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State v. Vogel

Court of Appeals of Louisiana, First Circuit

September 24, 2018

STATE OF LOUISIANA
v.
BURT HOWARD VOGEL

          Appealed from the Thirty-second Judicial District Court In and for the Parish of Terrebonne, Louisiana Docket Number 752462 Honorable David W. Arceneaux, Judge Presiding

          Joseph L. Waitz, Jr. Ellen Daigle Doskey Houma, LA Counsel for Appellant, State of Louisiana.

          Dustin Pellegrin Houma, LA Bruce G. Whittaker New Orleans, LA Counsel for Defendant/Appellee, Burt Howard Vogel.

          BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.

          WHIPPLE, C.J.

         The defendant, Burt Howard Vogel, was charged by bill of information on count one with operating a vehicle while intoxicated, second offense, a violation of LSA-R.S. 14:98(A), and on count two with operating a vehicle while his license was suspended, revoked, or cancelled, a violation of LSA-R.S. 32:415. The defendant pled not guilty as to both counts. The defendant filed a written motion to quash the bill of information, [1] asserting that the facts presented are not sufficient to find that he was operating a "motor vehicle, aircraft, watercraft, vessel, or other means of conveyance." See LSA-R.S. 14:98(A)(1). After a hearing, the trial court granted the defendant's motion to quash the bill of information.[2] The State now appeals, assigning error to the trial court's ruling on the motion to quash. For the following reasons, we hereby reverse the ruling of the trial court granting the defendant's motion to quash and remand for further proceedings.

         STATEMENT OF FACTS

         As the trial court granted the motion to quash, trial did not take place and the facts were not developed in this case. The following details were derived from the bill of information, the transcript of the July 28, 2017 hearing at which the defendant initially attempted to withdraw his not guilty plea, and the defendant's memorandum in support of the motion to quash. On May 14, 2017, the defendant was arrested after Trooper Justin Leonard was called to the scene in reference to an individual driving a riding lawnmower on Highway 55 in Terrebonne Parish.[3] In his report, Trooper Leonard stated that he performed a standardized field sobriety test on the defendant. The officer reported that he performed the horizontal gaze nystagmus test, which the defendant failed. Trooper Leonard reported that he did not perform any other test due to the defendant's level of impairment. Trooper Leonard then placed the defendant under arrest and transported him to the Terrebonne Parish Criminal Justice Complex. Once at the complex, the defendant voluntarily submitted to a breathalyzer test. The report stated that the defendant's breath sample results showed that he had a 0.258 % BAC. The defendant was booked on the instant charges. The bill of information further indicates that the defendant was previously convicted of operating a vehicle while intoxicated on May 4, 2009, in Terrebonne Parish.

         TIMELINESS OF STATE'S APPEAL

         In his reply brief, the defendant argues, in part, that the State's appeal should be dismissed as untimely, citing State v. Gray, 98-2902 (La. 5/7/99), 740 So.2d 1291, State v. Hall, 2009-1 (La.App. 5th Cir. 5/12/09), 28 So.3d 281, 286-287 (on rehearing), writ denied, 2009-2660 (La. 10/19/10), 48 So.3d 270 (per curiam), and State v. Garrus, 2002-1940 (La.App. 4th Cir. 6/4/03), 849 So.2d 796, 799. At the outset, we note the defendant has not properly raised this issue before this court, since he failed to file a motion to dismiss the State's appeal. State v. Smith, 97-0782 (La.App. 1st Cir. 2/20/98), 708 So.2d 1166, 1167, n.2. Moreover, after considering the defendant's argument as follows, we exercise our discretion to treat the State's oral and written notice of intent to seek supervisory writs as a timely motion for appeal.

         Pursuant to LSA-C.Cr.P. art. 914, in pertinent part, a motion for an appeal may be made orally in open court or by filing a written motion with the clerk and must be made no later than thirty days after the rendition of the judgment or ruling from which the appeal is taken. In this case, the hearing and ruling on the defendant's motion to quash took place on September 13, 2017. In open court, immediately after the ruling, the State objected to the ruling, gave oral notice of the intent to "file a writ," and filed written notice of the intent to seek supervisory review on September 19, 2017, six days after the ruling on the motion to quash. The return date was originally set for October 16, 2017. On October 13, 2017, the State filed a request for an extension of the return date, which was signed and granted by the trial court on October 17, 2017, extending the return date to November 16, 2017. The State subsequently filed a motion for appeal on November 15, 2017, sixty-three days after the ruling on the motion to quash. The trial court granted the motion for appeal, originally set the lodging date for January 26, 2017, [4] and extended the lodging date to February 24, 2018. The State's appeal was filed in this court on February 8, 2018.

