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State v. Magee

Court of Appeals of Louisiana, Fourth Circuit

January 16, 2019

STATE OF LOUISIANA
v.
TEDDY R. MAGEE

          APPEAL FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 359-770, DIVISION "E" Honorable Jacques A. Sanborn, Judge

          DAVID C. JARRELL LAW OFFICES OF DAVID C. JARRELL, APLC PERRY MICHAEL NICOSIA, DISTRICT ATTORNEY COUNSEL FOR STATE OF LOUISIANA/APPELLANT

          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 two judgments issued by the trial court on April 25, 2011 and January 28, 2013, respectively. In the April 25, 2011 Judgment, the trial court granted the motion to set aside a $40, 000 bond forfeiture on a bond which had previously been forfeited to the State on October 20, 2010 when the defendant, Teddy Magee ("Defendant") failed to show for his initial appearance. In the January 28, 2013 Judgment, the trial court set aside a bond forfeiture in the amount of $40, 000 for a bond also forfeited to the State as a result of Defendant's non-appearance at a scheduled trial proceeding on April 3, 2012. For the following reasons, we reverse both judgments of the trial court setting aside the bond forfeitures and remand.

         Background and Procedural History

         On July 12, 2010, a bill of information was filed in the 34th Judicial District Court, Parish of St. Bernard, charging Defendant with possession of a controlled dangerous substance with intent to distribute, namely crack cocaine, in violation of La. R.S. 40:967. Defendant was subsequently arrested, on or about July 14, 2010, for felony possession of crack cocaine with intent to distribute and driving without a driver's license, a misdemeanor violation of La. R.S. 32:52. Bond was set at $40, 000 and an initial appearance was set for October 20, 2010. On October 20, 2010, Defendant failed to show for his initial appearance, bench warrants were issued for his arrest and his bond of $40, 000 was forfeited to the State by a Judgment signed on October 27, 2010. On November 5, 2010, a notice of bond forfeiture was mailed to the surety, Bankers Insurance Company ("Bankers"). On November 12, 2010, Defendant appeared in open court with counsel, was arraigned and pled not guilty.[1] A motion hearing date of January 24, 2011 was set and trial was set for March 1-3, 2011. On March 9, 2011, Bankers filed a motion to set aside bond forfeiture based upon Defendant being incarcerated in Orleans Parish within 180 days of the mailing of the notice of bond forfeiture.[2] A "Letter of Verification of Incarceration," dated December 15, 2010, was submitted by Bankers with the motion to set aside bond forfeiture to show that Defendant was incarcerated in Orleans Parish Prison from December 7, 2010 "thru Present." However, there is no record evidence to show that the State was served with the motion to set aside bond forfeiture and its supporting documentation. An Order to Show Cause why the motion to set aside bond forfeiture should not be granted was issued by the trial court on March 17, 2011. The record shows that the Order on the Rule to Show Cause was sent to a post office box rather than personally served on the district attorney or served via certified mail in compliance with La.C.C.P. art. 1313(C). On April 25, 2011, counsel for Bankers appeared before the court and represented that he was seeking a motion to set aside the bond forfeiture as Defendant had been incarcerated within one hundred and eighty days of his failed court appearance. Counsel for the State asked if opposing counsel had any documentation regarding the "holdings in Orleans" and counsel for Bankers indicated he had a "Letter of Verification of Defendant's Incarceration in Orleans Parish." Counsel for the State, appearing not to have a copy of the motion, stated, "Has it been attached?" Upon Banker's counsel's response in the affirmative, the court stated, "Granted."

         Subsequent to the hearing, Bankers was served with notice of the signing of the April 25, 2011 judgment setting aside the bond forfeiture but the State was never served with notice of the same.

         After numerous trial continuances, Defendant failed to appear for trial on April 3, 2012. Bench warrants were once again issued for his arrest and his bond of $40, 000 was forfeited, per the trial court's written judgment dated April 12, 2012. Notice of the bond forfeiture was mailed to all parties on or about April 24, 2012. On October 23, 2012, Bankers filed a motion to set aside the April 12, 2012 judgment of bond forfeiture and a petition for nullity of judgment alleging that Defendant was incarcerated at Allen Correctional Center as of March 9, 2012 "until the present," which was at least until October 19, 2012, the date stated on the "Letter of Incarceration." Again, Bankers failed to request and properly serve the State with the motion to set aside bond forfeiture. On January 28, 2013, the trial court held a hearing on Bankers' motion to set aside the judgment of bond forfeiture. When counsel for Bankers made his appearance relative to Bankers motion to set aside bond forfeiture on behalf of Defendant and in another case, counsel for the State replied, "I don't see either one . . . I don't see a motion." The court indicated it was on the docket for a motion to set aside bond forfeiture and a brief, untranscribed bench conference was held. Back on the record, Bankers' counsel stated that Defendant was incarcerated in the Allen Correctional Center and the State "submitted the matter on the record". The trial court granted Bankers' motion to set aside the judgment of bond forfeiture, issuing a written judgment on that same date. Again, notice of the signing of the January 28, 2013 judgment was sent to Bankers but there is no evidence in the record to establish that notice of the January 28, 2013 judgment was sent to the State.

