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State v. Brown

Court of Appeals of Louisiana, Fourth Circuit

March 21, 2018


          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 512-140, SECTION "L" Honorable Franz Zibilich, Judge



          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dennis R. Bagneris, Pro Tempore

          Joy Cossich Lobrano, Judge

         Appellant, 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.

         Defendant was arrested and released on a $5, 000 recognizance bond on April 20, 2012.[1] 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)[2] (count 4). These incidents allegedly occurred on April 16, 2012.[3]

         Arraignment 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. [4] The district court granted the bond forfeiture motion and issued an alias capias for Defendant's arrest.

         Four 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).[5] 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.

         The 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.

         After 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 has moved.'"

         This appeal timely follows.

         In its 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.

         The 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. ...

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