¶1dissenting. It was the State’s burden to show that the delay of Robert Lee Jones’s trial from May 31, 1994, until September 10, 1994, was attributable to Mr. Jones. To bear that burden the State was required to show a written order or docket entry. Ark. R. Crim. P. 28.3(i). The majority opinion concludes the continuance from May 10, 1994, to September 10, 1994, was attributable to Mr. Jones. To exclude the time from the speedy trial period, the docket entry must be made at the time the continuance is granted to the defendant. Turbyfill v. State, 312 Ark. 1, 846 S.W.2d 646 (1993); Hicks v. State, 305 Ark. 393, 808 S.W.2d 348 (1991). No such docket entry was made, and that should be the end of this case.
¶2The majority opinion cites no evidence whatever that Mr. Jones either made a continuance motion for the period in question or was aware of one having been made on his behalf. In the belated nunc pro tunc continuance order, signed and entered the day before the trial began on September 14, 1994, it is stated that Mr. Jones sought a continuance through his counsel. Judge Pearson specifically found that Mr. Swift did not make such a motion on Mr. Jones’s behalf. In considering the matter he said:
It’s certainly true that Mr. Swift did not file a motion for continuance for the May term of court. No docket entry was made by the court at that time. However, it is abundantly clear to the court in reconstructing the record as to what actually transpired that the case was set for the May 1994 session of court, that Mr. Swift was ill, hospitalized for a period of 27 days, three weeks or so, having been discharged on May 31st, the date set for trial.
¶3What we have in the way of reconstruction of the record is a letter from a special prosecutor, Mr. Easterling, saying that Judge Turner continued Mr. Swift’s cases, and the testimony of two other prosecutors about a continuance granted on the basis of phone calls by a doctor. We do not even have in the record any testimony by the doctor that he was requested by anyone to inform the Court of Mr. Swift’s illness, much less evidence that he was authorized to request a continuance on Mr. Jones’s behalf.
¶4Even if we could say that Mr. Swift’s hospitalization until May 31, 1994, might have been good cause to continue Mr. Jones’s trial until some later date, the State made no showing why the case was not tried in June, July, or August of 1994. In his remarks, Judge Pearson noted that the case was once set for August 10, 1994, but was inexplicably not tried on that date. Although there are references to various “terms of court,” according to Ark. Code Ann. § 16-13-1002(a)(l)(ii) (Repl. 1994), the term of court of the Circuit Court in the Osceola District of Mississippi County begins on the fourth Monday in February and runs for one year. Subsection (b) of that statute provides that the courts of the Second Judicial District shall always be open for the transaction of business on all matters over which they have jurisdiction except on days excluded by law. Again, we are left with no docket entry or other contemporaneous record of any further continuance or reason why the case was not tried after the recorded continuance ended May 31, 1994.
¶5In a puzzling way, the majority opinion cites and seems to rely on Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993), and Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1993), which emphasized the need for a contemporaneous record of any continuance. In the Clements case we honored a nunc pro tunc order only because the continuance was otherwise memorialized on the record at the time it was granted. The majority opinion in the case now before us says “Judge Turner remedied that oversight by the order filed on September 13, 1994.” No explanation is given as to how his nunc pro tunc order complied with the requirement of a contemporaneous docket entry or other record of the granting of the continuance.
¶6To affirm on the basis of “other good cause” or Judge Turner’s belated order is directly contrary to our decision in the Hicks case. There we reversed and dismissed a conviction because of violation of the speedy trial rule and the lack of any writing or record of a continuance. We said:
Although it is not expressly stated in the rule, we have said that a trial court should enter written orders or make docket notations at the time continuances are granted to detail the reasons for the continuances and to specify to a day certain, the time covered by such excluded periods (emphasis added). McConaughy v. State, 301 Ark. 446, 784 S.W.2d 768 (1990); Cox v. State, 299 Ark. 312, 772 S.W.2d 336 (1989). In order to provide any impetus behind Rule 28.3, we must adhere to this language; otherwise, there is no need for the rule.
¶7We noted that the only docket entry made in an attempt to comply with the rule in the Hicks case was made nine days after the speedy trial period had run. In this case, the State originally had until April 9, 1994, to bring Mr. Jones to trial. The time was properly extended until May 31, 1994. The only written record of any further continuance appeared 105 days thereafter. If the right of the accused and the public to have trials conducted in accordance with our rules designed to bring accused persons to trial promptly are to have any meaning, this case should be dismissed.
¶8I respectfully dissent.