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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27465
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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if a person is charged for a felony & not indited in 3 grand

Resolved Question:

if a person is charged for a felony & not indited in 3 grand jury meetings, how long can the state keep you incarcerated
Submitted: 5 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 5 years ago.
Hello Jacustomer,

Every state has its own laws as to a situation like this and they can vary widely. If you use the reply box below to let me know what US state is charging this person with a crime, I will see what I can find for you.
Customer: replied 5 years ago.
the state is west virginia & nicholas county the charge is drug related
Expert:  Zoey_ JD replied 5 years ago.

Thank you for your response. This may take me some time, as I have been unable to a required timeline for indictment in WV's procedural law, and I have dinner arriving soon.

Didn't want you to think I've disappeared. I'll be working on this and just wanted you to know it. I'll have some kind of an answer for you probably within the hour.
Expert:  Zoey_ JD replied 5 years ago.

Your question really has to do with a defendant's right to a speedy trial, which is a very complex area of the law. He cannot be in forever waiting for a trial that for one reason or another doesn't seem to be moving forward. My state gives an actual time frame as to when certain things must happen or a defendant must get released or his case dismissed. Most other states don't do that. They use a 4-part balancing test set by the Supreme Court.

West Virginia doesn't have much of a specific time frame either. What it says is this:

West Virginia Code, Sec. §62-3-21

"Every person charged by presentment or indictment with a felony or misdemeanor, and remanded to a court of competent jurisdiction for trial, shall be forever discharged from prosecution for the offense, if there be three regular terms of such court, after the presentment is made or the indictment is found against him, without a trial, unless the failure to try him was caused by his insanity; or by the witnesses for the state being enticed or kept away, or prevented from attending by sickness or inevitable accident; or by a continuance granted on the motion of the accused; or by reason of his escaping from jail, or failing to appear according to his recognizance, or of the inability of the jury to agree in their verdict; and every person charged with a misdemeanor before a justice of the peace, city police judge, or any other inferior tribunal, and who has therein been found guilty and has appealed his conviction of guilt and sentence to a court of record, shall be forever discharged from further prosecution for the offense set forth in the warrant against him, if after his having appealed such conviction and sentence, there be three regular terms of such court without a trial, unless the failure to try him was for one of the causes hereinabove set forth relating to proceedings on indictment.
WV Case law has defined a term as 120 days, so three terms equal one year.

A trial is supposed to take place in one term -- 120 days -- but when that can't happen for one reason or another, as is frequently the case, under almost no circumstances can the trial be delayed for more than a year. At that point, the defendant could get a hearing for a speedy trial dismissal.

Til then, however, cases get adjourned, however, for all sorts of reasons. And cases don't get indicted quickly for all sorts of reasons too. So one has to look at what this delay is all about. If it is the defense asking that the indictment be put off -- as sometimes they would in order to try to negotiate a more favorable disposition then the defense is agreeing to any delay, then basically, in the simplest way of putting things, he can't go on to complain about that delay. A defendant can also waive indictment altogether and agree to be prosecuted just on an information, and, for that matter a prosecutor can decide not to indict a case at all and to reduce the charge from a felony to a misdemeanor.

So all of these dynamics, and others for that matter, weigh in here to figure out how reasonable or unreasonable the delay in the indictment is. But somewhere along the line, if the defense is not agreeing to delays, the prosecutor has to start prosecuting. And this is when the lawyer has to start asserting his client's right to a speedy trial, and to make applications to the court for his release or for a substantial reduction of bail for the state's failure to be ready to go forward.

The circumstances of the case tells when release and/or dismissal are reasonable. West Virginia doesn't codify that. The defense attorney should be tuned in to the speedy trial issue. He should be able to tell you when a motion to release -- or a motion to dismiss -- will be reasonable under the facts and circumstances of the case.
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