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State v. Chapman10/16/2001
A Carroll County jury convicted the appellant, Marion Lee Chapman, of one (1) count of driving under the influence of an intoxicant. The trial court sentenced the appellant to eleven (11) months and twenty- nine (29) days, suspended after serving ten (10) days in confinement. On appeal, the appellant argues that the trial court erred in denying his motion for a continuance on the day of trial. We hold that the appellant has waived this issue for failing to prepare an adequate record for this Court's review. In addition, we conclude that, based on the limited record before us, the trial court did not abuse its discretion in denying the motion for a continuance. Therefore, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court of Carroll County is Affirmed
Jerry Smith, J., delivered the opinion of the court, in which James Curwood Witt, Jr., J., and Robert W. Wedemeyer, J., joined.
OPINION
I.
On January 16, 1999, the appellant was arrested for driving under the influence . Approximately four (4) months later, the appellant was arraigned in the Carroll County Circuit Court, and although he had retained an attorney to represent him, he appeared without counsel at his arraignment. During the proceeding, the following colloquy between the trial court and the appellant occurred:
THE COURT: And your attorney didn't show up?
MR. CHAPMAN: He told me he had to be in court today in Sumner County, that he would - - I was told to get a court date from you today and he would be here when you said to be here.
THE COURT: Well, that's fair enough. .
THE COURT: All right, I'm setting your case for trial on Thursday, May 13th.
MR. CHAPMAN: May the 13th.
THE COURT: That's this coming Thursday. You'll be given a copy of the indictment. . . .
THE COURT: All right, she's going to give a copy of a document. You understand what you are charged with?
MR. CHAPMAN: Yes, sir.
THE COURT: All right, I'm going to enter a plea of not guilty. Your case is set for jury trial this coming Thursday, May 13th. Do you understand that?
MR. CHAPMAN: Yes, sir.
THE COURT: You'll stay around and get a copy of the notice. And you might just make a note on the indictment and take it to your attorney, set 9:00 a.m. this coming Thursday. You have discussed with your attorney and you do want a jury trial. Is that correct?
MR. CHAPMAN: Yes, sir.
The trial was set for three (3) days after the appellant was arraigned. When the appellant and his attorney appeared in court on the date set for trial, counsel objected to the trial date and requested a continuance. The trial court denied the motion, and after a trial, the jury convicted the appellant of one (1) count of driving under the influence as charged in the indictment. From his conviction, the appellant now brings this appeal as of right.
II.
In his sole issue on appeal, the appellant contends that the trial court erred in denying his motion for a continuance. Initially, we note that the appellant has failed to provide this Court with a complete record regarding the motion for a continuance. It is the duty of the Appellant to prepare an adequate record for appellate review. Tenn. R. App. P. 24(b). "When a party seeks appellate review there is a duty to prepare a record which conveys a fair, accurate and complete account of what transpired with respect to the issues forming the basis of the appeal." State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993). In the absence of an adequat
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