Application of balancing factors becomes necessary only if a sufficient delay requiring factual explanation first exists. Tageant v. State, 683 P.2d 667 (Wyo. 1984); Wheaton, 528 A.2d 1109. Cf. State v. Carisio, 552 A.2d 23 (Me. 1988), sixteen months delay gives rise to a presumption that such a delay is unnecessary.
This Court has consistently held that the granting of a motion for continuance is within the discretion of the trial court. Tageant v. State, Wyo., 683 P.2d 667 (1984); Haight v. State, Wyo., 654 P.2d 1232 (1982); Sims v. State, Wyo., 530 P.2d 1176 (1975). The standard for review, therefore, is limited to determining whether the trial court abused its discretion by denying the continuance.
The grant or denial of a request for continuance is a discretionary ruling by the trial court, and unless a clear showing of abuse of discretion that results in manifest injustice is presented, this Court does not disturb such a ruling. Tageant v. State, 683 P.2d 667, 668-69 (Wyo. 1984); Sims v. State, 530 P.2d 1176, 1181 (Wyo. 1975). The determination must be based upon the facts and circumstances presented in each case. Sims, 530 P.2d at 1181.
Absent a clear showing of manifest injustice, an abuse of discretion will not be found when a court refuses to grant a continuance requested solely on the basis of insufficient preparation time. Tagaent v. State, 683 P.2d 667, 669 (Wyo. 1984). A review of the course of proceedings reveals that Griswold had sufficient time to prepare, investigate, and defend against the prior bad act evidence.
In the case of a trial court's refusal to grant a continuance requested on the basis of insufficient time to prepare for trial, an abuse of discretion will not be found unless there is a clear showing of manifest injustice. Tageant v. State, 683 P.2d 667, 668-69 (Wyo. 1984). IV. DISCUSSION
Because of these facts, I view the decision in Stuebgen as factually inapplicable here, and would defer to the policy against dismissal of charges with prejudice illustrated by the multitude of subsequent decisions of this court affirming convictions in the absence of a showing of prosecutorial misconduct or actual prejudice to the defendant's liberty interests or ability to formulate a defense. Compare generally the affirmances in Sodergren v. State, 715 P.2d 170 (Wyo. 1986); Binger v. State, 712 P.2d 349 (Wyo. 1986); Caton v. State, 709 P.2d 1260 (Wyo. 1985); Tageant v. State, 683 P.2d 667 (Wyo. 1984); Grable v. State, 649 P.2d 663 (Wyo. 1982); Heinrich v. State, 638 P.2d 641 (Wyo. 1981); Robinson v. State, 627 P.2d 168 (Wyo. 1981); Estrada v. State, 611 P.2d 850 (Wyo. 1980) from this decade alone. Before Justice Brennan would have this happen he wanted to have generalized standards developed to indicate when during the course of pretrial delay a possibility of substantial prejudice arises.
I am not unaware of the precedent of this court that the trial court is accorded discretion when addressed by a motion for a continuance. Chapman v. State, Wyo., 728 P.2d 631 (1986); Tageant v. State, Wyo., 683 P.2d 667 (1984); James v. State, 27 Wyo. 378, 196 P. 1045, 19 Wyo. 493, (1921); Hollywood v. State, 19 Wyo. 493, 120 P. 471, reh. denied 19 Wyo. 493, 122 P. 588 (1911). However, the exercise of discretion in a criminal case cannot eclipse constitutional rights assured by due-process requirements to be achieved by the effective assistance of counsel.
A substantial number of appeals have been heard by this court recently which raised the issue of whether a continuance should have been granted. The frequency with which district courts have been denying substantive motions for continuance is alarming, as is the frequency with which this court affirms where fairness, due process and justice are denied. Gentry v. State, Wyo., 724 P.2d 450 (1986), Urbigkit, J., dissenting; Tageant v. State, Wyo., 683 P.2d 667 (1984); Sims v. State, Wyo., 530 P.2d 1176 (1965). On the day before trial, Haselhuhn's lawyer first learned that the two eyewitnesses, Safeway employees Mr. Barney and Ms. Shively, had been hypnotized in an effort to enhance their recollections of the robber's appearance.
Considering and balancing these four factors in this case lead to the definite conclusion that appellant was not denied his right to a speedy trial. The time span from the time of the filing of the information, Tageant v. State, Wyo., 683 P.2d 667 (1984), to the date of trial in this case was from December 20, 1982, to November 1, 1983, a period of about ten and one-half months. There was an additional continuance of the trial for one and one-half months occasioned by illness of the judge.
Delays for those purposes are excludable, so we will not count any of the period from March 7 until trial. Tageant v. State, Wyo., 683 P.2d 667, 669 (1984). In summary, the net delay totals 204 days or a little over six months.