RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – To Secure Counsel

RI Criminal Defense Practice Manual CoverRHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald

 

CONTINUANCES

To Secure Counsel

 

 

 

State v. Moran, 699 A.2d 20 (R.I. 1997). Defendant requested a continuance before trial so that his trial counsel would be available to try the case. The trial court denied the request and forced defendant to hire another attorney two days before trial. R.I.S.C. reversed and ordered a new trial.

    • “Attorneys are not fungible”and a criminal defendant’s choice of counsel commands a “presumption in favor of its being honored.” Id. at 25.
    • Factors to consider in deciding motion for continuance:
      1. Promptness of motion;
      2. Length of time requested;
      3. Age and intricacy of case;
      4. Inconvenience to parties, witnesses, counsel, jurors, and court;
      5. Legitimacy of request or “mere foot-dragging;”
      6. Whether defendant caused need for continuance;
      7. Whether other competent counsel is ready to proceed;
      8. Whether there are multiple co-defendants. Id. at 26.

 

State v. Ashness, 461 A.2d 659 (R.I. 1983). At the start of an armed robbery trial, the defendant requested representation by his previous public defender or that he be able to retain private counsel. His current public defender had just recently been assigned the case. The trial judge denied the motion and R.I.S.C. affirmed.

    • Defendant’s request came too late as he had ample time prior to the start of trial to request new counsel.

 

State v. Dias, 374 A.2d 1028 (R.I. 1977). The trial judge refused defendant’s request for a continuance to retain private counsel. The public defender was forced to conduct a probation violation hearing immediately despite the fact that he believed private counsel would enter and thus no hearing preparations were made. R.I.S.C. reversed, ruling that the trial judge abused his discretion.

    • Two factors to consider in granting a continuance are whether the defendant is intentionally delaying the case and any prejudice to the state.

 

State v. Caprio, 819 A.2d 1265 (R.I. 2003). Defendant in a probation violation hearing requested a continuance to obtain new counsel because his attorney unintentionally misrepresented the state’s offer in a plea agreement. (Counsel said the offer was six years with fifteen months to serve when in actuality the offer was fifteen years with six years to serve.) R.I.S.C. upheld the trial court’s denial of defendant’s motion.

    • Decision of the trial court will not be disturbed absent an abuse of discretion.
    • “Exceptional circumstances” are necessary to justify a delay due to an eleventh-hour discharge of counsel. Id. at 1270 (quoting State v. Monteiro, 277 A.2d 739, 742 (R.I. 1971)).

 

State v. Snell, 892 A.2d 108 (R.I. 2006). Five days before trial began, defendant sought to discharge his court-appointed counsel. His motion was denied then, and denied again when raised on the first day of trial. Defendant’s family then told defense counsel that he was “fired,” as defendant had retained private counsel. Trial court refused the request for a continuance, finding that defendant was attempting to stall the trial. R.I.S.C. affirmed.

    • A defendant’s “right to choose his own counsel cannot be manipulated to delay proceedings or hamper the prosecution.” Id. at 120.

 

    • “To work a delay by a last minute discharge of counsel, there must exist exceptional circumstances” and defendant “must show good cause such as a conflict of interest, a breakdown in communication or an irreconcilable dispute with his attorney.” Id.

 

State v. Gilbert, 984 A.2d 26 (R.I. 2009). The hearing justice at defendant’s probation violation hearing denied defendant’s request for a continuance to obtain alternate counsel because he lacked confidence in his appointed attorney. The attorney’s request to withdraw was denied as well. R.I.S.C. affirmed.

    • The hearing justice considered several factors, including that the defendant waited until the second day of the hearing to make the request, the defendant’s doubts lacked adequate grounds, defendant could not represent himself, and no other counsel was immediately available to represent defendant.

 

    • Upon a request for a continuance to secure new counsel, the hearing justice’s decision “requires the careful balancing of the presumption in favor of the defendant’s right to trial counsel of choice and the public’s interest in the prompt, effective, and efficient administration of justice.” This balancing requires a fact-specific analysis of each case. Id.at 30.

 

  • The defendant is afforded less rights at a violation hearing than a trial, including the right for a continuance to seek counsel of defendant’s choice.Id.

 

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