The right to a fast and speedy trial can be found in Indiana Criminal Rule 4 which exists to enforce the state constitutional guarantee of a speedy trial. The rule typically applies to individuals in jail but in certain circumstances can apply to those who have been bailed or released on their own recognizance. However, there are a few different subsections of the rule that apply to various situations differently which this article will seek to explain.
Subsection A – The Six Month Rule
Criminal Rule 4 (A) provides in relevant part:
No defendant shall be detained in jail on a charge, without a trial, for a period in aggregate embracing more than six (6) months from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge (whichever is later); except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall make such statement in a motion for continuance not later than ten (10) days prior to the date set for trial, or if such motion is filed less than ten (10) days prior to trial, the prosecuting attorney shall show additionally that the delay in filing the motion was not the fault of the prosecutor. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so detained shall be released on his own recognizance at the conclusion of the six-month period aforesaid and may be held to answer a criminal charge against him within the limitations provided for in subsection (C) of this rule.
To be clear, this rule subsection provides relief for release, not discharge. The relief provided is the defendant is released from jail while awaiting trial and does not cause the case to be dismissed. This release order only applies to person detained in Indiana and does not apply to defendants incarcerated in other states per se. The defendant does not have to object to a trial date set outside the six month period and does not otherwise need to make any particular motion to be eligible under subsection A. The three exceptions that do not count to the overall six month time clock include when a delay is caused by the defendant moving for a continuance, a delay caused by an act of the defendant (such as not appearing at court), or if the court continued the matter on their own due to calendar congestion or an emergency.
Subsection B – The 70 Day Rule
If any defendant held in jail on an indictment or a probable cause affidavit shall move for an early trial, they shall be discharged if not brought to trial within 70 calendar days from the date of such motion. Practically speaking, in order for the defendant to be discharged, they must be held in jail, move for an early trial, object immediately to a trial date if set outside the 70 day period, not have take any action inconsistent with motion for speedy trial including filing their own defense charged continuance, object to continuances or delays caused by the state as to which he has notice which would delay the trial date, and after expiration of the 70 day period, move for discharge and dismissal with prejudice.
Again this only applies to persons held in jail in Indiana. In order for discharge and dismissal to take effect under this subsection, the defendant must be held in jail, move in writing or move during a hearing for an early trial, object immediately to a trial date if one is set outside the 70 day period, the defendant must not have taken any action inconsistent with the motion for speedy trial, object to any continuances or delays cause by the State when the defendant has notice which would delay trial to date, and after expiration of the 70 day period, move for discharge and dismissal with prejudice. One item of note is if additional charges are filed or amended, the defendant should file an additional motion for speedy trial separate and distinct from the original motion filed on the original charge. Finally, if the defendant makes it through each of these steps, the relief is to have the case dismissed.
Subsection C – The One Year Rule
Criminal Rule 4(C) provides in relevant part:
No person shall be held on recognizance or otherwise to answer a criminal charge for a period in aggregate embracing more than one year from the date the criminal charge against such defendant is filed, or from the date of his arrest on such charge, whichever is later; except where a continuance was had on his motion, or the delay was caused by his act, or where there was not sufficient time to try him during such period because of congestion of the court calendar; provided, however, that in the last-mentioned circumstance, the prosecuting attorney shall file a timely motion for continuance as under subdivision (A) of this rule. Provided further, that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance. Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time. Any defendant so held shall, on motion, be discharged.
The State has the duty to bring defendant to trial within one year under speedy trial rule. Similar to Subsection A, the defendant has no obligation to remind court of State’s duty nor to take any affirmative steps to see that he is brought to trial within the period in order to take advantage of this subsection of the rule. Additionally, this applies to all defendants with pending criminal cases, not just those being held in jail custody. The time clock starts the later of the defendant’s arrest, date of charges being filed, or the date the summons orders the defendant to appear in court if they defendant was not initially arrested.
Once a defendant has been discharged or is eligible for discharge, they cannot be subjected to a related charge growing out of same transaction, incident, or set of facts, when charges could have been joined with initial charge. Therefore, the State cannot simply re-file the case or add charges to reset the time frame, there must be separate and distinct facts in order to add new charges after the year period. However, the rule applies independently to each charge so if only one charge is filed and the State subsequently adds a second charge, the one year period could expire on the first charge and be dismissed but not necessarily dismiss the case in its entirety and can still pursue the subsequent charge. One exception to this subsection does apply however. Indiana Criminal Rule 4(D) provides for a 90 day extension of the otherwise applicable one year time limitation when, upon application for discharge of a defendant, the court is satisfied that the State’s evidence is temporarily unavailable but can be had within 90 days.
There are a multitude of exceptions, rules, and conditions that are limited to specific circumstances that are worth consulting an attorney over. The speedy trial rule can be a useful trial tactic to put the pressure on the State or ensure a Defendant does not get stuck incarcerated without due process. However, there are strict requirements that must be adhered to in order to take advantage of the rule. If you or a loved one are facing a potential criminal charge, give the experienced former Prosecutors at Banks & Brower a call today. Our Indianapolis criminal defense Lawyers stand ready to assist you 24/7/365. Call us at (317) 870-0019 or email us at info@banksbrower.com.