updated 6/4/2007 3:33:17 AM ET 2007-06-04T07:33:17

A defense attorney tried a different argument to win his convicted client a new murder trial: The attorney was too sleepy.

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Charles R. Curbo wrote in a motion for a new trial that he could not properly represent the defendant, Tony Wolfe, because he was tired during the six-day trial in January.

"The court constantly rushed defense counsel, who the court knew had little sleep on account of the hours that the court was keeping for no good reason," Curbo wrote.

Prosecutor David Zak said he saw no lack of enthusiasm from the defense.

"The defense attorney showed anger, passion and zeal in representing his client. There was never a moment when he was running out of gas," Zak said.

Wolfe was convicted of first-degree murder in the fatal shooting of Leondus Hawkins, 27, in September 2004 at a service station parking lot. He was sentenced to life in prison.

But both sides said the trial held long and late hours due to Wolfe's medical condition and because the judge wanted to send the sequestered jury home as quickly as possible.

Wolfe required dialysis treatments every other morning, keeping the trial from starting until early afternoon for some days. The proceedings went on until 10 or 11 p.m. on some days.

The judge is scheduled to rule on the motion in July.

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