State Of Louisiana VS Horace McClain
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 KA 0701 STATE OF LOUISIANA f VERSUS HORACE McCLAIN r On Appeal from the 22nd Judicial District Court Parish of Washington Louisiana Docket No 03 CR3 88667 Division Honorable A Raymond S Childress Judge Presiding Walter P Reed Attorneys District State of Louisiana Attorney Covington LA for and Kathryn Landry Special Appeals Counsel Baton Rouge LA Louisiana Attorney for Defendant Appellant Baton Horace McClain Frederick Kroenke r J fl I Appellate Project Rouge LA a l i ssetJT BEFORE PARRO 5 i7 4 5f S tttls fl eIS KUHN AND DOWNING JJ Judgment rendered NOV 7 2007 s 0AI PARRO J The defendant on Horace McClain September 22 2003 with 14 62 count of one On pled not guilty He was charged by bill of information filed a simple burglary September 18 2006 a violation of LSA he moved to hearing the motion to quash denied was plea and pled guilty reserving his right motion to quash sentenced to designating See State five one of years Thereafter to seek review of the court s imprisonment at hard assignment of We error reverse Following he withdrew his former Crosby 338 SO 2d 584 v the quash prosecution arguing the delay for commencement of trial had expired a 5 R 1976 La labor ruling He He now the on was appeals the denial of the motion to quash grant the motion to quash vacate the guilty plea and sentence and order the defendant discharged on the present charge fACTS Due to the defendant s guilty plea there testimony concerning the facts defendant with in this matter committing the instant offense MOTION TO In his sole in assignment of denying the motion to error quash no trial and thus The bill of information on no trial charged the August 26 2003 QUASH the defendant contends the trial court erred Although his whereabouts Washington Parish law enforcement officials for that the state failed to follow the was two years requirements of any were known to the defendant argues statute in attempting to obtain custody of him for prosecution Except as otherwise provided Code of Criminal Procedure cases art no in Chapter 2 of Title XVII of the Louisiana trial shall be commenced after two years from the date of institution of the 578 A 2 Simple burglary is a non in non prosecution capital felony offense capital felony LSA C Cr P See LSA 5 R 14 2 A 4 and 14 62 B The period of limitation established by Article 578 shall be interrupted if the defendant cannot be tried because his presence for trial cannot be obtained legal process or for any other cause beyond the control of the 2 state by LSA C Cr P art 579 A to run anew 2 The from the date the art 579 8 tolled of cause interruption longer exists no Once the accused shows that the state has failed to within the time burden of periods of limitation established by Article 578 shall commence LSA CCr P bring him periods specified by LSA CCr P art 578 the state bears demonstrating that either State prescription v an interruption Morris 99 3235 heavy a suspension of the time limit or a La to trial 755 So 2d 205 2 18 00 per curiam On September 18 prosecution District presented testimony from Attorney s Office information from the came in to revoked 2005 parish 1 July on September on an 2 2003 14 24 2003 inmate l Miller indicated that was released into on the on based May 31 2005 on was custody until November receipt indicating the defendant Miller indicated that to the Walthall was 23 released County Sheriffs Office on except for June 2005 the defendant had Mississippi Department of Corrections since September Miller also indicated that an attachment was issued for the defendant on 17 2006 On cross examination Miller Attorney s Office knew the defendant any hearing investigator with the Washington went back Washington Parish Sheriffs Office been incarcerated with the April Mike Mil er and then 2005 September 24 2003 an At the quash the Mississippi State Department of Corrections the defendant Miller also identified from the the defense moved to prescribed under LSA CCr P art 578 A 2 the state motion Parish as at voir dire 2006 efforts indicated was the and Miller picked up by the district attorney s office Parish Washington to extradite District was not aware the of defendant from Mississippi J The hearing on the motion Docket No 03 CR3 88113 The defense instant 2 held in connection with stipulated the same v McClain 07 0413 Twenty Second Judicial District La App 1st Cir 11 2 07 relevant facts involved in that case were Court So 2d also involved in the case The trial court believed the that was See State Mississippi September 14 2003 date reflected authorities took the defendant into their 3 custody a on credit for time served date and September 24 2003 The state was argued without citation of legal authority that the holding entitled to hold defendant until he finished a The state indicated it serve defendant in Louisiana