Sec. 1. (a) A motion by a defendant to postpone a trial
because of the absence of evidence may be made only on affidavit
showing:
(1) that the evidence is material;
(2) that due diligence has been used to obtain the evidence; and
(3) the location of the evidence.
(b) If a defendant's motion to postpone is because of the absence of
a witness, the affidavit required under subsection (a) must:
(1) show the name and address of the witness, if known;
(2) indicate the probability of procuring the witness's testimony
within a reasonable time;
(3) show that the absence of the witness has not been procured by
the act of the defendant;
(4) state the facts to which the defendant believes the witness will
testify, and include a statement that the defendant believes these
facts to be true; and
(5) state that the defendant is unable to prove the facts specified
in accordance with subdivision (4) through the use of any other
witness whose testimony can be as readily procured.
(c) The trial may not be postponed if:
(1) after a motion by the defendant to postpone because of the
absence of a witness, the prosecuting attorney admits that the
absent witness would testify to the facts as alleged by the
defendant in his affidavit in accordance with subsection (b)(4); or
(2) after a motion by the defendant to postpone because of the
absence of written or documentary evidence, the prosecuting
attorney admits that the written or documentary evidence exists.
(d) A defendant must file an affidavit for a continuance not later
than five (5) days before the date set for trial. If a defendant fails to file
an affidavit by this time, then he must establish, to the satisfaction of
the court, that he is not at fault for failing to file the affidavit at an
earlier date.
(e) If a motion for a continuance is based on the illness of the
defendant or of a witness, it must be accompanied by:
(1) oral testimony, given in open court; or
(2) a written statement;
of a physician or hospital official having the care or custody of the
defendant or witness, presenting the nature of the illness and the
probable duration of the person's incapacity to attend trial. Such a
written statement must be sworn to by the person making the statement
before an officer authorized to administer an oath. The court may
appoint a physician to examine the defendant or witness and report to
the court on the nature of the person's illness and of his incapacity to
attend trial. The court shall by order provide for compensation for such
a physician.
As added by Acts 1981, P.L.298, SEC.5.
Notes of Decisions
Cited in
56
cases, 1986–2020 · leading case:
Harrison v. State, 644 N.E.2d 1243 (Ind. 1995).
Harrison v. State, 644 N.E.2d 1243 (Ind. 1995).
· cites it 4× “[20] We acknowledge that defendant did renew at trial his motions for a continuance and for the appointment of an expert.”
Lundquist v. State, 834 N.E.2d 1061 (Ind. Ct. App. 2005).
· cites it 4× “See Ind.Code § 35-36-7-1 (2004). 5 . The deputies were aware of Lundquist's tendency to run into the woods when law enforcement officers were called to his residence.”
Tolliver v. State, 922 N.E.2d 1272 (Ind. Ct. App. 2010).
· cites it 4× “Tolliver does not claim that section 35-36-7-1 is applicable to his motion for a break in the trial proceedings.”
Stafford v. State, 890 N.E.2d 744 (Ind. Ct. App. 2008).
· cites it 4× “Stafford does not argue that his motion for continuance was based on a reason identified in Ind.Code § 35-36-7-1, 10 which governs continuances.”
Edward Blackburn v. State of Indiana, 130 N.E.3d 1207 (Ind. Ct. App. 2019).
· cites it 4× “§ 35-36-7-1(b)(2) requires the affiant indicate the probability of procuring the witness's testimony within a reasonable time, which Blackburn failed to do. As the trial court noted, Blackburn admits in his affidavit, "I do not have any other resources for locating Ms.”
Wells v. State, 848 N.E.2d 1133 (Ind. Ct. App. 2006).
· cites it 4× “Wells does not argue that his continuance motion was based upon grounds set forth in Indiana Code Section 35-36-7-1. Rulings on non-statutory motions for continuance are within the sound discretion of the trial court and will be reversed only for an abuse of that discretion and…”
Laster v. State, 956 N.E.2d 187 (Ind. Ct. App. 2011).
· cites it 4× “2d 134, 135 ; see Ind.Code Ann. § 35-36-7-1 (West 1986). When a motion for continuance does not meet the specially enumerated requirements, the trial court’s decision is given substantial deference and is reviewable only for abuse of discretion.”
Stout v. State, 528 N.E.2d 476 (Ind. 1988).
· cites it 4× “Defendant argues that because his motion for continuance complied with the requirements of Ind. Code § 35-36-7-1 , the trial court lacked discretion to deny the motion.”
Flake v. State, 767 N.E.2d 1004 (Ind. Ct. App. 2002).
· cites it 2× “Flake concedes that the absence of witness Washington did not satisfy the statutory criteria of Indiana Code section 35-36-7-1.”
John Aaron Shoultz III v. State of Indiana, 995 N.E.2d 647 (Ind. Ct. App. 2013).
· cites it 2× “Because Shoultz’s oral motion for a continuance made during the middle of his jury trial did not comply with the statutory requirements of Indiana Code section 35-36-7-1, which specifies the requirements necessary to postpone a trial because of the absence of evidence, his…”
Carter v. State, 512 N.E.2d 158 (Ind. 1987).
· cites it 2× “Carter filed another motion for continuance pursuant to Ind. Code § 35-36-7-1 on April 24. He complained of the absence of other material evidence, specifically Fred Logan's psychiatric records.”
Carter v. State, 686 N.E.2d 1254 (Ind. 1997).
· cites it 2× “Carter does not claim he was entitled to a continuance under Indiana Code § 35-36-7-1. 6 . P.L. 158-1994 states: Sec.”
— Ind. Code § 35-36-7-1(2008) — 1 case
Tolliver v. State, 922 N.E.2d 1272 (Ind. Ct. App. 2010).
“Tolliver does not claim that section 35-36-7-1 is applicable to his motion for a break in the trial proceedings.”
— Ind. Code § 35-36-7-1(a) — 2 cases
Laster v. State, 956 N.E.2d 187 (Ind. Ct. App. 2011).
“2d 134, 135 ; see Ind.Code Ann. § 35-36-7-1 (West 1986). When a motion for continuance does not meet the specially enumerated requirements, the trial court’s decision is given substantial deference and is reviewable only for abuse of discretion.”
— Ind. Code § 35-36-7-1(b) — 1 case
— Ind. Code § 35-36-7-1(b)(2) — 1 case
Edward Blackburn v. State of Indiana, 130 N.E.3d 1207 (Ind. Ct. App. 2019).
“§ 35-36-7-1(b)(2) requires the affiant indicate the probability of procuring the witness's testimony within a reasonable time, which Blackburn failed to do. As the trial court noted, Blackburn admits in his affidavit, "I do not have any other resources for locating Ms.”
— Ind. Code § 35-36-7-1(d) — 2 cases
— Ind. Code § 35-36-7-1(e) — 2 cases
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