APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH. NO. 500-661, SECTION " J" . HONORABLE DARRYL A. DERBIGNY, JUDGE.
LEON A. CANNIZZARO, JR., DISTRICT ATTORNEY OF ORLEANS PARISH, J. BRYANT CLARK, JR., ASSISTANT DISTRICT ATTORNEY OF ORLEANS PARISH, New Orleans, Louisiana, Counsel for State of Louisiana.
IKE SPEARS, SPEARS & SPEARS, New Orleans, Louisiana, Counsel for Defendant/Appellee.
(Court composed of Chief Judge James F. McKay III, Judge Dennis R. Bagneris, Sr., Judge Sandra Cabrina Jenkins).
[2014-1379 La.App. 4 Cir. 1] JAMES F. MCKAY III,
The State of Louisiana seeks appellate review of the October 10, 2014 judgment, granting the defendant's motion to quash the bill of information. For the reasons set forth below, we reverse and remand.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
This is a contractor fraud case in which the defendant, Gentry Major (" Mr. Major" ), was charged with theft in the amount of $500.00 or more, in violation of La. R.S. 14:67(A). The bill of information, dated September 30, 2010, states that the alleged crime, involving the victim, Cheryl Wright (" Ms. Wright" ), occurred between August 1, 2006, and December 31, 2006.
A bench trial commenced on December 13, 2011, at which time, defense counsel orally moved to quash the bill of information on the ground that the State failed to timely institute prosecution within four years of the offense as required by La. C.Cr.P. art. 572. The State responded that the bill of information listed the [2014-1379 La.App. 4 Cir. 2] date of the offense as a period of time - between August 1, 2006, and December 31, 2006. Thus, the State argued that the filing of the bill of information on September 30, 2010, was timely because the State had four years from December 31, 2006, to institute charges. The trial court granted Mr. Major's oral motion to quash, and the State appealed. This Court reversed and remanded, finding that the trial court erred in granting defendant's oral motion because a motion to quash a bill of information must be in writing as required by La. C.Cr.P. art. 536. State v. Major, 2012-0407 (La.App. 4 Cir. 1/16/13), 108 So.3d 288.
On remand, Mr. Major filed a written motion to quash the bill of information. The motion was granted, and the State appealed, arguing that the trial court abused its discretion in granting the motion to quash without giving the State a full opportunity to respond. The State further reiterated its argument that the bill of information was timely filed. On appeal, this Court reversed, finding that the trial court abused its discretion by granting the motion to quash without affording the State with an adequate evidentiary hearing to determine when Ms.
Wright knew or should have known when the alleged theft occurred. We remanded for an evidentiary hearing to determine the following:
(1) when the first installment of $9,000.00 was paid by Ms. Wright to Mr. Major; (2) when and what work was performed by Mr. Major on Ms. Wright's property before or after issuance of the first installment check; (3) after Ms. Wright paid Mr. Major the first installment, (a) when, how often, and about what Mr. Major and Ms. Wright communicated and (b) when and how often Ms. Wright unsuccessfully attempted to contact or speak with Mr. Major about the work; (4) thereafter to ascertain whether she knew or should have known prior to 1 October 2006 that Mr. Major ...