State v. Motley, 18841
| Decision Date | 19 November 1968 |
| Docket Number | No. 18841,18841 |
| Citation | 164 S.E.2d 569,251 S.C. 568 |
| Parties | The STATE, Respondent, v. Tommy Motley, Roger Motley and Rhett Shotte, Defendants, of Whom Tommy MOTLEY is Appellant. |
| Court | South Carolina Supreme Court |
George W. Keels, Florence, for appellant.
Sol. T. Kenneth Summerford, Florence, for respondent.
Tommy Motley, the appellant herein, along with Roger Motley and Rhett Shotte were indicted by the Grand Jury of Florence County at the 1968 April Term of the Court of General Sessions, charging them with the crimes of housebreaking, safecracking, grand larceny and conspiracy to commit the offense of safecracking, in connection with a safe taken from the Gangplank Seafood Restaurant, in the City of Florence, South Carolina, sometime during the period after the close of business on Saturday, October 7, 1967, and the morning of Tuesday, October 10, 1967.
It appears from the record that Robert G. Knight was employed to represent Roger Motley and George W. Keels was employed to represent Tommy Motley, and David W. Keller, Jr. and E. N. Zeigler were appointed to represent Rhett Shotte. When the case was called for trial, the court was informed, at Chambers, that Robert G. Knight, attorney for Roger Motley, had removed himself from the case because his fee had not been paid. The court then appointed two other attorneys to defend Roger Motley, with the trial to commence the following day. The attorney for Tommy Motley then made a motion for a continuance on the ground that a conspiracy charge was pending and he had not had an opportunity to confer with the two court appointed attorneys thereabout. The Solicitor agreed not to proceed on the conspiracy charge inasmuch as Robert G. Knight no longer represented Roger Motley. The next day the court was advised by Robert G. Knight that his fee had been paid and he was back in the case representing Roger Motley; whereupon the Solicitor refused to strike the conspiracy count from the indictment because the retained counsel of Roger Motley was back in the case. It was at this stage of the case that counsel for all of the defendants made motions to continue the case in order to permit them to make preparation for defending the conspiracy charge. All of these motions were refused and the case was at 11:45 A.M. set for trial on the same day at 2:30 P.M. The case was tried as scheduled, resulting in the jury finding all of the defendants guilty on all counts of the indictment. Notice of intention to appeal to this court was duly given by the appellant.
The first question for determination is whether the trial judge committed prejudicial error in refusing to grant appellant's motion for a continuance. It is well settled in this jurisdiction that a motion for a continuance is addressed to the sound discretion of the court, and the decision of the trial court thereabout will not be disturbed on appeal in the absence of an abuse of discretion amounting to an error of law. State v. Cannon, 248 S.C. 506, 151 S.E.2d 752. When a motion for a continuance is based upon the contention that counsel for the defendant has not had time to prepare his case its denial by the trial court has rarely been disturbed on appeal. It is axiomatic that determination of such motions must depend upon the particular facts and circumstances of each case. State v. Livingston, 233 S.C. 400, 105 S.E.2d 73.
It appears that the appellant and his codefendants were tried under an indictment returned by the Grand Jury at the 1968 April Term of the Court of General Sessions. It also appears that another indictment, in which was included the charge of conspiracy, had been in existence against the defendants since October, 1967. Apparently the Solicitor handed out a new indictment against the three defendants here named, eliminating from the original indictment a defendant who he intended to use as a witness in behalf of the State. It further appears that the Solicitor had advised counsel for the several parties that the case would be tried at the April 1968 Term of the Court of General Sessions. Counsel for the appellant moved for a continuance before the day of trial not because of the inclusion of the conspiracy count in the indictment returned at the April Term but only because he wanted to discuss the charge of conspiracy with the appointed counsel. The conspiracy charge had long been in existence and was known to the appellant, his codefendants and their attorneys, and the case at the time of the Solicitor's refusal to strike the conspiracy charge therefrom was in the same status as when the indictment was returned. Counsel for the appellant and the other defendants had adequate notice of the conspiracy charge and sufficient time to prepare their defense to all of the charges prior to the term at which the defendants were tried, even though they were tried under a new indictment.
The record shows that the retained counsel for Roger Motley stated to the court during the proceedings upon appellant's motion for a continuance that he had conferred with his client and his brother, the appellant herein, and with counsel for the appellant and counsel for the defendant, Rhett Shotte, prior to the term of court and he further stated, 'Insofar as conspiracy is concerned, we are ready to go to trial' but he wished the case continued until counsel for the defendant Shotte could be present and participate in the trial.
The motion of the appellant for a continuance does not show how the refusal thereof was prejudicial to him. The appellant does not point to any specific testimony or other evidence that he could have produced had him motion been granted.
After a very careful examination of the record, we are unable to find that the trial judge abused his discretion or committed prejudicial error in refusing to grant the motion of the appellant for a continuance.
The other question for decision is whether the trial judge committed reversible error in refusing to strike the testimony of Gene Lessmeister concerning certain statements made to him...
To continue reading
Request your trial
-
State v. Bennett
...S.Ct. 718, 133 L.Ed.2d 671 (1996); Bennett's Issue 12: Bozeman v. State, 307 S.C. 172, 414 S.E.2d 144 (1992); see also State v. Motley, 251 S.C. 568, 164 S.E.2d 569 (1968). CONCLUSION We affirm Bennett's convictions and the sentences imposed for armed robbery and larceny. The sentence of de......
-
State v. Colden
......The court noted its reliance upon Bozeman v. State, 307 S.C. 172, 414 S.E.2d 144 (1992), and State v. Motley, 251 S.C. 568, 164 S.E.2d 569 (1968), where it found "no reversible error because the petitioner did not point to any other evidence or witnesses ......
-
State v. Pendergrass
...... This Court will rarely disturb a trial court's resolution of a motion for continuance. State v. Motley, 251 S.C. 568, 164 S.E.2d 569 (1968); State v. Hill, S.C., 234 S.E.2d 219 (1977). A review of the transcript satisfies us that the public defender's ......
-
State v. Elephant, Inc.
......Motley, 251 S.C. 568, 572, 164 S.E.2d 569, 570 (1968))); id. (rejecting appellant's argument "that a continuance should have been granted because the ......