Motions to Dismiss

Right to Speedy Trial | How Long is too long?

useful site http://arthurdavidfischer.com/wp-json/oembed/1.0/embed?url=http://arthurdavidfischer.com/links/ How long do they have to bring me to trial? Your right to a speedy trial is not as straightforward as you might think. Florida has its own speedy trial rules. A person charged with a misdemeanor must be brought to trial within 90 days or 175 days if it is a felony. However if the delay is due to the defense, then you waive your right to a speedy trial. This happens when the defendant takes a continuance or not showing up for court. In addition to the Florida rules, the Sixth Amendment of the United States Constitution also provides the right to a speedy and public trial. Initially, the 6th Amendment only applied to federal prosecutions, but was made applicable to the states through the 14th amendment.

The Florida rules for speedy trial provide that you must be brought to trial within a certain time after your arrest. The sixth amendment of the United States Constitution requires that you be brought to trial with in a reasonable period of time following the date you were arrested or charged with a crime. There are several factors which the court has to take into consideration when determining whether there is a violation of your federal right to a speedy trial. The initial threshold is one year. If it has been more than one year since your arrest or more than one year since you’ve been charged that can trigger an inquiry. The inquiry is designed to determine the amount and significance of the prejudice caused to the defendant by the delay. This is a rather complicated analysis and has four different steps.

In the motion below, an individual was involved in an accident wherein there were two fatalities and one serious bodily injury. The defendant was not arrested at the time. The defendant moved out of the state a few months after the accident and even came back to Florida to clear up his driver’s license situation. Over 26 years later, on his way to work, he’s pulled over from minor traffic infraction and is arrested for a warrant arising from the traffic accident.

There are numerous case law citations within this motion. However, the two most important cases with regard to your Sixth Amendment right to a speedy trial are:
Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101(1972) & Doggett v. United States, 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 101(1972).

This was an interesting case to handle. In my opinion, knowing the evidence as I did, this would have been a pretty defensible case even right after the accident took place. Nevertheless, the expression is overused, but in this case it is very true. There were no winners here. Two young lives were lost. One was seriously injured and a man who led a fairly exemplary life after the incident for over 26 years was brought back and spent a significant amount of time in jail waiting for a resolution to the legal matter from over 26 years prior.

Notwithstanding the tragedy, from an academic perspective this case provided a interesting look at the difference between the protections afforded by Florida Law and the protections afforded by the United States Constitution with regard to a speedy, public trial.

Download ( Motion-to-Dismiss-Speedy-Trial.pdf, PDF, 329KB)

Motion to Dismiss | Reserving Rights After Arraignment

Florida Rule of Criminal Procedure 3.190(c) provides that, with limited exception, a motion to dismiss must be filed prior to the arraignment or it is waived. The problem that attorneys run into with regard to these motions is that a defense attorney almost never gets discovery prior to the arraignment. The defendant has to fall into one of the narrow exceptions or get leave of the court to file the motion to dismiss once the arraignment has passed. Most often an attorney will have to ask for leave of the court which requires needless additional work.

Here is how I address the problem. Attorneys typically file a combined Notice of Appearance, Waiver of Arraignment and Written Plea of Not Guilty upon the case being filed. My “combined notice” adds the provision that stating: “Defendant reserves 20 days to file a Motion to Dismiss under Florida Rule of Criminal Procedure 3.190(c) after receipt of discovery.” Accordingly, I get to look at the State’s entire discovery package rather than a partial police report before making a determination as to whether I want to file a Motion to Dismiss. There have been a couple of occasions that I have needed to file a motion to dismiss after arraignment and if I did not include this provision, I would have had to file a motion for leave.

Download ( Combined-Notice-Waiver-Plea-Reservation.pdf, PDF, 9KB)