from that date the state waited another month before took any other action the state service state was after finally receiving permission from the court to obtain this sample and then a pending sample it didn't send his sample to the lab for another eighty six days after that if six days finally the state forgot sort of underlying all of this or an overarching problem as the record would seem to indicate that the state never bothered to check the state in a database which had held a was diligent and sending all the rest of the evidence to the lab it was less than two weeks after granville's arrest they got everyone together shipped off to laugh forgot about granville sample i don't think there can be any question that wanted his sample tested and simply just forgot to send it because a month later when the lab sends a report saying we've looked at everything there is d n a the past here's what we need we also need granville ask for a sample of the state not said the lab we need to test the lab i don't think now is the evidence in the case on the lab is on its own making which decisions on what to test and what to compare and what not best so obviously the state wanted the state sends a lab report back saying ok we've loaded everything everything you sign toss we can test everything but we need to fence when you first of all we need permission from the court because somebody testing is going to consume  there was some of the blood like on the food source there's only a small amount so i was going to be consumed with the test so i said we need permission before we can destroy the evidence and then test it also said please send us a copy of those d n a then the lab is wait lab didn't have anything else to do at that point it was another month on october seventh before the state did anything but the state's next action was that for more time rather than do anything that this that the lab was at its feet which would have what's what's taking so i mean i was arrested in august and the stuff was i guess the stuff was taken either for me or from the crime scene or from somebody department a few days later  had all of the information that i'm presenting this court with that specifically this defense counsel didn't know there's no indication in the record the defense counsel knew that the lab to inform the state a month prior to this motion it was ready to go as long as they got these two things i'm quite confident that had defense counsel known that he would have vehemently object it not just for the record but on those specific grounds i also think if the trial court would know that that was the case the trial court said well state what have you been doing for the last  i mean that's the natural next question so i think then following that is why didn't the state tell me if all of this information i don't have an answer for that i don't think that the state was doing this deliberately i mean there's no there's no indication  the record but i think that what the record with indicate that the state was certainly sloppy and just forgot i mean frankly i think what happened is they got a lot of court spencer and say we got to get around doing that then look at the calendar in august and said oh we're going up against it we better get more time because they waste their money it wasn't that the lab needed that extra time it was that the state wasted that much so i think the better question about who's you know why were these questions asked i think that's the answer and also the reason as it was the state's fall the state didn't give the court all of the information that should and i don't think there's also any question that had the trial court had all this information i get this is only information i've been told this is ignoring with due diligence i just again i mean i don't want to sound like i'm feeding a dead horse here but how i was sitting on this for a month do we do it again the purpose of the statute is if the lab use the extra time to get the stuff done but they  brings me to my next point they probably didn't need any extra time to get this done but for the state's mistakes it took the latter ballot on months every time to do the testing again they got that sort of they got the stuff in piecemeal fashion was from january until february about another month that it took them to finish that last leg of testing that's three months altogether but we knew this when the motion was greeted destroy were grants to continue yes so that is no to the court and nobody said judge why didn't they ask through this see him sooner without regard to where they instead defense counsel did nothing now it sounds reasonable to me and i understand why you would beat this stuff because you ceased to madison you know you want to compare i think that everyone was looking at that it had the state then sort of you know offer full disclosure of this motion to read the state's motion states motion and flies that the lab is you know has been you know sort of diligently working on the stuff but now they just need this extra overarching back when i was making just a moment ago overarching is the fact that the state didn't really need this time i mean now i don't know exactly when that does that come into the trial court's decision and the way it should but again the state's motion was pretty weak in terms of what it just sort of implied we need this extra time but in fact they did that they bend billions which again is the requirement at the state and those in it would have needed any of this extra time because it was about like i said about three months which is situation where well maybe the state had about a week that they probably could have gotten a little bit more we're talking about months here in the state of play and that fact i'd like to return to one other point the fact the state status ample for eighty six days i think technically the court unfair for the state and now say well you know the courts are going to do it we're going to for this up and forget about it for another three months after the fact but dorie technically you could never consider that at the time so let's not worry about that now i think there has to be some room for i don't think of court will grant this kind of a motion in any circumstances without some idea that there's going to be continued diligence and the state doesn't certainly doesn't argue that it's sitting on his sample after about the defense counsel to defense counsel you know tense you create this motion because there was due diligence now my client's going to be rocky to try to april or may yeah what's going on or so the way here is attributable to the state and the i mean i think if he bets it yet i don't know what he'll say in january right in the world is going or you said originally you might be able to get this done in november the trout judge that was probably on realistic and it would appear as if he may have given you the right answer stand your second your argument about that but he gave you the extra hundred twenty days but this is ridiculous i mean could found out what they sat on for thirty days sixty days thirty five days whatever it is after the october twenty i think bad you're asking a little much defense counsel when counsel doesn't know what's what the state has they all the information their defense counsel doesn't have information defense counsel didn't know about the september lab report so we don't know jack on those grounds of the hearing defense counsel doesn't know and certainly what is the mood believe that the state would set on randall sample for another three months after getting permission to send it off i mean i think probably somewhere in the back of his mind he was thinking you know this is you know this is certainly taking a while but i think that to shift it over to defense counsel and say well really the fault here of course signing blame the blame here lies with the fans counts for not bringing this back to the court's attention not the fault lies with the state for sitting on it for another ninety days after that i just don't see how you can go back on defense counsel that's the state's burden to show due diligence in the first place they certainly need to have continued elegance and then say well defense counsel particularly but in the state property i'm not making information available to the property and then we just actually it was in october seventh motion and that motion did not include the request that was in october that was requested october fifteenth and then the hearing was ultimately conducted on t or just connect going back to what we were discussing a few minutes ago i think you can look at the question about what the defense council should or shouldn't reject it after this motion is granted you can look at it like this while if the eighty six days could the issue here in this court to decide this issue on the fact that there was no due diligence exhibited by the state at the time this court doesn't have to find that this is eighty six days i mean that just sort of shows what was going on in this case but that's not dispositive to this case the state had exercised diligence at the time that it said it happened that the when the court found that that that's what this case should first turn to in my second argument just briefly i don't see any merit in the state's position that the court granted it one hundred twenty days or so much time as it did this court already decided this issue in two thousand and one in johnson when it said that the length of a state's continuance necessarily depends on how much time it asked for i don't know how you can be more specific than from eight to eight eight which is exactly what the states motion here set it only asked for that period of time obviously it turned out that it needed a lot more but it didn't need more time because the lab needed more time needed more time because again it forgot to do what it was supposed to do finally i just like to close by saying that affirming the trial court's decision are real you know sort of more broadly the state's actions here what essentially does the requirement their cases all say that due diligence you know means what it says it's decided on a case by case basis but the state needs to show that it has done everything it can and it's been waiting but it playing on the lap because the lab has bad luck a lot of cases that are understaffed that's not what happened in this case the record again i haven't heard any spew from the state especially for this time period from september to october when the lab wasn't working that someone at the enough to yes that's what the september eleventh lab report said that's exactly right and that september eleventh report is received by the state when can you tell that from the record no i can't i would assume that it probably must have knowledge because that's and then the state again sat on it for other eighty six days after it got this extra effort got this extra time but it didn't need in the first place there are cases that talk about that this should not be that you know motions for a continuance of this statute should not be a zero you know your honor we buy some extra time if that's if this quarter forms that's what it's going to be because there was no diligence in this case at the time that the state filed this motion this court can reverse just on those grounds but the fact that