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State v. Cinquemano

Court of Appeals of Louisiana, Fourth Circuit

October 24, 2018

STATE OF LOUISIANA
v.
ANTHONY CINQUEMANO

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 528-849, SECTION "J" Honorable Darryl A. Derbigny, Judge

          Leon A. Cannizzaro, Jr., District Attorney Donna Andrieu, Assistant District Attorney Scott G. Vincent, Assistant District Attorney COUNSEL FOR STATE OF LOUISIANA/ APPELLANT.

          Perry W. Manning, Sr. COUNSEL FOR DEFENDANT/ APPELLEE.

          (Court composed of Chief Judge James F. McKay, III, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins)

          Dale N. Atkins Judge

         The State of Louisiana ("State") appeals the trial court's Judgment which dismissed the criminal prosecution of the defendant, Anthony Cinquemano ("Defendant"), for theft of goods over one thousand five hundred dollars, a violation of La. R.S. 14:67(B)(1).[1] For the following reasons, we reverse and remand to the trial court for further proceedings.

         Procedural Background

         On April 20, 2016, the State of Louisiana filed a bill of information charging Defendant with theft of goods totaling an amount less than fifteen hundred dollars but over five hundred dollars, a violation of La. R.S. 14:67.10(B)(2). Defendant appeared for arraignment on May 20, 2016 and entered a plea of not guilty. On June 23, 2016, the State amended the charge in the bill of information to a violation of La. R.S. 14:67(B)(1), theft of goods over one thousand five hundred dollars. On July 12, 2016, Defendant filed a motion to quash the bill of information on the grounds that prosecution was untimely instituted, which the trial court denied on February 23, 2017. Defendant sought review of the trial court's denial of the motion to quash via an application for a supervisory writ, which this Court denied on April 10, 2017. State v. Cinquemano, 2017-0261 (La.App. 4 Cir. 4/10/17)(unpub.).

         On May 5, 2017, Defendant waived his right to a jury trial and the court held a preliminary hearing, found probable cause, and set a bench trial for June 23, 2017. The trial was continued on the State's motion until August 17, 2017, then continued again on Defendant's motion until September 15, 2017. On that date, the State moved for another continuance due to the victim's failure to appear at trial to testify and Defendant objected. After a brief oral argument, the trial court dismissed the case. The State appeals, raising the following assignments of error: 1) the trial court abused its discretion in denying the State's motion to continue trial; and, 2) the trial court abused its discretion in dismissing the prosecution's case. For the following reasons, we reverse the trial court's Judgment and remand for further proceedings.

         Continuance

         The State argues that the trial court abused its discretion when it denied the State's request for a thirty-day continuance of trial based on the unavailability of the State's primary witness, the victim in this case.[2]

         "[T]he decision to grant or deny a motion for continuance rests with the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion." State v. Vanburen, 2008-0824, pp. 4-5 (La.App. 4 Cir. 12/30/08), 3 So.3d 552, 555 (citing State v. Johnson, 1996-0950 (La.App. 4 Cir. 2/4/98), 706 So.2d 468, 478-79 (on reh'g)). "Whether a refusal to grant a continuance was justified depends on the circumstances of the particular case presented." State ex rel. B.M., 2000-2562, p. 4 (La.App. 4 Cir. 11/29/00), 774 So.2d 1042, 1045. Louisiana jurisprudence has specifically held that the unavailability of a state witness is a legitimate reason for delaying trial and/or entering a nolle prosequi and thus does not violate an accused's right to a speedy trial. State v. Sanders, 2012-0409, p. 9 (La.App. 4 Cir. 11/14/12), 104 So.3d 619, 626-27 (citing State v. Love, 2000-3347, p. 6, (La. 5/23/03), 847 So.2d 1198; State v. Batiste, 2005-1571, p. 8 (La. 10/17/06), 939 So.2d 1245, 1249; State v. Scott, 2006-1610, p. 6, (La.App. 4 Cir. 4/25/07), 958 So.2d 725, 729; and State v. Shannon, 2009-0305, p. 8 (La.App. 4 Cir. 9/9/09), 17 So.3d 1061, 1067). See also La. C.Cr. P. art. 713 ("A motion for continuance, based on peremptory grounds as provided by law shall be granted.")

         Review of the transcript of the September 15, 2017 hearing reveals the following colloquy:

STATE: Judge, at this time the state moves for a continuance due to the fact that I don't have a necessary witness needed to proceed and the state would ask to ...

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