Shepherd v. State
| Decision Date | 20 January 1959 |
| Docket Number | No. A-322,A-322 |
| Citation | 108 So.2d 494 |
| Parties | Makron H. SHEPHERD, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
David H. Levin, Pensacola, for appellant.
Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for appellee.
Defendant has appealed from a judgment and prison sentence of twenty years based upon a verdict finding him guilty of manslaughter. The error assigned on appeal is directed to the trial court's denial of a motion for postponement or continuance made by defendant at the time and under the circumstances hereinafter related.
On January 14, 1957, an information was filed against defendant charging him with manslaughter by the operation of a motor vehicle while under the influence of intoxicating liquors. The case was set for trial on March 7, 1958. Two days before trial date the county solicitor filed a new information charging defendant with manslaughter by the culpably negligent operation of a motor vehicle. It appears that the first information was accordingly abandoned or withdrawn and the second charge treated as an amended information. The record is silent as to when defendant or his counsel was apprised that the new information had been filed and the old one withdrawn.
On the day set for trial defendant and his counsel appeared before the court and orally moved for an order granting a continuance for the term or postponement to a later date to be fixed by the court. The grounds urged in support of the motion were that defendant had received only one day's notice that the charge against him had been materially changed; that he had prepared himself to defend against the charge of manslaughter by intoxication originally lodged against him, but that the evidence and testimony marshalled in support of this defense would be useless and of no material benefit in establishing a defense against the charge of manslaughter by culpable negligence; that diligence had been exercised in an endeavor to prepare for trial on the amended charge, but that the short interval of time ensuing between the amendment and trial date made it impossible for defendant to adequately prepare his defense and secure by subpoena the presence of witnesses whose testimony would be necessary to support his defense against the amended charge; that late in the afternoon on the day preceding trial defendant had located a named eyewitness who was present at the scene of the collision out of which the charge arose, whose testimony would establish defendant's innocence; that before defense counsel's interview with this witness was completed the office of the clerk of the court had closed for the night and the procurement of a subpoena to assure the witness' attendance at the trial was impossible; that although the witness promised to appear at the trial on the following morning and testify on behalf of defendant, the witness had nevertheless failed to appear and defendant could not safely proceed to trial without his testimony. Defendant's counsel requested the court's permission to properly incorporate his motion in the record and have it verified by the defendant's oath Upon the court's refusal, defendant asked leave to be sworn so that he could repeat under oath the motion as orally stated by his counsel. The court likewise refused this request and denied the motion for the reason that it did not comply with the requirements of the statute. 1 Defendant was immediately placed on trial which resulted in the judgment and sentence now under assault.
It is a fundamental proposition that the granting or denial of a postponement or continuance in an action at law rests largely in the sound discretion of the trial court. Its ruling will not usually be disturbed absent a clear showing of abuse. 2 A sound judicial discretion must take into account that whether a defendant be guilty or not, he is entitled to...
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Bowen v. Manuel
...of procedure is to attain this end. Barber v. State, 5 Fla. 199; Courtney v. Central Trust Co., 112 Fla. 298, 150 So. 276; Shepherd v. State, Fla.App., 108 So.2d 494. In the absence of a controlling statute or overriding rule of procedure trial courts have a broad discretion in conducting t......
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...was assigned a case, with no chance to prepare. Kimbrough v. State, 352 So.2d 925, 927 (Fla. 1st DCA 1977). See also Shepherd v. State, 108 So.2d 494 (Fla. 1st DCA 1959); Brooks v. State, 176 So.2d 116 (Fla. 1st DCA 1965). "The common thread running through each of these cases is that defen......
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Baker v. State
...the defense that it wanted to present multiple pieces of evidence that had not been previously disclosed in discovery); Shepard v. State, 108 So.2d 494 (Fl. App. 1959) (where, two days before trial, the State added a new charge); Miller v. State, 43 Okla. Crim 392 (1929) (where, following j......
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Jernigan v. State, 37989
...(1927), this Court held that fifteen days between arrest and trial for rape was insufficient. The District Court in Shepherd v. State, 108 So.2d 494 (Fla.App.1st 1959), found that the right to a speedy trial was "zealously protected" where defendant was required to stand trial two days afte......