Can I Get a …. Continuance?

gavel3.jpgTiming is everything. This is especially true of criminal cases. Unfortunately, not everyone has the financial means to hire an attorney right away. So, what happens when a defendant delays hiring private counsel–must the judge permit him to have the lawyer of his choice?

A bit of wisdom here. Hiring a lawyer late in the game is bad for everyone. The defense attorney has less time to prepare, and an investigation conducted months after the incident will not be as effective. As a general rule, accused citizens have the right to pick our own attorney (if they can afford one), but we do not have the right to an attorney of our choosing at any time we like. This decision is left up to the judge.

[Warning, skip this paragraph if you’re sick of defense attorney war stories, really, I understand] Over ten years ago, I was hired to represent a client on the morning of trial. This was the first (and last) time I will ever do such a thing. It was a felony drug case, never continued by the public defender, and I had already spoken to the prosecutor who had no objection to a continuance. Vegas odds would have me getting this first time continuance, right? The only reason I tried to get into this case is that I uncovered serious legal issues that could have (should have) been resolved by a Motion to Suppress, but the public defender never filed any motions. Even with all this going for us, the judge refused to let me in the case. I refunded the fee (ouch), and nobody was happy. I wanted to help this guy. The public defender wanted one less case. My client wanted me defending his case. Nobody got what they wanted. Yes, the constitutional right to an attorney of your choosing was clearly ignored by this judge. (I think my client would have won an appeal of this judge’s decision, but he didn’t want to appeal)

A more egregious version of the facts above can be found in the case of Francois v. State, 137 So. 3d 1186 (Fla. 3d DCA 2014). Francois was charged with attempted second-degree murder, burglary with an assault or battery, aggravated assault with a firearm, and misdemeanor battery. A jury convicted him of aggravated battery and misdemeanor battery. On the day of his jury trial, Francois asked to continue his case because his family was hiring a private lawyer. Francois never had an attorney of his choice, his lawyer was appointed (and doing a great job, from the looks of it). The judge denied the continuance, and this appeal was based upon the trial court’s denial of his Motion to Continue to hire private counsel. I’m going to give away the ending here–the appeal was denied. To understand why, we’re going to have to examine the events leading up to Francois’ continuance request.

First, Francois filed a demand for speedy trial. Basically, a demand for speedy trial tells the court that (1) you’re ready for trial, and (2) you want the trial as soon as possible. So, when the judge caught wind of the demand for a speedy trial, the judge held a hearing on the demand on a Friday (the clerk of court delivers these to the judge immediately; and judge’s usually set a hearing within 5 days). At the demand hearing, the judge asked Francois if he was “really ready” to have his trial. Francois said yes, and the judge set the case for jury selection three days later, on a Monday.

On Monday, Francois’ appointed defense attorney picked the jury, and the jury was sworn in. Once the jury has been sworn, the trial has officially begun. The balance of the trial was scheduled to begin Tuesday morning. However, on Tuesday morning, Francois asks for a continuance. Hum. Wait a second. Is this the same guy that demanded a quick trial on Friday? Yes. Is this the same guy that said he was ready to go to trial on Friday? Yes. Is this the same guy that was ok with his jury selection on Monday? Yes. Why all the fuss on Tuesday morning? Well, Francois’ family was in the process of hiring a new lawyer, and he wanted the lawyer of his choice for the trial–not his appointed attorney. Yet, the family did not actually hire the new lawyer, and the new defense attorney was not even present when Francois requested the continuance to hire him. This is not looking good.

The appeals court agreed that the trial judge had every right to deny the continuance. Here’s what the appeals court said: “when the defendant requests a continuance on the eve of trial or in the middle of trial, as in this case, to allow time to retain counsel and for counsel to prepare, the trial court must balance the countervailing interests of the effective administration of the courts with the defendant’s right to private counsel of his choice. Id. Some of the factors that should be considered in striking this balance are; how long the case has been pending; the likelihood of prejudice from denial; the adequacy of the defendant’s current counsel; and the complexity of the case and time it would take for the defendant’s chosen counsel to prepare the case for trial.” Id. at 1189.

As you can see, continuances to hire a new lawyer close to the day of trial are very fact sensitive. In Alvarez v. State, the defendant requested a continuance on the day of trial, but he actually hired the new lawyer, and the new lawyer showed up on the day of trial requesting the continuance. 75 So. 3d 420 (Fla. 4th DCA 2011) The trial court denied the continuance, prohibiting the new lawyer to substitute for the public defender, and Alvarez was represented by his public defender at trial (and convicted by the jury). On appeal, the court noted that “a defendant does not have an absolute right to a particular lawyer and that it is within a trial court’s discretion to deny a defendant’s request for a particular counsel”. Id. That being said, the appeals court found that Alvarez’s judge failed to make an appropriate inquiry utilizing the factors listed above. As such, the appeals court overturned Alvarez’s conviction and granted him a new trial with the attorney of his choosing.

Here’s the odd thing about continuances: if this was a civil case, we wouldn’t be having this discussion, continuances flow freely in civil cases. One thing that never ceases to amaze me is the difference between civil lawsuits and criminal lawsuits. When you trip and sprang your ankle, that civil case may take years to get to trial. A civil judge may continue the case 30 times, spanning several years. But if you’re accused of a crime, that very same judge–liberally granted continuances in civil court–now becomes rather stingy with continuances. Aren’t criminal cases more serious than civil, as a general rule? Defendants in criminal cases have constitutional rights, don’t they? Still, not as many continuances. Go figure.