People v. Little , 207 Ill. App. 3d 720 ( 1990 )

JUSTICE JIGANTI,

dissenting:

The discretion vested in the trial court to grant or deny a continuance has been reduced to a mere incantation. The majority appears to set forth a per se rule that the trial court must grant a continuance if the defendant presents the court with the name of an attorney, states that he has been retained, and explains the attorney’s absence as the result of a mistake on the part of the defendant. This is so even where the defendant has demanded trial and the witnesses are in court ready to testify.

Section 114 — 4(d) of the Code of Criminal Procedure of 1963 provides that continuances may be granted where the interests of justice require; section 114 — 4(e) provides that continuances are addressed to the discretion of the trial court and are to be considered in the light of the diligence shown on the part of the movant; and section 114 — 4(h) states that the section shall be construed to the end that criminal cases are tried with due diligence consonant with the rights of the defendant and the State to a speedy, fair and impartial trial. (Ill. Rev. Stat. 1989, ch. 38, pars. 114 — 4(d), (e), (h).) After considering these sections, the supreme court in People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229, stated that the focus is on whether the court abused its discretion and that the court’s determination in that regard turns on the facts of the particular case.

The Friedman case seemingly presented a stronger argument for a continuance than the present case. On the morning of trial, the defendant asked for a continuance because he had lost faith in his trial attorney. The trial court denied the request. The appellate court reversed and the supreme court reversed the appellate court, thereby upholding the trial court. The court concluded that the defendant in a criminal case has a constitutional right to be represented by the counsel of his choosing. However, that right could not be employed as a weapon to indefinitely thwart the administration of justice or otherwise embarrass the effective prosecution of crime. The court stated that the trial court had a right to conclude that the request was made solely for the purpose of delay.

As noted initially by the Friedman court, these cases are determined by their particular facts. The ultimate issue is whether the trial court abused the discretion reposed in it in deciding that the interest of justice did not require a continuance. In the cause before us, I do not believe an abuse of discretion occurred. The defendant had an attorney for some months prior to the trial date and in fact demanded trial with that attorney during that period of time. The trial court was faced with the fact that the matter had been scheduled for trial for quite some time, the witnesses were present, and the defendant had on prior occasions demanded trial. On the date set for trial, without any previous warning, the defendant sought a continuance. Considering that criminal cases are to be tried with due diligence consistent with the rights of both the defendant and the State to a speedy, fair and impartial trial and considering the lack of diligence of the defendant, I believe that the trial court had a right to conclude that the interest of justice did not require a continuance.

I would affirm the judgment of the trial court.