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08/17/89 the People of the State of v. Phillip Todd Finklea

August 17, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

PHILLIP TODD FINKLEA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

543 N.E.2d 536, 187 Ill. App. 3d 610, 135 Ill. Dec. 153 1989.IL.1267

Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.

APPELLATE Judges:

JUSTICE STEIGMANN delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STEIGMANN

Following a jury trial, the defendant was convicted of attempt (burglary) (Ill. Rev. Stat. 1987, ch. 38, par. 8-4) and sentenced to two years' imprisonment. The only issue defendant raises on appeal is that his pretrial motion for a continuance was improperly denied by the trial court.

We affirm.

On August 29, 1988, an information was filed charging the defendant with the offense of attempt (burglary). On that date he was released on his own recognizance, a public defender was appointed pursuant to his request, and the cause was allotted for a preliminary hearing on September 9, 1988. On that later date, probable cause was found to believe that defendant committed the offense charged. The defendant was arraigned, and the case set for pretrial hearing on October 10, 1988, and for trial on October 17, 1988. A pretrial discovery order was entered on September 9, 1988, and the State filed its answer in open court.

On September 25, 1988, the defendant was arrested in Moultrie County on an unrelated charge and held in the Moultrie County jail. When the Macon County case was called for pretrial hearing on October 10, 1988, the defendant did not appear. His defense counsel, the same assistant public defender who represented him at the preliminary hearing, advised the court that he had had no contact with the defendant since the preliminary hearing.

On October 13, 1988, defense counsel was informed by the prosecutor that the defendant was incarcerated in Moultrie County. On October 14, 1988, at a pretrial hearing, defense counsel requested a continuance on the grounds that he had not conferred with his client. The motion was denied. Later that day, defense counsel went to the Moultrie County jail and spoke with the defendant over a phone for about 15 minutes.

On October 17, 1988, the case was called for trial and defense counsel again moved for a continuance on the ground that he was not prepared to go to trial. The motion was again denied. The case proceeded to trial, with two witnesses testifying for the State and the defendant testifying on his own behalf. The jury convicted the defendant of attempt (burglary).

In People v. Killings (1986), 150 Ill. App. 3d 900, 501 N.E.2d 1363, this court considered the propriety of the denial by the trial court of the defendant's motion for a continuance and stated the following:

"he decision to grant or deny a motion for continuance, by law, lies in the sound discretion of the trial court. (People v. Friedman (1980), 79 Ill. 2d 341, 347, 403 N.E.2d 229, citing Ill. Rev. Stat. 1973, ch. 38, par. 114-4(e).) The statute specifically enumerates circumstances which mandate the granting of a continuance and additionally require[s] that diligence be shown on the part of the movant. (People v. Lott (1977), 66 Ill. 2d 290, 296, 362 N.E.2d 312, 314.) The granting of a continuance necessarily depends upon the facts and circumstances surrounding each request. People v. Clayborne (1977), 47 Ill. App. 3d 202, 361 N.E.2d 1141.

Upon review, a conviction will only be reversed when it appears that the refusal of additional time in some manner embarrassed the accused, impeded the preparation of his defense, or prejudiced his right[s]. (People v. Clayborne (1977), 47 Ill. App. 3d 202, 361 N.E.2d 1141.) The ...


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