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dismissal for failure of a speedy trial?

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stavy

Junior Member
What is the name of your state? CA

hello, i mailed in a trial by declaration (certified mail and i DID get back the return receipt) where i plead not guilty for a CHP speeding violation. I mailed the form on September 18 2006 and have yet to hear anything back. Since it has been over 45 days is it possible to request the charges be thrown out due to my right to a speedy trial being violated? If so how would I go about doing this?

Thanks much in advance
 


The Occultist

Senior Member
Even if it did, I'm fairly certain you have to actually exercise your right thereof; by not requesting it, you are waiving that right.
 

cepe10

Member
What is the name of your state? CA

hello, i mailed in a trial by declaration (certified mail and i DID get back the return receipt) where i plead not guilty for a CHP speeding violation. I mailed the form on September 18 2006 and have yet to hear anything back. Since it has been over 45 days is it possible to request the charges be thrown out due to my right to a speedy trial being violated? If so how would I go about doing this?

Thanks much in advance
Did you provide a written plea of not guilty? If so and no waiver of speedy trial then I believe you have a legitimate point.
 

cepe10

Member
was you ticket a criminal offense or civil infraction? most likely a offense. In such case...

according to California Penal Code Section 1382, the court has to dismiss a case if it is not brought to trial within 45 days after the defendants arraignment or entry of the plea, whichever occurs later.

since you did not waive you right to a speedy trial or toll the speedy trial limits in any way, I believe you need to file a motion with the court fro dismissal.
 

moburkes

Senior Member
According to everything that I'm reading, it says that the section that you are trying to apply above, only applies to people who are charged with misdemeanors. Was this ticket considered a misdemeanor?

Section 1382 of the Penal Code specifies the time periods within which a defendant charged with a misdemeanor must be brought to trial.
 

Pugilist

Member
Many things having to do with Trial by Declaration are unsettled, unsure ground. This is an example. I think that in a TBD speedy trial applies and you are entitled to have the judge's decision signed and dated within 45 days of the date you submitted your written TBD and the bail. The cancellation date on your check will tell you what the submission date was. See David Brown's Fight Your Ticket, page 10/14, for details on motions. FYT is available at your local library.

But before you file a motion to dismiss (for no speedy trial) you should check to see if maybe the decision already has been made, and just not yet sent to you. That seems to happen a lot. If you get a clerk who's admitting that the decision was made, say, 30 days ago but they forgot to send it out to you, get her name, because you will need it in order to regain your right to ask for a Trial de Novo - which you must ordinarily request within 20 days of the decision date.

Pug
 

garrula lingua

Senior Member
was you ticket a criminal offense or civil infraction? most likely a offense. In such case...

according to California Penal Code Section 1382, the court has to dismiss a case if it is not brought to trial within 45 days after the defendants arraignment or entry of the plea, whichever occurs later.

since you did not waive you right to a speedy trial or toll the speedy trial limits in any way, I believe you need to file a motion with the court fro dismissal.

You are wrong, again.

Do you even read the posts you attempt to respond to ?

You are citing the wrong section (infraction, not mdse) AND the citation clearly states AFTER arraignment or plea -- meaning AFTER the first appearance in court.

Why do you think you're helping people by posting wrong information ?
 

Pugilist

Member
What?

1382 isn't the right section for an infraction? Then what is?

And since we are on this subject, and experts are present, I'd like to get this question answered:

Where does it actually say that 45 day speedy trial applies to a trial by declaration? Or are we supposed to understand that the word "action" in 1382 applies to everything including TBD's?

Pug

P.S. Here is the text of part of 1382 which I think is applicable to the OP's question. But I am not a lawyer and want to learn...

1382(a) The court, unless good cause to the contrary is shown,
shall order the action to be dismissed in the following cases:...
(3) ...in a misdemeanor or infraction case... within 45 days after the defendant's arraignment or entry of the plea...
 
Last edited:
You are wrong, again.
Do you even read the posts you attempt to respond to ?
You are citing the wrong section (infraction, not mdse) AND the citation clearly states AFTER arraignment or plea -- meaning AFTER the first appearance in court.
Why do you think you're helping people by posting wrong information ?
Kudos to Pug - linguini could you please give some backup from where you are coming from???:confused: that section appears to be directly relevant to the charge.
 
Where does it actually say that 45 day speedy trial applies to a trial by declaration? Or are we supposed to understand that the word "action" in 1382 applies to everything including TBD's?
1382(a) The court, unless good cause to the contrary is shown,
shall order the action to be dismissed in the following cases:...
(3) ...in a misdemeanor or infraction case... within 45 days after the defendant's arraignment or entry of the plea...
I think you have it right there the latter of the issuance or the entry of plea. so, Entry of plea which is when the OP delivered his written plea of not guilty.
 

Jim_bo

Member
When you did the trial by written declaration and mailed it in, the first thing you did was to enter your plea. When you did this, you waived your rights to a speedy trial. See the last line.

40519. (b) Any person who has received a written notice to appear may, prior to the time at which the person is required to appear, plead not guilty in writing in lieu of appearing in person. The written plea shall be directed to the court named in the notice to appear and, if mailed, shall be sent by certified or registered mail postmarked not later than five days prior to the day upon which appearance is required. The written plea and request to the court or city agency shall be accompanied by a deposit consisting of the amount of bail established pursuant to Section 1269b of the Penal Code, together with any assessment required by Section 42006 of this code or Section 1464 of the Penal Code, for that offense, which amount shall be used for the purpose of guaranteeing the appearance of the defendant at the time and place set by the court for trial and to apply toward the payment of any fine or assessment prescribed by the court in the event of conviction. Upon receipt of the plea and deposit, the case shall be set for arraignment and trial on the same date, unless the defendant requests separate arraignment.
Thereafter, the case shall be conducted in the same manner as if the defendant had appeared in person, had made his or her plea in open court, and had deposited that sum as bail. The court or the clerk of the court shall notify the accused of the time and place of trial by first-class mail postmarked at least 10 days prior to the time set for the trial. Any person using this procedure shall be deemed to have waived the right to be tried within the statutory period.


Sorry Dude.. you haven't won yet.

Jimbo
 

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