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The clerk of court has apparently failed to file a motion to reschedule my trial. what can I do about it?

Orlando, FL |

trial is now 9 days away. I know of the 10 day rule. It seems like Im screwed by the incompetence of the clerk. Is there any remedy to this situation?

I wonder what she did with my written request. Can the clerk just trash it or what? Weird because I made a copy of the same document (changed the name and case #) for a friend and it shows up on the my orange clerk website as having been filed.

Attorney Answers 4

Posted

It sounds like you are unrepresented. If you want to reschedule a trial date, you cannot simply write a letter requesting it. As a Pro Se defendant, you are held to the standards of an attorney. In order to reschedule your trial, you must file a proper Motion to Continue with the court in accordance with the Florida Rules of Criminal Procedure. Since you simply wrote a letter, the Judge probably did not read it (5th Amendment protection from self-incrimination). Furthermore, since it is not a proper motion, the Judge cannot grant or deny your request for a new court date. Also, keep in mind that the Clerk of Court does not file anythig for you, they merely record the timeline of filings from your case in the court database for record keeping purposes. Only you as a Pro Se defendant or your attorney representing you can file a Motion to Continue.

You need to hire an attorney ASAP...unless somebody steps in soon, you may be stuck with that trial date...an attorney can step in and ask the Judge for a continuance to prepare the case for you, which will likely be granted...

Communication of information by or through this web site and your receipt or use of such information is not intended to create an attorney-client relationship.

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5 comments

Asker

Posted

thanks but it was a motion to continue

Asker

Posted

furthermore it had the proper format with caption, title,prayer etc. and as I typed the same document was successfully entered by my friend for his case, so the fact that it is not showing up in the system is a mystery.

Asker

Posted

btw you said you can file the motion to continue but how would you do that if the rule is that such requests must be made 10 days prior to the trial

Asker

Posted

is it a double standard? come to think of it I have seen an attorney show up on the day of trial and request a continuance and have it granted

Darryl Richard Smith

Darryl Richard Smith

Posted

Yea, attorneys that take over a case last minute get the benefit of the doubt on continuances...usually they just have to inform the judge that they just got the case and need time to prepare. However, a lot of judges do not particularly care for Pro Se Defendants asking for continuances unless they are doing so for the purpose of hiring a lawyer. I can't tell you for sure what happened to your Motion to Continue, but I can suggest that it may not have been in compliance with Florida Rules of Criminal Procedure 3.190. The rules are very specific, and certain things are easily overlooked, even by attorneys (service on the other party, certificate of service included in motion, good cause for asking for the continuance, etc.)...I would check with the Clerk's Office or the JA again...

Posted

I agree with Mr. Smith: You must file a Motion for Continuance and then notice the Court to set the new hearing date. In some circuits, you can--after filing the motion--simply call the judge's judicial assistant to get a new date. In other circuits, you must use their electronic filing system.

A letter will be ignored.

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Posted

The Clerk cannot file Motions for you. Additionally, only the Judge can grant a continuance. From the information you've given, it appears that you need to file a Motion to Continue. Then, it is up to the Judge whether or not to grant your Motion to Continue. In your Motion, you will need to include proper grounds (valid legal reason) for a continuance.
If you can, please hire an attorney to help you with your criminal defense. If you cannot afford an attorney, request for appointment of a public defender.

not intended as legal advice and this answer does not create an attorney/client relationship.

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Posted

The Clerk cannot file Motions for you. Additionally, only the Judge can grant a continuance. From the information you've given, it appears that you need to file a Motion to Continue. Then, it is up to the Judge whether or not to grant your Motion to Continue. In your Motion, you will need to include proper grounds (valid legal reason) for a continuance.
If you can, please hire an attorney to help you with your criminal defense. If you cannot afford an attorney, request for appointment of a public defender.

not intended as legal advice and this answer does not create an attorney/client relationship.

Mark as helpful

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