LARRY WAYNE LEWIS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Larry Wayne Lewis was convicted by jury of assault with intent to commit rape and sentenced to 8 years. He appealed claiming the trial court erred by denying his motion for continuance when the prosecutor failed to comply with discovery rules, but the court affirmed, finding no abuse of discretion.
The trial court did not abuse its discretion in denying the continuance motion because: (1) the notice of deposition was defective due to defendant's own failure to include a subpoena and fees, precluding him from complaining about lack of service; (2) the trial judge granted a deposition the same day and postponed trial, allowing adequate time for defense preparation; and (3) no prejudice resulted.
[1] A defendant cannot complain of a failure to obtain service of a subpoena when the defendant is responsible for the defect or fails to make a reasonable effort to correct…
[2] A trial court does not abuse its discretion in denying a motion for continuance when the defendant is not prevented from effectively preparing their defense.
Previewing 2 of 4 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“the defendant now is precluded from complaining of failure to obtain service of a subpoena when he himself is responsible or fails to make a reasonable effort to correct a mistake”
Establishes that a party cannot complain of discovery defects caused by their own negligence in serving proper process
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Join FLexlaw to unlock all legal intelligenceLewis was charged with rape but convicted of the lesser included offense of assault with intent to commit rape. The defense counsel's notice of deposi…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Defendant-appellant was informed against for rape, tried by jury, found guilty of the lesser included offense of assault with intent to commit rape and sentenced to 8 years in the state penitentiary.
For his sole point on appeal, defendant urges as error the trial court’s denial of defense counsel’s motion for continuance where the prosecutor failed to comply with the pretrial discovery rules and the trial court’s failure to inquire into the surrounding circumstances to determine prejudice to the defendant.
We first note that the notice of deposition was unaccompanied by a subpoena1 directing the witness to appear for discovery and the requisite fees. Thus, we find the subject notice to be defective and the defendant now is precluded from complaining of failure to obtain service of a subpoena when he himself is responsible or fails to make a reasonable effort to correct a mistake. See Williams v. State, Fla.App.1970, 239 So. 2d 648. In addition, upon the victim’s failure to respond to the notice, the records reflect that defense counsel did not bring this matter to the trial court’s attention until he made his motion for continuance approximately 5 minutes before the trial was scheduled to commence on November 5, 1973.
Second, the record further demonstrates that the trial judge did permit defense counsel to depose the victim on the afternoon of November 5, 1973 and postponed the trial until November 6, 1973. Thus, it appears that the defendant was not prevented from effectively and adequately preparing his defense and was not prejudiced by the denial of his motion for continuance. Cf. Howard v. State, Fla.App.1970, 239 So. 2d 83.
No abuse of discretion on the part of the trial court having been made to appear, the judgment herein appealed is affirmed.
Affirmed.
. RCrP 3.220(d), 33 F.S.A.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Howard v. State, 239 So. 2d 83 (Fla. 1st DCA 1970)
- Williams v. State, 239 So. 2d 648 (Fla. 3d DCA 1970)