The right to a speedy trial??CALIFORNIA?

Question

monday is day 45 of 45 for me and it is set for trial....i think that they had already passed 45 days because when i counted back it wasnt my initial appearance.....i think it might be day 49 already and there was no good reason for delay except for the fact that the courts were too crowded ( not a good reason)...what day should it be that i should count the days from??

Answer 1

You'll have to ask an attorney, or, possibly, the clerk of the court where the charges are pending. You, or your attorney, might have waived the time requirements in view of the court's crowded calendar. What happens is the court threatens you with an early trial date, before your attorney is ready, then offers the alternative of a date beyond the 45-day limit. The alternative date is accepted because to take the matter to trial within the 45 days becomes a practical impossibility.

Answer 2

The 45-day period of Penal Code section 1382 commences at the time of your arraignment or plea, whichever is later. So that is the date you have to count FROM, and the day AFTER that day is "day one." If the "last day" (e.g., the 45th day of a 45-day period) falls on a weekend or holiday, then trial can commence on the next court day.

You are correct that lack of available courtrooms is not good cause for exceeding this time limit. (Arreola v. Superior Court (1983) 139 Cal.App.3d 108.) However, if the time limit is exceeded and there is no objection from your attorney, that will constitute a consent to the delay which will waive the speedy trial right. If you are not represented by counsel, you cannot be found to have consented to the delay unless it is explained to you that you are consenting and what the effect of that is. (Penal Code section 1382, subdivision (c).)

If, after reading all this, you conclude that your trial should have commenced on some date prior to May 7, and that right was not waived, then you should make a motion to dismiss on Monday. If that motion is denied, you can raise the issue on appeal (if you are represented, a writ petition can be filed--I would not recommend that a lay person try that).

Answer 3

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