                            No.    93-492

          IN THE SUPREME COURT OF THE STATE OF MONTANA




STATE OF MONTANA,
          Plaintiff and Respondent,
    v.
RODNEY NELSON SANFORD,
          Defendant and Appellant.



APPEAL FROM:   District Court of the Thirteenth Judicial District,
               In and for the County af Carbon,
               The Honorable Robert W. Wolmstrom, Judge presiding.


COUNSEL OF RECORD:
          For Appellant:
               Richard J. Carstensen, Attorney at Law,
               Billings, Montana
          For Respondent:
               Hon. Joseph P. Mazurek, Attorney General,
               George Schunk, Assistant Attorney General,
               Helena, Montana
               A. W. "Tony*1Kendall, County Attorney,
               Kent E. Young, Deputy County Attorney,
               Red Lodge, Montana


                                  Submitted on Briefs:   June 16, 1994
                                             Decided:    September 1 2 , 1994
Filed:
Justice William E. Hunt, Sr., delivered the opinion of the Court.
     Rodney Nelson Sanford appeals from a May 3, 1993, order of the
Thirteenth Judicial District Court, Carbon County, denying his
motion to continue and subsequent guilty verdict following nonjury
trial.    We affirm the District Court.
     The following issues are raised on appeal:
     1.     Did the District Court abuse its discretion or prejudice
defendant by denying his motion for a continuance?
     2.     Did the District Court abuse its discretion by trying
defendant in absentia?
     On October 29, 1990, Officer Steven Williams of the Carbon
County Sheriff's Department cited Sanford with driving under the
influence of alcohol or drugs.      With the assistance of Officer
Kelly Hagan of the Red Lodge Police Department, Officer Williams
transported Sanford to jail in Red Lodge.          Officer Williams
subsequently cited Sanford with misdemeanor assault for allegedly
poking Williams in the eye. The State additionally charged Sanford
with driving without a license and driving without proof of
insurance.    On October 30, 1990, Sanford pled guilty to driving
without a license, and not guilty to the other charges.
     The Justice Court held trial in a handicap accessible county
building following Sanford's request for accommodation. Sanford's
physical condition, as verified by        Dr.   Richard A.   Nelson's
statement to the court, necessitated his use of a wheelchair. The
jury found Sanford guilty of the offenses of driving under the
influence and misdemeanor assault, and the Justice Court entered
judgment   .
     Sanford appealed to the District Court. Between July 1991 and
January 1993, the District Court set seven separate dates for
trial. With the exception of the December 1992 trial date, Sanford
moved to continue before each trial and made each motion between
four and eleven days before the scheduled date:
               Date of Trial         Date Motion Filed
                                           08/29/91
                                           11/08/91
                                           03/12/92
                                           05/20/92
                                           08/28/92
                                           none
                                           04/28/93
                                           05/03/93

