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- it is implicit in the exchange before the court that the four factors were in fact considered-state was not entitled to a continuance based on the above factors-judgment affirmed- State v. Schultz, , No. 04-3179CFAES (Fla. 6th Cir. App. Ct. February 15, 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,  

                        Appellant,

v.

 

BELINDA SCHULTZ,                                                Case No: 04-3179CFAES

                        Appellee.

____________________/

 

County Judge Debra Roberts

 

W. Seth Mazirow, Esq.

Office of the State Attorney

 

Robert H. Lecznar, Esq.

Attorney for Appellant

 

 

ORDER AND OPINION

 

            This matter came before the court on defendant's appeal from the trial court's denial of a motion to continue and granting appellee's motion to dismiss.  This court has jurisdiction. Fla. R. App. P. 9.030(c).   We find no error and affirm.

            Appellee was cited for leaving the scene of an accident on April 5, 2004.  The case was set for non-jury trial on July 6, 2004. On July 6,  the court asked the state if they were ready to proceed. The state responded "my file indicates that my officer was subpoenaed this morning; however, I have not seen her in court this morning.  If I could call upstairs and see if she is upstairs. . . . "   The state reported that the officer was not in their office and they have not seen her.  The court sounded the halls for Officer Fields but there was no response. The state then moved for a continuance. The court stated "[t]here is a speedy issue, I believe, sir.  They have not waived speedy trial."  The state responded that the officer was served but did not know why she was not present.  The defense then moved to dismiss.  The court asked "[a]re you willing to waive speedy trial" and the defense stated "[n]o, absolutely not, Judge."  The state argued "[t]here has been no motion for speedy trial filed yet, and it's my understanding that if and when the motion is filed, we have two weeks to bring the case to trial and that is sufficient to secure the presence of Trooper Fields." The defense argued "Judge, Trooper Fields is not the witness in person.  She didn't see anything and there were no exculpatory statements made."  The state informed the court that she issued the citation this case.  Defense responded "[t]hat's true, Judge, but she is not the witness in person to the incident."  The state replied "[w]e don't know that until she takes the stand."  The Judge asked if the state had any other witnesses to which the state responded they did not.  Defense stated that the state was not able to prove their case.  The court stated "I'm not willing to continue the case sir."  The motion to dismiss was granted. 

            First, contrary to appellant's argument, this case was not dismissed based on speedy trial; it was dismissed based on failure to proceed.   Second, the trial court did not error in denying the motion to continue and granting the appellee's motion to dismiss. 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).    In State v. Humphreys, 867 So. 2d 596 (Fla. 2d DCA 2004),  the Second District 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.  Here, it is implicit in the exchange before the court that the four factors in Geralds were in fact considered.  However, this Court finds, as did the trial court, that the state failed to meet the second, third, and fourth prong of the test.  The second prong requires that substantially favorable testimony would have been forthcoming.  In this case, when asked what the only witness would testify to, the state responded "we don't know [what she will say] until she takes the stand."  The burden is on the movant to prove the witness would have been material to the case.  There is no evidence that Trooper Fields would have provided favorable testimony. There is also no evidence that the witness was available and willing to testify or that denial of the continuance would cause material prejudice. Specifically,  as brought out at the hearing, Fields was not a witness to the alleged crime and was the only witness subpoenaed by the state.

 

IT IS THEREFORE ORDERED that the judgment is affirmed.

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

 

Robert H. Lecznar, Esq.