DARIUS SAINTE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court did not abuse its discretion in denying the defendant's mid-trial motion for a continuance to secure an alibi witness.
[1] A trial court does not abuse its discretion in denying a mid-trial motion for a continuance to secure an alibi witness when the defendant fails to demonstrate prior due d…
[2] A defendant seeking a continuance due to an absent witness must establish prior due diligence, substantially favorable testimony, witness availability and willingness to…
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of robbery with a firearm. He sought a continuance mid-trial to secure an alibi witness, but the defense counsel's efforts…
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STEVENSON, J.
Darius Sainte was tried by jury and found guilty of robbery with a firearm of a beauty supply store. Sainte appeals his conviction, arguing (1) that the trial court should have granted his mid-trial motion for continuance and afforded him the opportunity to secure the attendance of an alibi witness and (2) that the trial court should have granted his motion to strike the entire venire as a consequence of remarks made by a prospective juror. We affirm Sainte’s conviction and write to briefly address the motion for continuance.
When seeking a motion for continuance due to the absence of a witness, a defendant is required to demonstrate
(1) prior due diligence to obtain the witness’ [sic] 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.
Smith v. State, 762 So. 2d 929, 981 (Fla. 4th DCA 2000), review denied, 786 So. 2d 1188 (Fla.2001).
In this case, defense counsel’s only attempt at satisfying this four-part test was the following statement:
I spoke to [Ms. Seanant] yesterday, she said that she was going to be here today at 1:00 o’clock. I know it’s now 2:00 o’clock, but based upon the severity of the case, and the fact I know there are defense witnesses out there, I seek to just have our witness list, for whatever reason, I’m requesting a defense continuance on behalf of Mr. Sainte.
No attempt was made to indicate or proffer the nature of the missing witness’s testimony nor did counsel suggest that such testimony would be any different than that of Mr. Pierre — an alibi witness who was present and ready to testify. Under these circumstances, we find no abuse of discretion in the trial court’s denial of the motion for continuance. See Collins v. State, 839 So. 2d 862, 864 (Fla. 4th DCA 2003)(holding that trial court’s denial of motion for continuance should not be reversed absent an abuse of discretion).
AFFIRMED.
WARNER and GROSS, JJ., concur.
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State v. C.H., 893 So. 2d 652 (Fla. 4th DCA 2005)…PER CURIAM. Affirmed. See Sainte v. State, 864 So. 2d 506 (Fla. 4th DCA 2004). WARNER, POLEN and HAZOURI, JJ., concur.…
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Leverett Duane Smith v. State, 982 So. 2d 1241 (Fla. 5th DCA 2008)…etermine whether the expert would offer substantially favorable testimony, even assuming that the expert had relevant information to offer. Consequently, Appellant’s motion for continuance was also properly denied on this basis. See Sainte v. State, 864 So. 2d 506, 506 (Fla. 4th DCA 2004). The decision to grant or deny a continuance is within the sound discretion of the trial judge. Hernandez-Alberto v. State, 889 So. 2d 721, 730 (Fla.2004). Defense counsel had four weeks’ notice of the trial date. No effort…
Authorities Cited
- Smith v. State, 762 So. 2d 929 (Fla. 4th DCA 2000)
- Collins v. State, 839 So. 2d 862 (Fla. 4th DCA 2003)