Section 6.10 When to Request a Continuance

• Library: Criminal Practice 2012 Supp

B. (§6.10) When to Request a Continuance

Although a continuance of a trial date may be to a date for setting purposes (i.e., a setting docket), a court must continue a criminal preliminary hearing or other “criminal proceeding” to a fixed date. Section 544.320, RSMo 2000; Rule 24.08. This applies regardless of the party requesting the continuance. In most jurisdictions, a defense request for a continuance of a preliminary hearing setting will normally be granted if valid reasons are given. In many jurisdictions where a grand jury is sitting, such a “fixed date” is within 21 days, but generally after the grand jury next meets. Because of the prosecution’s need to subpoena or call witnesses for the hearing, counsel should first notify the prosecution of an intent to request a continuance from the court and then notify the court before the date of the hearing. It will be very difficult to get a continuance granted on the day of the scheduled hearing when the prosecutor is ready to proceed with all witnesses present.

More often than not, it is the prosecution that requests a continuance of a preliminary hearing for various reasons. Typical reasons are witness...