2014 Ark. App. 452
Ark. Ct. App.2014Background
- Tracy Land Davis was convicted in 2011 of possession of a controlled substance; imposition of sentence was suspended for 60 months with conditions including not committing an offense punishable by imprisonment.
- A petition to revoke suspension was filed May 10, 2013, alleging Davis committed first-degree criminal mischief and theft by removing an air-conditioner coil from Washington Middle School to sell for scrap.
- Police stopped Davis at 2:05 a.m. on April 16, 2013, carrying an air-conditioner coil on his head and wearing a backpack containing tools, gloves, copper tubing, and a mask; he was about 0.25–0.5 mile from the school.
- School maintenance personnel identified the coil as coming from the damaged unit; fresh freon indicated recent tampering.
- At the revocation hearing Davis testified he found the coil and tools and also reported his aunt said the school damage was reported earlier in the month.
- On the day of the hearing defense counsel requested a continuance to investigate the aunt’s assertion; the trial court denied the request and revoked Davis’s suspended sentence. Davis appealed the denial of the continuance.
Issues
| Issue | Davis' Argument | State's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion by denying a continuance requested the day of the revocation hearing | Counsel needed time to investigate Davis’s claim that news reports showed the school damage predated his arrest, which could affect witness testimony and guilt | Request was untimely, no supporting affidavit, no showing the alleged news report existed or what it would prove, and no demonstration of prejudice from denial | Denial not an abuse of discretion; continuance properly denied |
Key Cases Cited
- Thomas v. State, 370 Ark. 70, 257 S.W.3d 92 (2007) (continuances granted only for good cause and limited to necessary time; denial reviewed for abuse of discretion)
- Anthony v. State, 339 Ark. 20, 2 S.W.3d 780 (1999) (factors for continuance: movant’s diligence, probable effect of testimony, likelihood of procuring witness if postponed, and requirement of affidavit stating facts the witness would prove)