Robinson v. State

• Decision Date: 14 May 1990
• Docket Number: No. 89-402,89-402
• Citation: 561 So.2d 419
• Parties: 15 Fla. L. Weekly D1399 Larry ROBINSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 419

561 So.2d 419

15 Fla. L. Weekly D1399

Larry ROBINSON, Appellant, v. STATE of Florida, Appellee.

No. 89-402.

District Court of Appeal of Florida First District.

May 14, 1990.

Michael E. Allen, Public Defender, and David P. Gauldin, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Richard E. Doran, Acting Director, Criminal Appeals, Tallahassee, for appellee.

NIMMONS, Judge.

We reverse the defendant's conviction for sale of cocaine because the trial judge abused her discretion in denying the defendant's motion for continuance.

In October, 1988, an undercover officer, D.L. Wester, went into an area known for cocaine transactions. Officer Wester encountered Juanita Michaels who agreed to sell Wester some cocaine. Michaels proceeded to a nearby area ostensibly to obtain the cocaine. Michaels briefly conversed with the defendant who handed something to Michaels. Michaels then walked back to Wester and sold to Wester what proved to be cocaine. Wester and another nearby officer testified that they observed the transaction between Michaels and the defendant and that the item which the defendant handed to Michaels was the cocaine which was subsequently handed to Officer Wester by Michaels. Whereupon both Michaels and the defendant were arrested. ¹

The defendant denied that he gave Michaels any cocaine but said that he was merely changing a twenty dollar bill at her request. Before her release from incarceration on January 19, 1989, Juanita Michaels was interviewed by a Public Defender investigator in December. She told the investigator that she had not obtained the cocaine from the defendant but that the defendant had merely changed a twenty dollar bill at her request. She said that the defendant was not involved in the cocaine transaction at all. The Public Defender caused a subpoena to be served upon Michaels on December 29, returnable on January 23, 1989, the scheduled trial date.

A jury was selected on Monday, January 23, and the trial was scheduled to commence on January 26. On January 24, proceedings were held before the court in which defense counsel brought to the court's attention the fact that Juanita Michaels had failed to appear in response to her subpoena. Testimony was presented confirming that Michaels had been served with the subpoena. From the testimony presented, there were indications that Michaels might be deliberately evading the command of the subpoena. At the conclusion of the proceeding, the trial court issued a writ of attachment.

On January 26, prior to commencement of the trial, ² defense counsel filed a motion for continuance. The motion recited that Michaels had not yet been found and that there were conflicting indications from various friends and relatives as to whether Michaels intended to appear for the defendant's trial. The motion further recited that "on January 25, 1989, the court received a telephone call from the Sheriff's Office seeking permission to enter the residence in which Ms. Michaels was last seen. However, Ms. Michaels managed to elude the police officer and is still at large." The trial judge announced that she was giving the defense 24 hours to secure the witness's presence and delayed commencement of the trial until the next day.

When the case was called up the next morning, the defense renewed its motion for continuance on the basis that there was need for additional time to secure the presence of Juanita Michaels. The state objected to the motion, asserting that "denial of continuance is abuse of discretion only if the witness is available and willing to testify. Obviously from the efforts [defense counsel] has been through this week to obtain Ms. Michaels, she's not willing to testify." The court denied the motion for continuance opining that it would not be an abuse of her discretion to do so.

At trial, the state's evidence was essentially as outlined earlier herein. The defendant took the witness stand and denied any involvement in the drug transaction and explained that he had simply accommodated Michaels' request to change a twenty dollar bill. No other defense witnesses were called. The jury found the defendant guilty as charged.

The trial court's determination of a motion for continuance is within the trial court's discretion and the court's ruling thereon will not be disturbed "unless a palpable abuse of discretion is demonstrated." Smith v. State, 525 So.2d 477, 479 (Fla. 1st DCA 1988). The facts of this case clearly show that appellant has met that heavy burden. Indeed, the appellant presents a more compelling case than that which was involved in the recent case of Beachum v. State, 547 So.2d 288 (Fla. 1st DCA 1989), wherein this court found an abuse of discretion in the denial of Beachum's motion for continuance.

This case is a far cry from the typical eleventh-hour motions for continuance which are dumped on the trial courts with disturbing regularity wherein counsel urges that he has not had adequate time to prepare for trial, or has not "completed discovery," or has just learned of the existence of a new witness, etc.

In contrast, the defense in this case, through appropriate investigation, determined the existence of a crucial witness who directly corroborated the appellant's defense that he did not furnish the cocaine. Counsel took the necessary steps to have the witness subpoenaed well in advance of trial. When the witness failed to appear in response to the subpoena, the defense immediately advised the court of the violation of the command of the subpoena and sought the power of the court to enforce the court's process. The defense also presented sworn testimony demonstrating the subject matter of the witness's anticipated...