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Lawskills.com Georgia Caselaw
CAMPBELL v. THE STATE.
73486.
SOGNIER, Judge.
Child molestation. Tift Superior Court. Before Judge Forehand.
Campbell appeals from his conviction of child molestation. In his sole enumeration of error appellant contends the trial court erred by granting, ex parte, the State's motion for a continuance.
Under the circumstances here, we find no error in granting the continuance ex parte, particularly where the court held a full hearing on the motion the following morning. The grant or denial of a motion for continuance is within the sole discretion of the trial judge, and absent a showing that such discretion was abused, it will not be controlled. OCGA 17-8-33 (a); Wright v. State, 169 Ga. App. 181, 182 (1) (312 SE2d 181) (1983). We find no abuse of discretion here. The continuance was granted to assure that appellant's rights under OCGA 17-7-210 were protected. This court has held that the code provisions relating to continuances address themselves "to that broad discretion which looks primarily to the attainment of justice under the special facts of the particular case, -- a discretion unfettered by the exact letter of the law." Smith v. State, 7 Ga. App. 252, 257 (2) (66 SE 556) (1909).
In connection with this enumeration of error appellant contends he was harmed by the fact that he was not tried until March 25, 1986, and was not tried by the same jury that had been selected on December 16, 1985 for the trial of this case. As pointed out earlier, the jury selected on December 16, 1985 was not empaneled and sworn. Appellant made no objection to trial by a different jury when such jury was selected, and made no motions in connection with any undue delay in the trial of his case. It is well settled that this court will not consider matters raised for the first time on appeal. Bowen v. State, 173 Ga. App. 361, 362 (4) (326 SE2d 525) (1985). Accordingly, we find no error.
David E. Perry, District Attorney, Diane L. Perry, Assistant District Attorney, for appellee.
Larry B. Mims, for appellant.
DECIDED FEBRUARY 16, 1987.
Friday September 5 14:33 CDT


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