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  1. #1
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    Default Filing a Motion Over a Speedy Trial Violation

    My question involves traffic court in the State of:California

    After filing a TWBD, losing and subsequently filing TDN, the court date was set at over 120 days later.

    Now I understand that there are "rules of the court" where a tiral should be set for 45 days of the limits, however many people on here say that when you file a TBWD that your waving your rights to a speedy trial.

    A) is this not only in the case of sending the TBWD in not filing it in person as the "right to speedy trial" is not waived when filed in person

    B) The new trial is exactly that anyhow so its unrelated to a TBWD that was filed. It is TDN and a new trial. So if they are outside 45 days then is this not a violation of the "court ruled"


    WITH ALL THIS SAID, is it correct to say I understand the "rules of the court" not the law being violated to your right to a speedy tiral? Thus one could make a motion to dismiss based on the rules of the court but not based on the speedy trial being violated and there "could" be a chance of dismissal if the judge agreed???

    thanks for all input

  2. #2
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    Default Re: Filing a Motion Over a Speedy Trial Violation

    Quote Quoting cosmicflux
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    WITH ALL THIS SAID, is it correct to say I understand the "rules of the court" not the law being violated to your right to a speedy tiral? Thus one could make a motion to dismiss based on the rules of the court but not based on the speedy trial being violated and there "could" be a chance of dismissal if the judge agreed???
    Your understanding is mostly correct. The rules are definitely violated when the TDN is scheduled beyond 45 days, the question is what is the remedy? (because none is prescribed in the rules). If the judge agrees with your suggestion that the remedy should be dismissal, then yes, it will be dismissed.

    The other thing that may have been violated, at 120 days, is your constitutional right to a speedy trial. You must show prejudice for that, however -- i.e. the delay harmed your case in some way.

    I highly recommend you make an ORAL motion just before your TDN, because a written motion will take way more effort with no greater chance of success.

  3. #3
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    Default Re: Filing a Motion Over a Speedy Trial Violation

    Quote Quoting quirkyquark
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    The other thing that may have been violated, at 120 days, is your constitutional right to a speedy trial. You must show prejudice for that, however -- i.e. the delay harmed your case in some way.

    Quirky... The “constitutional” argument, and the 120 days you suggested is part of the guarantees under the 6th amendment, is it not? Well, there are seven guarantees that the sixth offers a criminal defendant:

    (1) the right to a Speedy Trial;
    (2) the right to a public trial;
    (3) the right to an impartial jury;
    (4) the right to be informed of pending charges;
    (5) the right to confront and to cross-examine adverse witnesses;
    (6) the right to compel favorable witnesses to testify at trial through the subpoena power of the judiciary; and
    (7) the right to legal counsel.


    The way I am looking at it, (1) doesn't fit within the definition of this program but more so because the 120 days comes in where the defendant is incarcerated... I don't know what it is when there is no potential for jail time before nor after a trial; (2) neither a TBD or a TDN are “public trials” per se, (3) what's a jury” - for an infraction?-, (4) informed of pending charges, formally, as in getting arraigned? (not in a TBD/TDN), (5) you don't really “confront” a witness nor can you cross examine him/her in a TBD, (6) doesn't really apply to the TBD either and we know (7) would not be a “right” but part of a privilege that you can afford yourself if you so choose.

    Even if you want to split the TBD and TDN processes, you still aren't getting (2), (4) or (7) which would then imply that you cannot invoke (1) at least not by way of a constitutional violation.

    So even if you can overcome all of the above hurdles, you still have to answer and pass a 4 prong/question test:

    1) The length of the delay
    2) The reason for the delay
    3) When/how did the defendant assert that “right”
    4) How the case was prejudiced by the delay


    Well...
    #1 is easy assuming you can establish a start date that is as well defined as or one that resembles "the arraignment"!
    #2 the court need not state a reason for the delay (*) on the record and if it is not part of the record, can the defendant simply speculate???
    #3 Defendant was informed of the date for the TDN, and his failure to immediately object to the delay only to bring it up on the trial date is likely to be considered as an implied waiver, but (even if you disagree with that) in the least, it is not going to work to his advantage; lastly...
    #4 "If magic can fix all other obstacles, being able to articulate prejudice, defies logic IMO...

