16. Dismiss for Speedy Trial Violation
The following sample motion to dismiss for speedy trial violation be properly formatted with header information, line numbers, page numbers, etc. before being used in any court.
TO THE COURT AND THE DISTRICT ATTORNEY: PLEASE TAKE NOTICE that at the date and time indicated above, or as soon thereafter as the matter can be heard in the above entitled court, the defendant will move for an order dismissing the action.
The motion will be made on the grounds that the defendant was denied the statutory right to a speedy trial as guaranteed by Penal Code §1382(2) because the defendant was not brought to trial within 60 days after the filing of the information and there was no good cause for the delay beyond this period of time.
The motion will be based on this notice of motion, the attached declaration, the memorandum of points and authorities served and filed herewith, the records on file in this action and on such oral and documentary evidence as may be presented at the hearing.
By Joe Whittington,
Attorney for Dave Daniels
POINTS, AUTHORITY, AND ARGUMENT
When there has been a statutory violation of a defendant’s right to a speedy trial, the prosecution must show good cause or the matter must be dismissed.
Penal Code §1382(a)(2) provides in part:
The court, unless good cause to the contrary is shown, shall order the action to be dismissed in the following cases: . . .
(2) When a defendant is not brought to trial in a superior court within 60 days after the finding of the indictment or filing of the information….
In Overby v. Municipal Court (1981) 121 Cal. App. 3rd 377, 382, the court held that a violation of this statutory right to speedy trial results in dismissal of the action, unless good cause for the continuance can be established:
When there has been a violation of the statutory guarantee of a speedy trial constitutional right, prejudice to the accused is presumed. He need not make any showing of actual prejudice. There is no balancing of his prejudice against the People’s justification. Rather, the People have the burden of showing good cause for delay.
Court congestion does not constitute good cause for delay under the requirements of Penal Code §1382. (Rhinehart v. Municipal Court (1984) 35 Cal. 3rd 772, 781 (1984); People v. Johnson (1980) 26 Cal. 3rd 557)
A defendant must be “brought to trial” within the statutory period or the case must be dismissed unless good cause is shown. The court in Rhinehart v. Municipal Court (1984) 35 Cal. 3rd 772, 780, ruled that:
an accused is ‘brought to trial’ within the meaning of section 1382 when a case has been called for trial by a judge who is normally available and ready to try the case to conclusion. The court must have committed its resources to the trial, and the parties must be ready to proceed and a panel of prospective jurors must be summoned and sworn.
In the instant case, Defendant was not brought to trial within the statutory period and the Prosecution has not shown good cause for the delay.