State Of Louisiana VS Alvin King
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STATE OF LOUISIANA COURT OF APPEAL w FIRST CIRCUIT YJ 2010 KA 0074 STATE OF LOUISIANA VERSUS ALVIN KING Judgment rendered OCT 2 9 2010 On Appeal from the 19 Judicial District Court Parish of East Baton Rouge State of Louisiana Case Number 05 090639 Sec 6 The Honorable Richard C Moore III Judge Presiding Hon Hillar C Moore III District Attorney Counsel for Appellant State of Louisiana Steven Danielson Dylan C Alge Adam Haney Assistant District Attorneys Baton Rouge Louisiana Franz Borghardt Baton Rouge Louisiana Counsel for Appellee Alvin King Mark D Plaisance Baker Louisiana S RM500 5 SC 5 tT lfSSpG tfiT S cc lIn t7 BEFORE KUHN PETTIGREW AND KLINE JJ Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court 7 e g 9 Gfe p KLINE J The defendant Alvin King was charged by East Baton Rouge Parish bill of information number 3 080419 with issuing a worthless check in an amount over 00 500 a violation of La R 14 On March 20 2008 the defendant was S 71 arraigned He entered a plea of not guilty The matter came before the court for a status conference on May 18 July 22 and September 9 2008 On each of these dates the matter was continued on motion of the defendant On January 20 2009 the defendant filed a pro se motion for a speedy trial pursuant to La Code Crim P art 701 and a motion to dismiss defense counsel The trial court took no action and ordered defense counsel to speak with the defendant regarding representation The pretrial status conference was continued until January 26 2009 At the January 26 2009 status conference the matter was set for trial on March 23 2009 On March 23 2009 the state orally moved for a continuance of the trial The prosecutor explained that he had a little bit of trouble procuring some of the financial records from the bank Over the objection of the defense the trial court granted the state motion In granting the motion the court explained s And so the state requesting a continuance s and Mr King like ve I told you been in court and I going to grant either side one ve m but that would be it and so this will be the state only chance to s continue it I going to m and I will grant their request and I will reset the matter for another trial date and it won be continued next t time The trial of the matter was reset for May 20 2009 When the matter came for trial on May 20 2009 the state again sought a continuance The prosecutor explained that the bank had not fully complied with a subpoena duces tecum He further noted that the bank had not yet provided a custodian of record to testify regarding the authenticity and accuracy of its records The defendant objected to 2 the state request for a second continuance and the trial court denied the motion s The state immediately moved to dismiss the bill of information The trial court ordered that the case be dismissed Thereafter on May 21 2009 the state reinstituted the issuing worthless check in an amount over 500 charge in East Baton Rouge Parish by bill of 00 information number 05 09 0639 entered a plea of not guilty At the arraignment on this bill the defendant On September 11 2009 the defendant moved to quash the bill of information arguing that the state circumvented the trial court s power to grant and deny continuances by dismissing and reinstituting the bill of or information A hearing on the motion to quash was held on October 13 2009 At the conclusion of the hearing the court took the matter under advisement Thereafter on October 21 2009 over the state objection the trial court granted s the defendant motion to quash The state now seeks review of the trial court s s ruling FACTS The only facts in the record indicate the defendant is alleged to have issued a check drawn on Capital One Bank in the amount of 15 to J Electrical 00 500 T Service The check was returned unpaid with an Account Closed notation The defendant did not respond to subsequent demands for payment ASSIGNMENT OF ERROR GRANTING OF DEFENSE MOTION TO QUASH In a single assignment of error the state asserts the trial court erred in granting the defendant motion to quash the bill of information in this case The s state argues it was within its authority under La Code Crim P art 691 in dismissing the initial bill of information and reinstituting the charge in a second bill The state contends that the dismissal and reinstitution of the charge were not W done to avoid the time delays for trial of the matter and in no way infringed upon the defendant constitutional or speedy trial rights s In his motion to quash and at the hearing on the motion the defendant argued that by dismissing and reinstituting the instant charge after being denied a continuance the state circumvented the trial court authority to grant and deny s continuances Noting that the trial court had in place an internal rule limiting trial continuances to one per party the defendant further argued that the district s attorney actions frustrated the trial judge right to control the court over which s he presides Finally the defendant argued the state ability to dismiss and s reinstitute charges in response to the denial of a continuance a privilege the defense does not share violated his due process and equal protection rights In granting the motion to quash in this case the trial court reasoned The state is in charge of bringing criminal prosecutions to trial They investigate their cases they collect and review evidence and they make decisions based on its own discretion to file formal charges against defendants it believes violated this state laws No other s entity has any input into this decision After formal charges the state decides alone which cases it wishes to bring to trial The state selects all trial dates for trials by jury in this court This court does not interfere with the state process of selecting jury trials or the s number of trails sic it may set for a particular day on a particular jury week This court has operated a rule wherein each side is granted one continuance as the court realizes that certain problems can arise both for the state and the defense and this second setting is provided so that both sides can make correct any deficiencies