FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 512-140,
SECTION "L" Honorable Franz Zibilich, Judge
J., DISSENTS AND ASSIGNS REASONS Leon Cannizzaro District
Attorney Kyle Daly Assistant District Attorney DISTRICT
ATTORNEY'S OFFICE ORLEANS PARISH, COUNSEL FOR
APPELLANT/STATE OF LOUISIANA
Christopher A. Aberle LOUISIANA APPELLATE PROJECT P.O.
COUNSEL FOR APPELLEE/DEFENDANT
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Dennis R. Bagneris, Pro Tempore
Cossich Lobrano, Judge
the State of Louisiana ("State"), appeals the
district court's April 4, 2017 judgment granting
defendant, Jimmy Brown's ("Defendant") motion
to quash the bill of information filed against him. For the
reasons that follow, we reverse the district court's
judgment and remand this matter for further proceedings.
was arrested and released on a $5, 000 recognizance bond on
April 20, 2012. The minute entry notes that, as to
Defendant, a motion to determine counsel hearing was set for
May 1, 2012 and a rule to show cause was scheduled for June
16, 2012. On June 15, 2012, however, the State filed a bill
of information charging Defendant with possession of cocaine,
a felony violation of La. R.S. 40:967(C)(2) (count 3) and
possession of marijuana, a misdemeanor violation of La. R.S.
40:966(E)(1) (count 4). These incidents allegedly
occurred on April 16, 2012.
was set for July 16, 2012; however, Defendant failed to
appear as he was not served. The matter was continued on
defense motion to July 30, 2012. The district court ordered
that Defendant be notified at the address Defendant had
provided at the time he was released on bond. On July 30,
2012, Defendant again failed to appear for arraignment,
prompting the State to introduce copies of Defendant's
bond and the subpoena returns marked "Subject
Moved" as exhibits to its motion for bond forfeiture.
district court granted the bond forfeiture motion and issued
an alias capias for Defendant's arrest.
and a half years after he was charged via bill of
information, Defendant was arrested on January 30, 2017, and
subsequently arraigned on February 3, 2017. On March 8, 2017,
Defendant filed a motion to quash the bill of information on
the basis of prescription pursuant to La. C.Cr. P. art.
578(A)(2). Defendant argued that the sheriff had
unsuccessfully attempted to serve him on two occasions - July
6, 2012 and July 18, 2012, and that each time, the sheriff
checked off "Subject Moved" without any further
comments. Defendant asserted that the subpoena returns were
insufficient under La. C.Cr. P. art. 736, and thus, the State
failed to establish an interruption of prescription.
State filed an opposition on March 17, 2017, arguing that
Defendant's failure to update his address made it
impossible to serve him, and therefore the limitations period
was interrupted pursuant to La. C.Cr. P. art. 579 (A)(2).
Neither the State nor the Defendant put on testimony or other
evidence (with the exception of the subpoena returns and
bond) to show whether Defendant, in fact, continued to reside
at the address Defendant placed on his bond.
hearings held on March 17, 2017, March 28, 2017 and March 31,
2017, the district court granted the Defendant's motion
to quash on April 4, 2017. In a per curiam, the district
court made no factual finding regarding whether Defendant had
moved from the address he provided on his bond. Instead, the
district court found that the subpoena returns were
insufficient to establish an interruption of prescription as
a "matter of law." The district court found that
"the checking off of a box 'subject moved' is [
] non-compliant with the clear provision in La. C.Cr.P. art.
736 as no additional facts were set forth explaining any
particulars to support the checking of the box 'subject
appeal timely follows.
sole assignment of error, the State argues that the district
court erred by granting Defendant's motion to quash. A
reviewing court will generally not disturb a district
court's ruling on a motion to quash on the ground that
the time limitation for commencement of trial had expired in
the absence of an abuse of discretion. See State v.
Sorden, 2009-1416, p. 3 (La. 4 Cir. 8/4/10), 45 So.3d
181, 183; State v. Batiste, 2005-1571, p. 9 (La.
10/17/06), 939 So.2d 1245, 1251. When the issue presented in
a motion to quash is exclusively a question of law, however,
we review the ruling de novo. See State v. Hamdan,
2012-1986, p. 6 (La. 3/19/13), 112 So.3d 812, 816. In the
case sub judice, the relevant question is a question
of law-whether the subpoena returns were filled out in
compliance with La. C.Cr.P. art. 736. Accordingly, we review
this matter de novo.
analysis of whether the applicable periods of limitations for
trial have passed begins at La. C.Cr.P. art. 578. Article 578
enforces a defendant's right to a speedy trial and
prevents oppression arising from the indefinite threat of
criminal prosecution. See State v. ...