I were charged with the wrong sub-section on Failure to Stop at Red Light (21453 C)

[demurringdude]

Why do you ask?

Avrfan

If more than 45 days elapse between you entering your plea and the trial, and you did not waive your right to a speedy trial, you should move for dismissal.

 

[avrfan]

If more than 45 days elapse between you entering your plea and the trial, and you did not waive your right to a speedy trial, you should move for dismissal.

I have to look at the court paper from my last appearance on May 28th (day after memorial day) to see if it says I waived time? I don't recall waiving time but I did not object either. I requested trial de novo around April17th. The clerk said that my trial date of May 28th was less than 45 days out. When I appeared on May 28th, the judge rescheduled my trial since I was late and they already called my case (officer did not appear either). The new trial was set for July 5th which was less than 45 days from May 28th but actually close to 70 days after my trial de novo request back in April.

I did not object to having the new trial date set more than 45 days of Trial De Novo request. The Nolo Press book Fight your ticket says that if I do not object to a trial date greater than 45 days I implicitly agree to a "special waiver of my right to speedy trial". If this is correct then probably I won't be able to motion for dismissal for speedy trial.

Also Nolo Press Fight Your Ticket says bypassing formal arraignment forfeits your right to speedy trial. I did not have a formal arraignment because I was in Texas so I requested a TBWD by mail. I also requested my Trial De Novo at the clerks window without having a formal arraignment. Does this rule apply to my case? I recall in my original letter requesting TBWD, I wrote "I do no waive my right to a speedy trial." I just don't recall what I signed when I requested Trial De Novo. Perhaps I signed some kind of waiver. Not sure. The clerk would not schedule the new trial beyond 45 days however.

Do you know if there is a way to still make this motion given my circumstance?

Thanks

 

[demurringdude]

The 45 days starts counting from your arraignment. Technically, your "arraignment" happened at your first appearance for trial, as there is nothing in the whole TBWD process that constitutes entering a plea. So if the continued trial date is less than 45 days from the first trial, then you are being tried speedily. The court wasn't required to start counting from when you requested the trial de novo, although it seems they did in your case. Anyway, this is not something you can use. If the officer does not show next time, move for dismissal on these grounds.

 

[demurringdude]

Generally the Penal Code says you give up your right to a speedy trial if you consent to a trial date beyond the time.

http://law.onecle.com/california/penal/1382.html

in particular this bit...

(B) The defendant requests or consents to the setting of a trial
date beyond the 30-day or 45-day period. In the absence of an express
general time waiver from the defendant, or upon the withdrawal of a
general time waiver the court shall set a trial date. Whenever a case
is set for trial beyond the 30-day or 45-day period by request or
consent, expressed or implied, of the defendant without a general
waiver, the defendant shall be brought to trial on the date set for
trial or within 10 days thereafter.


But note the last section...


(c) If the defendant is not represented by counsel, the defendant
shall not be deemed under this section to have consented to the date
for the defendant's trial unless the court has explained to the
defendant his or her rights under this section and the effect of his
or her consent.

 

[demurringdude]

Just curious, if the officer or court has a copy of proof of service, can I have that thrown out because I never received anything? Should I ask for some kind of proof of delivery/certified mail receipt? Reason I ask is ealier when I filed the motion for peremptory challenge pc170.6 and appeared in court to make the motion, the judge claimed that he never received anything and I somehow forgot to bring my proof of delivery (certified mail return receipt) and so the judge basically used that as excuse to deny me.
avrfan

If YOU want to serve something on THEM , you better get it served in person,properly, well in advance and submit proof of service. Copies to everyone.

If THEY want to serve something on YOU, they drop it in the mail. You don't get it, tough luck.

The TR-100 has what it amusingly refers to as a "Proof of Service" declaration for the police officer to sign "yeah I tossed it in the US Mail, to some address I got somewhere".

Rules are for the little people. Our lords at court and in the police don't have to bother.

 

[avrfan]

If YOU want to serve something on THEM , you better get it served in person,properly, well in advance and submit proof of service. Copies to everyone.

If THEY want to serve something on YOU, they drop it in the mail. You don't get it, tough luck.

The TR-100 has what it amusingly refers to as a "Proof of Service" declaration for the police officer to sign "yeah I tossed it in the US Mail, to some address I got somewhere".

Rules are for the little people. Our lords at court and in the police don't have to bother.

I see how unfair it is. I want to mention, going through papers, I found a pink TR-100 from the officer dated Oct 29th 2012, which was 6 days after the violation date. He amended the citation to change the appearance date from Jan 14 2012 to Jan 14 2013. thats the only one I got.