Guam § 45 - Preliminary Examination: Date; Purpose; None Required When Indictment Precedes.

§ 45. Preliminary Examination: Date; Purpose; None Required When Indictment Precedes.

(a) Except as otherwise provided by this Section and § 45.45, in every case where a preliminary

examination is required by §§ 1.15 and 1.17, such examination shall be held within the time set by the court

pursuant to Subsection (b) to determine whether there is probable cause to believe that an offense has been

committed and that the defendant has committed it.

(b) The date for the preliminary examination shall be fixed by the court at the first appearance of the

defendant. Such examination shall be held within a reasonable time following the first appearance, but in

any event not later than:

(1) the tenth day following the date of the first appearance of the defendant before such court if

the defendant is held in custody without any provision for release, or is held in custody for failure to

meet the conditions of release imposed, or is released from custody only during specified hours of the

day; or

(2) the twentieth day following the date of the first appearance if the defendant is released from

custody under any condition other than a condition described in Subsection (b)(1).

(c) Notwithstanding Subsection (b), with the consent of the defendant, the date fixed by the court for

the preliminary examination may be a date later than that prescribed by Subsection (b), or may be continued

one or more times to a date subsequent to the date initially fixed therefor. In the absence of such consent

the date fixed for the preliminary examination may be a date later than that prescribed by Subsection (b),

or may be continued to a date subsequent to the date initially fixed therefor, only upon the order of the court

after a finding the extraordinary circumstances exist, and that the delay of the preliminary examination is

indispensable to the interest of justice.

(d) Except as provided by Subsections (e) and (f), a defendant who has not been accorded the

preliminary examination required by Subsection (a) within the period of time fixed by the court in

compliance with Subsections (b) and (c), shall be discharged from custody or from the requirement of bail

or any other condition of release, without prejudice, however, to the institution of further criminal

proceedings against him upon the charge upon which he was arrested.

(e) No preliminary examination in compliance with Subsection (a) shall be required to be accorded a

defendant, nor shall such defendant be discharged from custody or from the requirement of bail or any other

condition or release pursuant to Subsection (d), if at any time prior to the first appearance of such person

before the court or subsequent to the first appearance but prior to the date fixed for the preliminary

examination pursuant to Subsections (b) and (c) an indictment is returned against him.

(f) The defendant may waive the preliminary examination at any time after he has been advised of his

rights pursuant to § 45.30 and upon such waiver the court shall hold the defendant to answer, and shall

order the prosecuting attorney to file, within fifteen days after entry of the order, an information in the court

charging the defendant with the offense charged by the complaint.

2025 NOTE: Reference to “Paragraph (1)” modified to “Subsection (b)(1)” pursuant to the authority of 1 GCA § 1606.

NOTE: Section 45.50 is based on 18 U.S.C.A. § 3060 (1974). See also the second paragraph of Rule 5(c) of the Federal

Rules of Criminal Procedure (as revised in 1972) and portions of former Rule 5 and former §§ 860, 861 and 872. See

generally 8 Moore, Federal Practice § 5.03 (2d ed. 1974). It should be noted, however, that under the procedures

COL 2025-12-23

CH. 45 FIRST APPEARANCE: PRELIMINARY EXAMINATION

provided by this Code, in felony cases only the return of an indictment, not the filing of an information, obviates the

need for a preliminary examination. See B. Witkin, California Criminal Procedure Proceedings Before Trial § 132

(1963, Supp. 1973). An indictment may, of course, be returned before the defendant even makes his first appearance

in which case, no right to a preliminary examination exists and one will never be scheduled. See Subsection (e).

Subsection (f) is based on Subdivision (D) of former § 860. See also former § 872. It should be noted, however,

that where a preliminary examination is waived, there is no provision in this section or elsewhere for holding an

examination despite the waiver. For dismissal for failure to file within the time prescribed, see § 80.60.