Time Waiver for Requesting a Trial De Novo

**jawlz** · 12-11-2008, 01:24 PM

My question involves traffic court in the State of: California

Hello, here is my situation, which seems to be a bit stranger than I would expect it to be.

On May 8th, I was pulled over in Santa Monica for failure to yield to a pedestrian in a marked crosswalk (when in fact there was no pedestrian in the crosswalk). I requested at the time that my case be referred to the county seat (City of LA, since I live in Orange County and work in downtown LA), and was assigned to the West LA Courthouse, and then I signed my ticket stating that I would appear by June 9th at that courthouse.

Fast-forward until June 9th. In the interim I called the court several times and checked online for the status of the ticket; it seems that the officer who cited me never turned in the ticket. At court on the 9th (I saw just the clerk/ticket counter, I wasn't at any arraignment or anything), they took my copy of the ticket and entered it into their system (I told them I didn't want my copy entered in and thought it was the officer's responsibility to submit his copy, but I was told that that wasn't an option. I had originally shown up just to establish that I did indeed appear by the due-date on the ticket issued to me, not to give the ticket to the court to enter in, but oh well, I guess).

At that point I requested a trial by written declaration and paid my bail. My due date for the TBD was 7/9/08. I sent in my completed TR-205 form in early July, and it was received by the court on July 3rd.

On December 1st, I received the court's decision (it states that the decision was made on November 26th), which indicated that I was found guilty. On December 5th (last Friday), I sent in my Trial de Novo request by mail. Last night (December 10th), I received a letter from the court dated December 9th stating that the court had received my request and scheduled a court trial for January 21st.

Here is the strange part: this letter also instructed me that my trial date is beyond the 45 day time limit, and that I therefore *must* complete and return an attached waiver of time agreement by December 30th. That waiver is already partially filled out, and states that I requested a court date beyond the 45 day guideline (I didn't request a date, it was assigned by the court), and that I waive time and agree appear at the date the court scheduled (January 21st). This struck me as odd, so I went and looked up the California Court Rules for TBDs.

Two things jumped out at me:

The requirement for the court to send me a decision on my TBD within 90 days of my due date, (Rule 4.210.b.8 states, "The clerk must deliver or mail the Decision and Notice of Decision (form TR-215) within 90 calendar days after the due date. Acts for which no specific time is stated in this rule must be performed promptly so that the Decision and Notice of Decision can be timely delivered or mailed by the clerk. 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."

and

The requirement for the court to schedule a trial date within 45 days of of receipt of my Trial de Novo request (Rule 4.210.b.7 states, "If the defendant files a Request for New Trial (Trial de Novo) (form TR-220) within 20 calendar days after the date of delivery or mailing of the Decision and Notice of Decision (form TR-215), the clerk must set a trial date within 45 calendar days of receipt of the defendant's written request for a new trial. The clerk must deliver or mail to the defendant and to the arresting officer's agency the Order and Notice to Defendant of New Trial (Trial de Novo) (form TR-225). If the defendant's request is not timely received, no new trial may be held and the case must be closed."

So, here are my questions:

1. With regard to the 90 days decision-to-be-mailed rule, the decision of the court wasn't even made within 90 days of my due date; do I have anything here that could cause the case to be dismissed? I kinda doubt this, since the rule also states that prejudice to me must be shown, but I don't know what that means.

2. Why should (or do I have to?) waive my 45 day speedy-trial/time right? For one, I don't want to waive any right if I don't have to, and, more perplexing, January 21st IS within 45 days of the court's letter indicating receipt of my Trial de Novo request (December 9th); it's 43 days away from the 9th. What gives here? Is this some kind of 'trick' to let the case be pushed back if the officer can't show, or is it a clerical error, or am I missing something else? How should I respond to this? Just a letter that says I don't waive that right and don't understand why I'm being asked to in the first place since the trial date is within the 45 days?

How should I proceed here?

Thanks so much for any help that you can provide!!!!

**jawlz** · 12-11-2008, 02:36 PM

One last thing; I suppose it is possible that the request for the Trial de Novo was delivered to the Court on Saturday, December 6th, which would put the assigned Jan. 21st trail date at 47 days. Does the court keep a record of when it receives forms? I somewhat stupidly didn't send my Trial de Novo request with any kind of tracking like I did my original TBD.

Can I find this out by getting a copy of the court record at the court? It's a hassle to drive over there, since I commute 30 miles by train each day, and the courthouse is another 15 miles away, but I can do it if necessary.

If this is the case, how do I proceed? Ask for an earlier trial date, submit a motion to dismiss because of the late trial date, or what? Sorry about all the questions, I'm really unaware of how this works.

**lwpat** · 12-12-2008, 10:42 AM

You can file a motion to dismiss your case since the TBD was not timely. You can also notify the court that you are not waiving your right to a speedy trial. Send it CRRR.