ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION IV

EDWARD JAMES MARTINE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-886

May 28, 2003

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT,

FORT SMITH DISTRICT

[NOS. CR-2001-252, CR-2001-253]

HON. J. MICHAEL FITZHUGH,

JUDGE

AFFIRMED

The appellant in this criminal case was found guilty by a jury of a Class B felony violation of the hot check law, Ark. Code Ann. § 5-37-302, and was fined $10,000. On appeal, he contends that the trial court erred in denying his motion to dismiss for lack of a speedy trial. We affirm.

Under Ark. R. Crim. P. 28.1, an accused must be brought to trial within twelve months unless necessary delay occurs as authorized under Ark. R. Crim. P. 28.3; i.e., a defendant must be tried within twelve months of the day the charges were filed, except that if prior to that time the defendant has been continuously held in custody, or has been lawfully at liberty, the time for trial commences running from the date of arrest pursuant to Ark. R. Crim. P. 28.2. Moody v. Arkansas County, 350 Ark. 176, 85 S.W.3d 534 (2002).

Once a defendant shows his trial took place outside the applicable speedy-trial period, the State bears the burden of showing that the delay was the result of the defendant's conduct or otherwise justified; if a defendant is not brought to trial within the requisite time, Ark. R. Crim. P. 30.1 provides that the defendant will be discharged, and such discharge is an absolute bar to prosecution of the same offense and any other offense required to be joined with that speedy-trial violation. Moody v. Arkansas County, supra; Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000).

Appellant was arrested on January 18, 2001, and was tried 481 days later on May 13, 2002. The State had the burden to show that the 115-day period in excess of the speedy-trial period set out in Ark. R. Crim. P. 28.1(c) and 28.2(a) was excludable from the calculation of the speedy-trial period. Moody v. Arkansas County, supra.

We think that the State has met its burden in the case at bar. Appellant concedes on appeal that seventy-six days resulting from his failure to appear should be excluded, leaving a total of thirty-nine days to be accounted for. Here, the State did so by showing that the fifty-three-day period between appellant's eventual appearance before court on March 13, 2002, and the setting of his case for trial on May 6 were attributable to appellant. The record affirmatively indicates that the trial was delayed because of appellant's previous unavailability, and that appellant was given the first available trial date once he appeared. See Henson v. State, 38 Ark. App. 155, 832 S.W.2d 269 (1992).

Appellant also contends that the trial judge's ruling should be reversed because he failed to expressly set out the excluded periods in writing as required by the preamble to Ark.R. Crim. P. 28.3. However, appellant never raised this issue below, and it has been frequently held that this defect is not fatal and may be waived by failure to object. See id. Affirmed.

Stroud, C. J., and Baker, J., agree.