RAYON DAVENPORT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Rayon Davenport appealed his conviction, challenging the trial court's denial of his motion to continue trial due to a missing witness and the exclusion of character evidence about the victim. The appellate court affirmed, finding no abuse of discretion in the continuance denial and holding that the error in excluding reputation testimony was not preserved for review.
The trial court did not abuse its discretion in denying the continuance motion because defense counsel failed to exercise due diligence by not raising the witness's absence until the third day of trial despite knowing of it beforehand. Although the exclusion of the reputation testimony was erroneous, the error was not preserved for appellate review because counsel failed to proffer what the witness's testimony would have established.
[1] A party seeking a continuance must demonstrate prior due diligence to secure a witness's testimony.
[2] A trial court does not abuse its discretion by denying a continuance when the moving party fails to show prior due diligence in securing a witness.
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Join FLexlaw to unlock all legal intelligence“To prevail on a motion for continuance, prior due diligence to obtain a witness' testimony must be shown.”
Establishes the legal standard for granting a continuance motion and the requirement of due diligence.
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Join FLexlaw to unlock all legal intelligenceDefense counsel served a subpoena on a witness to appear at the start of trial. The witness failed to appear, and this failure was known before trial …
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RAMIREZ, J.
Rayon Davenport appeals his judgment of conviction and sentence underlying which is the trial court’s denial of his motion to continue trial. Because Davenport failed to exercise due diligence to ensure the presence of a subpoena witness at trial and preserve for appellate review the issue of whether the trial court erroneously excluded witness testimony about the victim’s violent character, we affirm.
Defense counsel served a potential witness with a subpoena to appear at the start of trial. On the third day of trial,defense counsel informed the court that the witness had yet to appear. The court then issued a writ of bodily attachment and continued the trial until the next day. The witness did not appear for the additional two days of the five-day trial.
We find no abuse of discretion in the trial court’s denial of the motion to continue. To prevail on a motion for continuance, prior due diligence to obtain a witness’ testimony must be shown. See Geralds v. State, 674 So. 2d 96, 99 (Fla.1996). We distinguish Robinson v. State, 561 So. 2d 419 (Fla. 1st DCA 1990), where defense counsel immediately moved for a continuance prior to the commencement of trial when he learned that a witness failed to appear in response to á subpoena. Here, defense counsel’s subpoena required the witness to appear before the start of jury selection. The witness’ failure to appear was thus known prior to trial. Yet counsel did not raise the issue until the third day of trial.
Davenport also asserts that the trial court erred in excluding reputation testimony regarding the victim’s violent character. After the victim’s mother had testified that her son had a reputation for “playing around,” defense counsel sought to question her about his reputation for violence. The trial court sustained the objection as beyond the scope. Although this ruling was in error, defense counsel did not preserve the issue for appellate review because he never sought to proffer what the witness’ testimony would have been. Unless Davenport can show that the witness would have acknowledged that the victim had a reputation for violence, we cannot see how the error was harmful.
Affirmed.
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Glenna Fisher v. Perez, 947 So. 2d 648 (Fla. 3d DCA 2007)…el he would be present. Both of these conversations occurred well after Dr. Piper’s back surgery. Given these assurances, it is clear that defense counsel did not have any reason to doubt that Dr. Piper would appear at trial. Cf. Davenport v. State, 914 So. 2d 1004 (Fla. 3d DCA 2005)(affirming denial of motion for continuance where witness’ nonappearance was known [*652] prior to the start of trial). Thus, it is clear that counsel used due diligence in securing Dr. Piper’s appearance at trial. Cf. Geralds, 674…
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Holmes v. State, 992 So. 2d 328 (Fla. 3d DCA 2008)…continuance caused material prejudice. United States v. O’Neill, 767 F. 2d 780, 784 (11th Cir.1985); see also Robinson v. State, 561 So. 2d 419, 421 (Fla. 1st DCA 1990); Goree v. State, 411 So. 2d 1352, 1353 (Fla. 3d DCA 1982)”); Davenport v. State, 914 So. 2d 1004, 1005 (Fla. 3d DCA 2005) (finding no abuse of discretion in refusing to grant a continuance to secure appearance of a witness during trial when the witness had failed to appear as noticed at the start of the trial); but see Robinson, 561 So. 2d at 4…
Authorities Cited
- Geralds v. State, 674 So. 2d 96 (Fla. 1996)
- Robinson v. State, 561 So. 2d 419 (Fla. 1st DCA 1990)