You probably already know that the US Constitution guarantees your right to a speedy trial, but what does that actually mean? Does it mean you are guaranteed a trial within a week of your arrest? A month? A year? San Diego criminal lawyers will all agree, the answer is complicated.
Speedy Trials and California Law
Aside from the federal constitutional guarantee that you have the right to a speedy trial, California also guarantees this right in its state constitution, meaning you are protected by this right at both a federal and state level. You are guaranteed a jury trial reasonably soon after the filing of a criminal complaint, the defendant’s arrest, the filing of an indictment or after a holding order has been issued after a preliminary hearing.
When you believe your right to a speedy trial has been denied, your San Diego defense attorney can file what’s called a Serna motion under California or federal law (each is handled slightly differently). If the judge agrees that your rights have been denied, the charges must be dismissed.
So How Long is Too Long?
Well, here’s where it gets tricky. For most misdemeanor cases, if the defendant is in custody, the trial must occur within 30 days of the arraignment or when he made his plea, whichever is later. If the defendant is not in custody, the deadline is extended to 45 days.
Unless someone is indicted on a felony charge, California uses a Preliminary Hearing system requiring the prosecutor to produce sufficient evidence to a judge to bind the defendant over for trial. The defendant, whether in or out of custody, has a right to Preliminary Hearing within 10 court days of the arraignment unless good cause is shown to extend the time or the defendant waives the time limit. After the Preliminary hearing, the court sets another arraignment on the felony charges where the prosecutor now files an information. A defendant has a right to a trial within 60 calendar days of the arraignment by information again absent good cause or a time waiver by the defense. If you have any questions about the specific deadline in your case, be sure to ask your San Diego criminal defense lawyer.
It is worth noting that these deadlines do not apply if a defendant fails to appear in court, if she waives her right to a speedy trial, if a new trial is ordered, if a defendant is found incompetent to stand trial, or if a writ is filed during this time.
So if Charges Aren’t Filed By the Deadline, I’m Free?
Like most things involving the justice system, it’s not that simple. As stated previously, your San Diego criminal attorney will first need to file a Serna motion arguing that your right to a speedy trial was denied. The judge will then talk to the prosecution and your lawyer to find out why the trial hasn’t taken place and how this has negatively affected you, the defendant. The judge cannot take into account the charges themselves, so whether the case is related to petty theft or murder, the process is the same.
For example, if the matter had not been brought to court because of a natural disaster that delayed all cases and no particular harm was being done to a defendant free on bail, the judge would be unlikely to drop the charges. On the other hand, if the case just seemed to get lost in the shuffle of the DA’s office and a trial date was never set while the defendant was sick and stuck in jail, the judge would almost certainly dismiss the charges.
A Real Life Example
A story from Illinois recently made the news, when charges were dropped against a young man who had confessed to molesting a child. The prosecutor in the case was arrested and found guilty of public intoxication just before the young man was supposed to plead guilty. Prosecutors were required to file an extension on the case the next day, but they failed to do so, so the case was dropped because he had already waited a full year before his trial and thus, his right to a speedy trial had been violated.
If you feel your right to a speedy trial has been violated, Peter M. Liss can help. Please call (760) 643-4050 or (858) 486-3024 to schedule a free initial consultation.
Creative Commons image by Travis Wise