STATE OF FLORIDA, APPELLANT,
v.
SEAN MCCARTHY, APPELLEE
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The State of Florida appeals the suppression of physical evidence (diazepam) after the trial court denied the State's motion for continuance when key prosecution witnesses failed to appear at a suppression hearing. The appellate court affirmed, finding no abuse of discretion in denying the continuance.
The trial judge did not abuse his discretion in denying the State's motion to continue. The court affirmed the suppression of evidence, distinguishing the case from State v. Reed because the witnesses were properly notified and the State provided no explanation for their absence or assurance they would appear at a later date.
[1] Denying a motion for continuance is within a trial judge's discretion and will be disturbed only when that discretion has been abused.
[2] A trial court does not abuse its discretion in denying a continuance when the state fails to provide assurance of the absent witnesses' future appearance.
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Join FLexlaw to unlock all legal intelligence“Denying a motion for continuance is within a trial judge's discretion and his or her ruling will be disturbed only when that discretion has been abused.”
Establishes the legal standard for reviewing denial of a continuance motion
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Join FLexlaw to unlock all legal intelligenceThe State sought a continuance at a hearing on a motion to suppress physical evidence in a diazepam possession case. Two police officers who had been …
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HERSEY, Judge.
The state appeals from an order granting a defense motion to suppress in a possession of diazepam case. We affirm on. the authority of State v. Lawrence, 560 So. 2d 400 (Fla. 4th DCA 1990).
The defense filed a motion to suppress physical evidence on November 2, 1990. At the hearing on December 3, 1990, the state requested a continuance because its two witnesses (police officers), who had been served with subpoenas, failed to appear; they chose instead to go to school in Jacksonville. The trial judge denied the motion to continue and granted the motion to suppress on the ground that, in view of its inability to produce its witnesses, the state failed to meet its burden to justify the warrantless stop and search of appel-lee.
The issue is whether the state’s motion for continuance should have been granted. Denying a motion for continuance is within a trial judge’s discretion and his or her ruling will be disturbed only when that discretion has been abused. State v. Lawrence, 560 So. 2d 400 (Fla. 4th DCA 1990); Bouie v. State, 559 So. 2d 1113 (Fla.1990); Magill v. State, 386 So. 2d 1188 (Fla.1980), cert. denied, 450 U.S. 927, 101 S.Ct. 1384, 67 L.Ed.2d 359 (1981).
In State v. Lawrence, 560 So. 2d 400 (Fla. 4th DCA 1990), the state requested a continuance at a hearing on a motion to suppress physical evidence when its only witness failed to appear. The trial judge denied the motion to continue and granted the motion to suppress after the state rested without presenting any evidence to justify a warrantless search. This court found no abuse of discretion, distinguishing State v. Reed, 421 So. 2d 754 (Fla. 4th DCA 1982), because the missing witness had been notified of the hearing and the state gave no explanation for his absence or any assurance that he would appear on a later date.
Reed involved a case of simple neglect or attorney error wherein this court found the trial judge had abused his discretion in granting a motion to suppress after the judge apparently unexpectedly called the motion to suppress to be heard on the same day as another pending motion. Notwithstanding the state’s explanation that the parties had agreed to have a hearing on the motion to suppress the following week, the trial judge refused to continue the hearing and, when the state was unable to produce its witnesses, granted the motion to suppress.
The circumstances in this case are more akin to Lawrence, than Reed. In this case, as in Lawrence, the state’s witnesses, two police officers, were served with subpoenas and therefore notified of the hearing, and although the state explained that the officers were not present because they were attending school in Jacksonville, it did not give any assurance that they would appear on a later date.
We find no abuse of discretion in the trial judge’s denial of the state’s motion to continue. Accordingly, we distinguish Reed, and affirm the granting of appellee’s motion to suppress based on Lawrence.
AFFIRMED.
GUNTHER and STONE, JJ„ concur.
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State v. White, 792 So. 2d 606 (Fla. 4th DCA 2001)…tim, or that it would go forward with the case if continued. Under these circumstances, we hold that the trial court did not abuse its discretion when it denied the State’s motion for continuance and dismissed the information. See State v. McCarthy, 585 So. 2d 1167 (Fla. 4th DCA 1991). See also State v. Lawrence, 560 So. 2d 400 (Fla. 4th DCA 1990). AFFIRMED. DELL, GUNTHER and SHAHOOD, JJ., concur.…
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Paul A. Thompson, M.D. v. Marissa Deane, 703 So. 2d 1215 (Fla. 5th DCA 1997)…se, the rulings on the oral motions may be raised on plenary appeal. Whether to grant a continuance is a matter falling within the trial judge’s discretion, and a ruling should be disturbed only when that discretion is abused. See State v. McCarthy, 585 So. 2d 1167 (Fla. 4th DCA 1991). As the trial court denied additional discovery, there was no compelling need to grant a continuance. Discovery issues, too, are matters within the trial judge’s discretion, and rulings should be disturbed only upon a showing of…
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Bank OF THE W. v. Thompson, 836 So. 2d 1075 (Fla. 5th DCA 2003)…h the protection intended by the statutes. While it is well-settled that decisions regarding abatements and continuances are within the trial court’s discretion and generally are only disturbed when that discretion is abused, see State v. McCarthy, 585 So. 2d 1167 (Fla. 4th DCA 1991), under the circumstances of this ease, we conclude the trial court departed from the essential requirements of law making cer-tiorari relief appropriate. Accordingly, we grant the petition for certiorari relief and quash the tri…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Magill v. State, 386 So. 2d 1188 (Fla. 1980)
- Bouie v. State, 559 So. 2d 1113 (Fla. 1990)
- Hanei v. Illinois, 450 U.S. 927 (U.S. 1981)
- Gray v. United States, 450 U.S. 927 (U.S. 1981)
- State v. Reed, 421 So. 2d 754 (Fla. 4th DCA 1982)
- State v. Doyle Lawrence, 560 So. 2d 400 (Fla. 4th DCA 1990)