The illness or absence, from providential cause, of counsel where there is but one, or of the leading counsel where there are more than one, shall be a sufficient ground for continuance, provided that the party making the application will swear that he cannot go safely to trial without the services of the absent counsel, that he expects his services at the next term, and that the application is not made for delay only.
(Orig. Code 1863, § 3454; Code 1868, § 3474; Code 1873, § 3525; Code 1882, § 3525; Civil Code 1895, § 5132; Penal Code 1895, § 964; Civil Code 1910, § 5718; Penal Code 1910, § 990; Code 1933, § 81-1413.)
Cross references.- Corresponding provision relating to civil procedure, § 9-10-155.
JUDICIAL DECISIONS
Discretion of court.
- Granting or refusing a continuance is a matter within the discretion of the trial court, and unless abused, such discretion will not be controlled. Scott v. State, 151 Ga. App. 840, 262 S.E.2d 198 (1979).
Motion for continuance is addressed to the sound discretion of the trial court, and a denial will not be disturbed in the absence of a manifest abuse of discretion. Blair v. State, 166 Ga. App. 434, 304 S.E.2d 535 (1983).
Defendant's duty as regards employment of counsel.
- It is the defendant's duty to employ counsel to aid in the preparation of a defense in advance of the trial of the case. Scott v. State, 151 Ga. App. 840, 262 S.E.2d 198 (1979).
Strict compliance.
- Former Civil Code 1910, § 5717 (see O.C.G.A. § 17-8-23) must be strictly complied with, especially if counsel other than absent counsel is procured. Curry v. State, 17 Ga. App. 377, 87 S.E. 685 (1915); New v. State, 26 Ga. App. 5, 105 S.E. 50, cert. denied, 26 Ga. App. 801 (1921); Caswell v. State, 27 Ga. App. 78, 107 S.E. 562, cert. denied, 27 Ga. App. 835 (1921).
Strict compliance is required to justify a continuance. Wallis v. State, 137 Ga. App. 457, 224 S.E.2d 91 (1976); Rogers v. State, 167 Ga. App. 322, 306 S.E.2d 393 (1983).
If attorney is neither sole attorney nor lead counsel, O.C.G.A. § 17-8-24 is inapplicable. Putman v. State, 251 Ga. 605, 308 S.E.2d 145 (1983), cert. denied, 466 U.S. 954, 104 S. Ct. 2161, 80 L. Ed. 2d 546 (1984).
Cocounsel not covered by section.
- While O.C.G.A. § 17-8-24 provides as a ground for a continuance the illness or absence of a party's sole or lead counsel, the statute does not extend to cocounsel. Vining v. State, 195 Ga. App. 816, 395 S.E.2d 17 (1990).
Motion must show the services of absent counsel are expected at the next term. McLendon v. State, 123 Ga. App. 290, 180 S.E.2d 567 (1971).
Verdict not set aside when affidavit filed after conviction. Childs v. State, 18 Ga. App. 782, 90 S.E. 723 (1916).
Sworn statement that continuance is not for delay.
- Showing for a continuance on the ground of the absence and illness of leading counsel is not complete without a statement on oath that the application is not made for delay only. Roth v. State, 70 Ga. App. 93, 27 S.E.2d 473 (1943).
There is an absolute requirement that the application must show on oath that the motion is not made for delay. McLendon v. State, 123 Ga. App. 290, 180 S.E.2d 567 (1971).
Absence of counsel.
- Continuance based on absence of counsel is not favored. Allen v. State, 10 Ga. 85 (1851); Curry v. State, 17 Ga. App. 377, 87 S.E. 685 (1915); Wallis v. State, 137 Ga. App. 457, 224 S.E.2d 91 (1976); Blair v. State, 166 Ga. App. 434, 304 S.E.2d 535 (1983).
Mere absence alone is not sufficient. Giles v. State, 66 Ga. 344 (1881); Wilson v. State, 6 Ga. App. 16, 64 S.E. 112 (1909).
