What type of motion would I file if I am concerned that I haven't been granted a speedy trial?? I am the defendant in a criminal case and the case was set for trial in January,
however the prosecutor was not
prepared although the prosecutor has had more than a year to prepare.
Criminal Defense Attorney
I agree that you should consult with your attorney about filing a speedy trial motion, but based upon my experience, the motion may not be granted by the trial court if you are out of jail and cannot demonstrate that the delay will somehow be prejudicial to your case (i.e., a witness or evidence won't be available as a result of the delay, etc.).
Please see the following statute and criminal rule of procedure:
KENTUCKY REVISED STATUTES
KRS 500.110 Trial of prisoner on untried indictment within 180 days after prisoner's request for final disposition.
Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and whenever during the continuance of the term of imprisonment there is pending in any jurisdiction of this state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
KENTUCKY RULES OF CRIMINAL PROCEDURE
RCr 9.02 Time of hearing or trial
All prosecutions shall proceed when the defendant appears or is brought before the court unless postponed for cause. The trials of all persons in custody under arrest shall be held as promptly as reasonably possible.
Kristin M. Russell is an attorney licensed to practice law in the Commonwealth of Kentucky. Per Avvo guidelines, these answers are for informational purposes only and do not constitute legal advice. This response does not create an attorney/client relationship.
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I agree with the other attorneys.
Legal disclaimer:This message does not constitute legal advice and does not create an attorney-client relationship. Any statements are made for general informational purposes and do not constitute legal advice. No attorney-client privilege is created by this communication. Attorney is licensed in California only.
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Criminal Defense Attorney
I assume you have a criminal defense attorney, if not , consult with one immediately. Unlike Federal Court, which has a speedy trial act statute, there is no statute like that in Kentucky State Courts. The Judge deals with the motion on a case by case basis. Your lawyer can make a motion to dismiss based on the time delays. Judges are relucant to grant such a motion. The leading Supreme Court case is Barker vs. Wingo:
U.S. Supreme Court
Barker v. Wingo, 407 U.S. 514 (1972)
Barker v. Wingo
Argued April 11, 1972
Decided June 22, 1972
407 U.S. 514
Petitioner was not brought to trial for murder until more than five years after he had been arrested, during which time the prosecution obtained numerous continuances, initially for the purpose of first trying petitioner's alleged accomplice so that his testimony, if conviction resulted, would be available at petitioner's trial. Before the accomplice was finally convicted, he was tried six times. Petitioner made no objection to the continuances until three and one-half years after he was arrested. After the accomplice was finally convicted, petitioner, after further delays because of a key prosecution witness' illness, was tried and convicted. In this habeas corpus proceeding, the Court of Appeals, concluding that petitioner had waived his right to a speedy trial for the period prior to his demand for trial, and, in any event, had not been prejudiced by the delay, affirmed the District Court's judgment against petitioner.
Held: A defendant's constitutional right to a speedy trial cannot be established by any inflexible rule, but can be determined only on an ad hoc balancing basis in which the conduct of the prosecution and that of the defendant are weighed. The court should assess such factors as the length of and reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. In this case, the lack of any serious prejudice to petitioner and the fact, as disclosed by the record, that he did not want a speedy trial outweigh opposing considerations, and compel the conclusion that petitioner was not deprived of his due process right to a speedy trial. Pp. 407 U. S. 519-536.
442 F.2d 1141, affirmed.
POWELL, J., delivered the opinion for a unanimous Court. WHITE, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 407 U. S. 536.
Page 407 U. S. 515
I am trying to give you a general answer to your question. We do not have an attorney-client relationship by this response on the avvo website. I have not been retained to represent you. I am licensed to practice law in Kentucky and in federal court in this state and the Southern District of Indiana. You need to seek legal advice from an attorney licensed to practice in your area..
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