who was the defendant or it had fairly confident was The state Mississippi serving whatever incarcerated in another state obtain time he had to detainer a prosecute the on defendant in a it would either need to extradite The state waiver of extradition a to recognized that placed state in the case of a argued waiver of extradition the waiver would not become effective until the defendant had finished serving whatever defense argued the to defendant until the to on state Mississippi and under was The case duty of due a The trial ran to hold the quash finding that Mississippi had the right completion of his In the instant sentence prosecution September 22 2003 was Thus permitted after September 22 2005 unless the holding bring the defendant back to Louisiana before prescription court denied the motion to information the in serving was state had notice the defendant had been transferred from the Washington Parish Sheriffs Office diligence he sentence instituted the the bill of filing of trial of the defendant would be no some by enumerated cause set forth under provisions of LSA CCr P art 579 operated to interrupt that prescriptive period See LSA CCr P art 578 A 2 State The trial court found 579 A 2 due to the no Devito 391 So 2d 813 814 prescription defendant Supreme Court however v was interrupted under LSA C Cr P incarceration in s La 1980 The Mississippi art Louisiana longer subscribes to the view that interruption of the time limits on commencement of trial due to incarceration in another state continues until the defendant 4 30 04 s release from 872 SO 2d 1052 commencement of trial jail 1057 cease in that state Rather any when the state State v Bobo 03 2362 interruption of the regains time limits capacity its for trial on to act in apprehending the defendant by legal process rehearing extradition state is no unable to obtain his presence See Bobo 872 So 2d at 1057 Devito 391 So 2d at 816 The state has proceedings or on to act after receiving notice of the defendant s whereabouts in jail because the longer unable La but a also duty under Article 579 to inform 4 itself of not the only to initiate outcome of the proceedings in the event that the state available to the holding the demanded person makes him custody of Louisiana officials mere physical detention of the defendant in serve to The state institution of obtained State interrupt prescription s failure to was This due to events set forth in LSA CCr P assignment of error federal prison will not alone La 1983 not because his presence could not be beyond hold that the state failed to meet its burden of prescriptive period or The the defendant to trial within two years of the bring nor state Amarena 426 So 2d 613 617 v prosecution against him by legal process a See Bobo 872 So 2d at 1058 its control proving that an Accordingly we interruption of the art 578 had occurred has merit DECREE For the motion to foregoing quash reasons is ordered the sentence are vacated and discharged from custody on the present charge DENIAL OF MOTION GUILTY court is reversed judgment of the trial granted the guilty plea and the defendant is ordered to be GRANTED the PLEA TO QUASH REVERSED AND SENTENCE DISCHARGED ON PRESENT CHARGE 5 MOTION TO VACATED QUASH DEFENDANT STATE OF LOUISIANA FIRST CIRCUIT COURT OF APPEAL VERSUS STATE OF LOUISIANA HORACE MCCLAIN KUHN J I period dissenting disagree with defendant NO 2007 KA 0701 s motion the State to had the Under La C Cr P quash institute defendant s to because his incarceration in control of the Mississippi to cases maintain him in relied upon 391 So 2d 813 not State La 1053 Dupree v 235 1980 accord Bobo 03 2362 majority it obtained trial and State cannot S tate s v v So 2d 408 is not completes his case because process 7 8 be tried because of never La See State Devito v La 4 30 04 2 615 whose 391 Unlike the defendant s see holding also was So 2d at 815 the trial cOUli relied presence for trial under La C Cr P quash any other cases mi 579A 2 it is because cause to the State cases 03 2362 p 1970 attempted 872 So 2d at 1057 which also included denial of the motion to Accordingly the State the supreme court in Devito at pp judge Unlike the sentence process Bobo 410 the beyond As the trial Amarena 426 So 2d 613 uncompleted extradition by legal cOUli State two year interrupted was cause In each of those Mississippi expressly disapproved by initiated but other an the The State of Mississippi has the complete the extradition 814 872 So 2d 1052 he in this majority extradite defendant from initiated but did prosecution was quash custody until the by 579A 2 mi for which he could not be tried S tate stated in his denial of the motion to right reversal of the trial cOUli s denial of majority s on could an by the not be that supports the t he defendant beyond the control of the cOlTectly denied the motion to quash
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