State Of Louisiana VS Clarence Rogers
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL YV FIRST CIRCUIT J G 2010 KA 0834 STATE OF LOUISIANA VERSUS CLARENCE ROGERS Judgment rendered OCT 2 9 2010 On Appeal from the 18 Judicial District Court Parish of Iberville State of Louisiana Suit Numbers 59907 60007 Division D The Honorable William C Dupont Judge Presiding Richard J Ward Jr Counsel for Appellant District Attorney Elizabeth A Engolio Assistant District Attorney Plaquemine Louisiana State of Louisiana Michael Parks Counsel for Appellee Plaquemine Louisiana Clarence Rogers BEFORE KUHN PETTIGREW AND KLINE JJ 1 Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court KLINE J On June 1 2007 the defendant Clarence Rogers was charged by two Iberville Parish grand jury indictments with malfeasance in office a violation of La R 14 and unauthorized use of an access card a violation of La R S 134 S B 3 67 14 He pled not guilty to all charges On July 7 2009 prior to trial the defendant filed a motion to quash the indictments for failure to commence trial within two years as required by La Code Crim P art 578 On October 21 2 A 2009 over the state objection the trial court granted the defendant motion to s s quash The state now seeks review of the trial court ruling We reverse the s granting of the motion to quash and remand the matter to the district court for further proceedings ASSIGNMENT OF ERROR GRANTING OF DEFENSE MOTION TO QUASH In a single assignment of error the state argues the trial court erred in granting the motion to quash because the time limitation for commencement of trial was suspended on two separate occasions January 31 2008 and November 5 2008 when the defendant requested and was granted a continuance of the trial The state further asserts the time limitation was interrupted by the defendant s failure to appear at a court proceeding on December 15 2008 after receiving actual notice on December 9 2008 Louisiana Code of Criminal Procedure article 578 provides that trial 2 A of non capital felonies must be held within two years from the date of the institution of the prosecution Institution of prosecution includes the finding of an indictment as in this case or the filing of a bill of information or affidavit which is designed to serve as the basis of a trial La Code Crim P art 934 7 State v Wilson 95 0613 p 4 La App 1st Cir 4 672 So 716 71819 96 2d Upon expiration of this time limitation the court shall on motion of the defendant 2 dismiss the indictment and there shall be no further prosecution against the defendant for that criminal conduct La Code Crim P art 581 In the instant case the defendant is charged with two non capital felonies thus requiring commencement of trial within two years from the date the prosecution was instituted The prosecution of this matter was instituted by grand jury indictments on June 1 2007 Therefore under the statute the state had until June 1 2009 to commence the defendant trial As of July 7 2009 the date the s defendant moved to quash the indictments the case had not been tried Clearly the twoyear period for commencement of trial was exceeded in this case thus the s defendant motion to quash is facially meritorious Once a defendant shows that the state has failed to bring him to trial within the time periods specified by La Code Crim P art 578 the state bears a heavy burden of showing that an interruption or suspension of the time limit tolled the running of the two year period State v Morris 993235 p 1 La 2 755 00 18 2d So 205 per curiam Interruption of the time limit is provided for in La Code Crim P art 579 which provides A The period of limitation established by Article 578 shall be interrupted if 1 The defendant at any time with the purpose to avoid detection apprehension or prosecution flees from the state is outside the state or is absent from his usual place of abode within the state or 2 The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process or for any other cause beyond the control of the state or 3 The defendant fails to appear at any proceeding pursuant to actual notice proof of which appears of record B The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists 3 In addition La Code Crim P art 580 allows for the suspension of the time limitations It provides When a defendant files a motion to quash or other preliminary plea the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon but in no case shall the state have less than one year after the ruling to commence the trial Under the facts and circumstances of this case for the state to successfully meet its burden of justifying the delay it must show that the period of approximately twenty months between the institution of the prosecution five against the defendant and the filing of the motion to quash includes one or more periods of suspension totaling at least one month and six days or an interruption that may have caused the period of limitation to begin anew A chronology of the proceedings in this case as documented in the record is as follows On July 30 2007 following the defendant arraignment the court set the s matter for motions on October 31 2007 Thereafter on August 6 2007 counsel for the defendant filed among other things motions for a preliminary examination for discovery and to suppress the evidence and statements or On October 31 2007 when the matter was called before the court counsel for the defendant waived all motions and the state moved to have the matter set for trial on February 6 2008 On November 29 2007 the matter came before the court and the February 6 2008 trial date was maintained with a pretrial conference scheduled for January 31 2008 On January 31 2008 when the matter came before the court for pretrial on motion of the defense the trial of the matter was continued to March 4 2008 with pretrial on February 27 2008 4 On March 3 2008 on motion of the state the trial was continued to June 3 2008 with pretrial rescheduled to May 29 2008 On May 29 2008 on motion of the state the trial was again continued until August 5 2008 The pretrial was set for July 31 2008 On July 31 2008 the state moved to have the trial continued until September 2 2008 Pretrial was scheduled for August 28 2008 Thereafter on August 28 2008 again on the motion of the state the matter was continued until November 4 2008 with a pretrial conference scheduled for October 30 2008 At the October 30 2008 pretrial conference the state offered the defendant a plea deal which he rejected Trial of the matter was set to commence on November 5 2008 On November 5 2008 the trial was not commenced Following a brief exchange regarding the matter which will be discussed in detail below the district court instructed the defendant to return to court on November 24 2008 to receive a new trial date The matter came up for trial again on January 15 2009 On this date the state moved for a continuance Trial was reset to March 31 2009 On March 30 2009 the state sought and was granted another continuance of the trial date The trial was rescheduled to July 7 2009 When the matter came for trial on July 7 2009 counsel for the defense filed the motion to quash based on untimely prosecution in open court The trial court took the matter under advisement and later granted the motion On appeal the state argues that the motion to quash should not have been granted because the