The District Court granted each motion except that made on
April 27, 1993.       Additionally, the District Court continued the
December       1992   trial    on    its   own    motion   after   Sanford's
court-appointed counsel requested leave to withdraw due to a family
emergency.
     At issue on appeal is the District Court's denial of the April
and May 1993 motions to continue the May 3 trial.             In an unsworn
document dated May 3, Sanford alleges that on April 21 he slipped
and fell in the bathtub, severely injured his tailbone, and "has
not been able to reasonably walk, sit, get around of [sic] take
care of himself       . . . .  "    Instead of seeking immediate medical
attention, Sanford waited until April 27 and kept a previously
scheduled appointment with Dr. Leland E. Stanley. Sanford attached
the following unsworn statement of Dr. Stanley to the motion:
     TO WHOM IT MAY CONCERN
     I have seen Mr. Sanford on 4/27/93. It appears that he
     would be unable to be at trial on Monday, 5/3/93 because
     of severe muscle spasms and pain in his back, neck, and
     buttocks. Recently he had an accident and probably has
     a broken coccyx and this also adds to the problem. It
     will probably be at least 2-3 weeks before he is well
     enough to attend trial.
Sanford additionally went to the Poly      rive Family Practice and
obtained the following unsworn statement of Dawna Lynn Wells,
Physician's Assistant   -   Certified:
     TO WHOM IT MAY CONCERN:
     RE: RODNEY SANFORD
     This letter is to inform you that due to health reasons,
     Rodney Sanford is unable to appear in court Monday, May
     3, 1993. It will probably be about 2 weeks before he is
     well enough to attend.
     The transcript of the May 3 nonjury trial shows that Sanford's
attorney telephoned the District Court and the State on April 27 to
inform them that a motion to continue would be sought due to
Sanford's alleged physical condition.     Sanford filed the motion
with the District Court on April 28.      The State objected to the
motion.
     Soon after the motion was filed, the District Court suggested
that a telephone deposition of Dr. Stanley be arranged.         The
attorneys, the court, and Dr. Stanley participated in a telephone
conference on Friday, April 30.      No court reporter attended the
conference, and a formal deposition was not obtained.    At the end
of the telephone conference, the court denied Sanford's motion to
continue.
     Sanford failed to appear in person at trial on Monday, May 3.
Sanford's attorney appeared, renewed the motion to continue, and,
in support of the motion, provided the court and the State with
copies of an unsworn affidavit and the unsworn medical statements.
The State objected to the introduction of the unsworn documents and
to the motion.    After brief statements from both sides, the court
denied the motion to continue and directed the State to proceed
with its case against Sanford.
     Neither party made opening statements.       The State called
Officers Williams and Hagan who testified on direct examination.
Sanford's attorney chose not to cross-examine either of the State's
witnesses.   Sanford's attorney called no witnesses and introduced
no evidence.     The District Court found Sanford guilty of driving
under the influence and misdemeanor assault and entered judgment.
                               ISSUE 1
     Did the District Court abuse its discretion or prejudice the
defendant by denying his motion for a continuance?
     The granting of a continuance is not a matter of right with a
criminal defendant, State v. Walker (l987), 225 Mont. 415, 419, 733
P.2d 352, 355, but is a matter vested in the sound discretion of
the trial court. State v. Haskins (1992), 255 Mont. 202, 207, 841
P.2d 542, 545.      The decision of the trial court will not be
disturbed on appeal absent a clear abuse of discretion or a clear
showing of prejudice to the movant.      Haskins, 841 P.2d at 545;
State v. LaPier (lggo), 242 Mont. 335, 790 P.2d 983, denial of hab.
corp. aff 'd, LaPier v. McCormick (9th Cir. 1993), 986 F.2d 303. We
conclude that the District Court's denial of Sanford's motion for
a continuance was not an abuse of its discretion and did not
prejudice Sanford's defense.
     Sanford argues in his brief on appeal that he "was not present
at the trial and could not be there as attested to by his physician
and the report of Dawnalynn Wells."    At trial, the State clearly
disagreed: "[Ilt is our opinion that Dr. Stanley did not say that
it was impossible for Mr. Sanford to be in Court, but rather said
quite the opposite, and said that he should be in Court."    As the
District Court pointed out, a conference call between Dr. Stanley,
the judge, the prosecuting attorney, and the defense attorney took
place on April 30, three days before trial.      The District Court
made the following statement during the May 3 proceedings:
     THE COURT: There was a telephone conversation. What my
     recollection of Dr. Stanlev's testimonv was he couldn t ,
     he didn't examine TMr. Sanfordl; and as I say, testimony
     is probably an unfair characterization because he wasn't
     under oath.     However, I let both Counsel ask him
     questions and then I asked some.
(Emphasis added).   The District Court considered the statements of
Dr. Stanley, as well as the circumstances surrounding the motion to
continue, and found that no good cause existed to continue the
May 3 trial.   We hold that the District Court did not abuse its
discretion by denying the motions to continue.
     Sanford also argues in his brief on appeal "that the prejudice
here is obvious."      Sanford argues that his alleged physical
condition       prevented   him   from   being   personally   present   Itto
