2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 8 - Trial
Article 2 - Continuances
§ 17-8-23. Absence of Party as Grounds for Granting Continuance
If either party is providentially prevented from attending the trial of any case and the counsel of the absent party will state in his place that he cannot go safely to trial without the presence of the absent party, the case shall be continued, provided his continuances are not exhausted.
(Orig. Code 1863, § 3453; Code 1868, § 3473; Code 1873, § 3524; Code 1882, § 3524; Civil Code 1895, § 5131; Civil Code 1910, § 5717; Code 1933, § 81-1412.)
Cross references.- Corresponding provision relating to civil procedure, § 9-10-154.
JUDICIAL DECISIONS
Inability of counsel to move for continuance because counsel does not know reason for client's absence.
- If counsel, because counsel does not know the reason for the client's absence, is unable to make the requisite formal and proper motion for continuance, the trial judge may assume that the defendant has voluntarily been absent from the trial, thereby waiving the defendant's confrontation rights. Smith v. State, 139 Ga. App. 515, 228 S.E.2d 705 (1976).
Voluntary absence of accused.
- When an accused is present at the beginning of the trial, but thereafter voluntarily is absent from the proceeding, the defendant waives the defendant's right to be present at the remainder of the trial. Stell v. State, 210 Ga. App. 662, 436 S.E.2d 806 (1993).
Surety should be allowed to prove that principal is absent because of providential cause. Russell v. State, 45 Ga. 9 (1872).
Court may deny continuance when defendant in poor physical condition.
- When the defendant is unable to withstand the rigors of trial because of the defendant's physical condition and it appears that the defendant will not be in better condition at the next trial term, the trial court may properly deny the continuance and proceed with the trial; while it may not fairly be said that the defendant bears any culpability for the illness, neither may it be said that the state has in any way prevented the defendant from appearing and defending oneself. Dasher v. State, 157 Ga. App. 664, 278 S.E.2d 465 (1981).
Cited in Mell v. State, 69 Ga. App. 302, 25 S.E.2d 142 (1943); Hammond v. State, 303 Ga. App. 176, 692 S.E.2d 760 (2010).
RESEARCH REFERENCES
C.J.S.
- 17 C.J.S., Continuances, §§ 40, 50.
ALR.- Continuance of criminal case because of illness of accused, 66 A.L.R.2d 232.
Sufficiency of showing defendant's "voluntary absence" from trial for purposes of state criminal procedure rules or statutes authorizing continuation of trial notwithstanding such absence, 19 A.L.R.6th 697.
