One of the complications of jury trials is simply managing to get all the witnesses to court. In some situations, a defendant in a criminal trial may need to file a motion to continue his or her trial because an important defense witness is absent or unavailable for the trial. Obtaining a continuance on these grounds can be surprisingly difficult at times, especially if the judge or prosecutor is pushing for a trial to go forward on a certain date. When requesting a continuance, criminal defense lawyers need to make their reasons for needing a continuance clear, and they need to put the request on the record. Merely making the request in an off-the-record scheduling conference is not going to be enough to preserve the issue for appeal. Trial counsel needs to file a written motion with the trial court as far ahead of trial as possible, and the motion needs to clearly state why the case must be continued.
A trial court generally has discretion over whether or not to grant a motion for a continuance, and a judge’s ruling on the motion will only be reversed if there is an abuse of discretion. Ex parte McKenna, 655 So. 2d 989 (Ala. 1995). However, there are cases where the Alabama appellate courts have ruled that a trial court did abuse its discretion in denying a continuance. The Alabama Supreme Court has ruled that a trial court should grant a motion for a continuance over an absent witness or evidence where the request meets a three-part test: (1) the expected evidence will be material and competent; (2) there must be a probability that the evidence will be forthcoming if the case is continued; and (3) the moving party must have exercised due diligence to secure the evidence. Ex parte Saranthus, 501 So. 2d 1256, 1257 (Ala. 1986).
Trial counsel’s motion to continue the trial should address all three of these factors to make sure the judge has sufficient grounds to grant a continuance, or to preserve the issue for appellate review if the judge denies the continuance. For more information, see the video below.
To discuss whether you should appeal your felony conviction or the denial of a motion to continue, contact our office at (800) 737-3702 Ext. 1 or fill out our online Contact form.
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