PC 1050 – Motion for Continuance
Motion for Continuance – Table of Contents
What is a Motion for Continuance as defined under California Penal Code 1050?
In any criminal case, it is required under the California Criminal Procedure that all criminal cases be conducted and set for trial at the earliest possible time. The same is mandated under the Constitution for the State of California. But with all mindfulness and complexities involving events in the case and personal matters, all parties to the case, and or their counsel with informed consent of their clients can seek a continuance. A motion for a continuance allows defense counsel to request from the court to continue a pending or present court matter associated with the client‘s case to another date and time.
What is really required in preparing for a Motion for Continuance as defined under California Penal Code 1050?
There are two basic ways to seek at continuance. First, the defense counsel must communicate the notions of continuing a case with a client, if either the client and or the attorney require a continuance. Once the client agrees to continue the case after understanding the ramifications of doing so, and the client, and testimonial witnesses (if necessary, at the hearing) and defense counsel do not have any internal or external conflicts, defense counsel and the prosecutor must communicate regarding the request to continue the client’s matter. The first option is to file a motion to request the continuance prior to the court date of reference, the second is to seek an in-court stipulation at any time before or upon the court date of reference.
What are the specific steps to preparing a Penal Code 1050 Motion for a Continuance under Penal Code 1050?
First, a Notice of Motion must be written, and placed as the primary and initial section of the complete Motion for Continuance, to give all relevant to the proceeding’s awareness of the request. It must be signed by defense counsel. Second, the notice must be accompanied by a Memorandum of Law that illustrates the facts and assertions regarding the requested continuance, with arguments of law to support the evidence utilized to validate their reasons or assertions for the request to the court. The Memorandum of Law will be followed with a conclusions which summarizes the motion in its entirety; followed by a section of the exhibits, that was referenced in the Memorandum of Law Section, that was used to validate the facts as assertions for the defense counsel’s need for the continuance in light of the primary State and Federal law- the Memorandum of Law must be signed by defense counsel. Third, the Motion is accompanied by a request for a granting order by the Court in case the judge decides to accommodate the request, which can be memorialized as evidence with his signature.
What are the steps for filing a Motion for Continuance by defense counsel as defined under Penal Code 1050?
The Notice Motion for Continuance must be served on all relevant parties at least two court days before the specified hearing with signed affidavits and or declarations with exhibits (if necessary to supplement the material notions of request as specified in the motion. Prior to serving the motion by due process and serves of process to the prosecution, the original motion (The Court Copy), plus three other copies (One for the Prosecution, One or the Client, and the remainder for Defense Counsel), must be filed with the court clerk for conformity. This means the court clerk will review the contents briefly for conformity and provide a bate or time stamp to address the filling along with placing the court seal and clerk signature on or near the seal to signify conformity. At this point all respect copies of the complete motion can be sent to their respective parties either by a service processor or by personal delivery of counsel- electronic filing and service of process is an option.
What does defense counsel need to show to prevail on a Motion for Continuance under Penal Code 1050?
The standard required to prevail on a motion for a continuance is good cause. The determination of good cause is within the discretion of the court hearing the motion. Defense counsel must understand that the Court, when making a determination of whether good cause has been sufficiently argued will take into account: the needs of the witnesses; the rights of the prosecution for a speedy disposition; and the effects such a continuance will have on both the testimonial and non-testimonial evidence; and balance these factors with the client’s right to a fair trial. Note a denial of a continuance for defense counsel to prepare adequately for a proper defense is a deprivation of due process and an abuse of discretion. A showing of good cause is a demonstration of diligence or reasonable efforts to demonstrate with specific facts why a continuance is necessary in fairness of all known circumstances.
What are the most common reasons for requesting a Motion for Continuance under Penal Code 1050?
- Locating new or existing material evidence (testimonial or non-testimonial).
- Locating Clients.
- Substitution of New Counsel requiring preparation.
- Substitution of Private Counsel requiring preparation.
- Withdrawal of Old Counsel.
- Medical Emergency or Death.
- Existing client with new charges in a new or separate venue.
- Calendar Conflicts of defense counsel with a pending previously calendared trial or preliminary hearing.
- Pretrial negotiations.
- Essential necessities of defense counsel or prosecution.
If you need new counsel or have questions concerning a conflict requiring a California Penal Code 1050 Motion for Continuance, call The Esfandi Law Group.
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