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(a) Priorities in Scheduling Criminal Cases. The court shall provide for placing criminal proceedings upon appropriate calendars. Preference shall be given to criminal proceedings and the trial of defendants in custody shall be given preference over other criminal cases. Trial dates in criminal cases in the superior court shall be set at the time of arraignment, and if a trial date is thereafter vacated, the trial shall be immediately set for a date certain.
(b) Speedy Trial Time Limits. A defendant charged with a felony, a misdemeanor, or a violation shall be tried within 120 days from the time set forth in paragraph (c) of this rule.
(c) When Time Commences to Run.
(1) Generally. Except as provided in subparagraphs (2) through (5), the time for trial shall begin running, without demand by the defendant, from the date the charging document is served upon the defendant.
(2) Refiling of Original Charge. If a charge is dismissed by the prosecution, the refiling of the charge shall not extend the time. If the charge is dismissed upon motion of the defendant, the time for trial shall begin running from the date of service of the second charge.
(3) New Charges. The Rule 45 commencement date for a new charge arising out of the same criminal episode shall be the same as the commencement date for the original charge, unless the evidence on which the new charge is based was not available to the prosecution on the commencement date for the original charge. When the new charge is based on new evidence and the prosecution has acted with due diligence in investigating and bringing the new charge, the Rule 45 commencement date for the original charge shall be the same as the commencement date for the new charge.
(4) Mistrial, New Trial or Remand. If the defendant is to be tried again following a mistrial, an order for a new trial, or an appeal or collateral attack, the time for trial shall run from the date of mistrial, order granting a new trial, or remand.
(5) Withdrawal of Plea. If the defendant is to be tried after withdrawal of a plea of guilty or nolo contendere previously entered, the time for trial shall run from the date of the order permitting the withdrawal.
(d) Excluded Periods. The following periods shall be excluded in computing the time for trial:
(1) The period of delay resulting from other proceedings concerning the defendant, including but not limited to motions to dismiss or suppress, examinations and hearings on competency, the period during which the defendant is incompetent to stand trial, interlocutory appeals, and trial of other charges. No pre-trial motion shall be held under advisement for more than 30 days and any time longer than 30 days shall not be considered as an excluded period.
(2) The period of delay resulting from an adjournment or continuance granted at the timely request or with the consent of the defendant and the defendant's counsel. The court shall grant such a continuance only if it is satisfied that the postponement is in the interest of justice, taking into account the public interest in the prompt disposition of criminal offenses. A defendant without counsel shall not be deemed to have consented to a continuance unless the defendant has been advised by the court of the right to a speedy trial under this rule and of the effect of consent.
(3) The period of delay resulting from a continuance granted at the timely request of the prosecution, if:
(a) The continuance is granted because of the unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that such evidence will be available at the later date; or
(b) The continuance is granted to allow the prosecuting attorney in a felony case additional time to prepare the state's case and additional time is justified because of the exceptional complexity of the particular case.
(4) The period of delay resulting from the absence or unavailability of the defendant. A defendant should be considered absent whenever the defendant's whereabouts are unknown and in addition the defendant is attempting to avoid apprehension or prosecution or the defendant's whereabouts cannot be determined by due diligence. A defendant should be considered unavailable whenever the defendant's whereabouts are known but the defendant's presence for trial cannot be obtained or the defendant resists being returned to the state for trial.
(5) A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance. In all other cases, the defendant shall be granted a severance in order that the defendant may be tried within the time limits applicable to the defendant.
(6) The period of delay resulting from detention of the defendant in another jurisdiction provided the prosecuting attorney has been diligent and has made reasonable efforts to obtain the presence of the defendant for trial. When the prosecution is unable to obtain the presence of the defendant in detention, and seeks to exclude the period of detention, the prosecution shall cause a detainer to be filed with the official having custody of the defendant and request the official to advise the defendant of the detainer and to inform the defendant of the defendant's rights under this rule.
(7) Other periods of delay for good cause.
(e) Rulings on Motions to Dismiss or Continue. In the event the court decides any motion brought pursuant to this rule, either to continue the time for trial or to dismiss the case, the reasons underlying the decision of the court shall be set forth in full on the record.
(f) Waiver. Failure of a defendant represented by counsel to move for dismissal of the charges under these rules prior to plea of guilty or trial shall constitute waiver of the defendant's rights under this rule.
(g) Absolute Discharge. If a defendant is not brought to trial before the running of the time for trial, as extended by excluded periods, the court upon motion of the defendant shall dismiss the charge with prejudice. Such discharge bars prosecution for the offense charged and for any other lesser included offense within the offense charged.
(Adopted by SCO 4 October 4, 1959; amended by SCO 131 effective September 1, 1971; by SCO 151 on March 9, 1972, nunc pro tunc as of September 1, 1971; by SCO 227 effective January 1, 1976; by SCO 240 effective February 4, 1976; by SCO 427 effective August 1, 1980; by SCO 486 effective November 16, 1981; by SCO 746 effective December 15, 1986; by SCO 932 effective January 15, 1989; by SCO 1127 effective July 15, 1993; by SCO 1153 effective July 15, 1994; and by SCO 1291 effective January 15, 1998)
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Last Modified 7/14/1999
