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State v. Reed

Court of Appeals of Louisiana, First Circuit

April 12, 2017

STATE OF LOUISIANA
v.
JERRY CHRISTOPHER REED

         Appealed 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

          HILLAR 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 [1] J. Pro Tern.

          PETTIGREW, J.

         The 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.

         STATEMENT OF FACTS

         The 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 appeal.

         MOTION TO QUASH

         In its 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.

         When a 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, 504.

         Louisiana 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.)

         When a 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.

         The 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 1043.

         Herein, 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.[2] 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.

         The 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 ...


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