Statute of Limitations
Statutes of Limitations & Timing in Criminal Cases
Several times a week, I am contacted and asked questions about whether a case can be prosecuted or how long the criminal process take. Time limits are specifically set out in our statutes and court rules. I hope the following information can at least provide you with some quick answers.
The person arrested must be brought before the judge within 24 hours. That court appearance is called an Initial Appearance (IA). At the IA, the judge will advise you of why you were arrested, decide if probable cause exists to maintain the case, set release conditions, and order your next court dates.
A prosecutor must file a complaint within 48 hours (two business days) from the time of the initial appearance. If the prosecutor fails to do so, you must be released from custody.
The IA judge on a felony case must set a hearing within 10 days of the IA. That hearing is called a Preliminary Hearing. The purpose of the hearing is to determine if probable cause exists to believe a crime was committed and you are the one who committed the crime. The prelim is not a trial: the rules of evidence do not apply to the same standard. And, the State need not prove its case beyond a reasonable doubt, only by sufficient evidence.
The finding of probable cause must be made within 10 days of the initial appearance. Where the court must set a preliminary hearing date, the prosecutor can elect to proceed at the preliminary hearing or the grand jury. One of these events must take place within the 10 day period. If the State fails to hold prelim or otherwise obtain an indictment from the grand jury, you are entitled to be released.
Scratched or Vacated does NOT mean Dismissed
If you appear for your preliminary hearing or “status conference” (that some courts set before the prelim date), and you are advised that the case was scratched or vacated, it only means that the case was not ready to proceed at that time. The court will exonerate any bond and release you from any other release conditions.
Please notice I never said the case was dismissed. Scratch is not a legal term. However, the Court uses the term when a complaint was not filed. The case being scratched or vacated is not to be confused with the word dismissed. If your case is “scratched,” it means the County Attorney did not timely file a complaint against you.
STATUTE OF LIMITATIONS
In general, a misdemeanor case must be charged within one year from the date of the crime.
The County Attorney’s office has 7 years in which to file a felony complaint (although generally within 12 months). The delay in pursuing charges may be the result of waiting for drug or DNA testing. The delay may be the result of law enforcement still seeking to locate and interview witnesses or documentation to support their investigation.
EXCEPTIONS FROM THE TIME LIMITS
Serious or Violent Crimes against the victim have NO time limitation. This applies to homicide, sexual offenses, sexual exploitation of a minor (child pornography), violent sexual assault, or terrorism. In addition, there is no time limit to prosecute misuse of public monies or falsification of public records.
AFTER CHARGES ARE FILED: Your right to a speedy trial
Once a misdemeanor is filed, and the person arraigned, the State must prosecute the case within 120 days of the arraignment if the person is in custody. If out of custody, the State has 180 days to prosecute the case. An arraignment is the day you are to first appear and enter a plea of not guilty. It may be the day on your citation or on a summons that you received from the court.
Once the clock starts to run, the time to prosecute can ONLY be extended if the defendant agrees to extend their right to a speedy trial or if the court makes a specific finding that a requested continuance is needed in the interests of justice.
As with misdemeanors, once arraigned, the State has the same 120 days to prosecute if the person is in custody or 180 days if the person is out of custody. The time can be extended to 270 days if the matter is considered “complex.”
WHEN TIME DOES NOT COUNT
I am frequently asked if “Can I be prosecuted for an old warrant?” The simple answer is, yes. When a warrant issues, the time limit stops running. Or, if you have agreed to continuances, the court will normally exclude the time and extend the time to take you to trial.
Issues of time computation can be complicated and can make an actual difference in the outcome of your case.
Your best defense, at a minimum, is to consult with an experienced attorney. When facing any investigation for a misdemeanor or felony, it is a serious matter. Contact Howard Snader. He is a Board Certified Criminal Law Specialist. If you or anyone you know has been accused of any felony or misdemeanor, please call him at 602.899-1596, email him at [email protected] or visit
https://www.snaderlawgroup.com for your free case review.