Ark. Code Ann. § 16-89-101 (2020)

Research References

Ark. L. Rev.

Continuances in Arkansas, 4 Ark. L. Rev. 449.

Speedy Trial: A Comparative Analysis Between the American Bar Association Standards of Criminal Justice and Arkansas Law, 25 Ark. L. Rev. 234.

Case Notes

Constitutionality.

Subdivision (c) (2) of this section is unconstitutional insofar as it makes § 16-63-402(b) applicable to criminal cases. Graham v. State, 50 Ark. 161, 6 S.W. 721 (1887).

Continuances.

Continuance will be refused when desired evidence is cumulative only. Sneed v. State, 47 Ark. 180, 1 S.W. 68 (1886); Maxey v. State, 66 Ark. 523, 52 S.W. 2 (1899); Carroll v. State, 71 Ark. 403, 75 S.W. 471 (1903); Gallaher v. State, 78 Ark. 299, 95 S.W. 463 (1906); Owen v. State, 86 Ark. 317, 111 S.W. 466 (1908); Johnson v. State, 89 Ark. 46, 115 S.W. 930 (1909); Godard v. State, 100 Ark. 149, 139 S.W. 1131 (1911); Hamer v. State, 104 Ark. 606, 150 S.W. 142 (1912); Williams v. State, 105 Ark. 698, 151 S.W. 1011, 1912 Ark. LEXIS 511 (1912); Benson v. State, 112 Ark. 442, 166 S.W. 549 (1914).

The expected evidence must be competent and material to the issue. Hamilton v. State, 62 Ark. 543, 36 S.W. 1054 (1896); Kitts v. State, 70 Ark. 521, 69 S.W. 545 (1902); Adcock v. State, 73 Ark. 625, 83 S.W. 318 (1904); Pratt v. State, 75 Ark. 350, 87 S.W. 651 (1905); Harper v. State, 79 Ark. 594, 96 S.W. 1003 (1906); Morphew v. State, 84 Ark. 487, 106 S.W. 480 (1907); Strong v. State, 85 Ark. 536, 109 S.W. 536 (1908)Questioned byRush v. State, 238 Ark. 149, 379 S.W.2d 29 (Ark. 1964); Clampett v. State, 91 Ark. 567, 121 S.W. 934 (1909); Peters v. State, 103 Ark. 119, 146 S.W. 491 (1912), overruled, West v. State, 290 Ark. 329, 719 S.W.2d 684 (1986).

Continuance held to be properly denied. Carroll v. State, 71 Ark. 403, 75 S.W. 471 (1903); Allison v. State, 74 Ark. 444, 86 S.W. 409 (1905); Rucker v. State, 77 Ark. 23, 90 S.W. 151 (1905); Hust v. State, 77 Ark. 146, 91 S.W. 8 (1905); Weatherford v. State, 78 Ark. 36, 93 S.W. 61 (1906); McFarland v. State, 83 Ark. 98, 103 S.W. 169 (1907); Renfroe v. State, 84 Ark. 16, 104 S.W. 542 (1907); Le Grand v. State, 88 Ark. 135, 113 S.W. 1028 (1908); Johnson v. State, 89 Ark. 46, 115 S.W. 930 (1909); McCarthy v. State, 90 Ark. 384, 119 S.W. 647 (1909); Clampett v. State, 91 Ark. 567, 121 S.W. 934 (1909); McRae v. State, 92 Ark. 19, 92 Ark. 28, 122 S.W. 479 (1909); Striplin v. State, 100 Ark. 132, 139 S.W. 1128 (1911); Walker v. State, 100 Ark. 180, 139 S.W. 1139 (1911); Hamer v. State, 104 Ark. 606, 150 S.W. 142 (1912); Bruder v. State, 110 Ark. 402, 161 S.W. 1067 (1913); Tolliver v. State, 113 Ark. 142, 167 S.W. 703 (1914); Quertermous v. State, 114 Ark. 452, 170 S.W. 225 (1914); Bryan v. State, 179 Ark. 216, 15 S.W.2d 312 (1929); Copeland v. State, 226 Ark. 198, 289 S.W.2d 524 (1956); Moore v. State, 229 Ark. 335, 315 S.W.2d 907 (1958), cert. denied, 358 U.S. 946, 79 S. Ct. 356, 3 L. Ed. 2d 353 (1959); Perez v. State, 236 Ark. 921, 370 S.W.2d 613 (1963); Jackson v. State, 245 Ark. 331, 432 S.W.2d 876 (1968); Thacker v. State, 253 Ark. 864, 489 S.W.2d 500 (1973); Wolfs v. State, 255 Ark. 97, 498 S.W.2d 878 (1973); Conway v. State, 256 Ark. 131, 505 S.W.2d 758 (1974); Derrick v. State, 259 Ark. 316, 532 S.W.2d 431 (1976); Russell v. State, 262 Ark. 447, 559 S.W.2d 7 (1977).

