Wood v. State11/30/2001
On February 1, 1999, pursuant to a negotiated agreement, the appellant, Stevie Eugene Wood, pled guilty to incest and attempted second-degree rape. The trial court sentenced him to serve concurrent terms of ten years in prison on each conviction. It then split his sentences and ordered him to serve one year in the DeKalb County Jail, the next year on house arrest, and then five years on supervised probation. On March 26, 2001, the appellant's probation officer filed a delinquency report, alleging that the appellant had committed the new offenses of reckless endangerment, driving under the influence ("DUI"), attempting to elude, and driving while his license was revoked. Subsequently, on April 6, 2001, the State filed a "Petition to Revoke" the appellant's probation. After conducting a hearing, the circuit court revoked the appellant's probation. This appeal follows.
I.
The appellant argues that the circuit court erroneously denied his motion for a continuance. Specifically, he contends that he did not have sufficient time before the revocation proceedings to issue subpoenas to critical witnesses.
"It is well settled that a motion for a continuance is addressed to the sound discretion of the trial court and that, absent a showing of abuse of that discretion, the trial court's decision on the matter will not be overturned on appeal. Arnold v. State, 601 So. 2d 145 (Ala. Cr. App. 1992); see generally cases cited at 14 Ala. Digest 2d §586.
"To warrant a continuance on the ground that a witness is absent, it must be shown that the expected testimony of the witness is material and competent, that there is a probability that the evidence will be forthcoming if the case is continued, and that the moving party exercised due diligence to secure the evidence. Ex parte Saranthus, 501 So. 2d 1256 (Ala. 1986). Material evidence means ' vidence which has an effective influence or bearing on questions in issue.' Black's Law Dictionary 976 (6th ed. 1990). 'Simply put, a "material" fact is one that would matter in the trial on the merits.' Sumner v. Sumner, 664 So. 2d 718, 723 (La. App. 1995). It must be shown that substantially favorable testimony would be given by the witness and that the denial of a continuance would materially prejudice the defendant. Whitehead v. State, 429 So. 2d 641 (Ala. Cr. App. 1982). In addition, it must be established that the expected testimony is not merely cumulative or in the nature of impeachment, and the motion for a continuance must not be made merely for purposes of delay. Mitchell v. Moore, 406 So. 2d 347 (Ala. 1981); Malone v. State, 659 So. 2d 1006 (Ala. Cr. App. 1995); McClellan v. State, 628 So. 2d 1026 (Ala. Cr. App. 1993); Prince v. State, 623 So. 2d 355 (Ala. Cr. App. 1992).
"The appellant made no showing as to what the witness's testimony would be if he were present and testified. The refusal to grant a continuance because a witness will be absent is not error if there is no showing of what the witness would testify to. Smith v. State, 368 So. 2d 298 (Ala. Cr. App. 1978), writ quashed, 368 So. 2d 305 (Ala. 1979); Castona v. State, 17 Ala. App. 421, 84 So. 871 (1920). Thus, the appellant failed to establish that the expected testimony would be material and competent, that it would be substantially favorable to him, that it would not be merely cumulative or in the nature of impeachment, or that the denial of the continuance would be prejudicial to him." Smith v. State, 698 So. 2d 189, 205 (Ala. Crim. App. 1996), aff'd, 698 So. 2d 219 (Ala.), cert. denied, 522 U.S. 957, 118 S. Ct. 385, 139 L. Ed. 2d 300 (1997).
During the discussion regarding the appellant's motion for a continuance, the following occurred:
Page 1 2 Alabama DUI Attorneys
DUI Lawyers
|