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
Re: Penal Code 1382(A)(3) - Speeding Over 65
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gixxerAJ
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.
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gixxerAJ
I realized that I didn't meet that 45 day criteria...
What do you mean "that I didn't meet the 45 day criteria"?
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gixxerAJ
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...
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gixxerAJ
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!
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gixxerAJ
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?
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gixxerAJ
I did not 'wave time'
Ok.... Maybe you didn't wave time, but did you waive time?
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gixxerAJ
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
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gixxerAJ
... does this give me free pass...
It depends!
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gixxerAJ
... or should I still try and change the location an hope he doesn't show?
No longer an option!
Re: Penal Code 1382(A)(3) - Speeding Over 65
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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)
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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.
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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.
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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.
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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.
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.
Re: Penal Code 1382(A)(3) - Speeding Over 65
no obligation, but they will.
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.
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.
Re: Penal Code 1382(A)(3) - Speeding Over 65
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gixxerAJ
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.
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.
Re: Penal Code 1382(A)(3) - Speeding Over 65
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quirkyquark
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:
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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?
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quirkyquark
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!
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quirkyquark
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!
Re: Penal Code 1382(A)(3) - Speeding Over 65
exact wording...
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SUPERIOR COURT OF THE STATE OF CALIFORNIA (STAMP IN CORNER FILED DEC 28 2011)
COUNTY OF HUMBOLDT
NOTICE OF HEARING
Re: People vs. _______
Case No. ______
You are hereby notified that a Court Trial has been re-scheduled in the above entitled matter at the time and place below:
Date of Hearing: January 27,2012
Time: ____
Courtroom: ___
Location: ___
Hon: ____
Date 12/29/2011 (stamp with deputy clerk )
Declaration of Mailing
I, the undersigned, declare:
That i am a citizen of the United states, over 18 years of age and resident of the County of Humboldt, State of California, and not a party to the within action; that my business address is ____ eureka CA, that i served a true copy of the attached document by placing a copy in a sealed evelope with the postage thereon fully prepaid, in the US Mail at eureka ca, or delivered to the attorney's mail delivery box in the court operations office at eureka ca.
my name and address -highlighted-
District Attorney, inter Office mail box
I declare under penalty of perjury, under the laws of the state of california, that the foregoing is true and correct.
Executed 12/29/2011 at the city of Eureka, County of Humboldt, State of California
(stamped by deputy Clerk)
bottom corner
HM206 - Notice of Hearing Re-schedule
Thanks for the help guys!
Re: Penal Code 1382(A)(3) - Speeding Over 65
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gixxerAJ
exact wording...
Nice, zero detail. The docket should reveal the reason for the rescheduling.
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That Guy
Well, in the interest 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".
Thanks, I'd never noticed that part. But it's kinda obvious, right, knowing what we know of the usual high requirements CA has for dismissal?
See also Penal Code sec. 1054.5, which explains monetary and disciplinary sanctions on attorneys and says this:
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Quoting PC 1054.5(b)
(b) The authority to impose sanctions provided for by this section shall be in addition to any other authority or power available to the court, except that the court or magistrate shall not dismiss the case.
So what the "directory" part of 1050 means is this: Suppose one party requests a continuance, and they mess up -- improper notice, or maybe just "bad cause". The only possible penalty they can suffer -- case-wise is that the request is denied and they have to show up for court at the appointed day/time. Attorneys may have to miss their kids' ball game, or the officer has to miss his vacation, or whatever. If attorneys do this repeatedly, their wallets may be lightened, and worst case, they get referred to the bar. Maybe if the judge orders them to comply after repeated violations, and they don't, they get thrown in jail for contempt. But never a dismissal... unless something like the speedy trial statute interferes.
I stopped to look up case law, and we have essentially the above:
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Quoting People v. Ferrer (2010) 184 Cal.App.4th 873, 884-886
Instead, we conclude the Legislature did not intend for a dismissal to result unless the requested continuance results in violation of a statutory time limit (such as section 859b or section 1382) or defendant's constitutional right to a fair trial.
...
