Hayes v. State

449 S.E.2d 360 | Ga. Ct. App. | 1994

Smith, Judge.

This is the second appearance of this case before this court. In Hayes v. State, 211 Ga. App. 801 (440 SE2d 539) (1994) (Hayes 7), we ffirmed Hayes’s conviction of aggravated assault. We found, however, that he had not been afforded a presentence hearing as required by OCGA § 17-10-2, before being sentenced to 20 years in prison. We remanded the case to the trial court for resentencing. Hayes, supra at 804-805.

Decided October 19, 1994. Lewis R. Lamb, for appellant. Britt R. Priddy, District Attorney, Kenneth B. Hodges III, Assis :ant District Attorney, for appellee.

Following the remand, the trial court scheduled a hearing for March 24, 1994. Hayes learned three days before the hearing that he had been brought back to the local jail because he was to be resen-tenced on March 24, and he notified his counsel. Counsel stated in his place, however, that he could not prepare for the hearing because he was preparing for a murder trial that had been specially set for the next week.

Defense counsel informed the court that he had received no notice of the hearing from the court, the district attorney, or the clerk, and requested a continuance so that he could meet with his client and interview witnesses. The trial court denied the motion for continuance. The hearing proceeded without the participation of the defense and the trial court resentenced Hayes to 20 years in prison.

Hayes contends the trial court erred in conducting the hearing when neither he nor his counsel was given sufficient notice of the date and time of the hearing to allow counsel to prepare or subpoena witnesses. We do not agree.

We do agree with Hayes that it is certainly better practice for the court to ensure that notice of all scheduled hearings is provided t( counsel in some manner, and we are not unsympathetic to his plight Nevertheless, motions for continuances are addressed to the sounc discretion of the court. OCGA § 17-8-22. This court will not interferí with the ruling of a trial court on such a motion unless it is clearh shown that the trial court abused its discretion. Gignilliat v. State 196 Ga. App. 773 (2) (397 SE2d 52) (1990).

Under the very statute upon which Hayes relied in obtaining th< remand in Hayes I, supra, the presentence hearing could have beei held immediately after the jury returned its verdict of “guilty.” Coun sel was aware of this court’s decision remanding this case for a hear ing, and a party requesting a continuance must show he has exercisec due diligence. OCGA § 17-8-20. Under these circumstances, we can not say the trial court abused its discretion in denying the motion fo continuance in this case and requiring counsel to go forward with th hearing.

Judgment affirmed.

Pope, C. J., and McMurray, P. J., concur.