Appealed from the Nineteenth Judicial District Court In and
for the Parish of East Baton Rouge State of Louisiana Docket
Number 02-13-0952 Honorable Bonnie Jackson, Judge Presiding
C. Moore, III Dylan C. Alge Baton Rouge, LA Counsel for
Appellant, State of Louisiana
Stephen Andrew Stanford Baton Rouge, LA Counsel for
Defendant/Appellee, Nicholas Revish
BEFORE: WHIPPLE, C.J., GUIDRY, AND CRAIN, JJ.
Nicholas Revish, was charged by grand jury indictment with
second degree murder, a violation of LSA-R.S. 14:30.1 (count
one), and with attempted second degree murder, a violation of
LSA-R.S. 14:27 and 14:30.1 (count two). He pled not guilty.
Following a jury trial, defendant was found guilty as charged
on both counts. On count one, the trial court sentenced
defendant to the mandatory term of life imprisonment at hard
labor, without benefit of parole, probation, or suspension of
sentence. On count two, the trial court sentenced defendant
to twenty-five years at hard labor, to run concurrently with
the sentence on count one. On appeal, this court found a
prejudicial trial error, vacated relator's conviction and
sentence, and remanded this matter with instructions for a
new trial. State v. Revish, 2015-0470, 2015-0471
(La.App. 1st Cir. 11/9/15), 185 So. 3d 8. The Louisiana
Supreme Court denied writs. State v. Revish,
2015-2247 (La. 5/20/16), 191 So.3d 1066. While the case was
pending for a new trial in the trial court, defendant filed
motions to quash his indictment, alleging the State was
untimely in commencing his new trial following remand. The
trial court ultimately agreed that the State had failed to
timely commence a new trial of defendant and granted
defendant's motion to quash. The State then filed the
9:00 p.m. on March 26, 2012, Jamond Rougeau and Latrell Davis
were riding around the Sherwood Forest area of Baton Rouge in
Rougeau's vehicle. Davis directed Rougeau to pick up
defendant from a nearby Jack in the Box restaurant. Rougeau
complied, and the three men continued to ride around the area
together. At some point, Rougeau pulled his vehicle onto a
side street, potentially because of car trouble. Shortly
after Rougeau pulled his vehicle onto this street, defendant
shot both Rougeau and Davis. Rougeau drove his car to his
aunt's home on Gerald Street, called 911, and ultimately
survived his injuries. Davis eventually died as a result of
having been shot twice in the head. Rougeau later identified
defendant in a photographic lineup as the individual who had
shot him and Davis.
sole assignment of error, the State contends the trial court
erred in granting defendant's motion to quash, asserting
the State timely instituted its retrial of defendant.
Specifically, the State contends that the Supreme Court's
denial of writs reset the time limitation to institute
prosecution. The State reasons it had two years from the
Supreme Court's denial of writs to prosecute defendant.
The State further argues that its ongoing discovery
obligations had the effect of indefinitely suspending the
time period to institute trial. The State further contends
that even assuming that the State only had one year from the
Supreme Court's ruling, defendant's failure to object
to the trial court's ex proprio motu continuance
and setting of the trial date beyond that year waived any
subsequent timeliness claim. The State alleges the three
motions to quash filed by the defense ultimately extended the
State's period to try defendant until November 2019.
argues in response that the State's interpretation of the
operation of LSA-C.Cr.P. art. 582 is in error, and that the
State did not commence trial within the year it was allowed
following the Supreme Court's ruling in May 2016.
Defendant also argues that the discovery motions filed during
the original trial were deemed abandoned when he failed to
have the matters set for hearing prior to trial. He further
claims that the State's Brady obligation is not
"a discovery obligation, " but instead is a
constitutional and ethical duty that the State cannot
"hide behind to allow for an indefinite suspension on
its time limitations to bring [him] to trial." Finally,
defendant asserts he filed no preliminary pleas that would
have suspended the time limitations of LSA-C.Cr.P. art. 582,
and that the trial court's ex proprio motu
motion to continue was not for defendant's benefit, and
therefore did not have the consequence of interrupting or
suspending the time limitations provided in LSA-C.Cr.P. art.
582. Defendant posits that although he concedes participating
in several joint motions to continue, because those
continuances did not have the effect of changing the trial
date, they did not count as preliminary pleas under
LSA-C.Cr.P. art. 580.
trial court rules on a motion to quash, factual and
credibility determinations should not be reversed in the
absence of a clear abuse of the trial court's discretion.
