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  1. #1
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    Apr 2010
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    Default How to Get a Dismissal for Lack of Speedy Trial in Traffic Court

    In CA:

    on 9/24 and I plead not guilty, posted bail, and scheduled a trial for 10/18, with county clerk. I never waived my right to a speedy trial within 45 days.
    But it does say on the form I agree to appear for arraignment and trial on 10/18. (but the document does say on it trial to be within 45 days)

    I just received a letter in the mail saying "Per request and judges orders, the court trial has been rescheduled from 10/18 to 11/19."

    Can I refuse to reschedule my case in any way? (assuming the officer is on vacation or something)

    Do I have grounds for dismissal based on the sixth amendment and section 1382(c) of the penal code. It would appear i haven't been arraigned yet...

    Should I file a pretrial motion for dismissal, or should I just wait for trial and ask for dismissal once the trial begins. And if I do file a pretrial motion, should I wait until 45 days have lapsed, or just file the motion ASAP?

  2. #2
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    Apr 2010
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    Default Re: Lack of Speedy Trial Dismissal Possible- Cell Phone Ticket-California

    here is a copy of the form i filled out.



  3. #3
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    Mar 2009
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    Default Re: Lack of Speedy Trial Dismissal Possible- Cell Phone Ticket-California

    Quote Quoting whitesti
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    on 9/24 and I plead not guilty, posted bail, and scheduled a trial for 10/18, with county clerk.
    By choosing to enter your plea with the clerk rather than in court, before a judge/commisioner, you did in fact waive your right to a speedy trial.

    California Vehicle Code Section 40519. (a) Any person who has received a written notice to appear for an infraction may, prior to the time at which the person is required to appear, make a deposit and declare the intention to plead not guilty to the clerk of the court named in the notice to appear. The deposit shall be in the amount of bail established pursuant to Section 1269b of the Penal Code, together with any assessment required by Section 42006 of this code or Section 1464 of the Penal Code, for the offense charged, and shall be used for the purpose of guaranteeing the appearance of the defendant at the time and place scheduled by the clerk for arraignment and for trial, and to apply toward the payment of any fine or assessment prescribed by the court in the event of conviction. The case shall thereupon be set for arraignment and trial on the same date, unless the defendant requests separate arraignment. A deposit of bail under this section does not constitute entry of a plea or a court appearance. A plea of not guilty under this section must be made in court at the arraignment.
    I am right 97% of the time... Who cares about the other 4%!

  4. #4
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    Default Re: Lack of Speedy Trial Dismissal Possible- Cell Phone Ticket-California

    Right and I understand that. But I did enter the plea in person. IF you look at the form i filled out it does state that i have a right to a trial within 45 days.

    Assuming I am screwed on this, Is there any way I can go down and file a motion to object to the judge delaying my case at the officers request?

  5. #5
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    Default Re: Lack of Speedy Trial Dismissal Possible- Cell Phone Ticket-California

    Quote Quoting whitesti
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    But I did enter the plea in person.
    Entering a plea "in person with the clerk" is not the same as entering a plea "in court and in front of the judge".

    Quote Quoting whitesti
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    IF you look at the form i filled out it does state that i have a right to a trial within 45 days.
    The form also states "You are entitled to appear in court to be informed of the charges against you", (you opted not to do that), "...to be advised of your rights and to enter a plea (again, you opted not to do that). So, by entering your plea with the clerk, signing the form and requesting a trial date, you waived those rights as well as your right to a speedy trial...

    Quote Quoting whitesti
    View Post
    Assuming I am screwed on this, Is there any way I can go down and file a motion to object to the judge delaying my case at the officers request?
    Try it and see what happens. Just keep in mind that there is a great possibility that your motion will not be heard until 11/19 (your trial date). Whether it is or isn't, I'm not sure how far it will get you (in other words, the judge will more than likely deny your motion/overrule your objection and order the trial to continue). "Why?" you might ask... Because by entering your plea and requesting trial from the clerk (rather than by exercising your right to appear in court and enter a plea in front of the judge), you implicitly waived your right to a speedy trial and to come back later on and use the short delay as the basis for your objection, is not likely to score many points in your favor.
    I am right 97% of the time... Who cares about the other 4%!

  6. #6
    Join Date
    Feb 2010
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    533

    Default Re: Lack of Speedy Trial Dismissal Possible- Cell Phone Ticket-California

    Quote Quoting whitesti
    View Post
    In CA:

    on 9/24 and I plead not guilty, posted bail, and scheduled a trial for 10/18, with county clerk. I never waived my right to a speedy trial within 45 days.
    But it does say on the form I agree to appear for arraignment and trial on 10/18. (but the document does say on it trial to be within 45 days)

    I just received a letter in the mail saying "Per request and judges orders, the court trial has been rescheduled from 10/18 to 11/19."

