My name is ***** ***** I am an experienced criminal
A defendant has a right to a speedy trial
, and West Virginia law says that 120 days is how long a case can get to take to trial unless a defendant waives his speedy trial rights.
That said, speedy trial isn't as simple as counting to 120 and getting a case dismissed if there is no trial. The speedy trial countdown stops and starts and some delays do not count as chargeable time for purposes of speedy trial. In fact a case can get to be more than a year old and still not be dismissible on speedy trial grounds.
The US Supreme Court
requires a 4-part balancing test that they spelled out in Barker v. Wingo when it comes to making speedy trial decisions. This is what most states follow, and West Virginia is no exception. Courts determine a speedy trial violation not by how old the case is but by
(1) the length of delay;
(2) the reason for the delay;
(3) the assertion of the right to speedy trial by the accused; and
(4) the prejudice to the accused resulting from the delay.
Using this balancing test, States have held that even a year's delay is not a denial of a defendant's right to a speedy trial, depending upon the facts and the balancing test above.
So 120 days is not 120 consecutive days. The only days that count toward speedy trial dismissal are the ones where the delay is solely due to the prosecutor. So, if your lawyer asks for an adjournment, that adjournment doesn't count. If motions are pending, those adjournments don't count. If your lawyer is sick or on vacation or another trial, that doesn't count. If the DA is ready to proceed but there is no judge to hear the case, that adjournment doesn't count either.
If you think your speedy trial time has run out, you need to discuss a speedy trial motion with your attorney and ask him why he hasn't filed a speedy trial motion. He should be able to tell you. In my experience, both the defense and the prosecutor keep a close eye on the speedy trial clock, and very few cases actually can get dismissed on speedy trial grounds,despite how long they stick around.