Absence of counsel is not a favored excuse for not proceeding to trial and excuses of this sort should be discountenanced. Rutledge v. State, 152 Ga. App. 755, 264 S.E.2d 244 (1979).
What constitutes illness.
- Illness of counsel contemplated by law is such a physical condition resulting from sickness, ailment, malady, or disease as would prevent counsel from properly attending to counsel's duties as such. Rawlins v. State, 124 Ga. 31, 52 S.E. 1 (1905), aff'd, 201 U.S. 638, 26 S. Ct. 560, 50 L. Ed. 899 (1906); McKenzie v. State, 72 Ga. App. 208, 33 S.E.2d 539 (1945).
Authority to decide whether illness qualifies for continuance.
- Counsel is not, under all circumstances, the judge of whether a counsel was merely indisposed, or whether counsel's illness is such as is contemplated in this section for the court is the tribunal vested with the authority to decide from the facts and circumstances of the case as to whether the illness was a legal illness. McKenzie v. State, 72 Ga. App. 208, 33 S.E.2d 539 (1945).
Counsel weary but able to perform to usual ability.
- Trial court did not abuse the court's discretion in denying a continuance where the only contention was that the leading counsel was weary but it appeared that he conducted the case with his usual ability. Holland v. State, 9 Ga. App. 831, 72 S.E. 290 (1911).
If counsel is ill when employed, a continuance because of such illness will not be granted. Scott v. State, 151 Ga. App. 840, 262 S.E.2d 198 (1979).
Temporary postponement rather than continuance when illness not expected to be lengthy.
- If counsel is ill on the day of trial, counsel is required to seek a temporary postponement, and not a continuance for the term, unless a showing is made that counsel will be ill for a lengthy period. McLendon v. State, 123 Ga. App. 290, 180 S.E.2d 567 (1971).
Withdrawal of counsel or lack of preparation of new counsel.
- Neither sudden withdrawal of retained counsel nor lack of preparation of new counsel is ipso facto a ground for continuance. The conduct of the party is obviously relevant and is a proper consideration for the judge in the exercise of the judge's discretion. The reason for this is to prevent a party from using discharge and employment of counsel as a dilatory tactic. Huckaby v. State, 127 Ga. App. 439, 194 S.E.2d 119 (1972).
Absence of counsel through no fault of defendant.
- If the defendant has retained counsel who does not appear when the case is called and the defendant is free from fault in the absence, it is an abuse of the trial judge's discretion to refuse a motion for continuance. Wallis v. State, 137 Ga. App. 457, 224 S.E.2d 91 (1976).
Absence of counsel through honest mistake.
- Continuance should be granted when the absence of counsel is due to an honest and almost justifiable mistake as to time of holding court. Delk v. State, 100 Ga. 61, 27 S.E. 152 (1896); Johnson v. State, 1 Ga. App. 729, 57 S.E. 1056 (1907).
Action against counsel who is absent through negligence.
- When the facts warrant it, appropriate action should be taken against counsel who is absent through negligence. Wallis v. State, 137 Ga. App. 457, 224 S.E.2d 91 (1976).
Attorney's right to appear pro hac vice in criminal prosecution.
- An out-of-state lawyer has no property interest cognizable under U.S. Const., amend. 14, which requires automatic recognition of a right to appear pro hac vice in a criminal prosecution. Whitaker v. State, 246 Ga. 163, 269 S.E.2d 436 (1980).
Absence based upon attendance at trial of case pending in another court.
- Postponement of the trial of a case on account of the absence of counsel without leave for the purpose of engaging in the trial of a case in another court in another state is in the discretion of the court, but a postponement for such cause is not favored. Keith v. State, 87 Ga. App. 308, 73 S.E.2d 595 (1952).
