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  1. #1
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    Default Motion to Dismiss Due to Lack of Speedy Trial

    My question involves traffic court in the State of: California

    Hi,

    After unsuccessfully trying to get Verified complaint from the court, the judge finally entered a plea of not guilty for me. The trial date falls beyond 45 days, and the judge specifically mentioned that the "time is not waived". I didn't object. Did I enter a "special waiver" by that? If yes, what should I do? If no, when do I need to file a motion to dismiss due to lack of speedy trial?

    Thanks.

  2. #2
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    Default Re: A Motion to Dismiss Due to Lack of Speedy Trial

    Quote Quoting yugi
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    My question involves traffic court in the State of: California

    Hi,

    After unsuccessfully trying to get Verified complaint from the court, the judge finally entered a plea of not guilty for me. The trial date falls beyond 45 days, and the judge specifically mentioned that the "time is not waived". I didn't object. Did I enter a "special waiver" by that? If yes, what should I do? If no, when do I need to file a motion to dismiss due to lack of speedy trial?

    Thanks.
    You don't get a verified complaint. The notice to appear when filed with the court, is sufficient substitute for a verified complaint.

    But anyways... About your question, what date were you arraigned, what date is your trial set for?

  3. #3
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    Oct 2012
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    Default Re: A Motion to Dismiss Due to Lack of Speedy Trial

    Quote Quoting That Guy
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    You don't get a verified complaint. The notice to appear when filed with the court, is sufficient substitute for a verified complaint.

    But anyways... About your question, what date were you arraigned, what date is your trial set for?
    Arraigned at 5th of October, trial set for 21st of November

  4. #4
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    Aug 2011
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    Default Re: A Motion to Dismiss Due to Lack of Speedy Trial

    Quote Quoting yugi
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    Arraigned at 5th of October, trial set for 21st of November
    That's 47 days, and a simple oral motion before trial should be enough to get dismissal under PC 1382.

    No, based on what you said, you didn't consent to a special waiver and the lack of objection doesn't matter. If you were represented and your attorney failed to object, then it would be considered an implied consent/waiver. Note PC 1382(c):

    Quote 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.

  5. #5
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    Default Re: A Motion to Dismiss Due to Lack of Speedy Trial

    Quote Quoting quirkyquark
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    That's 47 days, and a simple oral motion before trial should be enough to get dismissal under PC 1382.

    No, based on what you said, you didn't consent to a special waiver and the lack of objection doesn't matter. If you were represented and your attorney failed to object, then it would be considered an implied consent/waiver. Note PC 1382(c):
    No, I was not represented. Though, in the court they distributed a paper called "advice of rights" and then asked everybody whether they understand it. It says there as follows: "To have your case tried within 45 days following your arraignment. If you are not brought to trial within the time stated, your case must be dismissed unless good cause is otherwise shown."

  6. #6
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    Default Re: A Motion to Dismiss Due to Lack of Speedy Trial

    Quote Quoting yugi
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    Though, in the court they distributed a paper called "advice of rights" and then asked everybody whether they understand it. It says there as follows: "To have your case tried within 45 days following your arraignment. If you are not brought to trial within the time stated, your case must be dismissed unless good cause is otherwise shown."
    Such pro-forma/unacknowledged advisements of rights are adequate for infraction arraignments. Whether it suffices for PC 1382(c) or not, is another story, but that doesn't matter because the court needs to advise you of the effect of your consent (i.e. "Do you understand that by agreeing to hold the trial on such and such a date you are waiving your right to a speedy trial?" or some such).

    See this case:

    Quote Quoting Hill v. Municipal Court (1962) 206 Cal. App. 2d 257, 260
    She bases her argument on section 1382, Penal Code, which provides in part (as amended in 1959): ‘If the defendant is not represented by counsel, he shall not be deemed under this section to have consented to the date for his trial unless the court has explained to him his rights under this section and the effect of his consent.’

    The facts show that although the judge told appellant she was entitled to trial within 30 days, he never advised her either on February 24 or March 1 of her further rights under this section and the effect of her consent.

    Respondent argues that since appellant expressly consented to waive the 30 day period, the quoted amendment to section 1382 of the Penal Code has no application; it only applies where there is either silence or lack of objection to setting a case for trial beyond the statutory period. This contention is not sound. The amendment to section 1382 requires the arraigning judge to do two things: (1) explain to the defendant his rights under this section; and (2) ‘the effect of his consent.’ This is not only indicated by the wording of the amendment itself but also by the observation of the court in Burns v. Municipal Court, 195 Cal.App.2d 596, at page 598, where the court stated: ‘Since the 1959 amendment to said section [1382], a defendant not represented by counsel is not deemed to have consented to the setting of his case for trial beyond the statutory period unless the court first explains to him his rights under that section and the effect of his consent. [Emphasis by the court.] When consent is claimed it therefore must be affirmatively shown that the provisions of this section were complied with.’ We therefore conclude that appellant's purported consent to setting her case for trial beyond the statutory period was not legally effective.

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