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ScottyMacEsq
ScottyMacEsq, Lawyer
Category: Criminal Law
Satisfied Customers: 11318
Experience:  Licensed Texas General Practice Attorney
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i have been waiting over 365 days to get to trial i requested

Customer Question

i have been waiting over 365 days to get to trial i requested a jury. this morning i am scheduled for my 4th that is fourth pre-trial the first one they havent given me my discovery. second one the judge ordered i be put on the next trial list then i get another letter to go to my third pre-trial he again ordered i be put on the next trial list now i get another letter to go to my fourth pre-trial this morning a couple days later i get a letter to pick a jury monday and go to trial on the 17th.v i have a public defender whom i met inside the court room at my last pre-trial the only words this attorney ever daid to me was get your witnesses togather. i still would not know him if i saw him he never ask me to come discuss the case nothing. iheard that there is a rule 1100 or something that says if i am not brought to court in 365 days the case must be throwen out and the state attorney has the option to re-file the charges. can i get this case throwen out. please reply toXXX@XXXXXX.XXX thank you
Submitted: 1 year ago.
Category: Criminal Law
Expert:  ScottyMacEsq replied 1 year ago.

ScottyMacEsq :

Thank you for using JustAnswer. I am researching your issue and will respond shortly.

ScottyMacEsq :

I'm sorry to hear about your situation. Did they continue the case because of inability to hear it (length of docket, etc...)?

Customer:

i really dont know they never said the judge would order me on the next docket available for trial and i would exspect to go to trial and would gat another letter to fo to another pre-trial no explanation why

ScottyMacEsq :

And to be clear, you never requested any of these continuances (nor your public defender)?


 

Customer:

they didnt give me my discovery the first time so i dont knoe if my attorney continued the judge or prosacuter

ScottyMacEsq :

You should make a motion to dismiss pursuant to KSA 22-3402.

ScottyMacEsq :

KSA 22-3402: Discharge of persons not brought promptly to trial.(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).


(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).


(3) If any trial scheduled within the time limitation prescribed by subsection (1) or (2) is delayed by the application of or at the request of the defendant, the trial shall be rescheduled within 90 days of the original trial deadline.


(4) After any trial date has been set within the time limitation prescribed by subsection (1) or (2), if the defendant fails to appear for the trial or any pretrial hearing, and a bench warrant is ordered, the trial shall be rescheduled within 90 days after the defendant has been surrendered on such warrant. However, if the defendant was subject to the 180-day deadline prescribed by subsection (2) and more than 90 days of the original time limitation remain, then the original time limitation remains in effect.


(5) The time for trial may be extended beyond the limitations of subsections (1) and (2) for any of the following reasons:


(a) The defendant is incompetent to stand trial. If the defendant is subsequently found to be competent to stand trial, the trial shall be scheduled within 90 days of such finding;


(b) A proceeding to determine the defendant's competency to stand trial is pending and a determination thereof may not be completed within the time limitations fixed for trial by this section. If the defendant is subsequently found to be competent to stand trial, the trial shall be scheduled within 90 days of such finding;


(c) There is material evidence which is unavailable; that reasonable efforts have been made to procure such evidence; and that there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding 90 days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than 90 days, and the trial is commenced within 120 days from the original trial date;


(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than 30 days may be ordered upon this ground.


(6) In the event a mistrial is declared or a conviction is reversed on appeal to the supreme court or court of appeals, the time limitations provided for herein shall commence to run from the date the mistrial is declared or the date the mandate of the supreme court or court of appeals is filed in the district court.

ScottyMacEsq :

As you can see, the reasons for a delay are limited, and if it is because of a mere delay because of other cases, then that can only be 30 days added.

ScottyMacEsq :

So even considering continance based on discovery (120 days) and other cases (30 days), that would be 330 days...

ScottyMacEsq :

Now I assume this 365 days was from your arraignment?

ScottyMacEsq :

Do you have the date of your arraignment?

Customer:

is that the preliminary hearing

ScottyMacEsq :

It's where you pled not guilty.

