State v. Velarde11/7/2003
the discretion of the trial court has been so abused as to prejudice the defendant."). A trial continuance is warranted in the middle of a trial only if exigent circumstances exist. State v. Blodgette, 121 Ariz. 392, 590 P.2d 931 (1979); Eisenlord. Appellant contends the court abused its discretion, insisting there were no exigent circumstances justifying the continuance here. He contends the state was unprepared and should have been compelled to move forward and that he was prejudiced by the enhancement of the sentence.
We are troubled by the fact that the continuance was necessitated by the state's lack of preparation. Indeed, we cannot say, as the supreme court did in State v. Hoffman, 78 Ariz. 319, 325, 279 P.2d 898, 902 (1955), that granting a continuance "was not a reward for incompetency" and that the state had not been "derelict." Furthermore, we reject outright the trial court's implicit suggestion that principles of due process are somehow relaxed at a bench trial. Nevertheless, appellant has failed to establish the kind of prejudice that would be required in order for this court to be able to conclude that the trial court abused its discretion by granting a brief continuance under the circumstances of this case. Appellant does not and cannot claim that he was surprised with new evidence because of the delay or that he lacked notice of the state's intent to establish that he had sustained this prior conviction. See State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d 670 (1985) (finding that in order to establish abuse of discretion under discovery rules defendant must show prejudice resulting from surprise or delay). Clearly, he anticipated or should have anticipated that the state would establish the prior conviction by a fingerprint identification, which it ultimately did. Thus, because the species of evidence the state ultimately relied on to support its allegation was no different than what appellant had expected, his defense of the allegation of this prior conviction was no different.
We think the decision to grant the continuance in this case is analogous to the court's decision to permit the state to reopen its case to introduce additional evidence, as in State v. Dickens, 187 Ariz. 1, 926 P.2d 468 (1996), and State v. Patterson, 203 Ariz. 513, 56 P.3d 1097 (App. 2002), aff'd on this ground, No. CR-03-0007-PR, 2003 WL 21242145 (2003). Thus, in that regard, even assuming the documents obtained from the file after the continuance may be characterized as additional evidence, appellant had "'a full and fair opportunity to rebut the additional evidence.'" Dickens, 187 Ariz. at 13, 926 P.2d at 480, quoting State v. Cota, 99 Ariz. 237, 241, 408 P.2d 27, 29 (1965). Appellant has not demonstrated that the trial court's granting of the continuance deprived him of a substantial right. Cota. Moreover, like the decision whether to permit the state to reopen its case to introduce further evidence, the purpose of the process is "'"to promote justice, not thwart it."'" State v. Patterson, 203 Ariz. 513, , 56 P.3d 1097, , quoting Dickens, 187 Ariz. at 13, 926 P.2d at 480, quoting Cota, 99 Ariz. at 240, 408 P.2d at 28. Consequently, although we do not condone the state's failure to prepare adequately for trial, we cannot say the trial court abused its discretion in this case, given that the original document was no different in substance than the illegible one and the fact that appellant was neither surprised nor otherwise prejudiced by the brief delay.
The conviction and the sentence are affirmed.
CONCURRING:
J. WILLIAM BRAMMER, JR., Presiding Judge
JOSEPH W. HOWARD, Judge
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