We recognize that our decision restricts the options available to the trial court in responding to a motion for continuance that is not properly noticed and is unsupported by good cause. However, other sanctions, including fines and the filing of reports with appropriate disciplinary committees, are available under section 1050.5, subdivision (a), when a prosecutor fails to comply with the notice requirements of section 1050, subdivision (b). Moreover, the specified sanctions are “in addition to any other authority or power available to the court.” (§ 1050.5, subd. (b).) As the Henderson court explained, “dismissal ‘is not appropriate, and lesser sanctions must be utilized by the trial court, unless the effect of the prosecution's conduct is such that it deprives the defendant of the right to a fair trial. [Citation.]’ ” And, of course, the trial court may exercise its discretion in selecting the length of a continuance; it need not necessarily accede to the prosecutor's preferred date.
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That Guy
So are you tying it back to PC 1382 --> No Good Cause is shown --> PC 1382 says you gotta dismiss....
Exactly, PC 1382 controls, as the quote above hinted. Here's the same conclusion, this time for the 45-day period for misdemeanors/infractions, stated another way:
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Quoting People v. Rubaum (1980) 110 Cal.App.3d 930
...[the] court reversed a trial court dismissal because the continued date requested by the People in the absence of a showing of good cause was within the applicable 45-day time limit of section 1382.
The [above] decision further concluded that section 1050 permitting continuance only on a showing of good cause was merely directory and the mandatory language of section 1382 would therefore be controlling “unless the defendant establishes a favorable balance under the ad hoc balancing test of Barker v. Wingo, supra, i. e., the federal constitutional standards. (Citations.)
[Note that in case of an infraction/misdemeanor, where prosecution is barred after dismissal under 1382, case law holds that a statutory speedy trial violation (1382) is by definition prejudicial, and therefore automatically becomes a constitutional violation; there is no need to apply the Barker v. Wingo balancing test.]
The court pointed out in addition that dismissals “in furtherance of justice” (s 1385) are not favored since these preclude the fair prosecution of crimes properly alleged by the People.
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That Guy
Oh, he's got something up his sleeve! [re: necessity of pre-trial motion for dismissal]
I based that on the direct holding in this case, which I recently quoted in our discussion of the TBD denial case (People v. Cooper - 2002), on why Cooper should have sought relief BEFORE his TDN:
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Quoting People v. Wilson (1963) 60 Cal.2d 139, 150-152; emphasis added
...defendant's motion to dismiss [for lack of a speedy trial] was denied, and his application to the District Court of Appeal for writ of mandate was unsuccessful. For reasons best known to himself (or his counsel) defendant failed to petition this court for a hearing.
...
Although the order denying his motion to dismiss was not directly appealable, it may be reviewed on appeal from the judgment of conviction. [Citation.] The crucial question is whether defendant is somehow relieved of the burden, imposed by...our Constitution, of showing that the denial of his motion to dismiss resulted in a miscarriage of justice.
...
[H]ence — there being no ... good cause ... — defendant then had the right to have the action dismissed on his motion. At the time when he made that motion — i.e., prior to commencement of the trial — no further showing was required of him; in particular, he was not required to affirmatively show that he had been prejudiced by the delay. [Citation.]
But that time is now past. To properly evaluate the significance of this fact we must revert to...the purpose of the right to a speedy trial; that purpose, it was observed, is to protect the accused from having criminal charges pending against him for an undue length of time. [Citation.] But...nothing that any court can do now will achieve that end; the charges are no longer pending against defendant; the delay has ended, and he has been duly tried and convicted. It is, very simply, too late for defendant to seek to be relieved of a delay that no longer exists.
I knew this holding hasn't been overruled, but I decided to see what recent case law citing Wilson holds, and read Wilson more thoroughly, discovering this important bit:
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Quoting People v. Wilson (1963) 60 Cal.2d 139, 153
A judgment should not be reversed for such an error, except in a case where, if the motion had been granted, the statute of limitations would have been a bar to a new information or indictment for the same offense.
...
In a case where the statute of limitations would have been a bar to a new prosecution if the motion to dismiss had been granted, the erroneous denial of the motion would be [automatically] prejudicial to the defendant.
...
Similarly, in a misdemeanor prosecution the erroneous denial of such a motion to dismiss would be rendered prejudicial by Penal Code, section 1387, which provides in pertinent part that an order of dismissal (under section 1382) ‘is a bar to any other prosecution for the same offense if it is a misdemeanor [Citations.]
