Smith v. State, BP-99

• Citation: 525 So.2d 477,13 Fla. L. Weekly 1215
• Decision Date: 20 May 1988
• Docket Number: No. BP-99,BP-99
• Parties: 13 Fla. L. Weekly 1215 James R. SMITH, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 477

525 So.2d 477

13 Fla. L. Weekly 1215

James R. SMITH, Appellant, v. STATE of Florida, Appellee.

No. BP-99.

District Court of Appeal of Florida,

First District.

May 20, 1988.

Michael E. Allen, Public Defender and David A. Davis, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen. and John M. Koenig, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

JOANOS, Judge.

Appellant James R. Smith appeals the order of judgment and conviction, and the departure sentence imposed thereon, following his nolo contendere plea to sexual offenses against a child. The issues presented for our review are: (1) whether the trial court erred in denying appellant's motion for continuance of the sentencing hearing, and (2) whether the trial court erred in departing from the recommended guideline sentence. We affirm with respect to the reasons provided for departure, but reverse with regard to denial of a continuance and remand for a new sentencing hearing.

Appellant was charged initially in a five-count information, with sexual battery, lewd assault upon a child, and lewd conduct in the presence of a child. The victim was the eight-year-old daughter of appellant's live-in girl friend. The record reflects that the alleged acts of sexual battery first occurred when the child was seven years old, and continued for approximately two years, that is, up until the time of appellant's arrest. Appellant pled nolo contendere to lewd act upon a child and lewd conduct in the presence of a child, and the state nolle prossed the remaining charges.

Ten days prior to sentencing, the state filed a supplemental answer to the defendant's demand for discovery, disclosing the name, address, and telephone number of Dr. Trisha Biggers, the victim's psychologist. The supplemental discovery response advised that Dr. Biggers might be called at the sentencing proceeding "regarding her interviews, acts disclosed, counseling, conclusions, [and] psychological damage ... in regard to the victim." At the sentencing hearing, defense counsel asked for a continuance, on the ground that Dr. Biggers's report contained factual allegations made by the child which were inconsistent with and contrary to some of the statements made in the initial complaint, as well as in depositions. The state opposed the continuance, arguing that the report was furnished to the defense as soon as it was received, that Dr. Biggers's name had been disclosed ten days before the hearing, and that the guardian ad litem and other people involved in the sentencing were present.

In response to the state's argument, defense counsel stated that even if he had in fact received the documents a week before the hearing, or if he had received the notice on the same day it was received by the public defender's office, he would have come into court with the same motion for a continuance. Defense counsel explained he was no longer employed by the public defender's office, and could not account for the failure of that office to depose Dr. Biggers. Counsel noted, however, that nine days was a fairly short period of time in which to depose a witness in Gainesville from Lake City, and still have time to get a transcript before the hearing.

The record reflects that the state received the psychologist's written report one day prior to sentencing, and immediately furnished copies of the report to the trial court and defense counsel. The trial court expressed concern that defense counsel waited until the day of sentencing to ask for a continuance, and denied the motion for continuance. Instead of the continuance, defense counsel was granted thirty minutes to discuss the matters in the report with his client.

The recommended guideline sentence was 3 1/2 to 4 1/2 years. The trial court departed from the guidelines and sentenced appellant to two consecutive 10-year sentences, providing as reasons therefor the extreme emotional trauma to the child victim, and the familial relationship of the victim to the defendant.

With regard to the first issue raised in this appeal, a motion for continuance may be granted upon a showing of good cause, and "may be made only before or at the time the case is set for trial, unless good cause for failure to so apply is shown or unless the ground for the motion arose after the cause was set for trial." Fla.R.Crim.P. 3.190(g)(3). The principle is well settled that the grant or denial of a motion for continuance is within the trial court's discretion, and the court's ruling in such regard will not be disturbed unless a palpable abuse of discretion is demonstrated. Jackson v. State, 464 So.2d 1181 (Fla. 1985); Lusk v. State, 446 So.2d 1038 (Fla.) cert. denied, 469 U.S. 873, 105 S.Ct. 229, 83 L.Ed.2d 158 (1984); Williams v. State, 438 So.2d 781 (Fla. 1983), cert. denied, 465 U.S. 1109, 104 S.Ct. 1617, 80 L.Ed.2d 146 (1984); Jent v. State, 408 So.2d 1024 (Fla. 1981), cert. denied, 457 U.S. 1111, 102 S.Ct. 2916, 73 L.Ed.2d 1322 (1982); Loren v. State, 518 So.2d 342 (Fla. 1st DCA 1987).

The common thread running through those cases in which a palpable abuse of discretion has been found, is that defense counsel must be afforded an adequate opportunity to investigate and prepare any applicable defense. Loren v. State, 518 So.2d at 346; Brown v. State, 426 So.2d 76, 80 (Fla. 1st DCA 1983), disapproved on other grounds by Bundy v. State, 471 So.2d 9 (Fla. 1985); Harley v. State, 407 So.2d 382 (Fla. 1st DCA 1981). Adequate time to prepare a defense is a right that "is inherent in the right to counsel." Brown v. State, 426 So.2d at 80. In McKay v. State, 504 So.2d 1280 (Fla. 1st DCA 1986), this court set forth the following seven factors to consider in determining whether denial of a continuance was error due to lack of adequate time to prepare a defense: (1) the time actually available for preparation, (2) the likelihood of prejudice from the denial, (3) the defendant's role in shortening preparation time, (4) the complexity of the case, (5) the availability of discovery, (6) the adequacy of counsel actually provided, and (7) the skill and experience of chosen counsel and his pre-retention experience with the defendant or the alleged crime.

In Diaz v. State, 513 So.2d 1045 (Fla.1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1061, 98 L.Ed.2d 1022 (1988), the court considered the adequacy of notice afforded defense counsel regarding the state's intention to call a state prisoner, Gajus, as a witness. One week before trial, the state filed notice of its intent to call Gajus. Gajus had occupied the cell next to that of appellant during appellant's pre-trial incarceration. Appellant allegedly discussed his pending murder and robbery charges with Gajus. Defense counsel deposed Gajus immediately after receiving the state's notice. However, on the first day of trial, counsel moved for a continuance, claiming insufficient time to discuss the truth of Gajus's statements with appellant. Without discussion, the supreme court found no abuse of discretion in the trial court's denial of the defense request for a...