SUPERVISORY WRIT TO THE TWENTY-SEVENTH JUDICIAL DISTRICT
COURT, PARISH OF ST. LANDRY
JOHNSON, Chief Justice, would grant defendant's writ
was charged by grand jury indictment with two counts of
aggravated kidnapping and one count of aggravated burglary on
October 29, 2009. After his court appearance on June 1, 2010,
defendant was not present in court for any proceeding until
October 1, 2013. The state received formal notice that
defendant was incarcerated in Texas on February 1, 2011.
Given that the charges at issue in this case are non-capital
felonies, La. Code of Crim. Proc. Article 578 required the
State to bring defendant to trial within two years from the
date of the bill of information. This Court has consistently
held that the state "bears the heavy burden of showing
that it is excused from trying the accused on a charge later
than the period mandated by Article 578." State v.
Groth, 483 So.2d 596, 599 (La. 1986); State v.
Devito, 391 So.2d 813 (La. 1980); see also State v.
Amarena, 426 So.2d 613 (La. 1983); State v.
Driever, 347 So.2d 1132 (La. 1977). That burden requires
the state to exercise due diligence in discovering the
whereabouts of the defendant as well as in taking appropriate
steps to secure his presence for trial once it has found him.
See generally State v. Taylor, 439 So.2d 410 (La.
1983); State v. Nations, 420 So.2d 967 (La. 1982);
State v. Williams, 414 So.2d 767 (La. 1982).
March 6, 2014, defendant filed a motion to quash, alleging
the statutory and constitutional speedy trial deadlines had
lapsed. The trial court initially granted the defendant's
motion to quash. The court of appeal conditionally a f f i r
m e d t h e t r i a l c o u r t ruling, but remanded to the
trial court to determine whether the defense agreed to the
continuance granted by the trial court on February 22, 2013,
even though neither appointed defense counsel, Frank Olivier,
nor defendant was present for that hearing. The court of
appeal further instructed the trial court to reverse its
ruling on the motion to quash, should it determine that
defense counsel agreed to the continuance. See State v.
Catalon, 14-0766 (La.App. 3 Cir. 12/23/14), 158 So.3d
114, writ denied, 15-0462 (La. 1/8/16), 184 So.3d
692. Following a hearing, the trial court ruled in favor of
the state, having found specifically that defense counsel
agreed to the continuance. The court of appeal affirmed.
State v. Catalon, 16-0866 (La.App. 3 Cir. 12/16/16)
asserts the trial court erred in denying the motion to quash,
arguing that, because no attorney-client relationship had
been established between defendant and his court-appointed
attorney Frank Olivier, Mr. Oliver was not authorized to
agree to a continuance on his behalf. Defendant states that
he was unaware of his first retained counsel's withdrawal
of representation and states that he was also unaware that
other counsel had been appointed to represent him. He
maintains that he is not indigent and did not request
appointed counsel. Defendant argues that these errors
invalidate any actions Mr. Olivier took on his behalf as
appointed counsel because he lacked authority to take them.
record does not contain a written motion requesting a
continuance. Louisiana Code of Criminal Procedure Article
580, addresses suspension of time limitations and states:
"A. When a defendant files a motion to quash or other
preliminary plea …[ ] B. The periods of limitation
established by Article 578 shall also be suspended if the
court grants a continuance in accordance with the provisions
of Paragraph B of Article 709." Article 709 deals with
"continuance based on absence of a witness." The
record shows that the State made an oral motion for
continuance in open court. Article 707 states the mandatory
requirement that a Motion for Continuance shall be in writing
and shall state the grounds for the motion. Additionally, any
such motion made by a defendant must not only be in writing
but must be verified by affidavit. Since defendant did not
file a written motion to continue, Art. 580 does not apply.
state's attorney testified that, although she had no
recollection of the particular hearing, since the record
shows she orally requested a continuance on behalf of the
defense, she surmised she had moved for the continuance as a
convenience for defense counsel who could not attend the
hearing. She noted this was routine between them. Mr. Olivier
confirmed the existence of this regular practice, and also
admitted that a specific recollection of this particular
instance escaped him. Additionally, by Mr. Olivier's own
admission, he was unaware for months that he was representing
defendant, either because he ignored, or never received
notice from the clerk of court. He apparently had never met
defendant, and he did not recognize him in court.
Sixth Amendment right to counsel includes a criminal
defendant's right to secure counsel of his or her choice.
Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77
L.Ed.158 (1932); Wheat v. United States, 486 U.S.
153, 159, 108 S.Ct. 1692, 1697, 100 L.Ed.2d 140 (1988).
Accordingly, a court must give considerable deference to a
Defendant's choice of counsel.
record shows that the state not only requested a continuance
on behalf of defendant's appointed counsel, but also
raised the objection to the continuance. In doing so, the
state acted in its own interest in obtaining the continuance,
thereby creating a suspension in the delays, and
circumventing the issue of a speedy trial. Moreover, when the
state objected to the continuance, it amounted to the state
arguing that it should be allowed to proceed against an
absent defendant, and his absent defense counsel, when it was
the sole responsibility of the state to get the absent
incarcerated defendant delivered to court.
view, the trial court was not clearly wrong in its initial
finding granting defendant's motion to quash. Considering
the state's three-year delay, between 2010 and 2013 in
bringing an incarcerated defendant to court, and the
egregious facts surrounding the February 22, 2013, motion
hearing, wherein ...