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People v. County Court7/21/1988
JUDGE PLANK
Respondents, the Arapahoe County Court and the Honorable Ralph Taylor, appeal a district court order which found, pursuant to C.R.C.P. 106(a)(4), that the respondent court had exceeded its jurisdiction and/or abused its discretion in dismissing counts of a criminal complaint, and which directed that those counts be reinstated. We reverse and remand.
A defendant was charged in a four-count criminal information. He appeared before the respondent court on August 13, 1986, and requested a preliminary hearing. The hearing was set for September 4, 1986, on the felony charge of menacing and the class 1 misdemeanor charge of vehicular eluding. The two remaining counts, driving under the influence and driving under denial, were not appropriate for preliminary hearing.
At the beginning of the preliminary hearing, the prosecution moved for a continuance because its only witness, a police officer, was unavailable because he was on vacation. The district attorney said he had been informed of the witness' unavailability only ten minutes previously.
The respondent court denied the continuance, and when the district attorney said he could not proceed to preliminary hearing, it dismissed the two counts scheduled for hearing and arraigned the defendant on the remaining charges.
The People appealed the county court's action to the district court pursuant to C.R.C.P. 106(a)(4). In their appeal, the People attacked only the dismissal of the two criminal counts, but did not challenge the denial of a continuance. The respondent court answered the People's argument in part by maintaining that the denial of continuance had been a valid exercise of discretion. The district court, however, did not address the respondent's refusal to grant a continuance; it ruled only on the dismissal of the counts, finding the dismissal an abuse of discretion and an act in excess of the respondent court's jurisdiction.
I.
The respondent court contends that it did not abuse its discretion in denying the prosecution's request for a continuance. We agree.
We first observe that the district court's failure to address this issue does not preclude us from doing so. The issue was raised in the district court pleadings filed by the respondent court and is thus properly before us. See Patterson v. Cronin, 650 P.2d 531 (Colo. 1982).
On review, a court's denial of a continuance, a matter which rests within its sound discretion, will not be reversed absent a clear abuse of that discretion. Miller v. People, 178 Colo. 397, 497 P.2d 992 (1972); People v. Dillon, 633 P.2d 504 (Colo. App. 1981). The totality of circumstances surrounding the request for continuance must be considered in reviewing the court's decision. Miller, supra ; Dillon, supra.
A continuance will not be granted because of a witness' absence "unless due diligence was exercised to obtain his presence. The burden is on the party applying for the continuance to prove the use of such diligence." 3 C. Torcia, Wharton's Criminal Procedure § 428 (12th ed. 1975).
Here, the preliminary hearing date had been set for three weeks. The district attorney did not request a continuance until he appeared at the preliminary hearing. Other than informing the court that his witness was on vacation, the district attorney offered no explanation for his failure to secure the witness' presence. He made no showing that he had exercised diligence in trying to obtain the witness' presence, neither proffering evidence nor claiming that the witness
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