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State v. Helaire

Court of Appeals of Louisiana, Third Circuit

October 25, 2017



          Cooks, J., dissents and assigns written reasons. Keith A. Stutes Lafayette Parish District Attorney Emilia Salas Pardo Assistant District Attorney P. O. Box 3306 COUNSEL FOR PLAINTIFF-RESPONDENT: State of Louisiana

          C. Cass Luskin Public Defender's Office COUNSEL FOR DEFENDANT- APPLICANT: Clayton Helaire

          Court composed of, Judges Sylvia R. Cooks, Elizabeth A. Pickett, and Billy H. Ezell.


         On Monday, July 24, 2017, the defendant, Clayton Helaire, was arrested on charges of violation of a protective order and domestic abuse battery. Seven days later, on July 31, 2017, a Gwen's Law hearing was set for August 3, 2017. At the hearing, defense counsel requested the defendant's immediate release due to the failure to comply with the statutory requirement that a hearing to set bond be held within five days. The trial court denied the writ and ordered Defendant held on a $10, 000 bond for each charge. The defendant is before this court requesting immediate release and discharge of his bail obligation.


         The defendant contends he is entitled to immediate release from custody because a Gwen's Law hearing was not held within five days of his July 24, 2017 arrest. He argues that the right to bail is a fundamental constitutional right, just as the right to a probable cause determination (La.Code Crim.P. art. 230.2) and the seventy-two hour right to counsel hearing (La.Code Crim.P. art. 230.1). Since the remedy for an untimely probable cause determination or an untimely right to counsel hearing pursuant to La.Code Crim.P. arts. 230.1 and 230.2 is release, the defendant contends the same remedy should apply in his situation.

         In response, the state notes that the bail hearing was ordered by the commissioner on July 31, 2017, and that notice was sent to the Public Defender's Office that day. According to the state's brief, Gwen's Law hearings are set for Mondays and Thursdays, and generally any matter set after Saturday is set for the following Thursday. The state contends that the Public Defender's Office could have requested an immediate hearing be held within the five days or asked that a bond be set immediately without a hearing; however, the defense did not raise the issue until the writ was filed at the August 3, 2017 hearing. Further, the state contends there is no right to immediate bond, but there is a right to bond, and the defendant was not denied that right.

         Louisiana Code of Criminal Procedure Article 313(A), effective January 1, 2017, provides in pertinent part:

(1) This Paragraph may be cited as and referred to as "Gwen's Law".
(2)A contradictory bail hearing, as provided for in this Paragraph, may be held prior to setting bail for a person in custody who is charged with domestic abuse battery, violation of protective orders, stalking, or any felony offense involving the use or threatened use of force or a deadly weapon upon the defendant's family member, as defined in R.S. 46:2132 or upon the defendant's household member as defined in R.S. 14:35.3, or upon the defendant's dating partner, as defined in R.S. 46:2151. If the court orders a contradictory hearing, the hearing shall be held within five days from the date of determination of probable cause, exclusive of weekends and legal holidays. At the contradictory hearing, the court shall determine the conditions of bail or whether the defendant should be held without bail pending trial. If the court decides not to hold a contradictory hearing, it shall notify the prosecuting attorney prior to setting bail.

         On the defendant's arrest warrant, next to the word "bond" is written "Hold for Gwen's Law Hearing." Under this notation is the signature of Judge Marilyn Castle. On July 31, 2017, Commissioner Thomas Frederick signed an order setting a contradictory bail hearing for August 3, 2017, the day it was held.

         At the August 3, 2017 hearing, the defense filed a writ of habeas corpus seeking the defendant's immediate release. Although the state offered no opposition to the writ of habeas corpus, the court did not grant the requested relief.[1]Rather, it determined that the hearing was three days beyond the five-day time limit and that the appropriate remedy was to have bail set without a contradictory hearing as opposed to release. The court asked whether the defense wished for bond to be set or whether it wanted the opportunity to have a hearing. ...

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