in their case i e witnesses problems crime lab problems et cetera Certain counsel m have interpreted this one free continuance quote unquote and I quoting that from I believe argument I received on the motion to quash as the basis for indicating that the court will continue matters for any or no reason While this is true this rule was never derived to keep or prevent counsel from either side for preparing for trials This court believes that if ten cases are set by the DA office for trial s that all ten cases will be worked up and be ready to proceed on the trial date Again the state controls the number of trials set on any jury week In the instant case the original bill of information was filed March 17 2008 alleging that worthless checks were issued by the was defendant on January 1 2007 The defendant was assigned arraigned on March 20 2008 A preliminary examination was waived on May 15 2008 On September 9 2008 the state picked January 20 2009 for a pretrial conference and March 23 2009 for trial Let me go back The state picked March 23rd 09 The court picked with the 2 concurrence of state and counsel defense January 20th for pretrial conference On January 20 2009 the state did not indicate that there were any problems with its case and the matter proceeded towards trial Maintain the trial date judge March 23rd of 09 this matter came up for trial Ten other jury matters had been scheduled for that same date and apparently either resolved themselves or were rescheduled The state indicated that it needed a continuance on the matter before the court that day because bank records were unavailable The record indicates that no subpoenas were ever issued directed to any financial institution On that date the state indicated that they just realized that there were sic other information needed to try the case The court granted a continuance and the state picked May 20th of 09 for a second jury trial The court explicitly told the state to be ready to go on the next date On the second trial date the state again failed to have its witnesses although the record does reflect that subpoenas were issued for financial records for that date The state requested a second continuance the court denied that request The state dismissed The second bill of information has been filed and here we are today under a second bill of information bearing bill number 9 59 639 The defense after the filing of this second bill and after arraignment filed a motion to quash The court has reviewed the case law which there are not a lot of cases on point with regard to this issue but the problems that I have and let me continue where just one second Had the proper witnesses been in place for the first trial setting the issue would never have been this issue ve would been avoided on a second trial setting And had the state s witnesses still failed to appear on the second trial setting which was May 20th 09 remedies could have been made by the state to guarantee their appearances i we had cases where the DA e ve s Office actually goes out and gets the witnesses or alternatively the court or the state could have filed a rule to show cause after the first trial date setting as why the custodian of the records shouldn be t found to be in contempt of court for failure to abide by subpoena However the problem resulted when nothing occurred for the first trial date setting Because of the state failure to prepare for the first s trial date setting which resulted in problems occurring for the second trial date setting and the only reason for the continuance in my mind was because on the first trial date setting the case was not prepared for trial Based on these reasons the court will grant the motion to quash Article 691 of the Louisiana Code of Criminal Procedure confers on the district attorney the power to dismiss a formal charge in whole or in part and provides that leave of court is not needed La Code Crim P art 693 expressly provides subject to narrowly delineated exceptions that dismissal of a prosecution 5 is not a bar to a subsequent prosecution La Code Crim P art 576 which sets forth the only legislative limitations on the state ability to dismiss and s reinstate charges provides When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecution is dismissed by the district attorney with the defendant consent or before the first witness is s sworn at the trial on the merits or the indictment is dismissed by a court for any error defect irregularity or deficiency a new prosecution for the same offense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter or within six months from the date of dismissal whichever is longer A new prosecution shall not be instituted under this article following a dismissal of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of avoiding the time limitation for commencement of trial established by Article 578 Under La Code of Crim P art 578 the state had two years from the 2 institution of prosecution to bring the defendant to trial information was filed on March 17 2008 The original bill of When the state dismissed and reinstituted the charge approximately 14 months had lapsed The defendant did not allege in his motion to quash or at the hearing on the motion that the district attorney was attempting to avoid the time limitation of Art 578 in dismissing and reinstituting the bill of information Nor did he challenge the district attorney s decision to dismiss and reinstitute the charge as a violation of his constitutional andor statutory speedy trial rights Accordingly we conclude that the state did not violate the provisions of La Code Crim P arts 576 or 578 in dismissing and reinstituting the bill of information Even so the Louisiana Supreme Court has recognized a serious issue as to whether the district court or the prosecutor ultimately controls the docket in certain instances State v Batiste 2005 1571 p 6 La 10 939 So 1245 06 17 2d 124950 where the court noted that this issue need not be addressed in that case G As Justice Weimer explained in his dissent in Batiste t practice of the State he granting itself a continuance via a nolle prosequi after the trial court denies the s State motion for a continuance has been the source of