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JOHNNY L. PLUMMER v. STATE OF MISSISSIPPI

MAY 22, 1985

JOHNNY L. PLUMMER
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, HAWKINS AND PRATHER

HAWKINS, JUSTICE, FOR THE COURT:

Johnny L. Plummer appeals from his conviction of rape in the Circuit Court of Pearl River County and sentence to twenty-five (25) years with the Mississippi Department of Corrections.

The refusal of the circuit judge to grant a continuance is the only error assigned. Finding Plummer has shown no prejudice from this refusal, we affirm.

 FACTS

 On November 11, 1981, the grand jury of Pearl River County indicted Plummer of the forcible rape of one Brenda Sue Waddell on July 2, 1981.

 On November 16, 1981, an order was entered appointing the local public defender, Terrell Simpson, as his attorney.

 The case was later set for trial on April 19, 1982, a Monday. On the Thursday preceding, April 15, Simpson filed a motion with the court for permission to withdraw as counsel, which the court granted. That same day the circuit judge telephoned Charles R. Holladay, an attorney in Picayune, and asked him if he could represent

 Plummer, and he agreed to take the employment, with the court informing counsel the case was set for trial Monday.

 On the next day Holladay interviewed Plummer. No subpoenas for witnesses were requested.

 On Monday morning, the day of the trial, Holladay filed a motion for continuance, which stated in pertinent part:

 1. Counsel was appointed to represent the defendant on April 15, 1982 and has not been able to interview the State witnesses or make any investigation of the things alleged.

 2. The defendant is guaranteed the right to effective Counselby [sic] the Sixth and Fourteenth Amendments to the Constitution of the United States and by Section 26 of the Mississippi Constitution.

 3. The Defendant is accused of Rape and faces severe punishment if convicted.

 4. Counsel is not at this time prepared to render effective representation if the case proceeds to trial today.

 5. WHEREFORE Defendant moves for a continuance in this cause of at least one week as a speedy trial is desired by the Defendant.

 [R.16]

 The record reveals the following proceedings in chambers before empaneling the jury:

 Now, the second motion is a motion for a continuance, and let the record show that this dictation is being done in the presence of Mr. Philip Singley, the District Attorney, Mr. Richard Douglass, the Assistant District Attorney and Mr. Claiborne McDonald, the County Attorney and Mr. Charles Randolph Holladay, Attorney for the Defendant and the Defendant Johhny L. Plummer; that on Thursday, April 15th, 1982, Mr. Terrell Simpson who had previously represented the Defendant from the time of his indictment till that date notified the Court that he had a possible conflict of interest

 in the case; that Mr. Holladay has accepted appointments by the Court at any time the Public Defender, Mr. Simpson has a conflict of interest or any other reasons unable to pursue the case; that this Court called Mr. Holladay personally on that date and informed Mr. Holladay that this case was set for trial for today, April the 19th, 1982, and that a Special Venire Jury had been requested by Mr. Simpson and the Clerk and the Defendant and Mr. Simpson were prepared to draw that Special Venire Jury. The Court then inquired of Mr. Holladay if he would accept the appointment if Mr. Simpson withdrew, and if he would have any problems with being ready to go to trial on today's date being the [sic] April the 19th, 1982, and Mr. Holladay informed the Court that he would accept the appointment and he would not have any problem being ready to go to trial on this date. The Court then informed Mr. Holladay that that [sic] Special Venire was to be drawn and if there was any problem with the date to please notify the Court immediately so that the Special Venire would not be drawn and issued at a great expense to the County, and Mr. Holladay informed the Court to proceed with the drawing of the Special ...


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