2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 8 - Trial
Article 2 - Continuances
§ 17-8-20. Showing of Due Diligence Required of Applicants for Continuances Generally

In all cases, the party making an application for a continuance must show that he has used due diligence.

(Orig. Code 1863, § 3457; Code 1868, § 3477; Code 1873, § 3528; Code 1882, § 3528; Civil Code 1895, § 5135; Penal Code 1895, § 965; Civil Code 1910, § 5721; Penal Code 1910, § 991; Code 1933, § 81-1416.)

- Corresponding provision relating to civil procedure, § 9-10-166.

JUDICIAL DECISIONS

Diligence required of defendants at large and incarcerated compared.

- If defendant is at large under bond, a greater degree of diligence on the defendant's part is required than if the defendant has been incarcerated and unable personally to prepare the defendant's case for trial. Watts v. State, 14 Ga. App. 600, 81 S.E. 902 (1914); Amerson v. State, 18 Ga. App. 176, 88 S.E. 998 (1916).

- If the witness has not been subpoenaed nor other statutory requirements met, it is not an abuse of discretion to refuse a postponement of the hearing in order to subpoena these persons. Hulett v. State, 150 Ga. App. 367, 258 S.E.2d 48 (1979).

- Nothing in our law either requires or permits defendants to rely solely on information provided by the state for the defendants' pretrial investigation, and before the defendants are entitled to a continuance, the defendants must show the exercise of due diligence. Davis v. State, 204 Ga. App. 657, 420 S.E.2d 349 (1992).

If the trial court granted the accused at least one previous continuance to secure the same witness, and the accused offered no evidence that the witness was properly subpoenaed, the court did not abuse the court's discretion in denying a motion for continuance. Brandon v. State, 236 Ga. App. 203, 511 S.E.2d 573 (1999).

Trial court did not abuse the court's discretion in denying defense counsel's motion for continuance after the defendant stated on the morning of the trial that the defendant could identify the perpetrator; the defendant failed to use due diligence under O.C.G.A. § 17-8-20 in applying for a continuance as the defendant did not show that the defendant did not and could not have known earlier the information the defendant gave counsel on the morning of the trial. Westmoreland v. State, 281 Ga. App. 497, 636 S.E.2d 692 (2006).

- When defendant's counsel had over six weeks between the grant of the defendant's motion for a psychiatric examination and the beginning of the trial, yet during that period said nothing to the district attorney or the court about needing additional time to prepare the defense, and, to the contrary, filed a demand for a speedy trial in that period, there was no error in the trial court's refusal to grant a continuance as the party requesting such continuance failed to establish that the party used "due diligence." O'Neal v. State, 254 Ga. 1, 325 S.E.2d 759 (1985).

- Trial court did not err in requiring the defendant to proceed in the presentation and argument of the defendant's motion for a new trial with less than 24 hours to review the trial transcript of the proceedings, since the court gave the defendant a week to review the transcript and amend the motion to present additional grounds. Brown v. State, 214 Ga. App. 733, 449 S.E.2d 136 (1994).

- Because a criminal trial had been continued for six months to give the defendants time to hire counsel, the motion made by the defendants' attorney based upon the attorney's having been hired only ten minutes previously was properly denied on the ground that no excuse had been offered by the defendants for the defendants delay in retaining counsel. Patterson v. State, 202 Ga. App. 440, 414 S.E.2d 895 (1992).

Trial court properly denied the defendant's motion for a continuance because it was a rule of criminal procedure that in all cases the party making an application for a continuance must show that the party has used due diligence, O.C.G.A. § 17-8-20; defendant was given ample time to obtain counsel and call witnesses before trial, and the defendant did not offer a valid excuse for the defendant's failure to obtain counsel. Branton v. State, 258 Ga. App. 221, 573 S.E.2d 475 (2002).

Following a mistrial in the defendant's trial for attempted child molestation, although there was only about a week until the second trial, the defendant did not explain why the defendant waited until the start of the second trial to seek to hire new counsel and the defendant did not articulate why the defendant was partially displeased with appointed counsel's performance in the first trial; therefore, the trial court did not err in denying the defendant's last-minute request for a continuance. Shaum v. State, 355 Ga. App. 513, 844 S.E.2d 863 (2020).

- When the trial court granted one continuance to obtain the requested transcript of the preliminary hearing, and the defendant failed to show diligence in obtaining such transcript and failed to show a need for the transcript, there is no abuse of discretion in denial of the motion for a continuance. Hammonds v. State, 157 Ga. App. 393, 277 S.E.2d 762 (1981).

When defense counsel moves for a continuance based on the fact that defense counsel did not receive a tape or transcript of the committal hearing until approximately 24 hours before the trial and that as a consequence defense counsel was unable to adequately prepare to cross-examine or impeach the prosecution's witnesses, but defense counsel was informed some days earlier that defense counsel might pick up the tape and transcript at counsel's convenience, and defense counsel did not do so until the day preceding the trial, and by counsel's own admission defense counsel was present at the committal hearing and therefore can be presumed to know what took place there, the court does not abuse the court's discretion in denying the motion. Gaskin v. State, 166 Ga. App. 331, 303 S.E.2d 778 (1983).

- See Lucas v. State, 174 Ga. App. 580, 330 S.E.2d 792 (1985); Mojica v. State, 210 Ga. App. 826, 437 S.E.2d 806 (1993); McTaggart v. State, 225 Ga. App. 359, 483 S.E.2d 898 (1997); Judge v. State, 240 Ga. App. 541, 524 S.E.2d 4 (1999).

- In a burglary case, a court did not err by denying a continuance after the defendant made no showing of any attempt to hire new counsel after expressing the defendant's displeasure with the attorney and the defendant did not suggest what evidence the defendant would have put forth. McConnell v. State, 263 Ga. App. 686, 589 S.E.2d 271 (2003).

