APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 477-491, SECTION " H" . Honorable Camille Buras, Judge.
A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLANT/STATE LOUISIANA.
(Court composed of Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, JudgeJoy Cossich Lobrano). LOBRANO, J., CONCURS IN THE RESULT.
[2014-0740 La.App. 4 Cir. 1]
Edwin A. Lombard, Judge.
This is a State appeal of the district court
judgment granting the defendant's motion to quash the bill of information. After
review of the record in light of the applicable law and arguments of the State,
we affirm the district court judgment.
Relevant Facts and Procedural History
The defendant, Ernest Martin, was charged by bill of information on April 11, 2008, with six counts of theft in violation of La. Rev. Stat. 14:67(B)(2). This bill of information reinstituting charges that had been previously filed against the defendant but dismissed by the State on February 8, 2008, in Orleans Parish District Court case No. 473-486.
On November 27, 2007, while the first case was pending, the defendant filed a
change of address form with the clerk's office of the Orleans Parish Criminal District Court wherein he listed both a physical street address and post office box office (mailing address) in Ethel, Louisiana. Upon the filing of the new charges by the State, the clerk's office sent the notice to the defendant at his street address in Ethel rather than the pertinent mailing address. The defendant failed to appear at his arraignment on September 22, 2008, and a capias was issued for his arrest. No further action was taken by the State until the defendant was arrested (pursuant to the capias) on November 2, 2012. After the matter was shifted through various [2014-0740 La.App. 4 Cir. 2] sections of court, the defendant was finally arraigned for the theft charges on the November 28, 2012.
Defense counsel filed the written motion to quash at issue in this appeal on January 18, 2013. After numerous continuances, the first hearing was held on the motion to quash on April 26, 2013. The district court noted for the record that the change of address form filed by the defendant in the earlier case provided both a street address and a post office box number (mailing) address. The district court also noted that the notice of service in the record indicated that the clerk's office mailed the notice in this case only to the defendant's street address. Nonetheless, because the State had attempted to serve the defendant, the district court denied the motion to quash " on the showing made" and " at this time." The defendant objected to the district court ruling, pointing out that a post office box number was required for service in rural areas " because [rural parishes] do not do a physical address mailing" and, therefore, the defendant had no notice of the reinstituted charges. Defense counsel also pointed out the absence of any proof of service in the record.
Another motion hearing was set and, after a bench conference on September 20, 2013, defense counsel stated for the record that he wished to " re-urge" the motion to quash, explaining:
. . . The clerk of court sent written notice to Mr. Martin, and on his bond he had a physical address plus the post office box. They only sent it to the physical address, not the post office box; therefore, because of the parish that he lives in, Judge, he did not receive the notice and it came back to the clerk's office. Because they do not do physical mailing, it has to go to a post office box. . . . As I told the Court in my memo, I was originally representing him, it was set for trial and the matter was nolle prossed on the trial date. I was never contacted to ask where he was or they didn't contact me at all and I didn't know the case was reinstituted until Mr. Martin ended up in jail some five years later.
[2014-0740 La.App. 4 Cir. 3] He sat in jail for approximately 35 days bouncing back and forth because no one would take jurisdiction and you finally took jurisdiction because of the situation with him, and I ...