My friend requested a speedy trial. He has been held in custody for about 40 days now and has not been arraigned yet. He just got his 1st court date which is in about a little over 2 weeks. He has not been assigned a public defender yet either. Is it true that if you do not have arraignment within 45 days of initially being arrested that you must be released?
And, if the speedy trial was requested how long does the state have to get into court before their time is up? Also, when are charges really filed? Is it when you are arrested or arraigned?
Criminal Defense Attorney
A person must have an "initial appearance" within 24 hours of arrest. The state may not hold someone for more than 33 days without filing charges otherwise they shall be released on their own recognizance. So it needs to be determined whether the reason your friend hasn't been arraigned is because of whether the charges have been filed or not. But the arraignment is another matter. If someone does a "demand" for a speedy trial then they waive their right to discovery and other procedural matters because they are saying they are ready for trial now. Once the demand is filed the defendant has a right to go to trial within 60 days, although there can be a recapture period.
What are the charges? Your friend should probably have a bond which would enable his release pending the resolution of this case.
This is not to be considered legal advice nor does an attorney-client relationship exist.
Criminal Defense Attorney
If the state has failed to file charges within 33 days, your friend must be released from custody (unless the state asks for an extension, which would increase the time to 40 days). After that time period expires, the state is still free to file charges against your friend, and if they do, he could be rearrested. The state must file charges within the speedy trial period (175 felonies or 90 days for misdemeanors), as long as the defendant has not waived his right to a speedy trial either through his attorney, personally, or by willfully failing to appear at a scheduled court hearing. If the state files charges after the speedy trial period expires, those charges will be dismissed upon motion by the defense. If speedy has been waived, then the state must file charges before the statute of limitations expires, the length of which varies depending on the severity of the charge (but is at least a year from the date of the incident).
If your friend cannot afford to hire an attorney, he needs to file an affidavit of indigency (form usually found at clerk's office and can probably be found at the jail). That form should be sent to the clerk's office. Alternatively, he can try to contact the public defender's office and ask to speak with a supervisor about setting a hearing as soon as possible so the office can be appointed.