Metropolitan News-Enterprise


Wednesday, October 8, 2008


Page 3


Court Permits Written Withdrawal of Speedy Trial Waiver


By STEVEN M. ELLIS, Staff Writer


A defendant who wants to withdraw a general time waiver of the right to a speedy trial need only first provide notice, the Orange Superior Court Appellate Division has ruled in a published decision.

Concluding that state law requiring a defendant be tried within 30 days after a withdrawal does not require that the withdrawal be made in open court, or upon any minimum length of notice, the appellate division on July 10 directed the trial court to dismiss driving under the influence charges against a man who withdrew his waiver outside of court four days after first entering it, and exactly 30 days before pretrial.

Apolonio Arias was charged with two counts of driving under the influence after an arrest in June of 2007. On Aug. 13 of that year, his attorney entered a general time waiver in open court, and Orange Superior Court Judge Douglas Hatchimonji set the matter for pretrial on Sept. 17, 2007.

However, Hatchimonji did not set a trial date, and four days later Arias filed a pleading entitled “Withdrawal of General Time Waiver,” which he had served on the prosecution prior to filing. No further action was taken until the date set for pretrial, and Arias’ attorney moved for dismissal at the hearing, contending that it was the last day to bring Arias to trial under Penal Code Sec. 1382(a)(3)(A).

The statute provides that a general waiver of the 30-day or 45-day trial requirement entitles the court to set or continue a trial date without the sanction of dismissal should the case fail to proceed on the date set for trial. It further provides that a defendant who withdraws such a waiver after proper notice to all parties “shall be brought to trial within 30 days.”

Hatchimonji denied Arias’ request and set a trial date of Oct. 9, 2007, so the defendant sought a writ from the appellate division ordering the charges dismissed for violation of his speedy trial right.

In an opinion ordered published Sept. 17, which became final after the Court of Appeal declined to review the case, Presiding Judge Charles Marginesand Judges Gregg L. Prickett and Robert J. Moss granted Arias’ request.

Noting the absence in the statute’s text of any requirement that the withdrawal be made in open court, or any specific minimum period of notice before the withdrawal became effective, the judges concluded that Arias was entitled to the writ because a file stamp by the district attorney’s office indicated that the withdrawal was made “after notice” on the prosecution, “albeit very short notice.”

They explained:

“Had the Legislature intended to limit the method of giving of notice of withdrawal, or to require a specific minimum period of notice prior to the effective date of the withdrawal, it could have included such specific requirements.... Lacking such language, we must conclude that [Arias] complied with the statutory provision and successfully withdrew his general waiver.”

The judges added that they recognized that their conclusion “could have a substantial impact on operation of the trial courts,” placing a significant burden on the prosecution and the courts to schedule and commence trials within the 30-day period.

“Nonetheless, a criminal defendant’s constitutional right to a speedy trial…cannot be infringed for the convenience of the court, the People, or their witnesses,” they wrote.

Pricket concurred separately to suggest steps a trial court could consider when faced with an out-of-court withdrawal of a general time waiver, including implementation of policies requiring counsel to file withdrawals in open court, and to suggest trial dates or an acceptable calendaring procedure in any waiver.

He also suggested adoption of similar steps by prosecutors’ offices, and said that—in the absence of a legislative requirement that the prosecution or the court accept general time waivers—courts should consider the overall legislative objective of general time waivers when deciding whether to set future court proceedings without setting a trial date.

The case is Arias v. Superior Court (People), 08 S.O.S. 5638.


Copyright 2008, Metropolitan News Company