Section 6.9 General Rule

• Library: Criminal Practice 2012 Supp

A. (§6.9) General Rule

Rule 22.09(a) provides that the judge must hear evidence at a preliminary hearing within a reasonable time. Failure to hold a preliminary hearing within the time specified in the Rule or failure to comply with § 544.320, RSMo 2000 (see the discussion in the paragraph below) does not oust the court of jurisdiction. State ex rel. Wagner v. Blersch, 660 S.W.2d 479 (Mo. App. S.D. 1983). And if the state’s motion for continuance is denied, it may always dismiss the charge and re-file the case. There is, therefore, no statutory time limit regarding when a preliminary hearing must be held, how many continuances are allowed, or how long the continuances may be. But undue delay in the scheduling of a preliminary hearing may be a denial of due process if the delay is such that it denies the defendant a fair trial because a defendant’s constitutional right to a speedy trial attaches when, inter alia, actual restraints are imposed on a defendant by arrest and detention to answer to a criminal charge. State v. Farris, 877 S.W.2d 657 (Mo. App. S.D. 1994); State v. Bolin, 643 S.W.2d 806 (Mo. banc 1983); Barker v. Wingo, 407 U.S. 514 (1972).

The analysis in Bolin indicates that a defendant’s right to a speedy trial attaches at the time of arrest and not at the time a preliminary hearing is held and probable cause established. Under § 544.320, a continuance of a preliminary hearing involving a prisoner is limited to 21 days at a time. It should be noted that, under the concluding clause of § 544.320, courts can still continue prisoner cases in excess of 21...