SPEEDY TRIAL RIGHTS and STATUTE OF LIMITATIONS

By

Mary de la Peña, Esq. co-author of A Layman’s Guide to Criminal Defense

Yesterday the issue of speedy trial rights came across our law office desk. A client was arrested after more than three years for a crime he was alleged to have committed more than three years ago. The question was:  Is that legal?

Statute of Limitations:

First, let me give you the Statute of Limitations (the time in which a criminal case must be filed) as it relates to California law, then I will give you the Federal version, as well as a couple of exceptions.

• ·       In California a criminal complaint alleging a felony must be filed within three years of the offense, unless it falls within some limited exceptions.
• ·         In Federal Court, the law is five years from the date of the offense.
• ·         There is no statute of limitations for murder in either court setting.
• ·         For child molestation it must be brought within five years of the person turning 18, or within three years of reporting if the victim is under 18.

What Does this Mean?

The Statute of Limitations relates only to the filing of a case by the prosecution. It has nothing to do with the actual time in which a defendant must be brought to trial on pending charges. It means that when the police or prosecution know of a violation of law, they must proceed in due haste to bring the charges on the offense. If they do not, then the courts can dismiss the case as not being timely brought. A dismissal on these grounds is absolute. The DA cannot refile and start the clock over again.

What Then Are Speedy Trial Rights?

Speedy Trial Rights are the time frames in which a person must be brought to trial after a criminal complaint has been filed. In Federal Court the clock only starts running after the indictment and arraignment on the indictment. In State Court it is after the preliminary hearing and arraignment on the information.

In California the statutory time for a misdemeanor is 45 days after the arraignment on the misdemeanor complaint, and for a felony it is 60 days after arraignment on the information.  

In California the prosecution has two tries to get a case to trial. Meaning, if they miss the deadline for the first preliminary hearing (10 days after arraignment on the complaint) or miss the trial deadline (60 days after arraignment on the information) they can dismiss and refile which starts the clock running again. But, they only get two tries!

Are There Exceptions?

Of course there are exceptions to this rule which is what many defendants and their families run into when they are in court. The exceptions are:

• ·         Time Waivers: The first major exception is when the defendant “waives” time. This means that the defendant agrees that his attorney can have extra time to prepare the case. He is asked to “waive” time, which means he, for that period of time gives up his rights to a speedy hearing;
• ·         Good Cause: Sometimes when there are multiple defendants in a case, or for some other good reason the prosecution cannot proceed at the time the case is set for hearing, the court may find “good cause” to allow extra time to bring the case to trial. The court may not use “Good Cause” as an excuse for court congestion.
• ·         Unavailability of Counsel: This usually falls within the “good cause” exception when it is defense counsel that is not available. The defendant is then faced with getting a new attorney or losing his right to proceed immediately.

These are just a few of the exceptions. Each case is different so advise of counsel is necessary.

So, what about the defendant that appeared in our office? As it turns out, the prosecution filed the case on the last day, then took their time in arresting the defendant for the crime.

Hmmm, what then?

If that happens, the attorney must file what is called a Serna Motion to Dismiss for failure to bring a defendant before the court in a timely manner. In this motion the defense must show that there are no changes in circumstances in the investigation of the case; that the defendant’s whereabouts have always remained the same; and as a result of the long time in-between the defendant has suffered prejudice of some sort.

Only when the defendant can prove prejudice by a preponderance of the evidence (51%) does the burden then shift to the prosecution to show why they waited so long. If there is no good reason, the case must be dismissed with prejudice!

This is just a brief overview of the speedy trial and statute of limitations issues and law. There, of course, are always exceptions, and your attorney is always the best person to advise you.