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State v. Dacruz

Court of Appeals of Louisiana, Fourth Circuit

December 13, 2017

STATE OF LOUISIANA
v.
CELIO DACRUZ

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 524-917, SECTION "C" Honorable Benedict J. Willard, Judge

          Leon Cannizzaro DISTRICT ATTORNEY Donna Andrieu, Chief of Appeals ASSISTANT DISTRICT ATTORNEY J. Taylor Gray ASSISTANT DISTRICT ATTORNEY Scott G. Vincent ASSISTANT DISTRICT ATTORNEY ORLEANS PARISH COUNSEL FOR APPELLANT/STATE OF LOUISIANA.

          Juan Bernal COUNSEL FOR DEFENDANT/APPELLEE.

          Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Joy Cossich Lobrano.

          Roland L. Belsome Judge.

         The State of Louisiana appeals the trial court's judgment granting the second motion to quash the bill of information filed by the Defendant, Celio DaCruz. For the following reasons, we reverse and remand for proceedings consistent with this opinion.

         STATEMENT OF THE CASE

         This case stems from a fiduciary relationship between a contractor/construction company and a property owner. On January 31, 2012, Detective Shannon Carr of the New Orleans Police Department filed an affidavit concerning the alleged offense. Based on an interview with the victim, Detective Carr alleged that the Defendant violated La. R.S. 14:67; Felony Theft. In the affidavit, Detective Carr requested warrants for the Defendant and attested to the following:

The victim told the Detective that she entered into an agreement with Celio Da Cruz [sic], to renovate and make repairs to her property, which is a double unit. The victim stated she paid Da Cruz [sic] $15, 000.00. The victim stated the work Da Cruz [sic] failed to complete at 128 N. Johnson Street, included: the framing of the addition, the install of the walls, the install of the sheetrock, the install of the roof, and the painting of the interior. The victim stated the work Da Cruz [sic] failed to do at 130 N. Johnson St. included: the install of the bath, the install of the plumbing, the install of the deck, and the install of the porch and rails.

         On the same day Detective Carr filed the affidavit, the trial court issued an arrest warrant for the Defendant.

         By bill of information filed on May 22, 2015, the State charged the Defendant with theft of over $1, 500.00 a violation of La. R.S. 14:67(B)(1).[1]The bill of information alleged that the theft occurred between November 5, 2010, and June 6, 2011. Subsequent to the filing of the bill of information and the issuance of an alias capias for his failure to appear at arraignment, the Defendant was arrested in January of 2016. The Defendant later pled not guilty at arraignment.

         On May 3, 2016, the Defendant filed a motion to quash, urging that the time limit to institute prosecution had elapsed. After a hearing on July 27, 2016, the trial court denied the Defendant's motion to quash the bill of information.[2] The case was later transferred from Division L (Judge Franz Zibilich) to Division C (Judge Benedict Willard) on September 13, 2016.[3] Trial was initially set for March 15, 2017.

         On the day of trial, the Defendant filed a second motion to quash the bill of information, again claiming that the time limit to institute prosecution on the charged offense had prescribed. Trial was continued due to the pending motion. The State opposed the Defendant's motion, arguing that the plain language of La. C.Cr.P. art. 577 prohibited the Defendant from challenging the timeliness of prosecution more than once. Two days later, the trial court heard and granted the Defendant's second motion to quash the bill of information, finding that the Defendant only filed one motion to quash in its section of court. This timely appeal followed.

         STANDARD ...


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