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Zoey, JD
Zoey, JD, Attorney
Category: Legal
Satisfied Customers: 23572
Experience:  Active member of the NYS bar since 1989
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Me and my husband where charged with a 3rd degree felony a

Customer Question

Me and my husband where charged with a 3rd degree felony for selling a child but we didnt even do what they claimed we had back in March 25 2015 I need to know how long they have to indeit us or when they have to drop or dismiss our charges can you please tell me?
Submitted: 11 months ago.
Category: Legal
Expert:  Zoey, JD replied 11 months ago.

Hello,

Have you been appearing in court on this charge? Why the delay in the indictment? Do you have a lawyer?

Expert:  Zoey, JD replied 11 months ago.

Hello,

What you are asking about is your right to a speedy trial under your state and Federal constitution. This is a very slippery area of law, which is not as simple as it sounds. Although both your state and the Federal government promise you a speedy trial, they don't go on to specify what that means in terms of a time frame. And that's not unique with your particular state.

To assist with Speedy Trial determinations, the US Supreme Court in a case called Barker v. Wingo, developed a 4-prong balancing test so that a judge could determine whether a defendant's right to a speedy trial was violated and whether his case should therefore be dismissed. Alabama applies the Barker v. Wingo standard in its own courts for purposes of speedy trial determinations.

Alabama will make a decision not based on how old the case is but based on

(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. {Barker, 407 U.S. at 530, 92 S.Ct. at 2192; Johnson v. State, 954 S.W.2d 770, 771 (Tex.Crim.App.1997); Halbert v. State, 881 S.W.2d 121, 127 (Tex.App.--Houston [1st Dist.] 1994, pet. ref'd). The Barker factors are applied on an ad hoc basis as a balancing test to weigh the conduct of the prosecution and the defendant. Barker, 407 U.S. at 530, 533, 92 S.Ct. at 2192, 2193; see Johnson, 954 S.W.2d at 773].

Using this balancing test, States have held that even a dekat if a tear ir nire is not a denial of a defendant's right to a speedy trial, depending upon the facts and the balancing test above.

The only days that count toward speedy trial dismissal are the ones where the delay is solely due to the prosecutor not being ready to go forward. That's why I asked you why the delay in the indictment. If, for example, your lawyer asks for an adjournment after adjournment to work out a pre-indictment plea, for example, that delay wouldn't count toward a speedy trial dismissal. If motions are pending, those adjournments don't count. If your lawyer is sick 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, on the other hand, the reason the case hasn't been indicted is that the state can't find their missing witnesses, that would be a delay chargeable to the state for speedy trial purposes.

In my experience, both the defense and the prosecution keep a close eye on speedy trial issues. So, if ou believe that the state is the responsible solely responsible for the inability of the state to go forward with its indictment and prosecution, 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, despite the amount of time the case has been hanging around, why the motion won't be granted if filed now.