growing concern Id 20051571 at p 1 n 939 So at 1253 n Weimer J dissenting 2 2d 2 A trial court has the authority to grant a motion to quash when the circumstances of the individual case warrant such an action State v Love 2000 3347 p 13 La 5 847 So 1198 1208 03 23 2d A trial court resolution of s motions to quash in cases where the district attorney entered a nolle prosequi and later reinstituted charges should be decided on a casebycase basis See Id 2000 3347 at p 14 847 So at 1209 The supreme court instructed that where it is 2d evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant such as putting the defendant at risk of losing witnesses the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation Id A trial court ruling that grants a defendant motion to s s quash a bill of information is a discretionary ruling and absent abuse the ruling should not be disturbed on appeal See Id 003347 at pp 6 7 847 So at 1204 2d 05 In this matter the trial court express reason for granting defendant s s motion to quash was the state failure to prepare for trial on two settings The s record supports the trial court conclusion in this regard that essentially the state s flaunted its authority by granting itself a continuance that the trial court denied The state had control of the case and the evidence from the time of defendant s arraignment on or about March 20 2008 forward The trial was originally set for March 23 2009 and was continued on the state motion until May 20 2009 at s which time the state dismissed the indictment The alleged worthless check offense at issue occurred on or about January 1 2007 7 The trial court here had the advantage of observing the actions of the state firsthand in evaluating the State s actions Under these circumstances we cannot conclude that the trial court abused its discretion We therefore should not disturb its ruling DECREE The judgment of the trial court granting the defendant motion to quash the s bill of information is affirmed AFFIRMED E STATE OF LOUISIANA FIRST CIRCUIT COURT OF APPEAL VERSUS STATE OF LOUISIANA ALVIN KING HN 4 NO 2010 KA 0074 J dissenting I disagree with the majority affirmance of the trial court grant of the s s s defendant motion to quash In this case the trial court created a procedural rule not established by the Code of Criminal Procedure which allows the State and the defendant each one continuance The majority failure to address the s propriety of such a bright line rule on the parties entitlement to continuances adopts and ratifies this practice by the trial court Moreover the motion to quash filed by the defendant was not specific and did not conform to the requirements of La C arts 532 534 Lastly the prosecutor actions were in accordance with P Cr s the law While it is true that matters pertaining to the conduct of trial are within the sound discretion of the trial court see La C art 17 State v Odom 2007 P Cr 0516 p 20 La App 1st Cir 7 993 So 663 677 exercise of such 08 31 2d discretion necessarily entails action taken in light of reason as applied to all facts and with a view to the rights of all parties to the action while having regard for what is right and equitable under all circumstances and law See BLACKS LAW DICTIONARY 466 6th ed 1990 I question whether the trial court bright line s rule on continuances qualifies as discretion and believe that the majority failure s to address this issue encourages such a practice Turning to the coda bases for motions to quash I point out that the motion to quash filed by the defendant stated 1 Defendant is charged in the amended Bill of Information with the offense of Issuing Worthless Checks La R S 14 71 2 Defendant avers that the court has an internal rule that each side the State of Louisiana and the Defendant gets one continuance for trial 3 On March 23 2009 the court granted the State first Motion s for Continuance 4 On May 20 2009 the court denied the State second Motion s for Continuance 5 Subsequent to being denied a continuance the State dismissed the Bill of Information filed against the Defendant and filed a new Bill of Information on the proceeding day 0 The State circumvention of the Court power to grant and s s deny continuances by dismissing and then rebilling a bill of information violates the Court judicial authority to grant and deny s continuances violates the Court judicial authority to set and control s its docket under La C Article 17 and violates Defendant P Cr s Federal and State Constitutional Due Process and Equal Protection Rights by making the Defendant subject to a constructive court rule of granting each side one continuance when in truth the Defendant is the only side subject to said rule Nothing in these allegations conforms to La C arts 532534 which provide P Cr the grounds upon which a motion to quash may be based The majority has not explained why the motion is properly before the court simply ignoring the alleged grounds asserted by the defendant and implicitly created its own basis for granting the motion 2 Moreover nothing in the record supports a finding that the district attorney in dismissing the charge in the first bill of information was flaunting his authority at the expense of the defendant See State v Love 20003347 p 14 La 5 03 23 847 So 1198 1209 Rather the record indicates the State dismissal of the bill 2d s of information was because Capital One Bank did not fully comply with its discovery request and a key witness documents custodian was not present for trial The record is devoid of anything that suggests the State dismissed the charge and reinstituted prosecution to obtain a tactical advantage over the defendant As the majority correctly notes the district attorney controls dismissing and reinstating cases see La C arts 691 and 693 and the timeliness of prosecution is not at P Cr issue See La C arts 576 and 578 Accordingly this record demonstrates P Cr 2 that the State acted within its authority when it dismissed and reinstated the charge in this matter see State v Batiste 2005 1571 La 10 939 So 1245 and 06 17 2d therefore the trial court abused its discretion in denying the motion to quash For these reasons I dissent 3
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