    By the way, and by adding the time limits that are stated in the court rules, exclusive of the only one part of the process as described in the rules that lacks a specific time period (the amount of time between the clerk submitting the declarations to the judge and the time the case is decided) all those time limits add up to 165 days. While I remember one instance where one court took merely a week to decide a TBD, I have heard of cases where it took two months or longer.... But if we average that time period at 35 days or so, then the entire process from citation (violation date) to the verdict in a TDN can take up to an even 200 days, and even then, that is a conservative estimate.




    Quote Quoting cosmicflux
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    After filing a TWBD, losing and subsequently filing TDN, the court date was set at over 120 days later.
    120 days from what date/action?


    Quote Quoting cosmicflux
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    Now I understand that there are "rules of the court" where a tiral should be set for 45 days of the limits, however many people on here say that when you file a TBWD that your waving your rights to a speedy trial.
    There is no guarantee to a speedy trial when you opt for a TBD, so how can you waive something that you do not have?

    This is from Form TR-200 Instructions to Defendant - Trial By Declaration

    Quote Quoting Form TR-200 - Instructions to Defendant
    IMPORTANT: You have the right to an in-person trial before a judge (rather than a trial by written declaration). You also have a right to a new trial if you are dissatisfied with the court's decision in your trial by written declaration. At a court trial you have the following rights:

    To be represented by an attorney employed by you;
    To have a speedy and public trial;
    To testify, to present evidence, and to use court orders without cost to compel the attendance of witnesses and the production of evidence on your behalf;
    To have the witnesses against you testify under oath in court, and to question such witnesses;
    To remain silent and not testify and not incriminate yourself.

    By filing a declaration in a trial by written declaration, you are waiving and giving up the rights to remain silent and not to incriminate yourself.
    Again, the right to a speedy trial is not in any way related or applicable to a TDB.

    Now, since a TDN can only follow a TBD, and although it shares some of the rights that a regular trial offers, the exception IS the right to a speedy trial simply because the fact that the process had started with a TBD (then led to a TDN) the likelihood that the 45 day speedy trial provision would be violated for virtually every case, it would follow that it is not part of the considerations for a TBD ort a TDN! If in the alternate, you are suggesting that the request for a TDN starts a new process and is therefore re-qualifying you for a different set of rights, where is it in the Rules of Court does or vehicle code/penal code does it state that?

    Quote Quoting cosmicflux
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    A) is this not only in the case of sending the TBWD in not filing it in person as the "right to speedy trial" is not waived when filed in person
    This is the second time you've posted that (first time HERE)... I'm curious where do you get that idea from? And how is filing the TBD in person, procedurally different from "not filing it in person" which I assume to mean "mailing it in"?


    Quote Quoting cosmicflux
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    B) The new trial is exactly that anyhow so its unrelated to a TBWD that was filed. It is TDN and a new trial.
    A TDN would not be called a Trial De Novo if it weren't for the TBD. It is a continuation of the same procedure. If it were a weay to entitle you to the same set of rights and responsibilities that a regular trial does, then you would have an arraignment at which point in time, your right to a speedy trial would be in effect! But you don't!

    Quote Quoting cosmicflux
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    So if they are outside 45 days then is this not a violation of the "court ruled"
    Yes and no...

    Assuming “Yes”... And *IF*& the court rule was violated...
    Where in the court rules does it say that the remedy for any sort of delay is a dismissal?
    Its nowhere to be found!

    Assuming “No”... Simply because the court rules state:

    *4.210(b)(8) Failure of the clerk or the court to comply with any time limit does not void or invalidate the decision of the court, unless prejudice to the defendant is shown.

    *4.210(c) Due dates and time limits must be as stated in this rule, unless changed or extended by the court. The court may extend any date, but the court need not state the reasons for granting or denying an extension on the record or in the minutes.