If defendant and another individual were jointly indicted, both employed the same counsel and on the call of the case elected to sever, and if the employed counsel associated with the local counsel and tried one case with the assistance of such counsel, and leading counsel, at the conclusion of the case, requests a continuance on the ground that it is necessary for counsel to appear in a United States district court the next morning, although associate counsel would be present in the court, it is entirely within the discretion of the court whether to grant the continuance, on terms or otherwise. Keith v. State, 87 Ga. App. 308, 73 S.E.2d 595 (1952).
If absence of counsel is based upon attendance at the trial of a case pending in another court, this furnishes no ground for continuance, especially if competent counsel other than the absent counsel is present in court, and it is not shown that the defendant would be injured by the absence of defendant's leading counsel. Rutledge v. State, 152 Ga. App. 755, 264 S.E.2d 244 (1979).
As to counsel attending cases in Supreme Court or Court of Appeals, see Austin v. State, 160 Ga. 509, 128 S.E. 791 (1925).
Absence of counsel after expiration of leave of absence.
- Continuance will not be granted for the absence of counsel after counsel's leave of absence has expired. Robinson v. State, 82 Ga. 535, 9 S.E. 528 (1889).
If it does not appear that the absent counsel had ever been employed or been known before the case, it is an insufficient showing for a continuance. Wise v. State, 34 Ga. 348 (1866).
If competent counsel other than the absent counsel is secured, no continuance will be granted. Curry v. State, 17 Ga. App. 377, 87 S.E. 685 (1915).
This section requires a continuance when a sufficient showing is made. Chivers v. State, 5 Ga. App. 654, 63 S.E. 703 (1909).
Refusal of continuance not error when O.C.G.A.
§ 17-8-24 not complied with. - If the movant does not comply with the requirements of this section the refusal to grant a continuance is not error. Joiner v. State, 30 Ga. App. 342, 118 S.E. 222 (1923).
If movant complies with this section refusal to grant motion for continuance is error. Thomas v. State, 92 Ga. 1, 18 S.E. 44 (1893).
If none of the statutory requirements necessary for the granting of a continuance were put forth by cocounsel when the case was called, and there has been no showing that the defendant was injured by the absence of the defendant's lead counsel, there was no merit in the complaint that the trial court erred in denying the defendant's motion for continuance because of the absence of counsel and that the defendant had been denied the defendant's Sixth Amendment right to counsel and the defendant's Fifth Amendment right to due process as guaranteed by the state and federal Constitutions. Blair v. State, 166 Ga. App. 434, 304 S.E.2d 535 (1983).
Trial court did not abuse discretion in denying motion for continuance on grounds of attorney's ill health. Kirk v. State, 168 Ga. App. 226, 308 S.E.2d 592 (1983), aff'd, 252 Ga. 133, 311 S.E.2d 821 (1984).
Cited in Bagwell v. State, 56 Ga. 406 (1876); Robinson v. State, 82 Ga. 535, 9 S.E. 528 (1889); Burnett v. State, 87 Ga. 622, 13 S.E. 552 (1891); O'Neal v. State, 29 Ga. App. 51, 113 S.E. 43 (1922); Rogers v. State, 30 Ga. App. 636, 118 S.E. 757 (1923); Austin v. State, 160 Ga. 509, 128 S.E. 791 (1925); Evans v. State, 167 Ga. 261, 145 S.E. 512 (1928); Sams v. State, 162 Ga. App. 118, 290 S.E.2d 321 (1982); King v. State, 238 Ga. App. 575, 519 S.E.2d 500 (1999); King v. State, 242 Ga. App. 642, 530 S.E.2d 744 (2000); Turman v. State, 272 Ga. App. 570, 613 S.E.2d 126 (2005).
RESEARCH REFERENCES
C.J.S.
- 17 C.J.S., Continuances, § 50.
ALR.
- Right to continuance because counsel is in attendance at another court, 112 A.L.R. 593.
Sufficiency of showing defendant's "voluntary absence" from trial for purposes of Criminal Procedure Rule 43, authorizing continuance of trial notwithstanding such absence, 141 A.L.R. Fed 569.