Brown v. State
| Decision Date | 16 January 1984 |
| Docket Number | No. 67049,67049 |
| Citation | 313 S.E.2d 777,169 Ga.App. 520 |
| Parties | BROWN v. The STATE. |
| Court | Georgia Court of Appeals |
Elmer H. Young III, Port Wentworth, for appellant.
Spencer Lawton, Jr., Dist. Atty., David T. Lock, Asst. Dist. Atty., for appellee.
Appellant was indicted on July 1, 1982 for the offense of theft by taking an automobile. Although scheduled for trial on September 21, 1982 and subsequently on October 5, 1982, appellant's trial by jury actually began on November 2, 1982. Appellant was convicted and sentenced to incarceration for a term of eight years. Appeal is taken from the conviction and denial of appellant's motion for new trial.
1. Appellant's three enumerations of error center upon the trial court's denial of his motion for continuance which was filed and heard on November 2, 1982 prior to presentation of evidence at trial. Such motion was based upon the absence of appellant's witness, Robert Clark.
Gallimore v. State, 166 Ga.App. 601, 305 S.E.2d 164 (1983). Each of these requirements must be met before an appellate court may review a trial judge's discretion in denying a motion for continuance based upon the absence of a witness. Hester v. State, 159 Ga.App. 642(1), 284 S.E.2d 659 (1981). Although appellant's written motion satisfies the statutory requirements by recitation, the transcript of the hearing reveals that Clark had not been served with a subpoena. The address listed on the subpoena appears to have been for condemned unoccupied property. Evidence presented later at trial established Clark's existence; however, the witness testified that he had not seen Clark for at least six months prior to trial. Further, in argument on the motion for continuance, appellant's counsel related Clark's expected testimony to be given "if we can bring him to Court the next term." Fryer v. State, 165 Ga.App. 157, 159, 299 S.E.2d 884 (1983).
2. Appellant assigns error to the trial court's denial of his motion for continuance arguing in support that the state had been granted two such previous continuances ex parte and without written motions. While the record contains notices for trial scheduled in September and...
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McTaggart v. State
...to substantially comply is a ground to deny a continuance. Curry v. State, 177 Ga. App. 609, 340 S.E.2d 250 (1986); Brown v. State, 169 Ga.App. 520, 313 S.E.2d 777 (1984); McNabb v. State, 69 Ga.App. 885, 27 S.E.2d 246 (1943). The trial court is entitled to know what relevant and material e......
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McGuire v. State, 74820
...177 Ga.App. 609(1), 340 S.E.2d 250 (1986), the absent witness had not even been subpoenaed. The same is true in Brown v. State, 169 Ga.App. 520, 521(1), 313 S.E.2d 777 (1984). In Luttrell v. State, 176 Ga.App. 508(3), 336 S.E.2d 369 (1985), defendant did not show that he expected to be able......
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Ledford v. State
...may review a trial judge's discretion in denying a motion for continuance based upon the absence of a witness." Brown v. State, 169 Ga.App. 520, 521, 313 S.E.2d 777 (1984). Pretermitting a discussion of the doubtful materiality of the expected testimony, Ledford failed to show that Cothren'......
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Halthon-Howard v. State
...order to subpoena these persons. [Cit.]" Hulett v. State, 150 Ga.App. 367, 368(5), 258 S.E.2d 48 (1979). See also Brown v. State, 169 Ga.App. 520, 521(1), 313 S.E.2d 777 (1984); Bryant v. State, 164 Ga.App. 543, 298 S.E.2d 272 The record before this Court clearly supports the trial court's ......