I work in a JP with a very busy docket, and the standard practice is that the actual complaints are not drafted and signed by the officer until right before either the bench or jury trial, sometimes the day of. Like most JP's, the majority of our defendants are pro se, and most plea out before a trial occurs.
Recently this procedure has become a problem in a few cases, like the facts below:
Defendant issued citation for speeding and hires attorney to represent her. Defendant goes to the JP court on April 22, 2005, and enters a plea of not guilty. Defendant is set for a pre-trial hearing on May 19, 2005. On May 19, 2005, Defendant and her attorney appear in court and request a copy of complaint, which the court does not have (one had not been prepared yet). Now Defendant is requesting dismissal based on the fact that a complaint was not filed "the day before any proceeding in the prosecution" of Defendant. I believe this is right, but want some confirmation.
So I guess my question would be this: Does a complaint need to be automatically filed and available after a defendant's plea of "not guilty" and does it matter at all when the defendant actually requests a copy of the complaint?
Thanks for any help!
The Code of Criminal Procedure only requires that you give 24 hours notice of the complaint against a defendant. The easiest way to do it is this . . .
The defendant/atty asks for a copy of the complaint. Have your clerk tell defendant a copy will be made available 24 hours before trial and not a moment before. Prepare complaint and have it signed, stick it in the shuck. If defendant/atty moves for dismissal based upon no notice on trial day, the motion should be denied because it is untimely. Works every time in my county.
I was under the impression that the ticket itself could act as the complaint?
Well, I thought it was only 24 hours notice as well, but CCP Article 45.018 says "a defendant is entitled to notice of a complaint against the defendant not later than the day before any proceeding in the prosecution of the defendant under the complaint."
Once a defendant has entered a formal plea (thus meaning the ticket no longer serves as the complaint), the actual complaint must be filed a day before a proceeding, right? In this case, the day before a pretrial setting.
If I'm wrong on this, point me towards the "24 hours notice" thing.....because that's basically what my JP did. As soon as one was requested, a complaint was filed. Defendant still maintains that's incorrect because it wasn't done "the day before any proceeding"
You are right about the pretrial setting. Our defendants do not enter a plea until the day of the pretrial, unless they request a trial without a pretrial setting. Perhaps that's why we don't run into that problem 'round here. So the ticket serves as the complaint until they fill out the paperwork for trial at their arraignment. THEN we have the whole "not before 24 hours before trial" thing. Are we doing this entirely wrong?
No, I think you're doing it correctly. The difference and problem with this particular case is that the defendant entered a plea of "not guilty" in writing PRIOR TO the first pretrial setting. Then, when the defense attorney showed up at the pretrial (when pleas are normally made in my JP), she wanted a copy of the complaint. And I suppose she was entitled to one (sigh). Oh well, can't win 'em all Thanks for the help.
Since jeopardy has not attached and assuming the 2 yr. lim. has not run, you could dismiss and refile. However, I personally think that the defendant's entitlement to notice under 45.018 does not necessitate a dismissal at all. Instead, the defendant is only entitled to a delay in the commencement of any "proceedings" against him/her. It didn't sound like there was a legitimate constitutional speedy trial issue, so under what authority would the court dismiss it without your aquiesence?
A. Klement -
check your PM - I send you a message. We're having the same problem and I think it's the same attorney.
Reviving this thread with a twist. If the citation itself serves as the complaint until the time that the defendant enters a plea, and the defendant does not enter a plea for 2 years, can a complaint then be filed (after the limitations period has apparently run)? Or, put another way, does the filing of the citation itself toll the limitations period? Had this come up recently.
The citation is merely the violator's promise to appear before the court even though it contains the same information as the Complaint. I wouldn't count on a citation to toll the statute of limitations. If a violator fails to appear in response to a citation, in my opinion the better practice is to have the officer or clerk of the court prepare a Complaint.
The citation does not toll the statute of limitations. The SOL is an affirmative defense but if raised, will require dismissal if it was not timely filed.
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