89-KA-810 Precedential Affirmed Processed

State v. Cologne

Louisiana Court of Appeal, Fifth Circuit · Filed May 16, 1990 · 562 So. 2d 24

Cited by

State of Louisiana v. Tino T. Pierre La. Ct. App. 4th Cir. 2024
State v. Malinda 663 So. 2d 882 La. Ct. App. 5th Cir. 1995
State v. Robinson 653 So. 2d 669 La. Ct. App. 5th Cir. 1995
State v. Vallee 629 So. 2d 1262 La. Ct. App. 1st Cir. 1993
State v. Brooks 595 So. 2d 777 La. Ct. App. 1st Cir. 1992
State v. Johnson 592 So. 2d 818 La. Ct. App. 5th Cir. 1991
State v. Boudreaux 592 So. 2d 449 La. Ct. App. 1st Cir. 1991
State v. LeCompte 584 So. 2d 367 La. Ct. App. 1st Cir. 1991

Authorities cited

Identified automatically; this list may not be exhaustive.

City of New Orleans v. Ballansaw 475 So. 2d 768
State v. Boudreaux 504 So. 2d 1165
State v. Robicheaux 412 So. 2d 1313
State v. Salgado 473 So. 2d 84
State ex rel. Fisher v. Blackburn 478 So. 2d 1233
State v. Washington 407 So. 2d 1138
State v. White 472 So. 2d 128

Opinion text

562 So.2d 24 (1990) STATE of Louisiana v. Deanna COLOGNE. No. 89-KA-810. Court of Appeal of Louisiana, Fifth Circuit. May 16, 1990. Mark A. Marino, Destrehan, for defendant-appellant. Kurt Sins, 29th JDC Dist. Attorney's Office, Hahnville, for plaintiff-appellee. Before CHEHARDY, WICKER and GOTHARD, JJ. WICKER, Judge. Deanna Cologne appeals her conviction of aggravated assault, La.R.S. 14:37, complaining that the judge failed to grant a continuance of her trial. We affirm; but we note that Mrs. Cologne's proper remedy is a writ of review to this court, since she was convicted of a misdemeanor. La.C. Cr.P. art. 912.1 C(1). In the interest of judicial economy, we will consider this appeal as an application for supervisory writs. City of New Orleans v. Ballansaw, 475 So.2d 768 (La.1985); State v. Boudreaux, 504 So.2d 1165 (La.App. 5th Cir. 1987). Mrs. Cologne was arraigned on September 29, 1989; and the judge at that time appointed counsel to represent her. Her husband, who was also charged with the same offense and arraigned on the same date, refused the court-appointed attorney and informed the court that he intended to get in touch with the attorney general's office. On the date of her trial, October 26, 1989, Mrs. Cologne was unrepresented and refused to be represented by the previously appointed attorney. Consequently, the judge appointed another attorney for her. That attorney then orally moved for a continuance to subpoena grand jury testimony and a witness from the Department of Wildlife and Fisheries, Lt. Edward Adams. The judge denied the continuance, and the trial went forward. One of the state witnesses was Lt. Adams, the arresting officer, whom Mrs. Cologne's attorney wanted to subpoena; and she had the opportunity *25 for full cross-examination of this witness. state of Louisiana The general rule is that motions for continuance be in writing, La.C.Cr.P. art. 707, since the denial of an oral motion for continuance leaves nothing for review. State v. Robicheaux, 412 So.2d 1313 (La. 1982); State v. Salgado, 473 So.2d 84 (La. App. 5th Cir.1985), writ den. 478 So.2d 1233 (La.1985). There is an exception to the general rule where the circumstances producing the motion for continuance occur unexpectedly and the counsel for the defendant had no opportunity to prepare a written motion. State v. Washington, 407 So.2d 1138 (La.1981); State v. White, 472 So.2d 128 (La.App. 5th Cir.1985). Since Mrs. Cologne waited until the day of her trial to refuse appointed counsel, the circumstances resulting in the motion for continuance were not unexpected and any detriment to her resulting from the lack of time to prepare for trial and subpoena witnesses and records is of her own making. However, the circumstances of his last-minute appointment were certainly unexpected by Mrs. Cologne's attorney; and he apparently had no opportunity to prepare a written motion. We have reviewed the record of the case and see no detriment to Mrs. Cologne resulting from this denial, since she was well represented by her attorney. The judge has the discretion to grant or deny motions for continuance, and we do not believe that she abused that discretion. We affirm the conviction and sentence of Deanna Cologne. AFFIRMED.