Dismissing an Indictment

– by Tampa Criminal Defense Attorney, Daniel J. Fernandez

If you have been charged with a felony you have a right to a fair trial.  Every criminal defendant is entitled to challenge the indictment against him or her.

Pursuant to Rule 12(b), Federal Rules of Criminal Procedure, a defendant may request that the judge dismiss the indictment or reduce the charges.

Federal Rules of Criminal Procedure, Rule 12, states in pertinent part that

. . . The following defenses, objections, and requests must be raised by pretrial motion if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits:

(A) a defect in instituting the prosecution, including:

(i) improper venue;

(ii) preindictment delay;

(iii) a violation of the constitutional right to a speedy trial;

(iv) selective or vindictive prosecution; and

(v) an error in the grand-jury proceeding or preliminary hearing;

(B) a defect in the indictment or information, including:

(i) joining two or more offenses in the same count (duplicity);

(ii) charging the same offense in more than one count (multiplicity);

(iii) lack of specificity;

(iv) improper joinder; and

(v) failure to state an offense.

Occasionally, the government’s charges are unconstitutionally vague and overbroad as applied. Justice requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Due process is violated when men of ordinary intelligence must guess at a statute’s meaning.

When there is an ambiguity in a criminal statute, that ambiguity must be resolved in favor of the defendant. This rule of interpretation reflects the sentiment that in a free society men should not languish in prison unless the duly elected representatives of society have expressly and clearly required it. It is the judge’s duty to carefully scrutinize indictments because of the possibility that an indictment may ensnare the innocent as well as the guilty.

In determining a request to dismiss an indictment, the most important consideration is whether the defendant can obtain a fair and impartial trial. The judge must liberally resolve, in favor of the defendant, any doubt. The Sixth Amendment provides every criminal defendant the right to a fair and impartial jury trial.

If you have been charged with a felony and have defenses or objections, a request to dismiss the indictment must be raised before trial. Under these circumstances, you may request that the judge dismiss the indictment before you proceed to trial.

Contact a lawyer to discuss the possibility of requesting that your indictment be dismissed. Our firm has represented clients in this situation. Many of these proceedings have resulted in charges being dismissed or reduced. Criminal defense attorney Daniel J. Fernandez can help guide you through the process.

If you have been arrested in the Tampa Bay area and believed that you are entitled to have the charges dismissed or reduced, call Tampa criminal defense lawyer Daniel J. Fernandez of Fernandez & for a free consultation now.

Call Tampa Criminal Defense Attorney, Daniel J. Fernandez of Fernandez & at 813-229-5353 or read more at: CriminalDefenseLawyerTampa.com

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