Criminal Rule 4 is an issue a lot of criminal defendants are aware of. It is a rule that specifies how long the State has to bring a defendant to trial. It’s a significant rule because, if it’s not followed, it could result in outright dismissal of the case. The rule is broken down into a few basic sections, however an underlying rule for ALL of Criminal Rule 4, is that any time the defendant requests a continuance, except in the case of outstanding discovery, that time is not counted towards any of these deadlines. It is a general rule of fairness that the defendant cannot cause a delay and then complain that the state took too long to take them to trial.
The first aspect of Criminal Rule (“CR”) 4 has to do with defendants who are held in jail. Under CR 4(A), if a defendant is being held in jail pending their trial, the trial must take place within 180 days of either the arrest or the filing of charges, whichever is later. If the trial does not happen within that 180 days, then the defendant must be released. However, if the court cannot entertain the trial with in 180 days because their calendar is simply too busy, or because there is some emergency that prevents the trial from occurring, that time is not counted towards the 180 days.
Under this rule, to be clear, the case would not be dismissed, but rather the defendant would be released from the jail pending his trial. This is unique to subsection A, and therefore the courts treat this one a little bit differently. Namely, if the court sets a trial outside of the 180 days, the defendant is under no obligation to speak up. Mere agreement to a trial date outside of the 180 days is not sufficient to waive the defendant’s right to be released under this subsection. That is different from the rest of the rule.
The next section is subsection B, which is for defendants in jail that have specifically requested an “early trial”. A defendant must request an early trial, and in that case, the trial must take place within 70 days. Once again, delays due to court congestion or emergency do not count towards this time. If the State does not feel they will be ready for trial within 70 days, they have to either agree to release the defendant prior to the expiration of 70 days, or dismiss the case.
The next section of CR 4 we will discuss is subsection (C), which is for defendants not being held in jail. The rule is very straightforward here, in that the State has one year to take the defendant to trial. Once again, delays due to court congestion or emergency are not counted against the state. If one year has passed, and the defendant has not caused any of the delays, the case should be dismissed.
The last section of CR 4 is a big caveat to all of this. If subsection B is violated, and the defendant requests dismissal, the court may extend the trial an additional 90 days but must release the defendant. However, to extend the trial 90 days, the state must show that there is evidence the state could present at trial that simply is not available at the time. They must also show they have made efforts to obtain the evidence, and that they will have it within the next 90 days.
Here at Banks and Brower we often receive questions related to CR 4. Many defendants see it as a loophole by which to get an “easy win”. However, as you can see, there are many caveats and exceptions by which the State and the Court can prevent your case from being dismissed. It is very rare for a case to be dismissed under CR 4.
However, the attorneys at Banks and Brower fight cases from every angle, and CR 4 is always something that needs to be considered. If you are in need of an attorney to fight your criminal case, please give us a call today at (317) 870-0019 or email info@banksbrower.com.
