Can the prosecution drop charges and refile them to avoid a speedy trial violation?

Prosecutors, either through motions to dismiss or nolle prosequi, are generally free to drop charges against a defendant at any time. But they’re also frequently at liberty to refile them. Given that the prosecution has a finite period of time within which to get a case to trial, prosecutors up against the clock might be tempted to dismiss charges, then refile them when they’re ready to proceed. That way, the defendant wouldn’t be able to establish a violation of the right to a speedy trial.

The right to a speedy trial means that, once a defendant has been arrested (or charged, in some instances) with a crime, any trial must occur within a reasonable period of time. But dismissal or nolle prosequi often “tolls” the speedy-trial calculation—that is, the period of time between a dismissal and the re-filing of charges doesn’t count against the prosecution’s time limit for getting the case to trial. In fact, some states take the view that the refiling of charges doesn’t merely toll the clock, but actually restarts it.

Thankfully for defendants, though, some courts hold that the period of pretrial delay begins from the initial filing of charges, regardless of any dismissal. Many others hold that dismissal or nolle prosequi won’t toll or restart the time calculation if the court determines that the prosecution dropped charges in the attempt to circumvent the speedy-trial right. (People v. Murray, 306 Ill. App. 3d 280 (1999), State v. Clifton, 905 So. 2d 172 (Fla. Dist. Ct. App. 2005).)

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