Fowler v. State , 195 Ga. App. 874 ( 1990 )

195 Ga. App. 874 (1990) 395 S.E.2d 33

FOWLER
v.
THE STATE.

A90A0090.

Court of Appeals of Georgia.

Decided May 25, 1990. Rehearing Denied June 11, 1990.

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Gerald N. Blaney, Jr., Solicitor, Robert Greenwald, Assistant Solicitor, for appellee.

DEEN, Presiding Judge.

Robert W. Fowler was convicted of DUI, speeding, and driving while his license was suspended. On appeal he claims that the trial court erred in refusing to declare his prior DUI convictions in municipal recorder's courts to be null and void, and in considering these convictions in his sentencing. He also asserts as error the trial court's denial of his motion for a continuance.

1. Appellant's first enumeration of error was recently decided adversely to his position by the Supreme Court of Georgia. Kolker v. State, 260 Ga. 240 (391 SE2d 391) (1990).

2. Under OCGA § 17-8-20, "the party making an application for a continuance must show that he has used due diligence." OCGA § 24-10-25 requires that a subpoena be served 24 hours prior to the time a witness is to appear for it to be valid. The witness in the instant case was not served until the night before trial and a proper return of service was not made for almost a month after service of the subpoena. The denial of a motion for a continuance on the ground of an absent witness lies within the sound discretion of the trial judge, which will not be disturbed on appeal absent abuse. Wellons v. State, 144 Ga. App. 218, 219 (240 SE2d 768) (1977). We find no abuse of discretion by the trial court.

Judgment affirmed. Pope and Beasley, JJ., concur.