Q: How does a prisoner find out when the prosecuting attorney received his 1382 motion, and when the 90 days begin
My friend filed a 1382 motion while serving time in merced county. The merced sheriff didn't mail the motion until 9 days after he received it. Now, my friend has been told that he won't be released on his early release date because they are giving fresno county 5 days to pick him up. It was 90 days on the 11th that he handed the motion to the sheriff. His early release date is the 16th, but are now keeping him until the 21st. Can the charges be dismissed
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A:
Under California Penal Code Section 1382, a defendant has the right to a speedy trial. If a defendant is not brought to trial within the specified time limits, the case may be dismissed. Here are a few key points regarding your friend's situation:
1. The 90-day period begins when the prosecuting attorney receives the 1382 motion, not when the motion is handed to the sheriff.
2. To find out when the prosecuting attorney received the motion, your friend or his attorney can contact the court clerk's office or the prosecuting attorney's office directly. They may need to file a request for this information.
3. The delay caused by the sheriff in mailing the motion does not necessarily impact the 90-day timeline, as the clock starts when the prosecutor receives the motion.
4. If the 90-day deadline has passed and your friend has not been brought to trial, his attorney can file a motion to dismiss the charges based on the violation of his speedy trial rights under Penal Code 1382.
5. The court may consider various factors when deciding whether to grant a motion to dismiss, such as the reason for the delay, any prior time waivers, and whether the delay has prejudiced your friend's case.
It is crucial for your friend to consult with his attorney to determine the best course of action and to protect his rights. The attorney can review the specific details of the case, calculate the relevant deadlines, and advise on the appropriate legal steps to take.
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