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State v. Cureaux

Court of Appeals of Louisiana, Fourth Circuit

April 1, 2015

STATE OF LOUISIANA
v.
KERRY M. CUREAUX

APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 492-369, SECTION " L" . Honorable Franz Zibilich, Judge.

Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Chief of Appeals, Assistant District Attorney, Christopher J. Ponoroff, Assistant District Attorney, Parish of Orleans, New Orleans, LA, COUNSEL FOR APPELLEE/STATE OF LOUISIANA.

Carey J. Ellis, III, LOUISIANA APPELLATE PROJECT, Rayville, LA, COUNSEL FOR DEFENDANT/APPELLANT.

(Court composed of Judge Max N. Tobias, Jr., Judge Madeleine M. Landrieu, Judge Sandra Cabrina Jenkins).

OPINION

Madeleine M. Landrieu, J.

Page 229

[2014-0503 La.App. 4 Cir. 1] Kerry Cureaux was convicted by a jury trial of possession of heroin on June 2, 2010 and was sentenced to seven years at hard labor on August 13, 2010. On November 4, 2011, Mr. Cureaux was adjudged a fourth felony offender. Three days later on November 7th, he was resentenced to twenty years. Mr. Cureaux appealed, and on May 1, 2013, this court reversed the habitual offender adjudication, finding that neither the appellate record nor the district court record contained the multiple bill of information, and there was no evidence that a written bill charging Mr. Cureaux as a fourth offender actually had been filed or that Mr. Cureaux had adequate notice that he would be charged as a fourth offender. See State v. Cureaux, 2012-0335, p. 15 (La.App. 4 Cir. 5/1/13), 116 So.3d 833, 841, writ denied, 2013-1270 (La. 12/2/13), 126 So.3d 499.[1]

Page 230

This court vacated the habitual offender sentence and reinstated the defendant's original seven-year sentence. Id., p. 15, 116 So.3d at 841. Approximately two weeks later, on or [2014-0503 La.App. 4 Cir. 2] about May 16, 2013, Mr. Cureaux was released on parole. That same day, the State filed a multiple bill of information charging Mr. Cureaux as a triple felony offender, and five days later, on May 21, 2013, the State withdrew that bill and filed a superseding multiple bill charging him as a fourth felony offender.

Mr. Cureaux moved to quash the multiple bill as untimely. The motion to quash was argued on August 26, 2013, and was denied on September 6, 2013.[2] On September 27, 2013, a second habitual offender hearing was conducted. On December 2, 2013, the trial court again found Mr. Cureaux to be a fourth felony offender and sentenced him to serve twenty years.[3]

Mr. Cureaux now appeals his habitual offender adjudication and sentence.

DISCUSSION

The facts of the appellant's underlying arrest and trial for possession of heroin are not germane to the issues on appeal. Mr. Cureaux raises two assignments of error:

1. The trial court erred by denying his motion to quash the May 21, 2013 multiple bill as untimely, thus allowing the second habitual ...

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