¶1concurring. I agree with the court’s denial of appellant’s petition for rehearing. However, appellant voices his concern that the court’s opinion can be read to mean that, once a defendant requests a psychiatric evaluation, all delays in obtaining that evaluation are chargeable to the defendant for speedy trial purposes regardless of who caused the delays. I would not agree with such a proposition, and I believe a close look at the record dispels such a notion.
¶2The state had twelve months to bring the appellant to trial, but appellant was tried sixteen months and nine days after his arrest and incarceration. Thus, the state had the burden of showing the delay was legally justified. Gooden v. State, 295 Ark. 385, 749 S.W.2d 657 (1988).
¶3In its opinion, this court, citing Ark. R. Crim. P. 28.3(a), excluded the entire period it took for appellant to be evaluated. In so holding, the court rejected appellant’s argument that his evaluation had been delayed through no fault of his and that the state should have been charged with the period of delay from the two dates he was not taken to his appointments in October 1988, until his evaluation was obtained in May 1989, or when the report was submitted in July 1989. The trial court found that the appellant did nothing to prevent his attending the two scheduled appointments in October 1988, but neither did the trial court find the state at fault. Appellant’s position, however, is the period of delay was still chargeable to the state because it had the burden to show the delay was legally justified.
¶4Appellant’s argument assumes that he did nothing to delay his evaluation in this matter. I cannot agree. Appellant ignores the fact that the prosecutor, in February 1989, was the one who recognized that appellant’s evaluation had been delayed, and the prosecutor petitioned well within the designated twelve-month period (about nine months) for the trial court to appoint a private psychiatrist to evaluate appellant. In his petition, the prosecutor specifically mentioned the state’s inability to have appellant evaluated at the George W. Jackson Mental Health Center and his concern that the speedy trial period could expire if action was not taken. The prosecutor offered that the state would pay the expense of an independent psychiatric evaluation. The trial court, in settling the record for appeal purposes, related in the following what occurred at the February 22, 1989 hearing on the prosecutor’s petition:
There was colloquy about who was responsible, why it was taking so long, what could be done and et cetera. And I believe I informed Mr. Swift and the prosecutor to look into the matter, to get it straightened out, to proceed with it, and that if he wasn’t having any luck, to file a motion for habeas, and that I would rule on it promptly.
Then he asked for a continuance, and I granted at that time the motion for private evaluation. There was never an order filed apparently. But the case was continued on defense motions at defense request for the term.
¶5From the above, it is clear to me that the prosecutor petitioned the trial court in an attempt to show the state was not responsible for the delay in appellant’s evaluation, and, in doing so, he actually sought a private evaluation to avoid any further delay. Appellant, on the other hand, moved for a continuance which was granted, thus, cutting off any further consideration of the prosecutor’s petition. The appellant, strategically suspect, chose not to proceed further at the hearing held on the prosecutor’s petition and the trial court was obviously left with the impression that both the state and the appellant would work matters out. If they could not, the trial court would expect appellant to file a habeas corpus petition, which the court would promptly rule on. Instead, appellant raised no speedy trial issue until after trial when he filed a motion for new trial.
¶6The entire dispute over appellant’s failure to obtain an evaluation could have been resolved at the February hearing if appellant had not chosen to ask for a continuance. Appellant cannot be expected to have it both ways, i.e., he cannot charge the state with the extended period of time after appellant missed his October 1988 appointments and at the same time frustrate the state’s efforts to obtain appellant’s evaluation. There was some confusion over whether appellant’s continuance was until March or August 1989, but regardless of the length of time requested by appellant, he simply did nothing related to an evaluation after the February hearing. While it is true the state has the burden to bring a defendant to trial within the twelve-month period required under Rule 28, the defendant cannot benefit from actions he takes that frustrate the state’s efforts that are designed to achieve a speedy trial for the appellant. In my view, appellant’s action at the February hearing did just that and he then chose to lie behind the log while time accrued past the required twelvemonth period. The appellant should be charged with all the time that transpired from the February 22, 1989 hearing until the evaluation report was submitted on July 24, 1989.
¶7This time alone, when excluded, brings appellant’s trial date within the required twelve months. While I agree with the majority that sufficient excludable time exists in this case under Rule 28.3 (a), I also believe that, in light of appellant’s actions and inactions, such excluded time is warranted under Rule 28.3(h), which covers other periods of delay for good cause.
¶8For the foregoing reasons, I concur with the court’s decision denying appellant’s request for rehearing.