Opinion
Nos. 77-1746, 77-1747.
January 31, 1979.
Appeal from the Circuit Court of Broward County, Paul M. Marko, III, J.
Robert Perczynski, in pro. per.
Robert L. Shevin, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for appellee.
Although appellant states seven points for consideration on appeal only one deserves discussion. That point involves the failure of the trial court to grant appellant's motion for a continuance.
Appellant and Rubin Lopez were arrested in conjunction with the burglary of a dwelling. On April 14, 1977, Appellant moved for a speedy trial and to produce Lopez at appellant's trial, Lopez then being incarcerated in the State prison system. The motion to produce was granted and dated April 13, 1977; the motion for speedy trial was granted and dated April 14, 1977, and trial was set for April 19, 1977. One day before trial appellant moved orally for a continuance because the State had been unable in the time allowed to obtain the presence of Lopez. The trial judge denied the motion for continuance on the ground that when appellant requested the speedy trial that meant he was unconditionally ready to go to trial as of that time. Appellant argued that in the context of this case it meant he was ready to go to trial if the State produced Lopez.
Appellant may be correct in his analysis of the speedy trial rule as applied to the circumstances of this case. However, rulings upon motions for continuances involve the exercise of the trial court's discretion and if the court is correct for any reason he should be affirmed. Stated another way, the burden is upon the appellant to demonstrate reversible error, and he has failed to do so.
Appellant's motion for continuance made the day before trial was made orally. Rule 3.190(a), Florida Rules of Criminal Procedure, requires all pretrial motions to be in writing unless waived by the court. Rule 3.190(g)(4), Florida Rules of Criminal Procedure, requires a motion for continuance to be certified by counsel to have been made in good faith. No showing was made even orally that the witness would testify to facts which would assist appellant in his defense and that those facts could not be proven by another witness. Yet it has long been the rule in this jurisdiction that a motion for continuance on the ground of an absent witness must show the subject matter of the expected testimony and that it will not be cumulative. Smith v. State, 59 So.2d 625 (Fla. 1952); Andrews v. State, 134 Fla. 450, 184 So. 88 (1938).
Having failed to meet the procedural requirements for a continuance, appellant is not in a position to fault the trial judge for denying his motion therefor. Accordingly, the judgment appealed from is affirmed.
LETTS, J., concurs.
ANSTEAD, J., dissents, with opinion.
I believe the trial court erred in denying the appellant's motion for a continuance. The appellant and Rubin John Lopez were charged with burglary. Lopez pleaded guilty and was sentenced to ten years imprisonment. Appellant claimed Lopez was solely responsible for the burglary and that he, appellant, was along to assist Lopez only because Lopez told him he was picking up a television set from a friend's apartment. Appellant filed a motion to compel the state to deliver Lopez from prison to court so he could be called as a witness on behalf of appellant. The motion was granted and the state was ordered to produce Lopez at trial. Appellant also filed a motion for speedy trial which was granted the day after the state was ordered to produce Lopez. The court directed that trial commence five days later, on April 19, 1977. The day before trial appellant moved for a continuance on the grounds that the state had informed him that due to transportation problems, Lopez could not be produced from prison in time for trial. This was confirmed by the state. The trial court refused to grant a continuance on the basis that appellant had waived his right to have Lopez appear by moving for a speedy trial thereby representing that he was "absolutely ready" to commence trial. Appellant contended that he had a right to rely on the order granting his motion to produce Lopez in moving for speedy trial. I agree. Appellant, by subsequently moving for continuance, was waiving his right to speedy trial but he did not lose his right to have Lopez produced when his motion for speedy trial was granted after an order had been entered compelling the state to produce Lopez for trial. It is true that appellant's version of the facts presented in his testimony at trial was contradicted by the state's proof and rejected by the jury. However, this has no effect on his right to call witnesses in his own behalf, a right which was originally recognized by the court in granting the motion to produce Lopez.