Sadler v. State, 68--527
| Decision Date | 16 May 1969 |
| Docket Number | No. 68--527,68--527 |
| Citation | 222 So.2d 797 |
| Parties | Don SADLER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Robert E. Jagger, Public Defender, and James L. DeMoully, Asst. Public Defender, Clearwater, for appellant.
Earl Faircloth, Atty. Gen., Tallahassee, and William D. Roth, Asst. Atty. Gen., Lakeland, for appellee.
In this case appellant Don Sadler appeals a judgment of conviction for first degree murder with recommendation, and sentence to life imprisonment.
The Pasco County grand jury, on July 29, 1968, returned an indictment against Sadler into the local Circuit Court charging him with the offense of murder in the first degree. The Court granted motions of the defendant for discovery and for a list of witnesses. The Court also granted defendant's motion to suppress 'any and all statements, oral or written, made by the said defendant while in custody, and all physical evidence obtained as a result of said statements'.
The case was set for trial for August 19, 1968, but on August 16th defendant orally moved for a continuance. This motion for continuance was renewed on August 22nd, but was denied and defendant went to trial. The jury convicted him and he was sentenced as aforesaid. Sadler has appealed to this Court.
Defendant Don Sadler was charged and convicted of killing his wife, Diane Bunch Sadler, in the home of his brother, Alton Sadler and his wife, Ernestine, by stabbing her in the heart with a knife. The defense put on no testimony. The sufficiency of the evidence to sustain the verdict is not challenged.
The stabbing of Diane occurred shortly before midnight on the evening of July 9, 1968, at his brother's home on the Old Trilby Road, just off State Road 575 in Pasco County. Diane died almost at once. Upon being called, deputy Sheriff Bob Long was at the home in a matter of minutes and found Don being held on the floor by his bother Alton. This was about four minutes past midnight. Diane was already dead in the back bedroom where the stabbing had taken place. Don was immediately taken into custody.
On July 29, 1968, a first degree murder indictment was returned. On August 1, 1968, defendant was arraigned, represented by the Public Defender's office, and pleaded not guilty. The case was set for trial on August 19, 1968, and the Court announced it would 'appoint additional counsel'. On August 22nd defense counsel filed a motion for continuance, setting forth that on August 14th a preliminary hearing in the case had been held and on August 19th counsel had been furnished with the 190-page transcript of testimony so taken, but that counsel had 'not completed a thorough review of this testimony'. The motion further stated that certain depositions taken on August 16th would not be transcribed and ready for delivery until the evening of August 21st and that counsel 'would require additional time to review the above testimony and to determine what additional investigation and research is necessary in preparation of the trial'. The motion was denied and the ruling thereon is assigned here as error.
There was no error in denying the continuance. Counsel presumably was present when the preliminary hearing was held on August 14th and also when the deposition was taken on August 16th, and for all the record shows was thoroughly and personally conversant with the testimony taken on the two occasions. And counsel had the advantage of the two transcripts at the trial.
Defendant obviously was not prejudiced in presenting his case at the trial because he produced no testimony, not even his own. And the record filed here, containing the extensive testimony of eight State witnesses, both direct and cross, shows that the right of cross-examination of these witnesses was in no way impaired. No complaint was made during the trial as to any disability of counsel with respect to any witness or of being hampered in any way in preparation for trial. The vague language of the motion that counsel needed 'additional time to review the testimony' and to decide about 'additional investigation and research' is far lacking in specifics to make the requisite showing necessary to demonstrate error in denying a motion for continuance. Such motions are always subject to the sound discretion of the Court and a reversal will never be predicated upon a denial in the absence of an affirmative showing of an abuse of discretion. Defendant here has not sustained such burden.
It is also contended that the trial Court erroneously refused to charge the jury on the crimes of assault with intent to commit a felony, aggravated assault, assault and battery, and simple assault, all of which are said to be 'lesser included offenses of homicide'. The trial Judge did appropriately instruct the jury as to all degrees of murder, manslaughter, justifiable homicide, and excusable homicide, all having to do with The death of the victim. This was proper. The indictment charged a death, and the proof established that the victim here, Diane, died almost instantly from a knife stabbed into her heart. It is not questioned that a homicide took place. The instructions questioned by defendant were not necessarily included in murder, or lawful or unlawful homicide.
Defendant cites the case of Brown v. State, Fla.1968, 206 So.2d 377, but we do not believe the Supreme Court in Brown meant to say that, in a first degree murder case, as...
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State v. Waff
...manslaughter, justifiable homicide, and excusable homicide, all having to do with the death of the victim." Sadler v. State, 222 So.2d 797, 799 (Fla.2d Dist.Ct.App.1969) (emphasis original). The rationale behind their statute, like ours, was clearly recognized. When a trial judge unilateral......
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Lewis v. State, 49668
...homicide. In reaching this conclusion we adopted the rationale of the District Court of Appeal, Second District, in Sadler v. State, 222 So.2d 797, 799-800 (Fla.2d DCA 1969), wherein the court rejected a similar The trial Judge did appropriately instruct the jury as to all degrees of murder......
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Brown v. State
...377 (Fla.1968). These offenses are not necessarily included offenses of the charge of murder in the first degree. In Sadler v. State, 222 So.2d 797 (Fla.App.2d, 1969), the trial court refused to charge on the crimes of assault with attempt to commit a felony, aggravated assault, assault and......
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Ricks v. State, 70--349
...reply to the defense's argument. Whitney v. State, Fla.1961, 132 So.2d 599; Evans v. State, Fla.App.1965, 178 So.2d 892; Sadler v. State, Fla.App.1969, 222 So.2d 797. The other comments objected to when made were the subject of an objection by defense counsel, which at all times were sustai......