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Defendant's Presence

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April 05, 2004, 16:27
Joel Daniels
Defendant's Presence
From time to time it happens that a defense atorney appears at a pre-trial non-issue docket in my court and claims that his client can't be in court because of illness, incarceration elsewhere or some similar reason. My judge has taken the position that these non-issue dockets are pre-trial proceedings where the defendant's presence is required under CCP 28.01 and that the court cannot legally reset the case without the defendant being present. He states that the only action the court can take without the defendant being present is to forfeit the bond and issue a capias under 22.01 and 23.05. Has anyone dealt with this issue before? Does it boil down to whether the docket counts as a "pre-trial proceeding" under 28.01? thanks!
April 05, 2004, 20:11
Tim Cole
Call me a country lawyer ... but I have always been under the impression that a defendant is required to appear when the court says he is required to appear, and failure to appear not only forfeits the bond but also is a crime. I am not sure what a "non-issue docket" is, but if the court has ordered the defendant to appear then he must do so. I am not aware of a pre-trial in this state that can be held without the presence of the defendant. In fact (help me out here, appellate lawyers) I think you are committing error if you do anything formal in court, on the record without the defendant present. As for the issue of resetting the case, I don't think this is required to be done in open court. Why would the defendant have to be present in order to reset the case? Would be hard to ever reset a defendant who really didn't want a resetting if he could defeat it by not appearing.