from the 19th Judicial District Court in and for the Parish
of East Baton Rouge, Louisiana Trial Court No. 06-12-0075
Honorable Anthony J. Marabella, Jr., Judge
C. MOORE III DISTRICT ATTORNEY KORY J. TAUZIN DYLAN C. ALGE
ASSISTANT DISTRICT ATTORNEYS BATON ROUGE, LA ATTORNEYS FOR
STATE OF LOUISIANA
FREDERICK KROENKE BATON ROUGE, LA ATTORNEY FOR
DEFENDANT-APPELLEE JERRY REED
BEFORE: PETTIGREW AND McDONALD, JJ., AND CALLOWAY
J. Pro Tern.
defendant, Jerry Christopher Reed, was charged by bill of
information with simple burglary of an inhabited dwelling, in
violation of La. R.S. 14:62.2, and he pled not guilty.
Subsequently, the trial court granted the defendant's
motion to quash the bill of information based on untimely
commencement of trial. The State now appeals, assigning error
solely to the trial court's ruling on the motion to
quash. For the following reasons, we reverse the granting of
the motion to quash and remand for further proceedings.
bill of information charged the defendant with committing the
instant offense on or about August 28, 2008. Because the
motion to quash was granted, there was no trial and, thus,
the facts in the matter were not developed. Further, the
facts of the offense are not pertinent to the issue raised on
sole assignment of error, the State argues that the time
limitation for commencement of trial was interrupted by the
defendant's failure to appear for trial on July 25, 2013,
after having received actual notice thereof on April 4, 2013.
The State further argues that the defendant's subsequent
motion to quash was premature. In support of its argument,
the State relies upon La. Code Crim. P. art. 579(A)(3) and
(C). The State contends that the defendant and his attorney
did not provide notice to the trial court of the
defendant's whereabouts. The State argues that the
interruption of prescription that occurred on July 25, 2013,
continued until the defendant's next court appearance on
March 20, 2014, and that the State therefore had until March
20, 2016, to commence trial. The State challenges the trial
court's finding that the State should have known the
defendant's whereabouts and/or located the defendant on
July 25, 2013, when the defendant failed to appear for trial
due to his incarceration in another parish on an unrelated
matter. The trial court thus found that the interruption of
prescription ceased, and the time limitation for the
commencement of trial began to run anew on July 25, 2013.
Given that finding, the State argues that the pro se
motion to quash filed on April 1, 2015, qualified as a
preliminary plea, which pursuant to La. Code Crim. P. art.
580(A), suspended the running of the time limitation. The
State concludes that under multiple scenarios, the time for
the commencement of the defendant's trial had not lapsed
by the time he filed his pro se motion to quash,
requiring reversal of the ruling by the trial court.
trial court denies a motion to quash, factual and credibility
determinations should not be reversed in the absence of a
clear abuse of the trial court's discretion. See
State v. Odom, 2002-2698 (La.App. 1 Cir. 6/27/03),
861 So.2d 187, 191, writ denied, 2003-2142 (La.
10/17/03), 855 So.2d 765. However, a trial court's legal
findings are subject to a de novo standard of review. See
State v. Smith, 99-0606 (La. 7/6/00), 766 So.2d 501,
Code of Criminal Procedure article 578(A)(2) provides that a
trial of noncapital felonies must be held within two years
from the date of the institution of the prosecution.
"Institution of prosecution" means the finding of
an indictment, or, as in this case, the filing of a bill of
information, or affidavit, which is designed to serve as the
basis of a trial. La. Code Crim. P. art. 934(7); State v.
Cotton, 2001-1781 (La.App. 1 Cir. 5/10/02), 818 So.2d
968, 971, writ denied, 2002-1476 (La. 12/13/02), 831
So.2d 982. The period of time in which trial must commence
established by Article 578 shall be interrupted if the
defendant fails to appear at any proceeding pursuant to
actual notice, proof of which appears of record. La. Code
Crim. P. art. 579(A)(3). A motion to quash is the proper
vehicle to assert that the time limitation for the
commencement of trial has expired. La. Code Crim. P. art.
532(7). Upon expiration of this time period, the court shall,
on motion of the defendant, dismiss the indictment and there
shall be no further prosecution against the defendant for
that criminal conduct. La. Code Crim. P. art. 581. (This
right of dismissal is waived unless the motion to quash is
made prior to trial.)
defendant has brought an apparently meritorious motion to
quash based on prescription, the State bears a heavy burden
to demonstrate either an interruption or a suspension of time
such that prescription will not have tolled. State v.
Rome, 93-1221 (La. 1/14/94), 630 So.2d 1284, 1286;
State v. Lathers, 2005-0786 (La.App. 1 Cir.
2/10/06), 924 So.2d 1038, 1043, writ denied,
2006-1036 (La. 11/3/06), 940 So.2d 659. Ordinarily, to
satisfy its burden in establishing that an interruption or
suspension of the prescriptive period has occurred, the State
is required 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." State v. Chadbourne, 98-1998
(La. 1/8/99), 728 So.2d 832 (per curiam). However,
the Louisiana Supreme Court in State v. Romar,
2007-2140 (La. 7/1/08), 985 So.2d 722 (per curiam),
resolved a split among the circuits and firmly held that
"La. C.Cr.P. art. 579(A)(3) does not impose on the state
the affirmative duty to search for a defendant who has failed
to appear for trial after receiving actual notice."
Romar, 985 So.2d at 726.
periods of limitation established by Article 578 shall
commence to run anew from the date the cause of interruption
no longer exists. La. Code Crim. P. art. 579(B). When a
defendant files a motion to quash or other preliminary plea,
the running of the periods of limitation established by
Article 578 shall be suspended until the ruling of the court
thereon; but in no case shall the State have less than one
year after the ruling to commence the trial. La. Code Crim.
P. art. 580(A). For purposes of Article 580, a preliminary
plea is any pleading or motion filed by the defense that has
the effect of delaying trial, including properly filed
motions to quash, motions to suppress, or motions for a
continuance, as well as applications for discovery and bills
of particulars. State v. Brooks,
2002-0792 (La. 2/14/03), 838 So.2d 778, 782 (per
curiam). When the prescriptive period is suspended, the
running of the time period resumes when the court rules on
the motions. Lathers, 924 So.2d at
the defendant was charged with a noncapital felony, thus the
State was required to commence trial within two years of the
date of the institution of the prosecution. The bill of
information was filed on May 31, 2012, and the
defendant's motion to quash based on prescription, which
was apparently meritorious, was filed pro se on
April 1, 2015, and by counsel on September 14, 2015. Prior to
the filing of the motion to quash, the defendant was
transported from jail and appeared for a status hearing on
April 4, 2013, during which he received actual notice of a
court date set for July 25, 2013. As previously stated herein,
despite having actual notice, the defendant did not appear on
July 25, 2013. The deputy present in court on that date noted
that the defendant was on the jail list but that he was not
located in jail. The defense attorney indicated that the
defendant had bonded out since his appearance on April 4,
2013. The trial court ordered that a bench warrant be issued.
The bench warrant was recalled when the defendant appeared on
March 20, 2014, and informed the trial court that he had been
arrested on July 18, 2013, in West Baton Rouge Parish, where
he was still being housed.
issue presented herein is whether prescription was
interrupted under La. Code Crim. P. art. 579(A)(3) as a
result of the defendant's failure to appear pursuant to
actual notice and, if so, whether the interruption ...