Motion to Dismiss Criminal Charges (Serna Motion)
Our law firm has a rather detailed case study, for the education of clients, of a case that was dismissed through a Serna motion. A Motion to Dismiss Criminal Charges (Serna Motion) alleges that a case was not prosecuted timely, in violation of the speedy trial rights of the defendant.
Specifically, Penal Code section 1382 in California gives a speedy trial right and sets the statute of limitations for certain offenses. In general, and it’s always a better idea to check the crime against the code specifically, misdemeanors have to be brought to trial within one year of arrest, and most felonies within three years of arrest, with strike (serious, violent, or sexual felony crimes) having much longer statutes of limitations.
A similar speedy trial right exists where a case is not brought to trial within 10 court days of the defense announcing ready. For a dismiss motion to be granted under 1382 the defense counsel needs to make an objection, on the record, on the last day of the
time period. Us, as defense attorneys, makes the objection to having the case put over past the last (the 10th) day. On the next day in court we need to make the motion to dismiss because the court violated our client’s 1382 rights.
With cases alleging a mistrial, it is 30 days from the date of the mistrial. If that happens to be a date that falls on a court holiday, or a weekend, the date goes to the following court day. A prepared criminal defense attorney will set the motion for the objection for that day. This is one type of motion that does not need to be researched, prepared, written, served, and argued — a criminal defense lawyer can do this orally, on the record, and for appeals purposes, needs to make sure the court reporter takes it down or that what happened in bringing the motion (the fact that it was brought, and the decision), is reflected in the court minute order.
Motion to Dismiss Criminal Charges (Serna Motion) – the timing
Timing: Under California Rules of Court 4.111 defense lawyers need to give the DA 10 days notice of any pretrial motion. The Defense Attorney will need to file a motion shortening time along with the motion objection to the continuance. This has to be done on the last day. If counsel made an objection to any future dates set, as being beyond the 30 day time period, when the court set the new trial date, then the record is preserved and the criminal defense lawyer can make the dismissal motion on the 10th day.