ExpertLaw.com Forums

Penal Code 1382(A)(3) - Speeding Over 65

Printable View

Show 40 post(s) from this thread on one page
Page 1 of 2 1 2 Next LastLast
  • 01-03-2012, 09:41 PM
    gixxerAJ
    Penal Code 1382(A)(3) - Speeding Over 65
    My question involves traffic court in the State of: California

    Hello everyone, I have been reading and reading and I think that I may have a case here. I thought I would ask to be sure.

    under this Penal Code I understand that I have to be at trial 45 days after my plea. I Entered my Plea 12/7/11 and the court scheduled my date for 1/17/12 which is 41 days... ok... I realized that I didn't meet that 45 day criteria...

    So in the mail today 1/3/12 I get a letter that says my court date has been re-scheduled 1/27/12 which is now 51 days after I entered my plea.

    my original plan that has worked in the past was to move my trial to a different area in the same county, which has been allowed in the past. The officer normally doesn't show but I have heard that they show every now and then.

    I did not 'wave time' and im sure they didn't ask because my date was giving right there and was within the time frame. Now that I got this notice in the mail it pushed the date past the limit, does this give me free pass... or should I still try and change the location an hope he doesn't show?

    Thanks for the help guys

    AJ
  • 01-04-2012, 09:16 AM
    That Guy
    Re: Penal Code 1382(A)(3) - Speeding Over 65
    Quote:

    Quoting gixxerAJ
    View Post
    under this Penal Code I understand that I have to be at trial 45 days after my plea.

    True, in principle, although it would be really nice if it were that simple.

    Quote:

    Quoting gixxerAJ
    View Post
    I realized that I didn't meet that 45 day criteria...

    What do you mean "that I didn't meet the 45 day criteria"?


    Quote:

    Quoting gixxerAJ
    View Post
    So in the mail today 1/3/12 I get a letter that says my court date has been re-scheduled 1/27/12 which is now 51 days after I entered my plea.

    OK...


    Quote:

    Quoting gixxerAJ
    View Post
    my original plan that has worked in the past was to move my trial to a different area in the same county, which has been allowed in the past.

    Well, I am not sure how many times you've done that (a wild guess is "none") but you're missing a few important details. You can read the full code section "V C 40502, but the relevant part is this:

    40502(b) Upon demand of the person arrested, before a judge or other magistrate having jurisdiction of the offense at the county seat of the county in which the offense is alleged to have been committed. This subdivision applies only if the person arrested resides, or the person's principal place of employment is located, closer to the county seat than to the magistrate nearest or most accessible to the place where the arrest is made.


    For one, you cannot just randomly pick a different courthouse to change venue to. You can choose a transfer to the courthouse located within the city designated as county seat, and only if that courthouse is closer to your residence or place of employment than the courthouse originally having jurisdiction over the alleged violation.

    So which county is this in?
    Which courthouse were you originally scheduled to appear?
    And then depending on where you reside and/or wok, you figure out which is closer to you, the court at the county seat, or the court where you were originally scheduled to appear...

    Second, and unfortunately for you, you would have had to initiate that process prior to your arraignment (according to you that was on 12/7/2011). As such, and since you entered your plea at that courthouse, and your case was scheduled for trial, you're already past the point where you can begin the process for a change of venue!


    Quote:

    Quoting gixxerAJ
    View Post
    my original plan that has worked in the past was to move my trial to a different area in the same county, which has been allowed in the past. The officer normally doesn't show but I have heard that they show every now and then.

    So you really have no defense and are simply looking to skate on your ticket by hoping the officer doesn't appear!... Am I close?

    What were you cited for?

    Quote:

    Quoting gixxerAJ
    View Post
    I did not 'wave time'

    Ok.... Maybe you didn't wave time, but did you waive time?


    Quote:

    Quoting gixxerAJ
    View Post
    im sure they didn't ask because my date was giving right there and was within the time frame.

    When you entered your plea of not guilty and requested a trial, did you do that in court, in frront of the judge, or did you di it at the traffic clerk's window?
    Did you intently and carefully listen to each and every word the judge said since he entered the courtroom until the time you were done with your arraignment and walked out of court?
    Were you given any forms be the clerk or the bailiff?
    Did you sign any forms in court?
    Did you get to court on time and entered the room when everybody entered or did you walk in there late?

