At what point can I seek to have my case dismissed on this basis?
These question presupposes that there has been an executed plea cutoff which has resulted in a scheduled trial date. A plea cutoff form as promulgated by the Administrative Office of the Courts (AOC), which is signed by the given county prosecutor’s officer or Attorney General, the defense attorney, the criminal part judge, and the defendant him/herself.
A Motion to Dismiss an Indictment can be filed at any time by a defendant prior to a scheduled trial date. Obviously, the judge will evaluate such a motion in the context of the circumstances presented within same. If a trial date keeps getting adjourned (postponed), the defense attorney should file such a motion.
At some point, the State has to present its case with the witnesses needed for such prosecution. If the State is having difficulty in procuring a particular witness or witnesses, that is their problem. An experienced and skilled defense attorney will know if this is the case.
The answer to the literal question is that there is no particular time period that must transpire before such a motion to dismiss is filed. For instance, the question presented does not reveal the timeframe by which these five requests for adjournment of a trial date have occurred.
All courts are sensitive toward providing due process to the defendant while also allowing the State a sufficient time period to organize their witness list to allow for prosecution. Necessarily, each case has to be evaluated on its own particular facts and circumstances.
On its face, five separate adjournments of a scheduled trial dates for the unavailability of a witness or or witnesses provides an absolute basis for a defense attorney to move to dismiss his or her client’s case. It should be noted that judges are given wide discretion in granting or denying these motions.
The question presented relates closely to constitutional principles of double jeopardy an speedy trial. These constitutional imperatives can only be evaluated in the context of more specific information related to a specific case.
If you need assistance with a criminal matter, call Attorney Matthew Reisig at 732-625-9661.