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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 116709
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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I have been charged with misdemeanor battery and felony terrorist

Customer Question

I have been charged with misdemeanor battery and felony terrorist threats (Cal. PC 136.1(B)1) in California. I was arraigned on March 25, 2013 and appointed a public defender. I next appeared in court on April 15, 2013. At that time the Public Defender told the judge that she had not yet recieved the complaint nor the police report. I next appeared in court on May 13, 2013 and incredibly again the public defender again told the judge that she had still not received the complaint nor the police report, so the judge ordered me to appear at a settlement conference on June 3, 2013. I have never heard from the public defender at all except these court appearances.

My issue is that they are beyond the 60 days in which they have to take me to trial, in violation of my 6th amendment rights. I have read several California cases where the courts said that a defendant can be implied to have waived their right to a speedy trial if within the 60 day period they agree to appear at a trial date which is beyond the 60 day limit. However I have never even been asked if I waived my right to a speedy trial, nor has a trial date been set.

Am I correct in believing that they have violated my 6th amendment rights? If I was to make a motion to dismiss based upon this at my June 3 court date would I have a chance of getting it granted? Also how should I make the motion? I would think that I should make a written motion with some Points and Authorities, and a Declaration in support of it, and then just ask the judge's permission to submit it when I appear in court. From reading several California Supreme Court cases I truly believe that I am correct. I know that California courts have been given discretion to go over the 60 day limit based upon a "finding of good cause", but may they do this without even asking me, nor even mentioning the 60 day limit, and not even setting a trial date? I cannot find any case which clearly answers these questions. It seemed to me that they were trying to slip this by me without making me aware of my rights.

Is there anywhere I can get a skeleton of a motion to dismiss based on violation of my right to a speedy trial? Or somewhere I can find an example of one so that I can use that to see how to write my own motion from it?

I would like someone experienced with California Criminal Law to answer this question. I figure that even if my motion is denied it may make a very good appeals issue. Am I wrong in that belief?
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 4 years ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

If you were not brought to trial within 60 days of arraignment, then the state is in violation of your right to a speedy trial. You can make your motion to dismiss orally or in writing. Here is a copy of a Serna Motion, for failure to prosecute in timely manner. Serna Motion.

Thank you so much for using I truly aim to please you as a customer, but please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. PLEASE use REPLY to EXPERT if you would like more information or if you feel something was not included in your answer.

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Also remember, sometimes the law does not support what we want it to support, but that is not the fault of the person answering the question, so please be courteous.

Expert:  Law Educator, Esq. replied 4 years ago.
Daniel, I am afraid that I do not understand or know what more information you wanted unless you actually tell us.

Saying "bad service" without any additional information is disingenuous, since you asked specifically for the motion you need to file in your case and that motion is called a "Serna Motion" and I provided you a link to a very good Serna Motion. If there was more you wanted from us, please ask so we know as we cannot read your mind regarding what more you wanted to know unless you tell us.

I would appreciate you being communicative with us as that is part of how this service works best.

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