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State v. Moeller8/30/2000
to grant a continuance include: (1) whether the delay resulting from the continuance will be prejudicial to the opposing party; (2) whether the continuance motion was motivated by procrastination, bad planning, dilatory tactics or bad faith on the part of the moving party or his counsel; (3) the prejudice caused to the moving party by the trial court's refusal to grant the continuance; and (4) whether there have been any prior continuances or delays. Evens v. Thompson, 485 NW2d 591, 594 (SD 1992) (citations omitted). Additionally, when a continuance is requested for lack of time to prepare, the court must consider (1) whether the accused has had ample time to prepare for trial and (2) whether additional time would allow the defendant to be any better prepared to go to trial. 22A CJS Criminal Law, § 624 (1989).
[ ] In United States v. Medlin, 353 F2d 789, 793 (6thCir 1965), cert. denied, 384 US 973, 86 SCt 1860, 16 LEd2d 683 (1966), the court was presented with a similar issue. There defendant's counsel claimed he had inadequate time to prepare, detailing the long hours he had already spent on the case and stressing the attention diverted to other obligations of his practice. The trial court denied the motion, and the court of appeals affirmed, relying on the fact that the attorney had been engaged close to a year before trial and in that period of time had employed numerous pretrial procedures to prepare for the accused's defense. Further, the court noted that counsel had not shown what might have been done to enhance his preparation for trial. Finally, it affirmed because it found that no prejudice to the defendant resulted from the denial of the continuance.
[ ] Here, a period of ten months elapsed between the time Moeller's first conviction was overturned and the time his second trial commenced. The record shows that both of his defense attorneys worked diligently to prepare an effective defense and did an admirable job in presenting a thorough case. Cf. State v. Lang, 354 NW2d 723 (SD 1984) (stating that despite defendant's claim of unpreparedness, he was able to procure and present seven alibi witnesses at trial). Moreover, it must be remembered that both defense attorneys also represented Moeller in his first trial and therefore were familiar with State's case and the concededly voluminous file. There was no specific showing how additional time would have aided the defense any more in its preparation.
[ ] Moeller's counsel place great emphasis on the fact that they did not wait until the last minute to request a continuance. Indeed, they filed the first request almost eight months in advance of the trial date. They claim their combined experience in defending five death penalty cases, and over twenty murder cases, led them to conclude that eight months was an inadequate amount of time to prepare for trial. We do not find their argument persuasive.
[ ] Moeller also argues that the trial court violated his constitutional rights by interpreting SDCL 23A-44-5.1 to require that both parties must stipulate to a waiver of the 180-day rule. His argument seems to be that only the defendant must waive the 180-day rule, and that by requiring State to consent to such a waiver, his rights to due process and effective assistance of counsel were violated. This position is untenable. First, the 180-day rule is a procedural rule of court and not a constitutional requirement. State v. Sorensen, 1999 SD 84, , 597 NW2d 682, 684; State v. Fowler, 1996 SD 79, , 552 NW2d 391, 393; State v. Erickson, 525 NW2d 703, 711 (SD 1994). "Violation of the 180-day rule is not synonymous with violation of a constitutional right to a speedy trial." Sorensen, 1999 SD 84, , 597 NW2d at 684 (citing E
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