participate in his own defense and to present his testimony as to
the facts involved."        A motion for a continuance, or postponement
of trial, "on grounds of the absence of evidence shall only be made
upon affidavit showing the materiality of the evidence expected to
be obtained and that due diligence has been used to procure it."
Section 25-4-501, MCA (emphasis added).          Sanford failed, however,
to set forth any material facts to support his argument and failed
to specifically demonstrate how his testimony would aid in his
defense.
          Moreover, Sanford failed to adhere to the rules of motion
practice by submitting an invalid affidavit to the District Court.
See   §   25-4-501, MCA.    The Montana Legislature defines an affidavit
as "a written declaration under oath, made without notice to the
adverse party."      Section 26-1-1001, MCA (emphasis added). Neither
the April 28 nor May 3 motion was accompanied by a sworn affidavit.
Sanford's attorney filed a document entitled "Affidavit Supporting
Motion For Continuancer1with the District Court on May 3.               The
document, however, failed to contain the signature of a licensed
notary public or other designated official. See g 26-1-1003, MCA.
Because the document is unsworn, it is not an affidavit.          Section
26-1-1001, MCA.       Pursuant to 1 25-4-501, MCA, the State properly
objected to the introduction of the unsworn document as an
affidavit.
          Assuming that Sanford met the foregoing requirements for a
valid motion to continue, the Montana Legislature directs the trial
court to consider a motion to continue "in light of the diligence
shown on the part of the movant."       Section 46-13-202(3), MCA.        The
statute additionally provides that
       [tlhis section shall be construed to the end that
       criminal cases are tried with due diligence consonant
       with the rights of the defendant and the nrosecution to
       a speedy trial.
Section 46-13-202(3), MCA (emphasis added). In LaPier, 790 P.2d at
989, we held that the trial court did not abuse its discretion in
denying the defendant's motion for a continuance where the request
was not timely, the defendant had not been diligent in trial
preparation,    a   postponement    would   have   inconvenienced        many
witnesses, and the defendant failed to show how he would be
prejudiced if a continuance were not granted. LaPier, 790 P.2d at
989.
       We conclude that Sanford's April 28 and May 3 motions to
continue were not timely. The record on appeal shows that Sanford
voluntarily delayed obtaining medical assistance following his
alleged April 21 slip and fall injury.      Further, Sanford failed to
notify his attorney of his alleged injury until April 27, nearly
one week after the slip and fall, and less than one week before
trial.     Because Sanford voluntarily delayed           seeking medical
assistance and notifying his attorney of his alleged injury, we
conclude that postponement         of   the May    3   trial    would    have
unnecessarily    inconvenienced     the   witnesses    who     were     issued
subpoenas and ordered to appear at trial.
     We further conclude that Sanford was not diligent in trial
preparation.    Prior to his alleged injury, which occurred 12 days
before trial, Sanford did not subpoena any witnesses in his behalf,
despite having listed 16 potential witnesses in his February 27,
1992, notice of defense witnesses.   The State, on the other hand,
diligently prepared    for trial and    issued   four subpoenas to
prosecution witnesses on April 23 and one on April 29.   Sanford's
April 28 and May 3 motions to continue came nearly two and one-half
years after the alleged offenses occurred, and two years after
trial in Justice Court. Sanford clearly had ample time to fashion
a defense.     He cannot now claim that but for the trial court's
denial of his eleventh hour motions to continue, an adequate
defense would have been presented.
     Finally, we reject Sanford's contention that the prejudice to
him in this case "is obvious."   Section 46-13-202(3), MCA, directs
that we balance the rights of the criminal defendant with the
rights of the State.      As discussed above, Sanford failed and
continues to fail to provide specific, material facts to support
his claim of prejudice.
     We affirm the District Court's denial of Sanford's April 28,
1993, and May 3, 1993, motions to continue.
                              ISSUE 2
     Did the District Court abuse its discretion by trying the
defendant in absentia?
     Sanford is charged in the instant case with two misdemeanor
crimes: assault, 5 45-5-201, MCA, and driving under the influence
of alcohol or drugs,   §   61-8-401, MCA.   Section 46-16-122(1), MCA,
provides :
     In a misdemeanor case, if the defendant fails to appear
     in person, either at the time set for the trial or at any
     time during the course of the trial and if the
     defendant's counsel is authorized to act on the
     defendant's behalf, the court shall proceed with the
     trial unless good cause for continuance exists.
Additionally, 5   46-16-123(1),     MCA, provides that      Ie[i]n all
misdemeanor cases, the verdict may be returned and the sentence
imposed without the defendant being present."      As discussed above,

the District Court properly denied Sanford's motions to continue.
Because Sanford does not allege that his attorney acted without
authority, we hold that the District Court properly proceeded to
trial after denying Sanford's motions to continue.
     Af finned.
     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of the Supreme Court and by a report of its result
to Montana Law Week, State Reporter and West Publishing Company.




We concur:
