Davis v. State , 190 Ga. App. 178 ( 1989 )

190 Ga. App. 178 (1989) 378 S.E.2d 519

DAVIS
v.
THE STATE.

77861.

Court of Appeals of Georgia.

Decided February 6, 1989.

Sinreich & Francisco, John R. Francisco, for appellant.

Willis B. Sparks III, District Attorney, Kimberly S. Shumate, Assistant District Attorney, for appellee.

BENHAM, Judge.

Appellant challenges his judgment of conviction for burglary, contending that his statutory and constitutional rights were violated when the trial court denied his motion for a continuance of his trial. We find no error in the trial court's ruling and affirm the judgment.

Several days before the trial in question, appellant was tried on the same two counts of burglary, but when the jury was unable to reach a verdict, the trial court declared a mistrial. The next day, appellant filed a request for the transcript of the mistrial case. Four days later appellant's case was again called for trial, and he responded by moving for a continuance, arguing that the transcript of the earlier trial was not available and that he needed it to properly cross-examine witnesses who would be called to testify. The trial court found that appellant had made a timely request for the transcript and that the court reporter had not had an opportunity to prepare it, but denied appellant a continuance. The denial was based in part on the fact that the court reporter was in the courthouse and if it became necessary at any point in the trial, she could be called as a witness to testify for appellant regarding what a particular witness had testified to at the previous trial, and that the trial court gave assurance that it would accommodate the defense in that regard. The trial transcript shows that during the trial when appellant requested testimony from the previous trial, it was made available to him.

The grant or denial of a continuance is within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of discretion. OCGA § 17-8-22; Wilson v. State, 158 Ga. App. 174 (1) (279 SE2d 345) (1981). Appellant has not shown how additional time would have benefited him or how the lack of time harmed him. Since the testimony that he sought was provided for him, we find no error in the trial court's denial of the motion for continuance. Id.

Judgment affirmed. McMurray, P. J., and Pope, J., concur.