State of Louisiana VS Laura Doucet

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NOT DESIGNATED FOR PL'BLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2013 CA 0772 STATE OF LOUISIANA VERSUS LAURA DOUCET J Judgment Rendered: December 27, 2013 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge, Louisiana Docket Number O1- 03- 0344 Honorable Louis Daniel, Judge Presiding x: J. Rodney Baum x* x Counsel for Defendant/ Appellant Baton Rouge, LA A Affordable Bail Bonds Hillar C. Moore III Counsel for Plaintiff/Appellee Jaclyn C. Chapman State of Louisiana Office of the District Attorney Baton Rouge, LA BEFORE: WHIPPLE, C. J., WELCH, AND CRAIN, JJ. WHIPPLE, C.J. In this appeal, a commercial surety and its agent appeal from the trial court' s oral ruling denying their motion to set aside a judgment of bond forfeiture. For the following reasons, we dismiss the appeal as premature. FACTUAL AND PROCEDURAL BACKGROUND On January 15, 2003, the State of Lonisiana filed a felony bill of information against Laura Doucet for the unautharized use of a motor v hicle occurring on October 2, 2002, a violation of LSA-R. S. 14: 68. 4. . At her arraignment on January 21, 2003, Ms. Doucet entered a plea of not guilty, and the trial court, in open court, set the case for trial on March 26, 2003. Later, the trial court set Ms. Doucet' s bail at $ 18, 000.00. On February 26, 2003, Ms. Doucet and A Affordable Bail Bonds, as agent far commercial surety, Allegheny Casualty Company ( collectively, Allegheny), signed an $ 18, OOO. GO appearance bond, wherein they agreed to pay the full amount of the bond if Ms. Doucet did not appear in court when required. The appearance bond did not specify when Ms. Doucet was to next appear in court, but indicated the parties would be " on notice." Ms. Doucet did not appear in court an the March 26, 2003 trial date. The trial court issued a bench warrar t for her arrest amd set a bond forfeiture hearing for April 17, 2003. On April i, 2003, 2he East Baton Rouge Sheriff' s Office personally served Allegheny vvith notice to produce Ms. Doucet at the April 17, 2003 hearing, but neither Ms. Doucet nar Allegheny appeared. l On April 22, 2003, the trial court signed a " Bond Forfeiture Judgment" in favor of the State and against Ms. Doucet and Allegheny, in solido, for $ 18, 000.00, with interest until paid. On April 23, 2003, the clerk of court for the Nineteenth Judicial District mailed a " Notice to Surety and Agent of Judgment of Bond Forfeiture" to Ms. t The record does not indicate whether Ms. Doucet received notice of the April 17, 2003 bond forfeiture hearing. 2 Doucet and Allegheny. The re ord reflects that Allegheny received the notice on Apri128, 2003. On October 6, 2003, Alleghen filed a " Motion for Judgment of Satisfaction of Judgment of Bond Forfeiture and Motion for Defendant' s Surety to be Relieved," contending the Aprii 22, 2003 bond forfeiture judgment should be deemed satisfied, and Allegheny shoaid be relieved of liability as Ms. Doucet' s surety, because Ms. Doucet was in jail in Beaumont, Texas.2 On January 22, 2004, the trial court held a hearing on Allegheny' s motion. Only the State appeared at the hearing, and the trial court, on its own motion, continued the hearing until the next day. On January 23, 2004, both the State and Allegheny were represented at the hearing, and the trial court again continued it, to the new date of March 25, 2004. On March 25, 2004, the trial ourt, on motion by counsel for Allegheny, reassigned the hearing to April 21, 2004. Howe-ver, Allegheny did not appear at the April 21, 2004 hearing, and, an that basis, the triai court denied Allegheny' s Motion for Judgment of Satisfaction of Judgment c f Bond Forfeiture and Motion for Defendant' s Surety to e Relieved." The record does not indicate if Ms. Doucet or Allegheny received notice of the trial court' s April 21, 2004 ruling, and Allegheny did not contemporaneously challenge the ruling. Almost eight years later, on February 28, 2012, Allegheny filed a " Motion to Set Aside Judgment of Bond Forfeiture." The State opposed the motion, and a Z The law in effect at the time of a bond forfeiture governs the appIicable procedwre. See State v. Adkins, 613 So.2d 164, 165- 166 ( La. 1993) ( per curiam). At the time of the bond forfeiture in this case, LSA- C.Cr.P. art. 345( D) provided that, if during the six-month period allowed for the surrender of a defendant, the defendant is found to be incarcerated in another parish or a foreign jurisdiction, the judgment of bond forfeiture is deemed satisfied if: (1) the defendant or his sureties file a motion in a summary proceeding within the six-month neriod; ( 2) the sureties produce adequate prvof of the defendant' s incarceration, or the officer originally chazged with the defendanYs detention verifies his incarceration; and ( 3) before the defendant' s return, the sureties pay the reasonable cost of retuming the defendant to the ofSeer originally cnarged with his detention, See also LSA-R.S. 15: 85( 5) and 15: 87( C) 2003). Allegheny also had the option of filing an appeai from the bond forfeiture judgment or separately filing an action in nullity. See LSA-R.S. 15: 85 ( 6) and ( 9) ( 2003) and LSA-C.Cr.P. art. 345( D) ( 2003); also, see e nerally State v. Timberlake, 04- 416 ( La. App. 5`h Cir. 10/ 12/ 04). 