Anyway, Wilson still stands, and infraction/misdemeanor can have the best of both worlds --- move for dismissal, if denied trial on merits, and, upon appeal, have the denial reconsidered for full reversal if found guilty.
The other thing to keep in mind when researching any case law on 1382 is the critical exception we use for unrepresented defendants, PC 1382(c):
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Quoting PC 1382(c)
(c) If the defendant is not represented by counsel, the defendant shall not be deemed under this section to have consented to the date for the defendant's trial unless the court has explained to the defendant his or her rights under this section and the effect of his or her consent.
Otherwise, if you have an attorney, you cannot claim a speedy trial violation unless you object to the setting of the trial date beyond the limit.
Re: Penal Code 1382(A)(3) - Speeding Over 65
Thanks again for the help guys, I am trying to follow all of this.... it is just taking me a bit. I will get the docket and copies of attached documents tomorrow. I just want to keep everyone updated.
Re: Penal Code 1382(A)(3) - Speeding Over 65
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gixxerAJ
Thanks again for the help guys, I am trying to follow all of this.... it is just taking me a bit. I will get the docket and copies of attached documents tomorrow. I just want to keep everyone updated.
You don't need to understand all of the citations posted above....it's more of an "academic" discussion between senior members :)
Re: Penal Code 1382(A)(3) - Speeding Over 65
Hi guys, I am sitting in a meeting for work, I ran and got the docket on my lunch break, they had nothing for me in regaurds to why they rescheduled, the court clerk lady only gave me a copy of my minutes. She seemed very irritated with me when I asked her if there was anything else attached to the reason they rescheduled. She told me no, it was probably because the judge is unavailable that day.
Unfortunatly, I looked at the minutes and they wrote down that I did waive time, I keep running it through my head and he never asked me, there was no blanket video or anything, I sure hope I didn't waste anyones time.
I still have the option to move it back to hoopa and hope he dosent show but I wanted to see what u guys thought before I do so. I will elaborate more when I get home I am on my phone now. Sorry guys I know I didn't waive any rights I know that but the minutes said I did. I'm bummed I was having fun thinking I could get out of it
also in my minutes it states "the defendant has requested that the court date be set for eureka" that wording is not true. The judge was in conversation with the bailiff and asked where the officer is located, they said near euerka, the judge then stated that he would not want to make him drive all the way to Hoopa, and "is that fine with you?" (question directed to me) I responded "sure" knowing that I would have the opting to move it back to Hoopa if I wanted. I didn't want to raise any red flags.
so a question...
even though the minutes say that I waived time, is that still going to mess with the fact that they rescheduled me with no reason and no notify me correctly?
Can I dispute the minutes? I have a feeling she just started checking boxes...
I hope this new doesn't ruin the case... if so im sorry.. I can still change it back to hoopa with the likely hood of him not showing increases and if he does I will try to argue my case.
thanks again,
AJ
Re: Penal Code 1382(A)(3) - Speeding Over 65
Here's the thing... the minutes are presumed to be correct. The time waiver is a problem, and the fact that it says that YOU requested it be moved might also be problematic. If you want to dispute them, your only option is to get a copy of the recording of that hearing. Was a court reporter present? If so, then you can just get a transcript right away which should make everything clear.
Re: Penal Code 1382(A)(3) - Speeding Over 65
There was just the lady there taking down the 'minutes' which appears to be a form with a bunch of check boxes..... this is hoopa things seem to be done different up there....
I think the best thing for me now would be to switch it to Hoopa, I honestly doubt he will drive out there. i signed up here because i just knew that i didn't waive time and i just new i had a case once it was past the 45 days... so im pretty dissapointed that it isn't as i remember....
Re: Penal Code 1382(A)(3) - Speeding Over 65
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gixxerAJ
There was just the lady there taking down the 'minutes' which appears to be a form with a bunch of check boxes..... this is hoopa things seem to be done different up there....
Yes, in those situations "electronic recording" is sometimes used (i.e., they can give you an audio CD which will contain all the exchanges). You can ask them if that's available....or you can just switch courts.
The sad fact is that these things, like checking off boxes, sometimes just happen as "standard" procedure regardless of whether they actually happened or not. I'll see if there's any other option short of getting the recording, but most probably not...
If possible, take a picture of the minutes form, redact any personal info, and post it up for us to look at.