Section 6.11 When Not to Request a Continuance

• Library: Criminal Practice 2012 Supp

C. (§6.11) When Not to Request a Continuance

Because the state has the right to re-file charges, counsel may want to consult with the client before automatically requesting a dismissal for failure to prosecute. If the case is dismissed and the charges re-filed, the defendant is re-arrested and re-processed at the jail, and a new, and perhaps higher, bond must be posted. Counsel should weigh the options with the client because the client may want to avoid the inconvenience and embarrassment of a new arrest and booking procedure if the re-issuance of the complaint is a certainty. If the prosecution announces that it is not ready at the hearing, counsel would be wise to speak with the prosecutor to determine the reasons, e.g., witnesses’ failure to appear, etc. It may be that the victim or some other essential witness is refusing to cooperate and, therefore, requesting a dismissal would be warranted because the likelihood of the case being re-filed is minimal. If the continuance is requested for some technical reason or because of scheduling conflicts, or even because a police officer is on vacation, counsel should discuss with the client the option (and wisdom) of requesting dismissal of the case or consenting to the state’s request for continuance. Obviously, if a client is confined and unable to post bond, a dismissal of the charge will lead to the release of the defendant from confinement (albeit potentially short-lived). Other and potentially better options, however, may present themselves; it may be possible to procure a bond reduction...