Senior Judge:Should Defendant ask for motion to dismiss.

[ochiatl]

Should Defendant ask for motion to dismiss.

What is the name of your state?What is the name of your state?What is the name of your state? Mississippi

Defendant was arrested in Jan of 2000. Indictment was done in Dec. of 2000. Was placed as secret indictment due to clerical error and was not released so defendant nor attorney were notified. Capias warrant was issued in May of 2004. According to Miss. code:

99-1-5. Time limitation on prosecutions
A person shall not be prosecuted for any offense, .....unless the prosecution for such offense be commenced within two (2) years next after the commission thereof, but nothing contained in this section shall bar any prosecution against any person who shall abscond or flee from justice, or shall absent himself from this state or out of the jurisdiction of the court, or so conduct himself that he cannot be found by the officers of the law, or that process cannot be served upon him.
§ 99-1-7. Time limitation on prosecutions; commencement of prosecution
A prosecution may be commenced, within the meaning of Section 99-1-5 by the issuance of a warrant, or by binding over or recognizing the offender to compel his appearance to answer the offense, as well as by indictment or affidavit.

Has the time limitation on prosecution run it's course?

 

[ochiatl]

Is there anyone who give some insight on this?

 

[seniorjudge]

Certainly you should file a motion to dismiss. Any defense attorney who does not do so is remiss in his duties.

Q: Has the time limitation on prosecution run its course?
A: No. For the following reasons: Capias warrant (i.e., a writ or order by the court directing an officer to take into custody the person named in the writ or order) was issued in May of 2004. That's when the prosecution was commenced:

§ 99-1-7. Time limitation on prosecutions; commencement of prosecution
A prosecution may be commenced, within the meaning of Section 99-1-5 by the issuance of a warrant, or by binding over or recognizing the offender to compel his appearance to answer the offense, as well as by indictment or affidavit.

 

[ochiatl]

Thank you for the reply. Why would it take so long for the state to notify someone of an indictment that was handed down so much earlier? Is this not a violation of speedy trial?

 

[seniorjudge]

Q: Why would it take so long for the state to notify someone of an indictment that was handed down so much earlier?
A: I wouldn't have the slightest idea.

Q: Is this not a violation of speedy trial?
A: No.

 

[Florid-aise]

Q: Is this not a violation of speedy trial?
A: No.

I am seeing the OP tell us the defendant was arrested in, and indictment handed down, in 2000. Secret indictment or not.

Would not this then be indeed a speedy trial violation?

If not, would it not meet the very critera for dismissal based on 99-1-5?

 

[seniorjudge]

I am seeing the OP tell us the defendant was arrested in, and indictment handed down, in 2000. Secret indictment or not.

Would not this then be indeed a speedy trial violation?

If not, would it not meet the very critera for dismissal based on 99-1-5?

http://crime.about.com/od/victims/qt/victims_ms.htm


What commences the running of the statutory speedy trial right is explicit: a trial shall occur not later than 270 days "after the accused has been arraigned." Miss. Code Ann. 99-17-1. The Mississippi Supreme Court has applied that language according to it owns terms, stating that "[t]he time prior to arraignment is not computed to determine compliance with the statute." Nations v. State, 481 So. 2d 760, 761 (Miss. 1985).

http://www.mslawyer.com/mssc/ctapp/970325/9401136.html

Granted, OP does not tell us when he was arraigned. So the answer to the speedy trial question would turn on the date of his arraignment (which means when a judge asks him if he pleads guilty or not guilty).

 

[ochiatl]

The defendant was not arraigned on the charges to date. The city in which the defendant was arrested shows that the case was "no billed" in September of 2000. With the fact that the indictment was not released, does this factor in? The defendant and his attorney contact the court several times during 2001 and 2002 and was told that there was indictment. Had they released the information they would have been able to proceed in a timely manner.

 

[Florid-aise]

That's darn good feedback, SJ.

Now there are more facts: the "no bill".

This issue will probably now turn on the date of the "No Bill". If the no true bill was issued prior to the indictment, then the indictment may still be valid. If the no bill was entered after the indictment, the no bill will be controlling, I would presume.

Seems to me, that if the charges are serious enough, filing a second indictment would remove all doubt. Here is where I need that prosecutor's mindset imput.

The defendant was not arraigned on the charges to date. The city in which the defendant was arrested shows that the case was "no billed" in September of 2000. With the fact that the indictment was not released, does this factor in? The defendant and his attorney contact the court several times during 2001 and 2002 and was told that there was indictment. Had they released the information they would have been able to proceed in a timely manner.

 

[ochiatl]

Very interesting. The no true bill was issued before the indictment. However, in order to represent to the grand jury there would have had to been some new evidence I think. It seems unlikely that an indictment would have been returned after a no bill on the same evidence. No bill was 09/2000 indictment was 12/2000. Indictment was given to sherriff in 2/2001 yet no information regarding return of indictment was given to defendant or attorney of record.

Looking at Barker v. Wingo....the 4 elements seem to be against the prosecution, except that the defendant did not request speedy trial. But how could defendant do so, if they were unaware of indictment. All delays would be attributed to prosecution, I would think. The prejudice against the defendant could relate back to the 5 years the defendant was unaware until notified of warrant just this month. The defendant could not be prepared for defense without knowledge of indictment, has gone on with life, had children, gotten job, purchased home and stayed out of trouble. Similar case to US vs. Cardona in the fifth circuit. Defendant has lived openly and worked in Georgia and has even been arrested for suspended license and received speeding tickets. Address has not changed since 07/2000.

Any opinions?

 

[ochiatl]

Are there any other opinions on this?