From Casetext: Smarter Legal Research

Fowler v. State

Court of Appeals of Georgia
May 25, 1990
395 S.E.2d 33 (Ga. Ct. App. 1990)

Opinion

A90A0090.

DECIDED MAY 25, 1990. REHEARING DENIED JUNE 11, 1990.

D.U.I., etc. Gwinnett State Court. Before Judge Bishop.

Lenzer Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Gerald N. Blaney, Jr., Solicitor, Robert Greenwald, Assistant Solicitor, for appellee.


Robert W. Fowler was convicted of DUI, speeding, and driving while his license was suspended. On appeal he claims that the trial court erred in refusing to declare his prior DUI convictions in municipal recorder's courts to be null and void, and in considering these convictions in his sentencing. He also asserts as error the trial court's denial of his motion for a continuance.

1. Appellant's first enumeration of error was recently decided adversely to his position by the Supreme Court of Georgia. Kolker v. State, 260 Ga. 240 ( 391 S.E.2d 391) (1990).

2. Under OCGA § 17-8-20, "the party making an application for a continuance must show that he has used due diligence." OCGA § 24-10-25 requires that a subpoena be served 24 hours prior to the time a witness is to appear for it to be valid. The witness in the instant case was not served until the night before trial and a proper return of service was not made for almost a month after service of the subpoena. The denial of a motion for a continuance on the ground of an absent witness lies within the sound discretion of the trial judge, which will not be disturbed on appeal absent abuse. Wellons v. State, 144 Ga. App. 218, 219 ( 240 S.E.2d 768) (1977). We find no abuse of discretion by the trial court.

Judgment affirmed. Pope and Beasley, JJ., concur.

DECIDED MAY 25, 1990 — REHEARING DENIED JUNE 11, 1990.


Summaries of

Fowler v. State

Court of Appeals of Georgia
May 25, 1990
395 S.E.2d 33 (Ga. Ct. App. 1990)
Case details for

Fowler v. State

Case Details

Full title:FOWLER v. THE STATE

Court:Court of Appeals of Georgia

Date published: May 25, 1990

Citations

395 S.E.2d 33 (Ga. Ct. App. 1990)
395 S.E.2d 33

Citing Cases

Kephart v. Kephart

2. Father moved for a continuance when two of his subpoenaed witnesses did not appear. The trial court…

Harris v. State

Peebles v. State, 260 Ga. 165, 166 (1) ( 391 S.E.2d 639). Under the attendant circumstances, appellant has…