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State v. Revish

Court of Appeals of Louisiana, First Circuit

September 27, 2019

STATE OF LOUISIANA
v.
NICHOLAS REVISH

          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

          Hillar 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.

          WHIPPLE, C.J.

         Defendant, 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 instant appeal.

         STATEMENT OF FACTS[1]

         Around 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.

         DISCUSSION

         In its 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[2] ultimately extended the State's period to try defendant until November 2019.

         Defendant 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.

         When a 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).

         A 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.

         The 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).

         The 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 ...

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