    Those are about all the qualifying questions I can think of at the moment... Answer them all and then you can start reading the most recent discussion we had on this forum regarding this particular topic, here: How to Move for Dismissal for a Speedy Trial Violation


    Quote:

    Quoting gixxerAJ
    View Post
    ... does this give me free pass...

    It depends!

    Quote:

    Quoting gixxerAJ
    View Post
    ... or should I still try and change the location an hope he doesn't show?

    No longer an option!
  • 01-04-2012, 10:29 AM
    gixxerAJ
    Re: Penal Code 1382(A)(3) - Speeding Over 65
    Quote:

    What do you mean "that I didn't meet the 45 day criteria"?
    I meant that the court date was within the 45 day limit. Then I received the letter in the mail to reschedule it to after the 45 day limit (51 Days)

    Quote:

    Well, I am not sure how many times you've done that (a wild guess is "none")
    I have used this once, and my Girlfriend has used this 2 times. Her co-worker tried to use this method and the cop showed. I am in a unique situation, I called the clerk and they will allow me to change to a different court room.... this court room just happens to be up on a Indian Reservation (I work up there a lot and I am a tribal member so it is like a second home to me, The cops on the other hand have a stigma against that area, they feel as though it really doesn't have law up there), I can do so up until 10 days of my court date.

    Quote:

    Ok.... Maybe you didn't wave time, but did you waive time?
    yes I made a typo sorry... I am better with numbers over letters.

    Quote:

    For one, you cannot just randomly pick a different courthouse to change venue to. You can choose a transfer to the courthouse located within the city designated as county seat, and only if that courthouse is closer to your residence or place of employment than the courthouse originally having jurisdiction over the alleged violation.

    So which county is this in?
    Which courthouse were you originally scheduled to appear?
    And then depending on where you reside and/or wok, you figure out which is closer to you, the court at the county seat, or the court where you were originally scheduled to appear...

    Second, and unfortunately for you, you would have had to initiate that process prior to your arraignment (according to you that was on 12/7/2011). As such, and since you entered your plea at that courthouse, and your case was scheduled for trial, you're already past the point where you can begin the process for a change of venue!
    Again I must be in a unique situation... when I asked the clerk for a change of venue, she replied "you can't do that" so I asked " I can't change my court date to hoopa?" she said... "oh yeah you can do that" and we were going to set it up... but the paperwork hadn't come through yet, she told me to wait a few days and we will get it taken care of. I think this is just a change in court room, and not a change of venue, although it is 60 miles away.

    This is Humboldt, I appeared in front of the judge in Hoopa, and the judge set my date for Eureka, but I am allowed to change it back to Hoopa if I ask. Which is what I will do if this 45 day is not a slam dunk.

    Quote:

    When you entered your plea of not guilty and requested a trial, did you do that in court, in frront of the judge, or did you di it at the traffic clerk's window?
    Did you intently and carefully listen to each and every word the judge said since he entered the courtroom until the time you were done with your arraignment and walked out of court?
    Were you given any forms be the clerk or the bailiff?
    Did you sign any forms in court?
    Did you get to court on time and entered the room when everybody entered or did you walk in there late?
    Yes, In front of the judge, in Hoopa
    No forms, just a note that had my court date on it in Eureka
    Did not sign anything.
    Court was suppose to start at 10:00 I was there at 9:30 the judge walked in the front door at 10:10 and everyone walked in at 10:30 and started the court session, I was there Early.


    Thanks for the help, on this... I have a little defense, but I was hoping I could deal with it this way.
  • 01-04-2012, 11:26 AM
    flyingron
    Re: Penal Code 1382(A)(3) - Speeding Over 65
    Eureka is the county seat. They're under no obligation to change it back to Hoopa.
  • 01-04-2012, 11:27 AM
    gixxerAJ
    Re: Penal Code 1382(A)(3) - Speeding Over 65
    no obligation, but they will.
  • 01-04-2012, 01:33 PM
    quirkyquark
    Re: Penal Code 1382(A)(3) - Speeding Over 65
    Please post the letter you received informing you of the extension. Redact personal info, post to imageshack.com, etc.

    A mass advisement, orally or by video, is not sufficient to waive time. The judge must ask you individually, and the clerk then enters "time waived" on the docket , or you sign something in writing that says you waive time.

    A statutory speedy trial violation (beyond 45 days) may be excused, but only for good cause. Usually, such an extension follows a request for continuance by the People. There must be good cause for the request. Even assuming good cause exists, a continuance REQUIRES that notice OF THE REQUEST be given AND RECEIVED by you at least two days BEFORE the court grants it. (See PC 1050). If such advance notice was not given, the court MUST hold an in-person hearing to decide if it can grant the continuance.

