¶1dissenting. The majority has held that an excludable period exists for good cause under Rule 28.3(h). I dissent for two reasons: first, because the State failed to prove that defendant’s first attorney had no knowledge on February 28 (the date the case was set for an April 8 trial) of his March 3 employment with the prosecuting attorney’s office which presented a conflict of interest; and second, because of the trial judge’s failure to immediately appoint other counsel for the defendant upon being advised by the defendant’s attorney on February 29 that he would be unable to represent the defendant.
¶2In State v. Lewis, 268 Ark. 359, 596 S.W. 2d 697 (1980) we held that “it was the burden of the State to prove the delay was legally justified.” Here the State failed to sustain its burden of proof, and the trial court could not and did not make the necessay finding of good cause for the excludable period; but now the majority attempts to avoid Rule 28.3 (h) and Lewis, supra by supplying the deficiency and forging a finding of good cause out of a silent record.
¶3On February 29 appellant’s attorney advised the court of his conflict of interest and of his inability to represent his client at the trial set for April 8. The trial court failed to immediately appoint substitute counsel; nor did it later make a finding of good cause for excluding the period between February 29 and the appointment of substitute counsel on May 14. Obviously, this two and one-half month delay in appointing substitute counsel was not the fault of the appellant and the delay should not be attributed to him. How can this Court determine that the trial court had good cause for delaying the appointment of substitute counsel for this lengthy period?
¶4I am authorized to state that Purtle, J., joins me in this dissent.