Criminal Trials, Hearings Misdemeanor in California

[william71]

I currently reside in Florida and have a misdemeanor warrant in California that's almost 2 years old. I recently obtained legal advice that I might be able to have this case dismissed due to statute of limitations and other proceeding factors of this case but will need representation. Is there anyway I can avoid high lawyer fees and file a motion to dimiss on my own; if so, what steps do I take?

 

[jacksgal]

Sure you can attempt this on your own but would peform your own open heart surgery as well?

 

[MrCalfiornia]

I currently reside in Florida and have a misdemeanor warrant in California that's almost 2 years old. I recently obtained legal advice that I might be able to have this case dismissed due to statute of limitations and other proceeding factors of this case but will need representation. Is there anyway I can avoid high lawyer fees and file a motion to dimiss on my own; if so, what steps do I take?

You provided no facts of the case at all other than it was in California. You have not even stated what the charge was for.

As far as I know in California the statute of limitations clock starts ticking after arrest has been made. Then after arrest has been made the DA has up to one year to file charges on most misdemeanors. I doubt a motion to dismiss is going to work.

I do not know what the "other proceeding [preceding?] factors are in your case as you did not post them. So not knowing what the extraordinary factors were to the unnamed offense you have made it really hard to hep you.

I guess taken on a whole I would recommend that you get a lawyer, and see if he can broker a deal where you do not have to come back to Cal. (I am assuming you want to go back there someday?)

If you are going to insist on doing this on your own and you want to make a motion to dismiss whether or not it is the best... here is the law you will need to know:

California Penal Code
Section
959. The accusatory pleading is sufficient if it can be understood
therefrom:
1. That it is filed in a court having authority to receive it,
though the name of the court be not stated.
2. If an indictment, that it was found by a grand jury of the
county in which the court was held, or if an information, that it was
subscribed and presented to the court by the district attorney of
the county in which the court was held.
3. If a complaint, that it is made and subscribed by some natural
person and sworn to before some officer entitled to administer oaths.

4. That the defendant is named, or if his name is unknown, that he
is described by a fictitious name, with a statement that his true
name is to the grand jury, district attorney, or complainant, as the
case may be, unknown.
5. That the offense charged therein is triable in the court in
which it is filed, except in case of a complaint filed with a
magistrate for the purposes of a preliminary examination.
6. That the offense was committed at some time prior to the filing
of the accusatory pleading.

PENAL CODE
SECTION 1002-1012



1002. The only pleading on the part of the defendant is either a
demurrer or a plea.



1003. Both the demurrer and plea must be put in, in open Court,
either at the time of the arraignment or at such other time as may be
allowed to the defendant for that purpose.



1004. The defendant may demur to the accusatory pleading at any
time prior to the entry of a plea, when it appears upon the face
thereof either:
1. If an indictment, that the grand jury by which it was found had
no legal authority to inquire into the offense charged, or, if any
information or complaint that the court has no jurisdiction of the
offense charged therein;
2. That it does not substantially conform to the provisions of
Sections 950 and 952, and also Section 951 in case of an indictment
or information;
3. That more than one offense is charged, except as provided in
Section 954;
4. That the facts stated do not constitute a public offense;
5. That it contains matter which, if true, would constitute a
legal justification or excuse of the offense charged, or other legal
bar to the prosecution.

There are more laws concerning demurrers so you need to read the whole chapter.

 

[CdwJava]

If the warrant was issued within the one year SOL (as it is for most misdemeanors), then the SOL is no longer an issue.

Consult legal counsel in CA for ways you might be able to handle this. Depending on the offense you may not have to appear ... otherwise, this could dog you for the rest of your days.

- Carl

 

[MrCalfiornia]

Statute of limitations does not toll from the commissions of the violation. It starts from the arrest on that violation.

 

[CdwJava]

Statute of limitations does not toll from the commissions of the violation. It starts from the arrest on that violation.

Not true. At least not so in CA, anyway ... and it can vary by violation.

For example, for most misdemeanors:

802. (a) Except as provided in subdivision (b), (c), or (d),
prosecution for an offense not punishable by death or imprisonment in
the state prison shall be commenced within one year after commission
of the offense.​

- Carl

 

[MrCalfiornia]

For example, for most misdemeanors:

802. (a) Except as provided in subdivision (b), (c), or (d),
prosecution for an offense not punishable by death or imprisonment in
the state prison shall be commenced within one year after commission
of the offense.​

- Carl

Cool. I never realized that. That is pretty sweet.

I guess that is why I am on here asking questions too.

 

[CdwJava]

And when the warrant is sought and obtained, the SOL would cease to play an immediate part ... unless the state failed to act in due diligence to try and locate the suspect on the warrant, and the suspect had made no effort to conceal himself and remained within the jurisdiction. There are exceptions to most every general rule, but they tend to be rare ... hence, the reason they are exceptions.

- Carl

 

[raskalnikov]

CDW is right on that. Statue is from the date of the crime. However, once someone seeks and obtains a warrant, it is over. SO if you committ a crime with a 5 year statue of limitation, and at 4yrs 6 month after the crime they seek a warrant, than it is valid.

Get a lawyer! You may wish to not make yourself known to the system!