TAFT DOUGLAS, JR., APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Taft Douglas, Jr. appealed his conviction for breaking and entering a dwelling with intent to commit felony larceny, arguing that the trial court abused its discretion by denying his request for a continuance when his newly appointed public defender had insufficient time to prepare. The appellate court affirmed the conviction, finding no abuse of discretion.
The trial court did not abuse its discretion in denying the continuance request. The appellate court found that the denial was supported by valid reasons (the state's key witnesses had been called eight times and would have difficulty returning) and that no rights of the defendant were jeopardized or prejudice resulted from the denial.
“the granting or denial of a motion for continuance is within the discretion of the trial court and the action of the court on such motion will not be disturbed on appeal unless there is a clear showing that there has been a palpable abuse of that discretion to the disadvantage of the accused, or, whereby his rights may have been jeopardized”
Establishes the standard of review for continuance denials on appeal.
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Join FLexlaw to unlock all legal intelligenceDouglas was arrested and charged on October 15, 1966. He was arraigned on November 17, 1966 with private counsel, pleaded not guilty, and waived jury …
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This is an appeal by defendant, Taft Douglas, Jr., from a-conviction of breaking and entering a dwelling with intent to commit a felony, to-wit: Grand Larceny and Petit Larceny.
The first point raised on appeal is: “Whether the trial court deprived the defendant of his right to counsel by denying defendant’s request that the trial be continued?”
The record reveals that the defendant was arrested and charged on October IS, 1966, for the above-mentioned crime. On November 17, 1966, while represented by a private attorney, defendant was arraigned, entered a plea of not guilty and waived jury trial. Bond was set and defendant was later released from jail. On June 26, 1967, defendant’s private attorney was granted leave to withdraw. On the same day bond was revoked and the defendant was ordered back to jail. About one month after defendant’s private attorney was allowed to withdraw, he again appeared on behalf of defendant and made a motion to reinstate defendant’s bond. On January 8, 1968, defendant appeared in court for trial without an attorney.
At that time, the trial judge immediately appointed an assistant public defender to represent the defendant. A short while thereafter, the assistant public defender related to the court that the defendant desired a continuance in order to obtain certain papers and information from his former attorney. This request for a continuance was denied, and the court gave as its reason the following:
(1) that the two key witnesses for the State had been called to court eight times in the past, never having yet testified;
(2) that those witnesses “ * * * would find it extremely difficult, if not impossible * * *” to return. Thereupon, the court announced its intention to hear only the testimony of the two witnesses, with the remainder of the trial to be continued until January 18. At this point, the record on appeal shows no objection on behalf of the defendant, and the trial commenced. After direct, .cross, redirect, and recross examination of the two witnesses, the trial was recessed and did not resume until ten days later.
It is appellant’s contention that the assistant public defender, having been appointed on the day the trial began, had insufficient time to prepare his case and hence, the defendant was in essence deprived of his right to counsel.
As a general rule, the granting or denial of a motion for continuance is within the discretion of the trial court and the action of the court on such motion will not be disturbed on appeal unless there is a clear showing that there has been a palpable abuse of that discretion to the disadvantage of the accused, or, whereby his rights may have been jeopardized. Raulerson v. State, Fla.1958, 102 So.2d 281; Kitchen v. State, Fla.1956, 89 So.2d 667; Lewis v. State, Fla.App.1966, 188 So.2d 585.
From our review of the entire record, we are convinced that the trial court’s denial of the defendant’s motion for continuance was not an abuse of discretion and that it has not been shown that any rights of the defendant were jeopardized or that any prejudice resulted to the defendant from the denial of the motion.
Appellant’s attorney has also requested that we rule on his motion for attorney’s fees, pursuant to Florida Appellate Rule 3.-16(e), 32 F.S.A. This motion is denied without prejudice to his right to apply to the trial court for same.
We have also considered the other points on appeal and find them to be without merit. Accordingly, the judgment and sentence are affirmed.
Affirmed.
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Williams v. State, 438 So. 2d 781 (Fla. 1983)…nce of mitigating circumstances. The granting or denial of a motion for continuance is within the discretion of the trial court. Durean v. State, 350 So. 2d 525 (Fla. 3d DCA 1977); Mills v. State, 280 So. 2d 35 (Fla. 3d DCA 1973); Douglas v. State, 216 So. 2d 82 (Fla. 3d DCA 1968). This principle remains intact even in situations where the death penalty is of issue. See Cooper v. State, 336 So. 2d 1133 (Fla.1976), cert. denied, 431 U.S. 925, 97 S.Ct. 2200, 53 L.Ed.2d 239 (1977). This Court in Cooper announc…
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Hollis Mills v. State, 280 So. 2d 35 (Fla. 3d DCA 1973)…uch motion will not be disturbed on appeal unless there is a clear showing that there has been a palpable abuse of that discretion to the disadvantage of the accused, or, whereby his rights may have been jeopardized.” Douglas v. State, Fla.App.1968, 216 So. 2d 82 and cases cited therein. The record on appeal in the case sub judice does reflect in fact that the trial court did grant several continuances to the defense but then denied defendant’s motions requesting further continuances. Thus, no abuse of discr…
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Cheatham v. State, 346 So. 2d 1218 (Fla. 3d DCA 1977)…is that the granting or denial of a motion for continuance is within the discretion of the trial court, and the court’s action with respect thereto will be reversed [*1219] only upon a showing of a palpable abuse of discretion. See Douglas v. State, 216 So. 2d 82 (Fla.3d DCA 1968); Mills v. State, 280 So. 2d 35 (Fla.3d DCA 1973). A review of the record reflects no such abuse of discretion. Defendant was given an opportunity to submit evidence in mitigation of sentence, and we find the trial court fully compl…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Raulerson v. State, 102 So. 2d 281 (Fla. 1958)
- Kitchen v. State, 89 So. 2d 667 (Fla. 1956)
- Armel v. King Spray Serv., Inc., 188 So. 2d 585 (Fla. 3d DCA 1966)