         On August 9, 2017 and October 12, 2017, respectively, the State filed a motion for new trial and a motion to vacate the judgment which set aside the judgment of forfeiture. In the motion for new trial, the State argued that the State had not been properly served with notice of the April 25, 2011 hearing date on the motion to set aside forfeiture and had not been mailed the April 25, 2011 judgment setting aside the bond forfeiture, thus the motion for new trial was urged to be considered as timely filed. Moreover, the State argued that, although paying the costs of extradition would have been "implicit" in Defendant's motion to set aside forfeiture, Bankers had, in fact, failed to pay the requisite costs of extradition as required by La. C.Cr. P. art. 345(D) and was therefore not entitled to Article 345(D) relief.[3] The State contended that it was not until December 23, 2016 that the State learned the requisite costs of transportation as required by Article 345(D) had not been tendered. Also, the State urged that the trial court's judgment of April 25, 2011 was null and void because Bankers had failed to properly serve the notice of the motion and of the hearing date as required for a contradictory motion.

         According to an extract of the court's minutes, on November 3, 2017, the State's motion for new trial and motion to vacate judgment setting aside the bond forfeiture was denied by the trial court. No written judgment denying the motion for new trial and the motion to vacate was contained in the record, thus the State was ordered to and did supplement the record with written judgments in order to cure a problem of prematurity. Appellant's brief was timely filed on May 4, 2018; Bankers filed no brief in opposition.

         Discussion

         Standard of Review:

         Since the State challenges the validity of two separate judgments setting aside two bond forfeitures, the validity of each judgment raises a question of law. As such, an appellate court reviews this matter de novo to determine whether the trial court's decision is legally correct. State v. Jones, 2015-1232, p. 3 (La.App. 4 Cir. 8/17/16), 200 So.3d 950, 952, writ denied, 2016-1651 (La. 6/29/17), 222 So.3d 48 (citing French Quarter Realty v. Gambel, 05-0933, p. 3 (La.App. 4 Cir. 12/28/05), 921 So.2d 1025, 1027).

         Prematurity and Timeliness of Motion for New Trial:

         Although no opposition was filed to this appeal raising any procedural defects in its filing, we address two procedural concerns. First, the record in this case did not contain a written judgment entered by the trial court denying the State's motion for new trial and motion to vacate. Rather, the only evidence that the motions were ruled upon lies in the extract of the court's minutes dated November 3, 2017. For this reason, the State was ordered to supplement the record with written judgments relative to the motion for new trial and motion to vacate.

         In State v. Dennis, this Court stated, "Bond forfeiture proceedings are unique because they are 'intrinsically civil matters,' and their outcomes are based upon provisions found within the Code of Civil Procedure and related jurisprudence." 2014-1258, p. 2 (La.App. 4 Cir. 4/29/15), 165 So.3d 1124, 1126 (citing State v. Allen, 2011-2843, p. 2 (La. 4/13/12), 84 So.3d 1288, 1288); State v. Nellon, 2012-1429, p. 5 (La.App. 4 Cir. 9/4/13), 124 So.3d 1115, 1118; City of New Orleans v. Young, 2007-0925, pp. 1-2 (La.App. 4 Cir. 9/12/07), 967 So.2d 539, 540). Perfecting an appeal of a judgment in a civil matter requires three procedural elements: (1) a motion or petition for appeal, (2) an order of appeal, and (3) notice of appeal. Bremermann v. Bremermann, 2005-0547, p. 2 (La.App. 4 Cir. 1/11/06), 923 So.2d 187, 188 (citations omitted). Jurisdiction of the appellate court attaches upon the granting of the order of appeal. La. C.C.P. art. 2088; Dennis, 2014-1258 at p. 3, 165 So.3d at 1126; Brennan's, Inc. v. Colbert, 13-0943, p. 4 (La.App. 4 Cir. 9/25/13), 125 So.3d 537, 539. However, an order of appeal is premature if granted before the court disposes of all timely filed motions for new trial or judgment notwithstanding the verdict. The order becomes effective upon the denial of such motions. La. C.C. P. art. 2087 D; Merritt v. Dixon, 97-0781, p, 2 (La.App. 4 Cir. 5/28/97), 695 So.2d 1095, 1096 (citing Sledge v. Continental Cas. Co., 26, 472 (La.App. 2 Cir. 1/25/95), 654 So.2d 358 (holding that appeal taken while a timely motion for a new trial is pending is premature and subject to dismissal because the motion suspends the operation of the final judgment being appealed). Where the trial court does not rule on the motion for new trial, the trial court is never divested of original jurisdiction, and the appellate court lacks jurisdiction to hear the appeal. Id. (citing Bowers v. Viator, 597 So.2d 1250, 1252 (La.App. 3 Cir.1992)).

         However, a defect of prematurity can be cured. Sullivan v. Franicevich, 2004-0321, p. 2 (La.App. 4 Cir. 3/9/05), 899 So.2d 602, 604 (holding that trial court's denial of a motion for new trial during the pendency of an appeal cures the defect of prematurity). The Louisiana Supreme Court has held that once a previously existing defect has been cured, there is no useful purpose in dismissing an otherwise valid appeal. Overmier v. Traylor, 475 So.2d 1094, 1094-95 (La. 1985). As the State has supplemented the record with written judgments disposing of the motion for new trial and motion to vacate, we find the issue of prematurity of the appeal to be moot.

         Additionally, the judgments setting aside the two bond forfeitures currently under attack were issued on April 25, 2011 and January 28, 2013. The State did not file a motion for new trial in the lower court until August 9, 2017. Pursuant to La. C.C.P. art. 1974, the delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913. See La. C.C.P. art. 1974. Notice of the signing of a final judgment is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel. La. C.C.P. art. 1913. As outlined previously, neither the April 25, 2011 judgment nor the January 28, 2013 judgment were mailed to the State. "In the absence of the clerk's certificate showing the date of the mailing of the judgment and to whom it was mailed, doubt should be resolved in favor of the right to appeal." Garco, Inc. v. Rob's Cleaning and Powerwash, Inc., 2008-1249, p. 3 ...


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