See State v. Cooper, 2018-0175 (La.App. 1st Cir.
9/24/18), 260 So.3d 594, 595. However, a trial court's
legal findings are subject to a de novo standard of
review. State v. Roach, 2010-0991 (La.App. 1st Cir.
12/22/10), 68 So.3d 558, 560, writ denied, 2011-1913
(La. 2/3/12), 79 So.3d 1025. More specifically, when a
defendant brings an apparently meritorious motion to quash
based on prescription, the State bears a heavy burden of
demonstrating either an interruption or a suspension of the
time limitation such that prescription will not have tolled.
State v. Rome, 93-1221 (La. 1/14/94), 630 So.2d
1284, 1286; State v. Reed, 2016-1201 (La.App. 1st
Cir. 4/12/17), 218 So.3d 729, 731. The trial court cannot
give the State "the benefit of the doubt, " but
must require the State to prove suspension or interruption of
the time delays if the prosecution takes place beyond the
statutory delays. See State v. Morris, 99-3235 (La.
2/18/00), 755 So.2d 205 (per curiam).
judgment rendered by the Supreme Court or other appellate
court becomes final when the delay for applying for a
rehearing has expired and no application for rehearing has
been made. LSA-C.Cr.P. art. 922(B). See State ex rel.
Hensley v. State, 2003-1691 (La. 6/4/04), 876 So.2d 78.
Louisiana Code of Criminal Procedure article 578(A)(2)
provides that no trial in a non-capital felony case shall be
commenced after two years from the date of the institution of
the prosecution. When a defendant obtains a new trial or
there is a mistrial, the State must commence the second trial
within one year from the date the new trial is granted, or
the mistrial is ordered, or within the period established by
Article 578, whichever is longer. LSA-C.Cr.P. art. 582. The
period of limitation established by Article 582 shall be
interrupted by any of the causes stated in Article 579. Where
such interruption occurs, the State must commence the new
trial within one year from the date the cause of interruption
no longer exists. LSA-C.Cr.P. art. 583.
prescriptive periods to commence trial may be interrupted, as
noted above, or they may be suspended. An interruption of
prescription occurs when a defendant cannot be tried because
his presence for trial cannot be obtained by legal process,
or for "any other cause beyond the control of the
[S]tate." LSA-C.Cr.P. art. 579(A)(2); See State v.
Brown, 451 So.2d 1074, 1079 (La. 1984). Once the cause
of interruption no longer exists, the time limit begins anew.
See LSA-C.Cr.P. art. 579(B). In contrast,
LSA-C.Cr.P. art. 580 provides when a defendant files a
preliminary plea, the time limits set forth in Article 578
are suspended until the ruling of the court; but in no case
shall the State have less than one year after the ruling to
commence the trial. A preliminary plea is any pleading or
motion filed by the defense, including properly filed motions
to quash, motions to suppress, or motions for a continuance,
as well as applications for discovery and bills of
particulars, which has the effect of delaying the trial.
State v. Brooks, 2002-0792 (La. 2/14/03), 838 So.2d
778, 782 (per curiam). Joint motions to continue likewise
suspend the period of limitation. State v. Shabazz,
2014-0431 (La.App. 1st Cir. 11/7/14), 167 So.3d 725, 734.
Further, a preliminary plea is one filed after prosecution is
instituted and before the trial that causes the trial to be
delayed. State v. Elfert, 247 La. 1047, 1052-1053,
175 So.2d 826, 828 (1965). Finally, the provisions of
LSA-C.Cr.P. art. 582 must be read and applied together with
LSA-C.Cr.P. arts. 578, 580, 581, and 583. State v.
Falkins, 395 So.2d 740, 741 (La. 1981).
Louisiana Supreme Court denied the State's writ
application on May 20, 2016. Thus, this court's decision
remanding the case for a new trial became final on June 3,
2016, after the delay for seeking a rehearing of the Supreme
Court's decision had run. See Brown, 451 So.2d
at 1077. At a status hearing in the trial court on June 27,
2016, the trial court granted a joint continuance for status
until August 29, 2016, and set trial for December 5, 2016. At
the August 29, 2016 status hearing, the December 5, 2016
trial date was maintained. Thereafter, the record indicates
the following sequence of events:
• On December 5, 2016, the trial court, ex proprio
motu, ordered a continuance of the trial date ...