Rasmussen v. State of Florida

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D2023-1984 _____________________________

MICHAEL GEORGE RASMUSSEN,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Santa Rosa County. Clifton Alan Drake, Judge.

November 20, 2024

PER CURIAM.

Michael George Rasmussen appeals his conviction for sexual battery by a person 18 years of age or older with a victim under 12 years of age. He maintains that the trial court abused its discretion when it denied his motion to continue the trial. We affirm, however, because the parties covered and the court considered the appropriate factors from McKay v. State, 504 So. 2d 1280 (Fla. 1st DCA 1986) at the pre-trial hearing before denying the motion. Specifically, when faced with a party’s motion to continue for insufficient time to prepare for trial, a trial court should take account of the following factors:

1) the time available for preparation, 2) the likelihood of prejudice from the denial, 3) the defendant’s role in

shortening preparation time, 4) the complexity of the case, 5) the availability of discovery, 6) the adequacy of counsel actually provided, and 7) the skill and experience of chosen counsel and his pre-retention experience with either the defendant or the alleged crime.

Heath v. State, No. 1D2022-4126, 2024 WL 3049519, at *2-3 (Fla. 1st DCA June 19, 2024) (quoting McKay, 504 So. 2d at 1282). The trial court was not required to explicitly analyze each one of the McKay factors. See, e.g., Madison v. State, 132 So. 3d 237, 242 (Fla. 1st DCA 2013) (citing Brown v. State, 942 So. 2d 12, 14 (Fla. 1st DCA 2006) (“We do not suggest that counsel and the trial court must engage in an elaborate discussion of caselaw; instead, a trial court’s exercise of discretion need only be based on consideration of the McKay factors.”). And “[t]his court will not reverse an order denying a motion for continuance for failure to discuss the McKay factors when the record reflects that the trial court considered the factors.” Heath, 2024 WL 3049519, at *3.

AFFIRMED.

OSTERHAUS, C.J., and LEWIS and WINOKUR, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Robert David Malove and Hani Adel Demetrious of the Law Offices of Robert David Malove, Fort Lauderdale, for Appellant.

Ashley Moody, Attorney General, and Kristie Regan, Assistant Attorney General, Tallahassee, for Appellee.