State v. Faulkner , 1 Haw. App. 9 ( 1980 )

Per Curiam.

The defendant was convicted in the District Court of Criminal Property Damage in the Fourth Degree, a petty misdemeanor. The defendant appeals from the judgment and sentence on the ground that the trial court erred in denying his motion for a continuance.

On May 19, 1978, the defendant appeared in the District Court and was charged with Criminal Property Damage in the Third Degree, a misdemeanor, and was referred to the Public Defender’s Office. The District Court then set June 27, 1978 for arraignment, plea and trial.

The record indicates that the public defender assigned to the case had approximately one week to prepare for trial. On June 27th, the date the District Judge scheduled the case for arraignment, plea and trial, the defendant for the first time demanded a jury trial. Since the State had all of its witnesses present and ready to testify, the State amended and reduced the charge to Criminal Property Damage in the Fourth Degree, a petty misdemeanor, which precluded the defendant from having his case tried by a jury. The Public Defender then made a motion for a continuance, claiming that the amendment of the original charge came as a surprise to him and that he needed more time to search for more witnesses. The court denied the motion and trial commenced. Nevertheless, after the prosecution rested and the defense presented three witnesses, the court continued the trial nine days to give defense counsel sufficient time to gather additional evidence and to arrange for additional witnesses.

Barbara Lee Melvin for defendant-appellant. Robert S. N. Young, Deputy Prosecuting Attorney, for plaintiff-appellee.

It is firmly established that the granting or refusal of a continuance is a matter within the discretion of the judge who hears the application and is not subject to review absent a clear abuse. State v. Gager, 45 Haw. 478, 370 P.2d 739 (1962).

We have carefully examined the record and find that the District Court did not abuse its discretion in denying the defendant’s motion for a continuance. On the contrary, we find that the trial judge was extremely fair. Accordingly, the judgment below is affirmed.