TITLE TWO — PRELIMINARY PROCEEDINGS
Rule 10. Continuances
Continuances.
After a case has been entered upon the trial calendar, a continuance shall be granted only when based upon cause and only when necessary to insure that the interests of justice are served.
The factors, among others, which a judge shall consider in determining whether to grant a continuance in any case are:
Whether the failure to grant a continuance in the proceeding would be likely to make a continuation of the proceeding impossible, or result in a miscarriage of justice.
Whether the case taken as a whole is so unusual or so complex, because of the number of defendants or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate preparation of the case at the time it is scheduled for trial.
Whether the overall caseload of defense counsel routinely prohibits his making scheduled appearances, whether there has been a failure of diligent preparation by a party, and whether there has been a failure by a party to use due diligence to obtain available witnesses.
An attorney who is to be otherwise engaged in a trial, evidentiary hearing, or appellate argument so as to require a continuance shall notify the court and the adverse party or the attorney for the adverse party of such conflicting engagement not less than twenty-four hours before the scheduled appearance, or within such other time as is reasonable under the circumstances.
A motion for a continuance may include a request that the court rule on the motion without a hearing. If such a motion is filed at least twenty-four hours prior to the scheduled appearance or trial date and indicates that all parties have agreed to the continuance, the court shall, prior to the scheduled date, rule on the motion without a hearing unless it deems a hearing to be necessary. In any other case, the court may in its discretion rule on a continuance motion without a hearing, provided that all parties have had an adequate opportunity to file an opposition to the motion. If the court continues the case without a hearing, the defendant’s counsel shall inform the defendant of the revised date. Any motion filed pursuant to this subdivision shall provide one or more proposed continuance dates and state all supporting grounds, and any factual allegations shall be supported by affidavit.
Additional Factors. The judge shall further consider whether the defendant is in custody under 6 R. Stat. § 131.203; the number and disposition of continuances previously granted in the case and the party at whose instance each was granted; the availability and expected availability of summoned witnesses; whether the ground asserted could have been avoided by diligence; the age of the case measured from the return day; and the position of any victim entitled to be heard under Rule 20.
Form of the Motion. A motion for a continuance is a pretrial motion governed by Rule 13. It shall identify the appearance or trial date sought to be continued, state the length of the continuance requested, state whether the defendant is in custody, state whether each other party assents, and be supported by an affidavit of a person with personal knowledge of the facts relied upon.
Continuance upon the Court’s Own Motion. The judge may continue any appearance or trial date upon the judge’s own motion for cause stated upon the record, after giving the parties notice in the proceeding communications and an opportunity to be heard. Where the judge continues a matter upon the judge’s own motion, no costs shall be assessed under subdivision (b) of this rule.
Order; Notice. A continuance is effective only upon the entry of an order. The order shall state the cause found, the new date certain, whether the period is excluded under subdivision (d)(2) of this rule, and whether the period prescribed by Rule 46(a) is enlarged and by how much. The electronic filing system computes no dates and issues no reminders; each party and each attorney of record is charged with the dates stated in the order.
Denial. Upon denying a continuance the judge shall state the reasons upon the record. A denial is not a ruling upon a motion to dismiss or for appropriate relief within the meaning of Rule 15(a)(1).
Assessment of Costs. When a continuance is granted upon the motion of either the State or the defendant without adequate notice to the adverse party, causing the adverse party to incur unnecessary expenses, a judge may in his discretion assess those expenses as costs against the party or counsel requesting the continuance.
Preservation of Testimony. A judge may order as a condition upon the granting of a continuance that the testimony of a witness then present in court be taken and preserved for subsequent use at trial or any other proceeding. The witness shall be examined in open court by the party on whose behalf he is present and the adverse party shall have the right of cross-examination. The expense of taking and preserving the testimony shall be assessed as costs against the party requesting the continuance.
Effect of a Continuance upon Time.
The Pre-Trial Period. A continuance does not of itself enlarge the seventy-two hour period prescribed by Rule 46(a). An order granting a continuance shall state expressly whether that period is enlarged and for what period; absent an express statement, the period is not enlarged. An enlargement under this subdivision is an enlargement under Rule 46(b) and is subject to its conditions.
Speedy Trial. The period of a continuance granted upon the motion of the defendant, or with the defendant’s assent stated upon the record, shall be excluded from the computation of time under Rule 19. The period of a continuance granted upon the motion of the State over the defendant’s objection, or upon the court’s own motion over the defendant’s objection, shall not be excluded unless the judge finds upon the record that the ends of justice served by the continuance outweigh the interest of the defendant and of the public in a speedy trial, and states the reasons for that finding. No continuance shall be granted for the convenience of counsel alone over the objection of a defendant in custody.
Trial Date Fixed at the Pretrial Conference. A trial date fixed by the court under Rule 11(a)(3)(C) or assigned under Rule 11(b)(2)(C) shall not be changed except by a continuance granted under this rule.
Effect of a Continuance upon Custody and Release.
Custody. A continuance shall not extend the period of pre-trial detention prescribed by 6 R. Stat. § 131.203. Where a defendant is in custody and the continuance would carry the trial date beyond that period, the judge shall order the defendant’s release upon such conditions as are authorized by law, or shall deny the continuance.
No Monetary Conditions. No continuance shall be conditioned upon the posting of bond or any other monetary condition of release, and no such condition shall be imposed in connection with a continuance. 6 R. Stat. § 131.205.
Failure to Appear. A continuance granted after a defendant has failed to appear does not vacate a warrant issued for that failure. The warrant remains in force in the in-game warrants system until recalled by order under Rule 6(c)(4).
Witnesses Under Summons. A witness summoned under Rule 17 shall remain available in attendance until the proceeding is adjudicated or until excused by the court. 6 R. Stat. § 131.302. Upon granting a continuance the judge shall either excuse each summoned witness, or continue the summons to the new date certain and direct that notice be given in the proceeding communications. A witness who departs after being excused, or who appears on the continued date, shall not be held in contempt for the earlier absence.