Grounds for postponement frequently used, in addition to those provided in the civil procedure statutes, include physical or mental condition of defendant, objections to the jury, want of time for preparation, absence of counsel, and surprise at trial. Perez v. State, 236 Ark. 921, 370 S.W.2d 613 (1963).

—Absence of Counsel.

It was within the trial court's discretion to refuse a continuance because the defendant's counsel was absent from the state on account of the sickness of his wife. Jefferson v. State, 89 Ark. 129, 115 S.W. 1140 (1909).

An application for continuance in a criminal case upon the ground that the applicant was confined to jail and that on account of the sickness of his attorney he was unable to prepare his defense was properly denied when he failed to show wherein he was unable to prepare his defense. Walker v. State, 91 Ark. 497, 121 S.W. 925 (1909).

—Absence of Witnesses.

It was reversible error to refuse the defendant a continuance for an absent witness whose testimony was material to the defense, where the defendant used proper diligence to secure his attendance and it appeared that the witness was within the court's jurisdiction. McElroy v. State, 100 Ark. 301, 140 S.W. 8 (1911).

After court held that defendant was entitled to a continuance, it abused its discretion in overruling the defendant's motion for continuance where state agreed to admit that the absent witness would testify to the facts as set out in the motion, but did not agree to admit that such facts were true. Tiner v. State, 110 Ark. 251, 161 S.W. 195 (1913).

An accused is entitled to compulsory process to compel the attendance of witnesses, and this means the right to a delay until witnesses may be had at the trial, when they are within the jurisdiction of the court, in all cases wherein the authority and power of the court has been properly invoked. Carter v. State, 196 Ark. 746, 119 S.W.2d 913 (1938).

In continuances in criminal cases where the state admits that absent witness would testify as claimed, the state must also admit the truthfulness of such statements of the absent witness. Copeland v. State, 226 Ark. 198, 289 S.W.2d 524 (1956).

Where evidence of absent witness is cumulative, the trial court may deny motion for continuance because of absence of the witness. Copeland v. State, 226 Ark. 198, 289 S.W.2d 524 (1956).

—Burden of Proof.

Burden was on defendant to introduce evidence to show prejudice resulted from court's denial of motion for continuance. Perez v. State, 236 Ark. 921, 370 S.W.2d 613 (1963).

—Discretion of Court.

The matter of continuance is addressed to the discretion of the trial court; its action will not be reversed in the absence of such a clear abuse of discretion as to amount to a denial of justice, and the burden of demonstrating abuse rests upon appellant. Thompson v. State, 26 Ark. 323 (1870); Jackson v. State, 54 Ark. 243, 15 S.W. 607 (1891); Price v. State, 57 Ark. 165, 20 S.W. 1091, 1893 Ark. LEXIS 57 (1893); Kilgore v. State, 99 Ark. 648, 137 S.W. 1092 (1911); White v. State, 105 Ark. 698, 152 S.W. 163 (1912); Sullivan v. State, 109 Ark. 407, 160 S.W. 239 (1913); Perez v. State, 236 Ark. 921, 370 S.W.2d 613 (1963); Russell v. State, 262 Ark. 447, 559 S.W.2d 7 (1977).

Abuse of discretion to grant or deny continuance is reversible error. Cannon v. State, 60 Ark. 564, 31 S.W. 150, 32 S.W. 128 (1895); Jones v. State, 99 Ark. 394, 138 S.W. 967 (1911); Davey v. State, 99 Ark. 547, 139 S.W. 629 (1911).

Granting or refusing a continuance will not authorize a reversal unless the trial court abuses its discretion. Moore v. State, 184 Ark. 682, 43 S.W.2d 228 (1931); Perez v. State, 236 Ark. 921, 370 S.W.2d 613 (1963).

—Motion.

Error cannot be assigned in the overruling of a motion for continuance on account of the absence of a witness if the motion fails to state where the witness resides or what is expected to be proved by him. Shinn v. State, 93 Ark. 290, 124 S.W. 263 (1910); Davis v. State, 95 Ark. 555, 129 S.W. 530 (1910).