    Can I refuse to reschedule my case in any way? (assuming the officer is on vacation or something)

    Do I have grounds for dismissal based on the sixth amendment and section 1382(c) of the penal code. It would appear i haven't been arraigned yet...

    Should I file a pretrial motion for dismissal, or should I just wait for trial and ask for dismissal once the trial begins. And if I do file a pretrial motion, should I wait until 45 days have lapsed, or just file the motion ASAP?
    Boy, that court document sure is confusing. How can the court clerk tell you there is a 45 requirement, then turn around and effectively say "oh, I was wrong it can be over 45 days even thought I said otherwise."

    Maybe someone else will chime in, but I'd send them a certified letter saying you did not waive and want your Oct 18 date.

    I wonder if local court rules and what they allow clerks to handle/schedule might have an impact- for example the judge may have given the clerk authority to schedule.

    Maybe send a PM to someone else who has used/posted about a speedy trial defense

  7. #7
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    Default Re: Lack of Speedy Trial Dismissal Possible- Cell Phone Ticket-California

    /* EDIT */

    Hmm, just noticed something in the doc - technically the actual arraignment and the trial are scheduled for the same day. Doesn't the 45day limit run between the arraignment and the actual trial? Sneaky...

  8. #8
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    Default Re: Lack of Speedy Trial Dismissal Possible- Cell Phone Ticket-California

    HA,

    While I do agree with your earlier statement (before the edit) that "infractions" are "criminal matters" (just like robberies and homicides), and therefore the 45 day statutory limit still applies, VC section 40519 differentiates an appearance for an infraction (where the defendant has the option to schedule the arraignment and/or both, the arraignment and the trial (on the same date) with the clerk) and, an appearance for more serious "crimes" (like robberies and homicides) where the defendant MUST appear in court to enter a plea.

    BTW, 40519 was recently amended (see Sentate Bill 174) by adding the "A deposit of bail under this section does not constitute entry of a plea or a court appearance. A plea of not guilty under this section must be made in court at the arraignment" language...

    Quote Quoting HonkingAntelope
    View Post
    /* EDIT */

    Hmm, just noticed something in the doc - technically the actual arraignment and the trial are scheduled for the same day. Doesn't the 45day limit run between the arraignment and the actual trial? Sneaky...
    Exactly... By signing the form, the OP here agreed to the provisions of 40519 by requesting "an arraignment and trial" on the same date at which point, the "45 day speedy trial" provision is no longer a point of contention...

    Alternatively, he could have requested a separate arraignment (which in this case, would have been initially scheduled for 10/18 (and possibly later rescheduled for 11/19)), at which time he would have had the court schedule his trial date within the 45 day statutory period from the date of his arraignment.
    I am right 97% of the time... Who cares about the other 4%!

  9. #9
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    Apr 2010
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    7

    Default Re: How to Get a Dismissal for Lack of Speedy Trial in Traffic Court

    I have 3 other traffic tickets to deal with after this one (the chp are ruthless in my town. I drive like a nun now.).

    So I should specifically request an arraignment IN PERSON when I enter into a plea of not guilty with these next tickets if I want to retain my sixth amendment rights? Can I still retain my sixth amendment rights if I do a TBD and then subsequently request a trial de novo if I am found guilty, and specifically request an arraignment in person?

    What does puzzle me is how on the document I posted it says you have the following Constitutional rights - "right to a trial within 45 days. If you request by mail you are waiving your right..." But then the document goes on and has court trial checked and then trial to be within 45 days checked. Wouldn't they read me my rights at the trial since it is my arraignment and that is where I am entering into a plea allegedly, not here?

  10. #10
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    Apr 2010
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    7

    Default Re: How to Get a Dismissal for Lack of Speedy Trial in Traffic Court

    It would appear this is my current only chance of getting lack of speedy trial: I was ticketed on 7/13/10 and arraignment and trial which are on same day are delayed to 11/19/10.

    "If an unusually long amount of time (at least four months: see Rost v. Municipal Court (1960) 184 Cal. App.2d 507) is allowed to pass between the time you were ticketed and your arraignment, and you diligently tried to get a court date earlier, you can make a motion at the arraignment for a dismissal of the charge on the ground that you were unconsti- tutionally deprived of your right to a “speedy trial.” "

    So maybe I should make an extreme effort to get my previous court date and get it document that it was denied by the clerk. And then I will file a motion for dismissal because my arraignment was so far away from my ticket.

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