State v. Dickson

Decision Date04 March 1967
Docket NumberNo. 44223,44223
Citation198 Kan. 219,424 P.2d 274
PartiesThe STATE of Kansas, Appellee, v. Edward DICKSON, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. The granting of a continuance in a criminal prosecution is largely within the discretion of the trial court and its ruling in the matter will not be disturbed unless it affirmatively appears that such discretion has been abused to the extent that a defendant's substantial rights have been prejudiced.

2. In an appeal from a conviction of burglary in the second degree and larceny in connection therewith, the record is examined and it is held-no error shown.

L. J. Grant, Topeka, argued the cause and was on brief for appellant.

Robert D. Hecht, County Atty., argued the cause and Robert C. Londerholm, Atty. Gen., with him on brief for appellee.

PRICE, Chief Justice.

Defendant was convicted of burglary in the second degree and larceny in connection therewith. He had two prior convictions, both in Shawnee county-each being for burglary in the second degree and larceny in connection therewith-in 1952 and 1959. Accordingly, under the provisions of the habitual criminal statute (K.S.A. 21-107a) and K.S.A. 21-109, he was sentenced to confinement for a period of forty years. He has appealed.

Although five contentions are made-defendant's chief argument is directed to the proposition that under the circumstances disclosed he was erroneously forced to trial and that a continuance should have been granted.

On May 21, 1964, defendant was charged with the offenses of burglary in the second degree and larceny in connection therewith, and receiving stolen property (K.S.A. 21-549). His preliminary examination was held on June 14. He was present with court appointed counsel, Mr. Robert Nelson, a member of the Topeka Bar. Defendant testified. He was bound over to the district court on both charges.

On September 14, defendant appeared in the district court. He announced that he was without funds to employ an attorney. Accordingly, Mr. Nelson, who had represented him at his preliminary examination, was formally appointed to represent him at his trial, and it was announced that the trial would be held during the week of October 12. This was satisfactory to all parties. The latter part of September defendant and Mr. Nelson were advised the trial was set for October 16.

On October 14, Mr. L. J. Grant, a member of the Topeka Bar, advised Mr. Nelson that he (Grant) had been retained by defendant to represent him and that he (Nelson) had been 'fired.'

On October 15, all parties were in court. The court was told that defendant and Mr. Nelson had had a 'falling out' and that defendant no longer desired that Mr. Nelson represent him. Mr. Grant stated that he was unfamiliar with the case and that he had already made plans for an immediate vacation and would be out of town until about November 10. He, Grant, sought a continuance.

The state, calling attention to the fact a jury had already been called and witnesses subpoenaed-objected to such 'last minute strategy'.

Following a lengthy colloquy between court and counsel the court denied the request for a continuance and announced that the case would go to trial the next morning-as scheduled. In so ruling the court called attention to the fact Mr. Nelson had been familiar with the case for months; that his appointment had been satisfactory to defendant; that a jury had been called and witnesses subpoenaed; that defendant and his counsel had had notice of the setting for at least a month,...

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15 cases
  • State v. Hartfield
    • United States
    • Kansas Court of Appeals
    • 12 Enero 1984
    ...appears that such discretion has been abused to the extent that a defendant's substantial rights have been prejudiced." State v. Dickson, 198 Kan. 219, Syl. p 1, 424 P.2d 274 And see also State v. Holt, 221 Kan. 696, Syl. p 1, 561 P.2d 435 (1977); and State v. Miller, 4 Kan.App.2d 68, Syl. ......
  • State v. Miller
    • United States
    • Kansas Court of Appeals
    • 16 Noviembre 1979
    ...a brief review of several cases involving continuances requested due to some problem with counsel is instructive. In State v. Dickson, 198 Kan. 219, 424 P.2d 274 (1967), the Supreme Court held that the trial court did not err in refusing to grant a continuance because there was no showing t......
  • State v. Kimmel, 45231
    • United States
    • Kansas Supreme Court
    • 7 Diciembre 1968 disturbed on appeal unless there has been an abuse of discretion which prejudiced a defendant's substantial rights. (State v. Dickson, 198 Kan. 219, 424 P.2d 274; State v. Adamson, 197 Kan. 486, 419 P.2d 860; State v. Hickock & Smith, 188 Kan. 473, 363 P.2d 541, appeal dismissed and cert......
  • State v. Lemon
    • United States
    • Kansas Supreme Court
    • 17 Mayo 1969
    ...showing of abuse of discretion such ruling will not be disturbed on appeal. The record here shows no abuse of discretion. (State v. Dickson,198 Kan. 219, 424 P.2d 274.) The appellant relies upon the following quotation in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 'We now hol......
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