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KENNEDY v. THE STATE.
A95A0174.
SMITH, Judge.
Aggravated assault, etc. Lee Superior Court. Before Judge Gibson.
Mark Kennedy appeals his conviction on charges of aggravated assault and possession of a weapon by an inmate.
1. Kennedy first contends the trial court abused its discretion by denying trial counsel's motion for continuance on grounds that he had an inadequate opportunity to prepare his defense.
" 'A motion for continuance is addressed to the sound discretion of the trial court, and this court will not interfere unless it is clearly shown that the court abused its discretion. OCGA 17-8-22.' [Cit.]" Gignilliat v. State, 196 Ga. App. 773 (2) (397 SE2d 52) (1990). "There is no fixed rule as to the number of days that should, of right, be allowed counsel in a criminal case to prepare the case for trial, but the trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require. . . . Broad discretion must be granted trial courts on matters of continuances and only unreasoning and arbitrary insistence upon expeditiousness in the face of justifiable request for delay would violate the right to assistance of counsel." (Citations and punctuation omitted.) Bennett v. State, 186 Ga. App. 832-833 (2) (368 SE2d 789) (1988). See also OCGA 17-8-20.
While the record reflects the court's denial of trial counsel's motion for continuance, it does not include counsel's argument in support of his request. Kennedy was indicted on August 1, 1994. Pointing out that trial counsel was appointed on August 9 and a jury trial began on August 15, 1994, appellate counsel contends the trial court abused its discretion in denying a continuance under these circumstances, because trial counsel had only three working days to prepare for trial. Appellate counsel, who happened to be in court when this case was called for trial, attempts to argue that trial counsel was misled by the court as to the completeness of the record on this issue. However, we cannot consider facts related in the briefs that are not a part of the record, and in the absence of an affirmative showing of error on the record, the trial court's ruling will not be disturbed. See Wheeless v. State, 135 Ga. App. 406 (7) (218 SE2d 88) (1975). Accordingly, we find no error in the denial of trial counsel's motion for continuance.
John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.
Beauchamp & Associates, Robert M. Beauchamp, for appellant.
DECIDED MARCH 28, 1995.
Thursday May 21 07:44 EDT


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