         As noted above, in support of his claim that the State's appeal is untimely, the defendant relies on the holding in Garrus. In Garrus, the State orally noted its intent to seek writs immediately after the trial court granted the defendant's motion to quash. The docket master indicated that on the same day the trial court quashed the proceedings, the court allowed the State until May 29, 2002 to take a writ. On that day, the State filed a notice of intent to file an appeal, followed by a motion for appeal on June 10, 2002, which the trial court granted. The State argued that by orally noting its intent to seek writs the day the motion to quash was granted, it adhered to the time constraints of LSA-C.Cr.P. art. 914 by placing the defense on notice that it would seek review of the judgment. Further, the State maintained that neither the trial court nor the defense objected to or claimed prejudice when the State orally noticed its intent to seek a "writ" or when it filed a notice of intent to appeal, albeit a late notice. The State further argued that appeals are favored in the law and should not be dismissed on hypertechnical interpretations of a statute which can be reasonably interpreted to preserve the appeal, particularly in the absence of any claim of prejudice by the opposing party. Garrus, 849 So.2d at 798 (citations omitted). The Fourth Circuit dismissed the State's appeal in light of the Louisiana Supreme Court's ruling in Gray, also cited by the defendant herein. Garrus, 849 So.2d at 799.

         In State v. Gray, 98-0347 (La.App. 4th Cir. 10/21/98), 766 So.2d 550, vacated, 98-2902 (La. 5/7/99), 740 So.2d 1291, three defendants were charged with various offenses. On June 24, 1996, the trial court refused to grant the State a continuance and the State dismissed the charges against each defendant. The State thereafter reinstated the charges against the defendants. The three defendants each filed motions to quash. Gray, 766 So.2d at 550-551. On November 19, 1996, the trial court granted the motions to quash following a hearing. As noted by the Fourth Circuit, the transcript of the hearing was not in the record on appeal. Gray, 766 So.2d at 551. As the court also noted, the State objected to the granting of the motion to quash at the time of the ruling. The trial court gave the State one month to file for a writ of certiorari, i.e., until December 19, 1996. On December 20, 1996, one day after the due date for filing the writ and thirty-one days after the ruling on the motion to quash, the State filed a motion for appeal, which was granted.

         On appeal in Gray, the defendant contended that the State's motion for an appeal was untimely because it was filed thirty-one days after the motion to quash was granted. Citing Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4, the Fourth Circuit stated, "The defense fails to argue that the State's motion for an appeal was untimely, and thus it will not be considered. Errors that are not briefed are considered abandoned." Gray, 766 So.2d at 551, n.1. In vacating the Fourth Circuit's decision in Gray, and reinstating the judgment granting the motion to quash, the Louisiana Supreme Court concluded, "[t]he district court's judgment became final when the state failed to take a timely appeal from the disputed ruling. State v. Veazey, 337 So.2d 1163 (La. 1976)." Gray, 740 So.2d 1291.[5] Notably, there is no indication in Gray that the State, in objecting at the time of the ruling on the motion to quash, stated its intention to seek review.

         In Veazey, the State filed a motion for appeal over four months after the order to quash the defendant's indictment was recorded in the court minutes. The State argued that its appeal was timely because it was taken within fifteen days of the date on which it received written notice of the trial judge's ruling. The Louisiana Supreme Court disagreed, noting:

It is the state's contention that when a matter is taken under advisement, written notice of the judgment or ruling subsequently rendered should be sent to the interested parties. The state further argues that the time for appealing from such judgments or rulings should commence running only from the date of receipt of notice thereof. We are asked to engraft these rules, borrowed from the Code of Civil Procedure (Code Civ.P. arts. 1911, 1913 and 2123), onto the clear statutory language of Code Crim.P. art. 914. This we cannot do.
While the provisions suggested by the state might indeed prove beneficial supplements to the Code of Criminal Procedure, that is a matter which addresses itself to the legislature. In the absence of statutory authority to the contrary, we will continue to follow the directive of article 914 that motions for appeal must be made no later than ...

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