Under O.C.G.A. § 17-8-20, because the court had wide discretion as to whether to grant a continuance and because the defendant was unable to show that the defendant used due diligence in preparing for trial or provide specific information as to why the defendant needed a continuance, and failed to show any harm as a result of the court's ruling, there was no abuse of discretion in refusing the continuance. Woodward v. State, 262 Ga. App. 363, 585 S.E.2d 687 (2003).

Trial court did not err in denying the defendant's motion for a continuance because, after the defendant's first request for a continuance was denied, the defendant had 13 days to subpoena witnesses or to reconstruct a transcript from the pre-arrest warrant hearing; further, the second application for a continuance was based on speculation about a witness's testimony. Kuykendoll v. State, 278 Ga. App. 369, 629 S.E.2d 32 (2006).

Because the defendant's family was aware that the defendant desired a private attorney, as evidenced by the fact that the first attorney was privately retained, and once the defendant requested and was appointed an attorney by the court, several months passed, during which the defendant did nothing to inform the court of a desire to retain an attorney, the trial court did not abuse the court's discretion in denying a continuance for the defendant to hire a private attorney. Bakyayita v. State, 278 Ga. App. 624, 629 S.E.2d 539 (2006).

Trial court did not abuse the court's discretion by denying the defendant's motion for a continuance with regard to the defendant's motion for funds for expert assistance as defense counsel waited approximately five months before making the request for funds for expert assistance until after plea negotiations had broken down and shortly before the case was placed on the trial calendar. Under those circumstances, the defendant failed to show that due diligence was exercised and, thus, failed to demonstrate entitlement to a continuance. Fincher v. State, 289 Ga. App. 64, 656 S.E.2d 216 (2007).

Because the record on appeal showed that defense counsel had more than a week before trial to review the state's discovery, had reviewed the material with the defendant, and had also had time before trial to hire an expert, the appeals court could not conclude that the grounds alleged in support of a continuance of the trial was compelling. Robbins v. State, 290 Ga. App. 323, 659 S.E.2d 628 (2008).

Trial court did not err in denying a defendant's motion to continue a new trial hearing so that the defendant could develop evidence regarding trial counsel's failure to engage in reciprocal discovery. The court was authorized to conclude that the defendant, who knew before the hearing that trial counsel had not engaged in discovery but failed to voice concerns until after trial counsel testified, had exercised little diligence in pursuing the discovery issue and that the ends of justice did not require a continuance. Anuforo v. State, 293 Ga. App. 1, 666 S.E.2d 50 (2008).

Trial court did not abuse the court's discretion in denying the defendant's request for a continuance on the ground that an expert witness was not available, and the defendant needed to find another witness because the record did not demand a finding that the defendant exercised diligence under O.C.G.A. § 17-8-20 in light of the fact that trial counsel was appointed some months before the trial; the defendant made no showing as to the expert's identity, no proffer of the expected testimony, and no showing of how that testimony would benefit the defendant. Sevostiyanova v. State, 313 Ga. App. 729, 722 S.E.2d 333, cert. denied, No. S12C0968, 2012 Ga. LEXIS 612 (Ga. 2012).

Trial court did not abuse the court's discretion in denying the defendant's request for a continuance, filed on the morning of trial, to obtain a private attorney as the defendant had months to hire an attorney, the case had already been continued, and it appeared that appointed counsel had worked diligently on the case and was ready to proceed. Percell v. State, 346 Ga. App. 219, 816 S.E.2d 344 (2018).

Cited in Cruce v. State, 59 Ga. 83 (1877); Glover v. State, 89 Ga. 391, 15 S.E. 496 (1892); Smith v. State, 43 Ga. App. 353, 158 S.E. 770 (1931); Reese v. State, 44 Ga. App. 251, 161 S.E. 156 (1931); Whatley v. State, 162 Ga. App. 106, 290 S.E.2d 316 (1982); Sams v. State, 162 Ga. App. 118, 290 S.E.2d 321 (1982); Hill v. State, 169 Ga. App. 940, 315 S.E.2d 480 (1984); Hunt v. State, 173 Ga. App. 638, 327 S.E.2d 500 (1985); Heaton v. State, 175 Ga. App. 735, 334 S.E.2d 334 (1985); Burgan v. State, 258 Ga. 512, 371 S.E.2d 854 (1988); Johnson v. State, 188 Ga. App. 411, 373 S.E.2d 93 (1988); Fowler v. State, 195 Ga. App. 874, 395 S.E.2d 33 (1990); Rhodes v. State, 200 Ga. App. 193, 407 S.E.2d 442 (1991); Annison v. State, 206 Ga. App. 861, 427 S.E.2d 5 (1992); Harden v. State, 211 Ga. App. 1, 438 S.E.2d 136 (1993); Strickland v. State, 212 Ga. App. 170, 441 S.E.2d 494 (1994); Marion v. State, 224 Ga. App. 413, 480 S.E.2d 869 (1997); Stocks v. State, 224 Ga. App. 433, 481 S.E.2d 230 (1997); Minor v. State, 232 Ga. App. 246, 501 S.E.2d 576 (1998); Mays v. State, 238 Ga. App. 507, 519 S.E.2d 290 (1999); Couch v. State, 256 Ga. App. 822, 570 S.E.2d 57 (2002).

7A Am. Jur. Pleading and Practice Forms, Continuance, §§ 1, 106.

- 17 C.J.S., Continuances, § 79 et seq.

- Continuance of civil case because of illness or death of party, 68 A.L.R.2d 470.

Continuances at instance of state public defender or appointed counsel over defendant's objections as excuse for denial of speedy trial, 16 A.L.R.4th 1283.