APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL
DISTRICT COURT, PARISH OF ST JOHN THE BAPTIST, STATE OF
LOUISIANA, DIRECTED TO THE HONORABLE EDWARD J. GAIDRY, PRO
TEMPORE, DIVISION ''B'', NUMBER 62, 852
composed of Judges Fredericka Homberg Wicker, Robert A.
Chaisson, and Stephen J. Windhorst
GRANTED; GUILTY PLEA VACATED; RELATOR RELEASED ON OWN
application is before us on supervisory review and request
for expedited consideration of a sentence imposed upon
relator on November 5, 2018, by the Fortieth Judicial
District Court. On October 23, 2018, relator was arrested and
imprisoned for the violation of protective order(s) in
accordance with LSA R.S. 14:79. On October 25, 2018, the duty
judge made a preliminary determination of indigency and
appointed a Public Defender. A bill of information was filed
on October 30, 2018. On November 5, 2018, relator pled guilty
and was sentenced to imprisonment in the Parish Jail for six
months and ordered to pay a fine of one hundred and fifty
dollars ($150) plus court cost of one hundred and sixty-nine
direct the trial court's attention to holdings by both
the United States and Louisiana Supreme Courts which have
found that an indigent person may not be incarcerated simply
because he is unable to pay a fine which is part of his
sentence. Bearden v. Georgia, 461 U.S. 660, 103
S.Ct. 2064, 76 L.Ed.2d 221(1983); State v. Monson,
576 So.2d 517 (La. 1991). State v. Cox, 2002-0333
(La.App. 5 Cir. 9/30/02); 829 So.2d 521, 524. Further, we
take notice that the trial judge imposed an illegal,
indeterminate sentence in that he failed to clarify whether
the fines, fees, and court costs imposed by the court upon
relator would still be owing after relator has served some or
all of his sentence incarcerated.
November 9, 2018, relator filed a Motion to Reconsider
Sentence which has been set for hearing on December 3,
2018 and a Notice of Intent to Apply for Writ to
Review of the November 5, 2018, decision of the trial
court. Relator argues that the trial court erred by
sentencing an indigent defendant unable to post bond to
additional incarceration in lieu of payment of fine and court
costs; in denying the requested Stay of Incarceration and
request for release pending appellate review; and by imposing
the statutory maximum jail time and creating uncertainty as
to whether the fines, fees, and court costs would still be
owing at the conclusion of the term of incarceration. Relator
seeks reconsideration of the November 5, 2018 sentence by the
trial court, a stay of incarceration, and release pending
following reasons, we grant the relator's writ, vacate
his guilty plea, and order that relator be released on his
own recognizance pending trial or guilty plea.
of Boykin Colloquy
guilty plea is constitutionally infirm if it is not entered
into freely and voluntarily, if the Boykin colloquy is
inadequate, or when a defendant is induced to enter the plea
by a plea bargain or what he justifiably believes was a plea
bargain and that bargain is not kept. State v.
McCoil, 05-658 (La.App. 5 Cir. 2/27/06), 924 So.2d 1120,
1124. For a guilty plea to be valid, there must be a showing
that the defendant was informed of and waived his
constitutional rights of trial by jury and confrontation and
the right against compulsory self-incrimination. Boykin
v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274
(1969); State ex rel. Jackson v. Henderson, 260 La.
90, 255 So.2d 85 (1971).
upon the transcript of the November 5, 2018, guilty plea and
proceeding provided to this Court, no Boykin colloquy
occurred between the trial judge and relator before the
relator pled guilty. The transcript indicates that the
following exchange occurred prior to the relator's guilty
MR. JASMINE: Next, Your Honor, we have State
of Louisiana versus Todd David Hales docket number
MS. LEE: Iriane Lee, Public Defender Office
representing Mr. Todd Hales who's present in court and
coming in shortly.
THE COURT: He's on his way.
MS. LEE: Yes.
THE COURT: Okay. Mr. Hales, you're here
for an arraignment to plead guilty or not guilty. You're
charged with violation of protective order. We're going
to read ...