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707 P.2d 109

State v. Humpherys

Utah Supreme Court

Decided September 19, 1985

Utah Supreme Court · decided 1985-09-19

Key passage — most relied on by later courts

“Continuances are traditionally granted to allow the defendant additional time for procuring an absent witness.”

quoted by 1 later decision, including Innosys, Inc. v. Department of Workforce Services

Relies on State v. Creviston · State v. Moosman

Good law ✅— No negative treatment on recordhow we know

Decided 1985-09-19

How this case has been cited

Cited by 3 later decisions — most recently May 2011

3 state decisions

101985199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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PER CURIAM.

¶1Defendant appeals from his conviction of theft by deception, a third degree felony in violation of U.C.A., 1953, § 76-6-405 (1978 ed.), and issuing bad checks, a third degree felony in violation of U.C.A., 1953, § 76-6-505(1) (1978 ed.) (Supp.1983). He claims that the trial court abused its discretion in denying his motion for a continuance of trial. We affirm.

¶2On August 22, 1984, defendant’s trial was set for January 8 and 9, 1985. Defendant was originally represented by court-appointed counsel, who was withdrawn by the court when defendant obtained employment. On December 18, 1984, defendant was again given court-appointed counsel, who filed a motion for a continuance the following day. The motion was argued on the first morning of the trial. Defendant’s counsel indicated that he wanted to speak to the State’s two material witnesses who had been very reluctant to talk with him. He also mentioned that there might be a third witness who might volunteer some helpful information on defendant’s case and mitigate defendant’s liability. The court noted that the third witness’s statement, if any, would refer to a case that had nothing to do with the charges before the court, and that the other two witnesses were present to testify at the trial. Its denial of the motion was based on those factors and the fact that defendant had notice of his trial well in advance.

¶3It is well established in Utah, as elsewhere, that the granting of a continuance is at the discretion of the trial judge, whose decision will not be reversed by this Court absent an abuse of discretion. State v. Creviston, Utah, 646 P.2d 750 (1982); State v. Moosman, Utah, 542 P.2d 1093*110(1975). Continuances are traditionally granted to allow the defendant additional time for procuring an absent witness. The defendant must show that the testimony he seeks is material and admissible, that he will produce the witness within a reasonable time, and that he has exercised due diligence before the request for a continuance. State v. Creviston, supra.

¶4Defendant’s counsel had three weeks to prepare for trial. Two of the witnesses defendant claimed were important to his case were actually present at trial and thus subject to cross-examination. The third, as noted by the court, did not link the defendant to any charges before the court, so that the need for his presence was speculative at best. Given those facts, the trial court did not abuse its discretion in denying defendant’s motion.

¶5We affirm the trial court’s ruling on the motion for a continuance.

STEWART, J., concurs in the result.
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