Court Continuance Request Due to Inadequate Time to Prepare

"'A continuance may properly be denied when the party had ample time for preparation or the request for a continuance was not made until the last minute.'" Corson Village Sanitary Dist. v. Strozdas, 539 N.W.2d 876, 878 (SD 1995) (quoting Fanning v. Iversen, 535 N.W.2d 770, 776 (SD 1995)). However, an accused is entitled as a matter of right to a reasonable opportunity to secure evidence on his behalf. If it appears that due diligence has failed to procure it, and where a manifest injustice results from denial of the continuance, the trial court's action should be set aside. State v. Dowling, 87 S.D. 532, 534, 211 N.W.2d 572, 573 (1973) (citing State v. Wilcox, 21 S.D. 532, 535-36, 114 N.W. 687, 688-89 (1908)). Other factors trial courts must consider in deciding whether or not to grant a continuance include: (1) whether the delay resulting from the continuance will be prejudicial to the opposing party; (2) whether the continuance motion was motivated by procrastination, bad planning, dilatory tactics or bad faith on the part of the moving party or his counsel; (3) the prejudice caused to the moving party by the trial court's refusal to grant the continuance; (4) whether there have been any prior continuances or delays. Evens v. Thompson, 485 N.W.2d 591, 594 (SD 1992). Additionally, when a continuance is requested for lack of time to prepare, the court must consider: (1) whether the accused has had ample time to prepare for trial and (2) whether additional time would allow the defendant to be any better prepared to go to trial. 22A CJS Criminal Law, 624 (1989). In United States v. Medlin, 353 F.2d 789, 793 (6thCir 1965), cert. denied, 384 U.S. 973, 86 S. Ct. 1860, 16 L. Ed. 2d 683 (1966), the court was presented with a similar issue. There defendant's counsel claimed he had inadequate time to prepare, detailing the long hours he had already spent on the case and stressing the attention diverted to other obligations of his practice. The trial court denied the motion, and the court of appeals affirmed, relying on the fact that the attorney had been engaged close to a year before trial and in that period of time had employed numerous pretrial procedures to prepare for the accused's defense. Further, the court noted that counsel had not shown what might have been done to enhance his preparation for trial. Finally, it affirmed because it found that no prejudice to the defendant resulted from the denial of the continuance.