period of limitation for commencement of trial was both Neither the defendant nor his counsel was present in court when this trial date was selected The court noted that defense counsel had previously indicated that the defendant would not oppose the granting of a continuance if requested by the state 5 suspended and interrupted in this case First the state claims the defendant made motions to continue the trial on both January 31 2008 and November 5 2008 As the state correctly asserts a motion to continue filed by the defendant is a preliminary plea which suspends the running of the period of limitation until the court rules on the motion but in no case shall the state have less than one year after the ruling to commence the trial La Code Crim P art 580 The record before us reflects that the defendant requested a continuance of the trial on January 31 2008 The motion was granted the same day The trial of the matter was continued until March 4 2008 Under the language of Article 580 once the court rules on a preliminary plea the period of limitation is no longer suspended Therefore contrary to the state assertions the suspensive effect of s this preliminary plea by the defense lasted at best one day As previously noted the delay between the grand jury indictments and the filing of the motion to quash was approximately two years one month and six days Thus the record must establish an additional period of suspension in order for the state to meet its burden Next the state argues that the defendant also moved for a continuance on November 5 2008 We have reviewed the minute entry and transcript for the November 5 2008 proceedings neither of which reflect that the defendant moved for a continuance The minute entry simply provides that Defense Counsel will file Motion for Trial Date Defendant is to report back on November 24 2008 at 00 M 9 A to receive notice of trial date The transcript provides THE COURT Clarence Rogers is here and I thought I heard Mr Parks say last court date correct me if I wrong that he had rejected the plea offer m but was waiving a jury did I hear that correctly PUBLIC DEFENDER OFFICE S Right THE COURT Okay I didn know if Mr Marrioneaux Assistant District t Attorney had heard that MR MARRIONEAUX s That what I had heard THE COURT Okay All right Then that being the case I have to put a ll date I have to give a special date to try that one cause it won ll t take I don want to waste a jury week for that So if the Public t s Defender office will put that in the form of a motion with a request for a trial date PUBLIC DEFENDER OFFICE S Okay THE COURT then I will then fill that in after consulting with the prosecution and the Public Defender office and get a date that will s work for it MR MARRIONNEAUX Is Mr Roger sic huh we going to have to notify him s re THE COURT Mr Roger sic you understand What is my next s MR MARRIONNEAUX We have a date December 15 here THE COURT s What the next day I going to be here for a criminal issue m MR MARRIONNEAUX Well we have arraignments November 24 THE COURT Okay November 24 Mr Roger sic come here on s November 24 and I have made that date by then I will have given ll it a date and you can get your notice then So just come on the 24 get your notice right now for the 24 and just come on that date but 7 you won be going to trial on that date that will be the day that I will t have set the trial date MR ROGERS Yes sir THE COURT And I try not to make it too far off so y can resolve this ll all matter Okay From the foregoing we simply cannot conclude with any degree of certainty that this delay in the case was occasioned by the defense As such we do not consider the delay to have had a suspensive effect on the time limitations for commencement of the trial Finally the state argues that the time limitations were interrupted and began to run anew when the defendant failed to appear in court on December 15 2008 We do not agree Initially we note that there is no indication in the record that the defendant received actual notice of the December 15 2008 court date Secondly the record reflects that on December 15 2008 the court noted that the defendant s case was back before the court to get a trial date counsel was present at this proceeding Neither the defendant nor his In response to the court inquiry s regarding the defendant presence the Deputy Clerk of Court replied I think he s already signed The court agreed I think he already got it There was no further action on this date Contrary to the state assertions we do not find that s the defendant absence from the proceeding set solely to issue a new trial date s constituted a failure to appear such as to interrupt the time limitations for trial when it is clear the defendant had already received the trial date The record reflects the defendant and his counsel were present in court on all occasions before and after this date E In resolving this issue however we note that La C art 920 requires us P Cr to consider on appeal a error that is discoverable by a mere inspection of the n pleadings and proceedings and without inspection of the evidence Here a mere inspection of the record reveals that although the state failed to raise this argument in its motion to reconsider the granting of the motion to quash below or in its brief in this court the defendant outstanding motions for a preliminary examination s for discovery and to suppress the evidence served as preliminary pleas for the purpose of suspending the time limitations for commencement of the trial A preliminary plea is any pleading or motion filed by the defense which has the effect of delaying trial including properly filed motions to quash motions to suppress or motions for a continuance as well as applications for discovery and bills of particulars State v Brooks 2002 0792 p 6 La 2 838 So 778 03 14 2d 782 per curiam The record reflects that counsel filed the aforementioned motions on August 6 2007 and they remained pending until October 31 2007 when counsel for the defendant waived all motions These outstanding motions suspended the running of the time limitations for trial for over two and one half months Because the delay between the grand jury indictments and the filing of the motion to quash was approximately two years one month and six days this period of suspension is sufficient justification for the delay in the commencement of the s defendant trial In so ruling we acknowledge the Louisiana Supreme Court instruction that s the state bears a heavy burden of showing that an interruption or suspension of the time limit tolled the running of the twoyear period specified by La Code Crim P art 578 once a defendant shows that the state has failed to bring him to trial within the time allowed Id We can find no jurisprudence however interpreting and applying the state heavy burden to a situation analogous to the one here where s the state error is discoverable by mere inspection of the record Accordingly we s M conclude that we should base our holding here on the positive instruction of La Code Crim P art 920 Therefore the trial court erred in granting the defendant motion to quash s DECREE For the foregoing reasons we reverse the district court ruling granting s motion to quash and remand for further proceedings RULING REVERSED REMANDED FOR FURTHER PROCEEDINGS 10
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