I was arraigned 6/11/14 on a misdemeanor charge and am not being brought to trial until 4/13/15 I caused for a week delay due to a family emergency in November other than that the delay is on the part of the prosecutor office that they ammended my complaint two weeks before the original trial to include additional charges. In nebraska I believe the speedy trial clause is six months. My lawyer will not file a motion to dismiss. Any way I can force a lawyer to file a motion?
Carl Norman Anderson IIIBankruptcy AttorneySalt Lake City, UT ·
In some jurisdictions where I am licensed the speedy trial analysis can be very difficult to determine and requires a thorough search of applicable case law. However, in Nebraska the speedy trial calculation has more to do with math than it does with the law. Nebraska Revised Statute 29-1207 gives a very straightforward explanation of how to calculate the six month requirement. You need to review 29-1207 and then apply the rules for determining when the clock starts and what time can be excluded from the calculation. If after you have done this you get more than 180 days, then the Statute requires the case be dismissed. If your current counsel refuses to file the motion, you most certainly should get another opinion as there can be no better result than having your case dismissed. However, as explained in previous answers, you cannot force him to file the Motion, but you can try to get another lawyer to do so.
No, by law it is the lawyer's decision what motions to file, not yours. The best thing you could do is to have a serious discussion with your lawyer. If you can convince the lawyer that the motion is meritorious I would think that it would be filed. If the lawyer can convince you that there is no merit to such a motion, I would expect that you would withdraw your suggestion. If you cannot agree, you can let your attorney run the case or you can look for other counsel.
Mr. Sachs has laid out your options. I suspect that your attorney knows the court rules and the case law and has concluded that a Speedy Trial motion will not succeed. If you disagree, you can represent yourself or hire a new lawyer. Courts expect attorneys to file motions, but they tend to get annoyed when the motion is frivolous. I am not saying your situation is frivolous-- I just don't know. But the lawyer is expected to use his own experience and judgment. By the way, even if your motion to dismiss is granted, it is most likely to be without prejudice. That means the prosecutor can refile the charge-- do you really want to risk going through this again? Good luck to you.
Tregg Robert LunnDebt Collection AttorneyLincoln, NE ·
Figuring out what days toll and what days do not is a very tricky business. If your lawyer will not file a Motion, there is almost certainly a good reason why.