Customer:

arrignment date2/13/2012

ScottyMacEsq :

So that was 326 days...

ScottyMacEsq :

You can still argue that this should be dismissed because of this law.

ScottyMacEsq :

If not, the trial will have to be commenced in 4 days (assuming you don't do anything to delay)...

Customer:

great do you think it will work

ScottyMacEsq :

I think that if you had a better attorney, it would have a far better chance of working. PDs are overworked, underpaid attorneys that generally don't have the time, resources or experience to properly argue these matters.

ScottyMacEsq :

I do think that it has a chance of working, and you should absolutely bring it up.

ScottyMacEsq :

Get it on the record, and it might be something that can be appealed.

Customer:

you are so right/ well i have to get ready for court again. thank you

ScottyMacEsq, Lawyer
Category: Criminal Law
Satisfied Customers: 11318
Experience: Licensed Texas General Practice Attorney
ScottyMacEsq and 8 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

i went to the pre trial conf. on that friday the public defender told the judge he was just handed the case but was ready to go to pick a jury on monday morning and proceed to trial but when ask he had information on a dui case that has already been resolved. he did not have a scratch of paper on my case. i argued on the point you give me to dismiss to no avail the judge told them to schedule trial for feb and the district attorney ask that time not be against them which the judge agreed. this whole time my public defender did not say one word in my hearing i did all the talking. when he told the judge he was just handed this case i told him he was a lier he represented me at my last pre-trial confrence. i never laid eyes on him then until i walked into the court room and the only words he smoke to me then was at the end of the hearing he turned and said get your witnesses togather. after the hearing he ask me if he could copy my files so i let him. i called his office and told the secretary to tell him to appeal the judges decision. and to file a rule 600. but havent heard anything back from him. i dont know how to get it on record i ask him to do this or ask the court myself as there is no records kept of a hearing. i wouldnt know how to do it any way. it sure looks like i am being flushed down the tubes because i am poor and can not afford a real attorney. i dont know what to do

Customer: replied 1 year ago.
Relist: Other.
attorney off line
Expert:  SmithEsq replied 1 year ago.
Hello, I am a licensed attorney and will be assisting you further, assuming the prior expert doesn't want or cannot do so. I ask that if you are satisfied with me that you rate me positively at some point so I get credit for my work. I am very sorry to hear of the terrible experience you are having. Having been a public defender I take offense to many of the things the other expert said, but every lawyer is different, and yes, its true, they have a very high case load. That being said, the law limits the number of cases a lawyer may carry in these situations because after a certain it is impossible to be an effective attorney and have 150 cases. You may be able to ask the court for a different attorney, indicating that you cannot communicate effectively with the attorney you have. Its important you use that language and not just "he's too busy" because the judge is likely to side with him if you make it a you vs. him issue. Rather, stress that you two fail to communicate and cannot prepare your defense with him. Second, the reason why your motion was not granted, it sounds like is that there is an exception to the rule about speedy trials. If the prosecution or the court system have valid reasons for not being able to proceed, then the time between court dates won't be counted in your favor, because it's deemed not to be their fault. In order for the time to count, the defense and the court have to be ready to go and the prosecution has to have an invalid reason for not being ready. THen they usually request a certain amount of time, say 15 days. But the judge puts it over for 25 days for example. Only 15 days will count for you in that scenario. Do you understand?
Customer: replied 1 year ago.

how do i tell the judge and when that my attorney fail to communicate and can not prepare my defence and get it on the record. how would i do this?

Expert:  SmithEsq replied 1 year ago.
In my experience, you tell your attorney first and ask him to make the motion. If he doesn't, then you are kind of stuck finding a moment during the proceeding, before they set any dates or anything. Address the court as "Your Honor" and be as polite as possible if you inevitably have to interrupt. You don't want to sound unruly. Just that you are voicing your unheard opinion. Say nothing more than pertains to this issue and nothing about the case. That;s very important. He may instruct you to tell your lawyer and in that case you can whisper to your lawyer and he will repeat what you say. I hope this is helpful. If it is Please rate me accordingly. Please return here for follow up questions. (unlimited)

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