HOWARD ISIAH GAUSE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Howard Gause was convicted of multiple crimes including aggravated assault, marijuana possession, resisting an officer with violence, and unlawful firearm possession by a felon, and sentenced to 35 years. He appealed challenging the denial of his continuance motion and arguing his sentence constituted cruel and unusual punishment for exercising his right to trial by jury.
The court affirmed, holding that appellant failed to demonstrate error on the continuance motion because it did not meet the test in Moore v. State, and that the court did not err in imposing the sentence after trial as it was better informed of the circumstances after hearing the evidence. Consecutive sentencing does not constitute cruel and unusual punishment.
[1] A trial court's denial of a motion for continuance is not an abuse of discretion if the application for continuance does not meet the established legal test for such moti…
[2] A trial court is not precluded from imposing a harsher sentence after a jury trial than it might have considered during plea negotiations, especially when the court gains…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“We hold that the appellant has not demonstrated error because the application for continuance did not meet the test set forth in Moore v. State, 59 Fla. 23, 52 So. 971 (1910).”
Establishes that continuance motions must satisfy the Moore test, which appellant's motion failed to meet.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant was arraigned on February 4, 1972, with a public defender appointed. He discharged the public defender five days before trial and hired priv…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Convicted Felon cases and more on FLexlaw
The appellant was charged by information with the crimes of (1) assault with intent to commit murder, (2) aggravated assault, (3) unlawful possession of marijuana, (4) resisting an officer with violence to his person, and (5) unlawful possession of a firearm by a convicted felon. *384He was found guilty on counts 2, 3, 4 and 5 and guilty of the reduced charge of aggravated assault on count 1. He was sentenced to terms totalling thirty-five years in the state penitentiary. On this appeal two points are presented. . The first urges error upon the court’s denial of a motion for continuance. The second urges that the sentence constituted an infliction of cruel and unusual punishment in that it was a penalty for defendant’s exercise of his right to trial by jury.
Appellant’s motion for continuance of the trial was made at the onset of the trial. Appellant was arraigned on February 4, 1972. Jury trial was held on April 18 and 19, 1972. An adjudication of insolvency was entered and the public defender was appointed to represent the appellant at the time of his arraignment. Discovery was undertaken by the public defender. Five days prior to trial appellant discharged the public defender and procured private counsel. The ground for the motion for continuance made at the time of trial was that the private counsel had not had an opportunity to fully prepare the case. We hold that the appellant has not demonstrated error because the application for continuance did not meet the test set forth in Moore v. State, 59 Fla. 23, 52 So. 971 (1910). See also Coney v. State, Fla.App.1972, 258 So.2d 497.
Appellant’s second point urges that because the trial court had indicated that it would consider a shorter sentence when a plea bargain was attempted, that it therefore could not legally impose a harsh sentence after a jury trial. The point does not present error because it is apparent that the court was better informed of the particulars and the circumstances of the various crimes after the trial. The direction of the trial court for the prison terms to be served consecutively does not operate to make the sentence constitute cruel and unusual punishment. Brown v. State, 152 Fla. 853, 13 So.2d 458 (1943); Cole v. State, Fla.App.1972, 262 So.2d 902.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Goree v. State, 411 So. 2d 1352 (Fla. 3d DCA 1982)…diligence, much less due diligence, in procuring this witness’s presence. See Moore v. State, 59 Fla. 23, 52 So. 971 (1910); Pittman v. State, 360 So. 2d 1138 (Fla. 1st DCA 1978); Whalen v. State, 335 So. 2d 631 (Fla. 1st DCA 1976); Gause v. State, 270 So. 2d 383 (Fla. 3d DCA 1972); Coney v. State, 258 So. 2d 497 (Fla. 3d DCA 1972). And, again, if on the following morning, with final arguments about to commence, the trial court had rejected a defense request for further time to produce and present the testim…
-
Sandor Eduardo Guillen v. State, 189 So. 3d 1004 (Fla. 3d DCA 2016)…até the onerous burdens of trial practice.” Cooper, 336 So. 2d at 1138. The fact that defense counsel had only a few days prior to trial to consider Wright’s largely cumulative testimony does not establish undue prejudice. See, e.g., Cause v. State, 270 So. 2d 383, 384 (Fla. 3d DCA 1972) (affirming the trial court’s denial of a motion for a continuance and rejecting the defendant’s argument that his new defense counsel, who was substituted only five days before trial, had insufficient time to prepare). We re…
Authorities Cited
- Brown v. State, 152 Fla. 853 (Fla. 1943)
- Moore v. State, 59 Fla. 23 (Fla. 1910)
- Cole v. State, 262 So. 2d 902 (Fla. 3d DCA 1972)
- Coney v. State, 258 So. 2d 497 (Fla. 3d DCA 1972)