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
THE STATE OF
v. CASE NO: 0403536CFAES
DONALD CLAYTON THOMAS
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
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.
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
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.
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 (
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
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. ,  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,
Primary Appellate Judge
Daniel D. Diskey
Copies furnished to:
Office of the State Attorney
Donald Clayton Thomas
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.
 This Court's interpretation of Geralds
is apparently supported by the recent case
State v. Humphreys, 867 So. 2d 596 (