    Quote Quoting cosmicflux
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    Thus one could make a motion to dismiss based on the rules of the court but not based on the speedy trial being violated and there "could" be a chance of dismissal if the judge agreed???
    You can try... And although most people might say "why not try, what have you got to lose!". To stand there in court to make such an arguiment is an indirect way to tell the judge that you have nothing for a defense plan IMO, you are basically but here is why I think you have no basis for your motion:

    1) as I stated above, there is no such thing as a "right to a speedy trial for a TBD";
    2) there is no remedy for a delay in setting the TDN date past the 45 day recommendation in the rules; In fact, instead of suggesting that a dismissal is even a remote consideration for a delay, the rules specifically state that the court is not required to give a reason for a delay (*) (<-- I'd like to briefly come back to this point in a bit);
    3)the clock for the 45 day speedy trial for a regular trial starts on the date the defendant enters his/her plea... You couldn't pin-point that action/date when submitting a request for a TBD/TDN so there is no "clock start date", and if we don't have a clock start date then we don't use a clock, and therefore there is no clock;
    4) You willingly and knowingly requested a TBD knowing full well that there is no guarantee your case would be decided within 45 days from your request... Not even for the TBD by itself, not for the TDN by itself and most certainly, not for the entire process!
    5) You voluntarily made that election. The court did not force you into it; and if a time delay is/was likely to have prejudiced your case, it is incumbent upon you to make the right election that will best benefit you.
    6) Lastly, if you've requested any extensions at any point in time during the process, then you really have no basis to arguer that a time delay affected your case in any way!
    I am right 97% of the time... Who cares about the other 4%!

  4. #4
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    Default Re: Filing a Motion Over a Speedy Trial Violation

    That Guy, I get the idea from: section B seems to indicate that you are not waiving your rights to speedy trial if you come in to plead. Am I reading this wrong?

    V C Section 40519 Trial Scheduling Written Not Guilty Plea

    Trial Scheduling; Written Not Guilty Plea

    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.

    (b) Any person who has received a written notice to appear may, prior to the time at which the person is required to appear, plead not guilty in writing in lieu of appearing in person. The written plea shall be directed to the court named in the notice to appear and, if mailed, shall be sent by certified or registered mail postmarked not later than five days prior to the day upon which appearance is required. The written plea and request to the court or city agency shall be accompanied by a deposit consisting of 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 that offense, which amount shall be used for the purpose of guaranteeing the appearance of the defendant at the time and place set by the court for trial and to apply toward the payment of any fine or assessment prescribed by the court in the event of conviction. Upon receipt of the plea and deposit, the case shall be set for arraignment and trial on the same date, unless the defendant requests separate arraignment. Thereafter, the case shall be conducted in the same manner as if the defendant had appeared in person, had made his or her plea in open court, and had deposited that sum as bail. The court or the clerk of the court shall notify the accused of the time and place of trial by first- class mail postmarked at least 10 days prior to the time set for the trial. Any person using this procedure shall be deemed to have waived the right to be tried within the statutory period.

    (c) Any person using the procedure set forth in subdivision (a) or (b) shall be deemed to have given a written promise to appear at the time designated by the court for trial, and failure to appear at the trial shall constitute a misdemeanor.

  5. #5
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    Default Re: Filing a Motion Over a Speedy Trial Violation

    Quote Quoting cosmicflux
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    That Guy, I get the idea from: section B seems to indicate that you are not waiving your rights to speedy trial if you come in to plead. Am I reading this wrong?

    V C Section 40519 Trial Scheduling Written Not Guilty Plea
    Yes, you're reading it wrong if you think it applies to a TBD/TDN process.
    I am right 97% of the time... Who cares about the other 4%!

  6. #6
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    Default Re: Filing a Motion Over a Speedy Trial Violation

    And my previous answer was simply the case for 2 reasons:

    One, the TBD/TDN process does not contain an arraignment and therefore no specific date to count to 45 from... And two, both the TBD AND ther TDN require a request in writing, and the code section you SPECIFICALLY referred to ends with the following sentence: "Any person using this procedure" which involves a written request (and both the TBD TDN require a written request) "shall be deemed to have waived the right to be tried within the statutory period".
    I am right 97% of the time... Who cares about the other 4%!

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