An application for continuance on account of the absence of witnesses should specifically set forth the facts expected to be proved by the desired witnesses and not in general terms or by indefinite allegations. Davis v. State, 95 Ark. 555, 129 S.W. 530 (1910).

Motion for continuance in a criminal case because of absence of witness should state that the affiant believes that facts to which the witness would testify are true. Freeman v. State, 150 Ark. 387, 234 S.W. 267 (1921); Estes v. State, 180 Ark. 656, 22 S.W.2d 172 (1929).

The court may in its discretion grant an oral motion for continuance. Venable v. State, 177 Ark. 91, 5 S.W.2d 716 (1928).

In order to obtain a continuance because of the absence of a witness, it is necessary that the movant support his motion by affidavit stating what facts affiant believes the witness will prove, and not merely the effect of such facts in evidence. Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976).

Continuous Session.

The proper procedure under this statute would be to take a recess and not adjourn the court. Thomas v. State, 196 Ark. 123, 116 S.W.2d 358, 1938 Ark. LEXIS 148 (1938).

Where circuit court recessed in one county without adjourning, it could hold a legal term in another county. Thomas v. State, 196 Ark. 123, 116 S.W.2d 358, 1938 Ark. LEXIS 148 (1938).

Subsection (a) applies to any circuit court. Thomas v. State, 196 Ark. 123, 116 S.W.2d 358, 1938 Ark. LEXIS 148 (1938).

If court had adjourned, and not to an adjourned day, in order to reconvene and be in session legally, the record of reconvening would have to show affirmatively a compliance with statutory provisions. Fultz v. State, 196 Ark. 1161, 121 S.W.2d 111 (1938).

In absence of adjourning order or expiration of term, it is presumed the court was in continuous session and statutes relating to posting of notice or reconvening of court have no application. Fultz v. State, 196 Ark. 1161, 121 S.W.2d 111 (1938).

Subsection (a) applies to the court, as distinguished from the judge, and where supplementary motion for new trial supported by affidavits and alleging incompetency of a juror was presented to trial judge in chambers in county other than that of trial, new matter was not properly in the record. Sims v. State, 203 Ark. 976, 159 S.W.2d 753 (1942).

After the judge of the court has convened court for the regular term, the judge then can adjourn and convene court to try criminal case as the judge “may deem necessary.” Bradley v. State, 213 Ark. 927, 213 S.W.2d 901 (1948).

Custody or Bail.

The object of subdivision (b) (1) is to give priority, over other defendants, to the trial of persons who are in custody or on bail when they are indicted. Shipley v. State, 50 Ark. 49, 6 S.W. 226 (1887).

Although a defendant is not in custody or on bond, when indictment is found against him, he may, if arrested on a bench warrant, be tried at the term he is indicted, unless good cause be shown for postponement. Shipley v. State, 50 Ark. 49, 6 S.W. 226 (1887).

A person incarcerated in a sister state at the time of his indictment in this state has the right to ask the state of Arkansas to extradite him for trial, but if the sister state refuses, subsection (b) (2) will not inure to his benefit, or if the sister state requires some kind of waiver which the prisoner does not accomplish, he cannot take advantage of subsection (b) (2); however, if the sister state does agree to the extradition upon conditions met, then Arkansas must extradite and try the prisoner with due diligence or he will be entitled to the benefit of subsection (b) (2). Pellegrini v. Wolfe, 225 Ark. 459, 283 S.W.2d 162 (1955).

Trial Date.

Where a trial has been properly conducted in other respects, a judgment of conviction will not be reversed simply because the record fails to show that the court set a day for trial. Wallace v. State, 28 Ark. 531 (1873).

Putting defendant to trial on day following filing of information cannot be presumed to be error where there is no record in regard to arraignment or whether arraignment was waived or whether defendants objected to going to trial at the time, or desired time for preparation. Smith v. State, 194 Ark. 1041, 110 S.W.2d 24 (1937).

Cited: Price v. State, 57 Ark. 165, 20 S.W. 1091, 1893 Ark. LEXIS 57 (1893); Tiner v. State, 110 Ark. 251, 161 S.W. 195 (1913); State v. Harvey, 169 Ark. 1074, 277 S.W. 869 (Ark. 1925); Givens v. State, 243 Ark. 16, 418 S.W.2d 629 (1967); Roach v. State, 255 Ark. 773, 503 S.W.2d 467 (1973); Conway v. State, 256 Ark. 131, 505 S.W.2d 758 (1974); Worley v. State, 259 Ark. 433, 533 S.W.2d 502 (1976).