The charges are burglary of building and 2 counts of theft of property $1500<$20k. It has been almost 9 months, not 6, and no indictment. He bonded out but is in custody again on new charges so those bonds were forfeited. Now that he is back in custody (and already indicted on a newer charge!), what does he have to do to find out the status of discovery and how can he make the effort to conduct discovery in good will? Can he file a motion for dismissal and violation of his 6th amendment rights? What are exceptions the state could use to continue, and how likely is it that they will? I believe a small amount of prejudice towards him would be reasonable to believe in his case and I don't think the evidence to convict him on these charges is there, or substantial enough. Am I correct? Advice?
DUI / DWI Attorney
That statute of limitations on a state jail felony is three years. So the time for indictment has not passed. He cannot file a motion to dismiss on an unfiled case. Once the cases are indicted, his attorney can file a motion to dismiss based on the speedy trial violation. Whether or not to grant it will be up to the judge.
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Criminal Defense Attorney
The previous poster is correct. The attorney retained can file a speedy trial motion. Also, if 90 days has passed and the case is still not indicted the individual can file a motion with the court to have a pre-trial bond issued. I am unsure based off of your question if bond is an issue or not.
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Criminal Defense Attorney
As is often the case with questions asked by non lawyers, it is unclear what you are trying to get at.
However, as has been said here, if a defendant is in jail on a felony and has not been indicted and 90 days have passed, the defendant is entitled to a bond he or she can make, and if there is no amount of bond that the defendant can post, then the defendant is entitled to personal bond.
On the other hand, you asked specifically about "speedy trial". The right to a speedy trial in Texas is rooted in the United States Constitution. There used to be a statute that set time limits in which the state had to be ready for trial or face dismissal. However, that statute was thrown out many years ago as unconsitutional under the Texas constitution.
Actual speedy trial issues get analyzed by courts based on the facts of the specific case, and the courts look at things like who was responsible for the delay, was the defendant demanding a trial, and was the defendant's ability to defend the case damaged by the delay. And, in felony cases, the delay typically has to be pushing a couple of years before there's really much chance of success in an attempt to get a dismissal for a speedy trial violation.
So, a speedy trial issue is something that a defendant really needs to get a good criminal defense lawyer to handle.
Now, this thing about "exceptions"...If you are getting at the time available to complain that the indictment is defective, that has to be done before the trial begins. If there is an actual pre-trial hearing to address defense motions, pleadings addressing indictment defects should be filed within the time limits provided for timely filing before that hearing. I am not going to go into those deadlines here. They are in the Code of Criminal Procedure, and the defendant's attorney can advise about them.
A statute of limitations is different from speedy trial. While there are some exceptions, burglary normally has a 5 year statute of limitations no matter what level offense it happens to be, as set out in Texas Code of Criminal Procedure, Article 12.01(4).
For more information on the criminal justice system in general, you may wish to visit my firm's website at http://www.epjlaw.com.
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Criminal Defense Attorney
I agree the right to speedy trial is grounded in U.S. Constitutional law. Things you can do to increase your chances of winning a speedy trial claim would be: (1) request a speedy trial early and often; (2) avoid causing any delay in your case; and (3) document the "harm" caused by the delay and be prepared to prove the harm. Good luck.
The right to speedy trial in a felony case proceeds from the point that the person has been indicted. Time in jail is also considered, but the controlling factor is whether there has been some prejudice against the person, such as remaining in jail, losing work, etc., to show prejudice.
As far as the time measures, it could be 2 years and 364 days after arrest, and if the case if filed, or indicted, the statute of limitations is stopped, or tolled.