Serna (“Speedy Trial”) Motion
As discuss earlier, the defendant has the right to a speedy trial. However, situations arise where a defendant is charged with a crime but is never made aware of the fact that the charges were filed against his/her. Therefore, if the prosecution were to file charges against a defendant, but never let the defendant know that the charges were filed, the defendant then has the right to go to the court and request a dismissal of the case on the basis that they were never notified of the charges. In this case, the defendant's right to a speedy trial has been violated. This motion is known as a Serna Motion.
Not every case qualifies for a Serna Motion. We will discuss the factors involved in deciding
whether it should be granted.
1) The Length of Delay – In many felony cases, the court will often require a three-year delay. The more time that goes by since the charges were filed, the easier it is for the defendant to argue a violation of his right to a speedy trial.
2) The Reason for the Delay – It is the job of the government to notify the defendant that charges have been brought against him. The more attempts that the government makes to notify the defendant, the less likely it will be that they are violating his/her right to a speedy trial. However, in most cases, the government makes no active effort to locate the defendant, and then the factor weighs against the government.
(3) The Assertion of Right – Could you have asserted your right to a speedy trial before this motion? If the answer is yes, then this factor weighs heavily against you. However, if you were unaware of pending charges, you cannot assert your right to a speedy trial.
(4) Prejudice to the Defendant – The court will always consider whether or not the delay has resulted in any prejudice to you, the defendant. In the eyes of most courts, this is the most important factor. If you hire a good and knowledgeable attorney, he/she will make it clear to the court how and why the delay has prejudiced your case.
Only extremely experienced attorneys know how to prepare and argue a Serna Motion, as these motions are very complex.
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