County Criminal Court: CRIMINAL PROCEDURE Continuance To prevail on a motion to continue, the movant must establish (1) prior due diligence to obtain the witness's presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance would cause material prejudice- court did not consider four factors-judgment reversed- State v. Thomas, 0403536CFAES (Fla. 6th Cir. App. Ct. April 11, 2005).

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

 

 

 

 

 

STATE OF FLORIDA

v. CASE NO: 0403536CFAES

 

DONALD CLAYTON THOMAS

Appellant,

 

____________________________/

 

 

 

Appeal from verdict, judgment and sentence Pasco County Court

 

County Judge Marc H. Salton

 

Michael J. Harris, ASA

Attorney for Appellant

 

No appearance by Appellee

 

 

ORDER AND OPINION

 

THIS MATTER is before the Court on the State of Florida's appeal of the trial court's denial of the State's motion for continuance based on witness unavailability. Appellee failed to file an answer brief. After reviewing the initial brief and record, this Court finds that the trial court abused its discretion.

Thomas was charged by citation with attaching a license tag not assigned. A non jury trial was set for June 7, 2004. On June 7, 2004, the case was called. Thomas appeared pro se. The court asked if the state was ready, and the following transpired:

STATE: No, your honor. I move for a continuance. I believe he indicated he might want to plead out and I'd be happy with the minimums.

COURT: That's all I'd impose if he didn't plead out.

STATE: We're asking for a continuance based on -- at 1:51 p.m. today we received a call from the arresting officer who said that she had car trouble. She lives in Citrus County and her car broke down and was not able to make it.

COURT: Well, if Mr. Thomas had called and said that then we would've issued a warrant for his arrest. Sir, do you want me to dismiss this case?

DEFENDANT THOMAS: Yes, sir.

COURT: Granted.

***

 

The trial court's refusal to continue an evidentiary hearing is reviewed under an abuse of discretion standard. State v. Lundy, 531 So. 2d 1020 (Fla. 2d DCA 1988). To prevail on a motion to continue, the movant must establish (1) prior due diligence to obtain the witness's presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance would cause material prejudice. Geralds v. State, 674 So. 2d 96, 99 (Fla. 1996).

The record in this case reveals that the State was entitled to a continuance based on the above factors. The first factor was met by showing that the state spoke with the witness just before the trial and the only reason she could not make it to court was because of car trouble in Citrus County.[1] The second factor was met by showing that the witness was the arresting officer on the case. The third factor was met by showing that she was a law enforcement officer and was only unavailable on the trial date because her car broke down. Finally, the fourth factor was shown by the dismissal of the case as a result of the denial of the motion to continue. Therefore, the resulting suppression of the evidence was tantamount to a dismissal of the charges against Thomas.

Thus, it does not appear that the trial court took into consideration the four factors set forth in Geralds before denying the State's motion to continue. Additionally, there was no showing of prejudice to the defendant and the defendant was not even asked whether or not he objected or would be prejudiced by the continuance. See Lundy, 531 So. 2d 1020. , [2] Moreover, the trial court never conducted an inquiry into the facts other than stating he would have issued a warrant for the defendant if he called with the same facts the officer provided. Accordingly, it was an abuse of discretion to deny the continuance.

Therefore, it is,

ORDERED AND ADJUDGED that the Order Denying the State's Motion to Continue is reversed, and the Order granting defendant's Motion to Suppress is

 

accordingly vacated, and this cause is remanded for further proceedings.

DONE AND ORDERED in Chambers at New Port Richey, Pasco County, Florida this __ day of April, 2005.

 

 

________________________

W. Lowell Bray, Circuit Judge

Primary Appellate Judge

 

____________________

Daniel D. Diskey

Circuit Judge

 

______________________

Stanley R. Mills

Circuit Judge

 

Copies furnished to:

Office of the State Attorney

Donald Clayton Thomas

 

 

 

 



[1] Although there is no evidence in this record that the witness was subpoenaed, under these facts, this factor alone is not sufficient to deny a motion to continue. Specifically, the witness in this case would still have failed to appear due to car trouble, whether or not a subpoena was issued. See State v. Haynes, 463 So. 2d 1248 (Fla. 5th DCA 1985).

[2] This Court's interpretation of Geralds is apparently supported by the recent case State v. Humphreys, 867 So. 2d 596 (Fla. 2d DCA 2004), which found that the trial court abused its discretion in denying the state's motion to continue because "[i]t [did] not appear that the trial court took into consideration the four factors set forth in Geralds, 674 So. 2d at 99, before deciding that a continuance was unwarranted." Id. at 6. The Court also noted that there was no indication in the record that defendant would have been prejudiced had the continuance been granted.