FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Osceola County, A. James Craner,
S. Purdy, Public Defender, and Ali L. Hansen, Assistant
Public Defender, Daytona Beach, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Nora H. Hall,
Assistant Attorney General, Daytona Beach, for Appellee.
Cheremont appeals from his conviction for misdemeanor
battery. He argues that the trial court abused its discretion
in denying his request for a brief recess to secure the
presence of a key witness. We agree and reverse for a new
case began on a park basketball court where Cheremont and the
victim, Isaiah Walter, were involved in a pick-up basketball
game. Following a heated exchange, Cheremont punched Walter,
knocking him to the ground. Walter's head hit the ground,
causing him to lapse into a seizure. Walter suffered significant injuries,
including a broken cheekbone and dislocated jaw as a result
of being struck.
with aggravated battery causing great bodily harm, Cheremont
claimed to have acted in self-defense. The trial lasted two
days, from Thursday morning to early Friday afternoon. The
State presented four witnesses, only two of whom had actually
witnessed the altercation. The State rested its case on
the State rested, the defense indicated it wished to call two
witnesses, Cheremont and his friend, Chris Athias, who was
also playing basketball at the time of the altercation.
Athias traveled from Pensacola to testify and was present
throughout the week preceding trial. Although Athias was
present at the courthouse on Thursday, when trial recommenced
on Friday morning, he was not at the courthouse. As a result,
defense counsel elected to call Cheremont to testify first,
while sending Cheremont's mother to pick up Athias.
Cheremont's testimony ended at approximately 11:25 a.m.
Defense counsel requested a short recess to secure
Athias's presence, asserting that his testimony would
support Cheremont's claim of self-defense. Despite no
objection from the State, the trial court denied the request
to continue the proceedings. Instead, the court reviewed the
jury instructions with the parties and required the State to
begin its closing argument. Shortly thereafter, the trial
court recessed the proceedings until 1:30 p.m. for a lunch
break. The jury ultimately found Cheremont guilty of the
lesser included offense of misdemeanor battery.
sole issue Cheremont raises on appeal is the trial
court's refusal to allow the defense a brief recess to
secure Athias's presence. We agree that the failure to
allow a short recess in this case requires reversal.
court's ruling on a motion to continue is reviewed for
abuse of discretion. Jenkins v. State, 872 So.2d
388, 390 (Fla. 4th DCA 2004). The court should grant the
defendant's motion to continue to secure the presence of
a witness if the defense demonstrates: "(1) prior due
diligence to obtain the witness' presence; (2) that
substantially favorable testimony would be forthcoming; (3)
that the witness was available and willing to testify; and
(4) that the denial of the continuance would cause material
prejudice." T.J.M. v. State, 925 So.2d 440, 440
(Fla. 5th DCA 2006) (citing Jenkins, 872 So.2d at
met that burden in this case. It is undisputed that Athias
traveled from Pensacola to testify and had been in attendance
throughout the week, waiting for the case to be called for
trial. He was at the courthouse throughout the first day of
trial. According to Cheremont, Athias's testimony would
have supported Cheremont's theory that he was acting in
self-defense. Defense counsel informed the trial court that
efforts were being made to secure Athias's presence and
requested a brief recess in order to do so. Notably, the
State did not object. Finally, and
perhaps most importantly, the trial court's refusal to
allow the recess denied Cheremont the opportunity to present
witness testimony in support of his defense. Thus, there is
no question that Cheremont was prejudiced by the trial
court's denial of his request. See Jenkins, 872
So.2d at 389 ("There are few rights more fundamental
than the right of an accused to present witnesses in his or
her own defense." (citing Chambers v.
Mississippi, 410 U.S. 284, 302 (1973))). Accordingly, we
conclude that Cheremont is entitled to a new trial in which
he has the opportunity to present witness testimony to
support his defense.
AND REMANDED FOR A NEW TRIAL.
BERGER, J., and JACOBUS, B.W., ...