supreme court has held that where a defendant fails to appear, the time period between his arrest for failure to appear and the next date scheduled for trial, is excludable for purposes of calculating a speedy trial date. See Osborne v. State, 340 Ark. 444, 11 S.W.3d 528 (2000). Therefore, as the State argues, the 184-day period between September 26, 1999, and March 28, 2000, is excludable from the speedy trial calculation.4

Appellant further asserts that the thirty-six-day period between March 28, 2000, and May 3, 2000, should be excluded because the trial court made no docket entry explaining why the docket did not permit trial on the date originally scheduled, as is required under Rule 28.3. However, because the State was only required to show that 118 days were excludable, even if these thirty-six days are excluded, the State has still shown that 268 days are excludable, which satisfies the State's burden; therefore, we need not address this argument.

Based on the foregoing, we hold that appellant's right to a speedy trial has not been violated, and we affirm his convictions.

Affirmed.

Vaught and Roaf, JJ., agree.

1 The docket entry and order of continuance reflect the rescheduled date as May 2, 2000. However, the record and notice of appeal show the date of the proceedings as May 3, 2000, but do not reflect a further order continuing the trial from May 2 to May 3.

2 During the May 3 proceedings, appellant requested that he be allowed to dismiss his attorney and stated that he had hired another attorney. The trial judge refused to allow appellant to dismiss his trial attorney at that point.

3 Our computations differed from the State's. Whereas the State found the period between June 22, 1999, through September 14, 1999, included ninety six days, we counted eighty-four days. More significantly, whereas the State found the period from September 26, 1999, through March 28, 2000, to include 152 days, we counted 184 days. By the State's calculation, a maximum of 248 days at a minimum were excludable. By our calculations, a maximum of 268 days are excludable. We use our computations throughout the remainder of this opinion.

4 The trial judge did not set the March 28, 2000 date until March 17, 2000. We find no explanation in the record for the trial court's lengthy delay in rescheduling this hearing after appellant was incarcerated for failure to appear. It is the trial court's duty to reschedule hearings as expeditiously as the docket will allow. However, appellant does not question the propriety of the trial judge's delay on this basis, and does not argue that the period between September 26, 1999, and March 28, 2000, should be excluded based on the trial judge's delay in setting a new trial date. Therefore, we do not address this issue.