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State v. Ficklen

Court of Appeals of Louisiana, Third Circuit

May 2, 2018

STATE OF LOUISIANA
v.
CODY FICKLEN

          ON APPLICATION FOR SUPERVISORY WRITS FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 60527 HONORABLE LAURIE HULIN, DISTRICT JUDGE

          Keith Stutes Fifteenth Judicial District Attorney Roger P. Hamilton, Jr. Assistant District Attorney COUNSEL FOR: State of Louisiana

          Lawrence C. Billeaud Attorney at Law COUNSEL FOR APPLICANT: Cody Ficklen

          Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie, Judges.

          SHANNON J. GREMILLION, JUDGE.

         Defendant, Cody Ficklen, was one of fourteen defendants indicted on August 26, 2016, for one count of conspiracy to racketeer, a violation of La.R.S. 15:1353(D), one count of racketeering, a violation of La.R.S. 15:1353(C), and one count of being a member of a criminal street gang, a violation of La.R.S. 15:1403. Defendant filed a Motion to Quash and a Motion for Bill of Particulars. Subsequently, he filed a First Amended Motion to Quash. Following hearings on Defendant's motions, the trial court denied Defendant's motion to quash the indictment with written reasons.

         Defendant now seeks review of the trial court's ruling, alleging that the trial court erred when it denied his motion to quash the indictment because the indictment was insufficient on its face and the last alleged overt criminal act had prescribed pursuant to La.Code Crim.P. art. 572.

         For the following reasons, we find no error in the trial court's ruling and deny the writ.

         ASSIGNMENT OF ERRORS ONE AND TWO

         Defendant argues the trial court erred when it denied his motion to quash the State's indictment, which alleged involvement in a criminal enterprise and in a criminal street gang. Defendant also claims that the State failed to establish the existence of an enterprise. Defendant refers to the 1, 338 pages received from the State in response to his Motion for Bill of Particulars, which contained a compilation of police reports upon which the indictment was based.

         Defendant primarily argues in brief to this court that even if there was a criminal enterprise, the bill of indictment reflected that Defendant's alleged last overt act in furtherance of the alleged enterprise had prescribed pursuant to the statute of limitations found in La.Code Crim.P. art. 572(A)(1).

         At the hearings on Defendant's motion to quash the indictment, Defendant argued that the indictment did not show that a criminal "enterprise" existed as defined by La.R.S. 15:1352(B); accordingly, the indictment was deficient on its face and should have been quashed. He further asserted that the indictment did not show he was involved with said enterprise when the indictment was filed on August 26, 2016. He pointed out that the indictment alleged he had committed seven overt acts in furtherance of the enterprise, the first occurring in December 2005, and the last occurring in March 2008. Therefore, Defendant asserted that the last of the acts alleged had prescribed pursuant to La.Code Crim.P. art. 572(A)(1), and the State, therefore, cannot show that he was a member of a criminal enterprise or a criminal street gang.

         In Defendant's Motion to Quash, besides arguing the latest alleged overt act had prescribed in 2006, and, therefore, there was no proof he was a member of a criminal enterprise or a street gang, he also specifically argued that the State will not be able to prove the existence of a criminal enterprise. However, as noted, Defendant also alleges that the indictment and the State's response to Defendant's Motion for Bill of Particulars failed to prove that a criminal enterprise even existed. Accordingly, we address both allegations Defendant argued in his Motion to Quash and at the hearings on the motion.

         The general grounds for a motion to quash are:

(1) The indictment fails to charge an offense which is punishable under a valid statute.
(2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
(3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
(4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
(5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
(6) Trial for the offense charged would constitute double jeopardy.
(7) The time limitation for the institution of prosecution or for the commencement ...

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