1. Continuance
Note: A continuance is a request for more time to prepare. The motion asks the court to move a hearing that has already been set to a later date. A continuance is required in most cases that proceed to trial, and the defendant is usually required to “waive time” for a continuance.
It takes time to prepare a case for trial, especially if the case involves serious charges or multiple defendants.
The attorney may, therefore, request multiple continuances, each of which will require the defendant to waive time. A defendant has the right to a speedy trial, but this right often conflicts with the defendant’s right to effective assistance of counsel. An unprepared attorney may not be effective.
It is usually a good idea to waive time when requested by your attorney. While it might be possible to force a case to trial before the prosecution is ready, it is a risky strategy to force the case to trial when your own attorney is not ready. If you feel that the case is not progressing quickly, ask your attorney to explain delays in your case and what progress is being made.
Often, the attorney is also anxious to get a case to trial, but he has to request a continuance because some necessary witness is unavailable or some expert needs more time to do more testing.
The following sample motion to continue must be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.
∞◊∞◊∞
TO THE COURT AND THE DISTRICT ATTORNEY:
PLEASE TAKE NOTICE that at the date and time indicated above, or as soon thereafter as the matter can be heard in the above entitled court, the defendant will move that the Court continue the Trial date.
The motion will be based on this notice of motion, the attached declaration, the memorandum of points and authorities served and filed herewith, the records on file in this action and on such oral and documentary evidence as may be presented at the hearing.
Dated:
___________________
By Elliot Magnus,
Attorney for Dave Douglass
DECLARATION IN SUPPORT OF MOTION TO CONTINUE
I, Elliot Magnus, Attorney for Defendant, declare and aver as follows:
Our investigator has been unable to locate a key witness, Wayne Whitt. Mr. Whitt is a percipient witness to the shooting herein. He is the only witness who is able to testify regarding the facts before, during, and after.
Further, I received new discovery this week that will require investigation.
Finally, the court appointed firearm expert for the defense has not completed or sent his final report to me.
Based on the foregoing, I respectfully request a reasonable continuance in the above entitled matter.
Dated:
___________________
By Elliot Magnus,
Attorney for Dave Douglass
POINTS, AUTHORITIES, AND ARGUMENT
Penal Code §1050(b) provides that:
To continue any hearing in a criminal proceeding, including the trial, (1) a written notice shall be filed and served on all parties to the proceeding at least two court days before the hearing sought to be continued, together with affidavits or declarations detailing specific facts showing that a continuance is necessary….
The grant or denial of a motion for continuance is an act within the Court’s discretion (Ungar v. Sarafite (1964) 376 US 575, 589), but this discretion is not without bounds:
While the determination of whether in any given case a continuance should be granted normally rests in the discretion of the trial court, that discretion may not be exercised in such a manner as to deprive the defendant of a reasonable opportunity to prepare his defense. [citation]
In considering a request for a continuance, the Court must consider the defendant’s right to a fair trial. (People v. Courts (1985) 37 Cal 3rd 784, 794)
The right to counsel (United States Constitution, Amendment VI; California Constitution article I, section 15) includes the right to adequately prepare a defense (People v. Maddox (1967) 67 Cal 2nd 647, 652).
The unavailability of a witness whose testimony has a legitimate tendency to prove or disprove a fact that could influence the decision in the case is good cause for a continuance. (See People v. Dunstan (1922) 59 Cal App 574, 584. See also Owens v. Superior Court (1980) 28 Cal 3rd 238, 250)