    Given the scenario you've laid out, I think your case should absolutely be dismissed under 1382. The only guaranteed way to do this is via a written pre-trial motion. If you request it a trial, and the judge denies you, you may not win on appeal even if the decision was clearly wrong.

    So, please go to the court and get a copy of your "docket", from your arraignment until today (including the date the letter was sent). Post the docket here. That gives you ammo for the motion. I can help you with drafting it.
  • 01-04-2012, 01:47 PM
    gixxerAJ
    Re: Penal Code 1382(A)(3) - Speeding Over 65
    Thank you quirkyquark, I will do all of that as soon as I can, I work about 70 miles from the courthouse so the soonest I will be able to get a copy of my Docket will be Friday. But I will post the letter tomorrow morning when I get to work.
  • 01-04-2012, 02:06 PM
    quirkyquark
    Re: Penal Code 1382(A)(3) - Speeding Over 65
    Quote:

    Quoting gixxerAJ
    View Post
    I work about 70 miles from the courthouse so the soonest I will be able to get a copy of my Docket will be Friday.

    Thanks, that's not a problem. Does your letter mention any reason for the extension? My guess is that the police dept/CHP submitted a continuance request because the officer was unavailable on 1/17, and the judge granted it in ignorance (or inspite of) the rules on noticing continuance requests. Note that a court cannot grant a continuance "on its own motion" (i.e., without a request from either party).

    When you ask for the docket, look it over and see if it mentions anything about a continuance. If so, also ask for copies of all documents from your file related to that --- their request, proof of service, etc.
  • 01-04-2012, 02:22 PM
    gixxerAJ
    Re: Penal Code 1382(A)(3) - Speeding Over 65
    When I was looking over the letter I remember it being really short with no real reason... just basically said it was re-scheduled, I will get the exact wording tonight.
  • 01-04-2012, 03:51 PM
    That Guy
    Re: Penal Code 1382(A)(3) - Speeding Over 65
    Quote:

    Quoting quirkyquark
    View Post
    A mass advisement, orally or by video, is not sufficient to waive time. The judge must ask you individually, and the clerk then enters "time waived" on the docket , or you sign something in writing that says you waive time.

    IIRC, I qualified that part in the thread I linked by stating that a written waiver IS obtained from the defendant, in addition to the judge confirming that the defendant read and understood the rights he was waiving... AND HENCE the set of questions I asked the OP:

    Quote:

    Did you intently and carefully listen to each and every word the judge said since he entered the courtroom until the time you were done with your arraignment and walked out of court?
    Were you given any forms be the clerk or the bailiff?
    Did you sign any forms in court?
    Did you get to court on time and entered the room when everybody entered or did you walk in there late?
    Quote:

    Quoting quirkyquark
    View Post
    A statutory speedy trial violation (beyond 45 days) may be excused, but only for good cause. Usually, such an extension follows a request for continuance by the People. There must be good cause for the request. Even assuming good cause exists, a continuance REQUIRES that notice OF THE REQUEST be given AND RECEIVED by you at least two days BEFORE the court grants it. (See PC 1050). If such advance notice was not given, the court MUST hold an in-person hearing to decide if it can grant the continuance.way to do this is via a written pre-trial motion.[/B] If you request it a trial, and

    Given the scenario you've laid out, I think your case should absolutely be dismissed under 1382.

    Well, in the interrest of clarity and full disclosure, subsection (l) of PC1050 explicitly states that "this section is directory only and does not mandate dismissal of an action by its terms".

    So are you tying it back to PC 1382 --> No Good Cause is shown --> PC 1382 says you gotta dismiss.... Or... Quirky's got another trick up his sleeve!


    Quote:

    Quoting quirkyquark
    View Post
    If you request it a trial, and the judge denies you, you may not win on appeal even if the decision was clearly wrong.

    Oh, he's got something up his sleeve!
Show 40 post(s) from this thread on one page
Page 1 of 2 1 2 Next LastLast
All times are GMT -7. The time now is 11:06 PM.
Powered by vBulletin® Version 4.2.4
Copyright © 2023 vBulletin Solutions, Inc. All rights reserved.
Copyright © 2004 - 2018 ExpertLaw.com, All Rights Reserved