3 hearing was ultimately held July on 10, 2012. After hearing argument from counsel for the State and Allegheny, the trial court denied Allegheny' s motion, but offered Allegheny a return date to " take writs." Allegheny' s counsel responded that he had recently taken writs on a similar matter to this court and that this court had " sent it back" indicating that he should have appealed. Without any discussion as to the need orresponsibility far a written judgment, the trial court then orally set a return date for Allegheny to file an appeal. Although the trial court later signed an order of appeal the appellate record does not include a written judgment documenting the trial court' s Juiy 10, 2012 aral ruling denying Allegheny' s Motion to Set Aside Judgment of Bond Forfeitur." 3 . DISCUSSION Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Gaten v. Tan pahoa Parish School S, appeal 1911; 4 20ll- ll33 (La. s em, can be Wvnne taken only v. from App. 1st Cir. 3/ 23/ 12), 91 So3d 1073, 1074. An a signed final judgment. Par1a ' s, Inc., 97- 1170 ( La. App. 4` See LSA- C. C. P. art. Cir. 11/ 5/ 97), 701 So.2d 1369, 1370. Any appeal taken in a case where there is no signed final judgment is 3 Before Allegheny' s appeal was lodged in this court, the State filed a " Motion for Revival of JudgmenY' in the trial court seeking to have the April 22, 2003 ` Bond Forfeiture JudgmenY' revived before it prescribed. On April 12, 2013, the trial court signed an " Order" reviving the April 22, 2003 judgment for ten additional years. ( Although the trial court' s Aprii 12, 2013 Order purports to revive the judgment " dated 17 APRIL 2003," the revived jadgment ordering the forfeiture was actually signed on April 22, 2003, after having been rendered in open co rt on April 17, 2003.) On May 10, 2013, this court issued a " Notice of Lodging" indicating Allegheny' s appeal had been lodged and referencing the trial court' s April 12, 2013 Order reviving the bond forfeiture judgment. However, in its appellate brief, Alleghe y assigns error to the trial court' s July 10, 2012 oral ruling denying Allegheny' s motion to set aside the bond forfeiture, and, on appeal, neither A1legheny nor the State mentions t e trial court' s April 12, 2013 Order. In fact, Allegheny notes in its appellate brief to this court that "[ t]hexe is no written judgment[.]" Thus, clearly it is the trial court' s July 10, 2012 ruling denying Allegheny' s ` Motion to Set Aside Judgment of Bond Forfeiture" for which review is sought in this appeaL Louisiana Code of Civil Procedure articfe 1911 provides: Except as otherwise provided by law, every final judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulSlled. No appeal may be taken from a partial final judgment under Article 1915( B) until the judgment has been designated a final judgment under Article 1915( B). An appeal may be taken from a final judgment under Article 1915( A) without the judgment being so designated. 4 premature, and this court has no Tempararies, Inc., 2000- 0638 ( La. v. St. Paul Fire Cir. 1983). and jurisdiction over it. See Love v. AAA App. ls` Cir. 9/ 28/ O1), 809 So. 2d 292, 294; Inge Marine Insurance Company, 434 So. 2d 198- 199 ( La. App. ls` A ruling denying a surety' s motion to set aside a judgment of bond forfeiture must be in the form of a written judgment signed by the trial judge. State v. Ramee, OS- 748 ( La. App. Cir. 2/ 3/ 06), 922 So. 2d 1247, 5`' 1248; State v. Koroma, 544 So. 2d 539, 540 ( La. App. 5`h Cir. 1989); State v. Shief, 534 So.2d 513, 514 ( La. App. 5` Cir. 1988). 5 In this case, the appellate record does not include a written judgment signed by the trial court documenting the purported July 10, 2012 denial of Allegheny' s Motion to Set Aside Judgment of Bond Forfeiture." Thus, Allegheny' s appeal is premature, and this court has no jurisdiction over it. Accardingly, this appeal is dismissed.6 5 Comnare State v. Ainsworth, 04- 177 ( La. App. 5' Cir. 6' 29!04), 878 So. 2d 864, 865, n. 2, where even though no separate written judgment appeared in the record, the rifrh Circuit addressed the merits of an appeal when the trial court' s ruling denying the snrety' s motion to set aside a bond forfeiture judgment was evidenced by a minute entry and in the transcript of the hearing where the trial judge had ruled in open court. 6 In some instances, a defective final judgment from which an appeal has been taken can be cured" by the execution of a new judgment, without the necessiry of dismissing the appeal. For example, see State ex rel. AC v. MD, 2010- 1799 ( La. App, I` Cir. 6117111), 70 So3d 159, 161 n. 4 appeal maintained after supplementation of record with judgment containing appropriate decretal language). In the present case, however, the record contains no written judgment at a1L In the Ramee case cited in the body of this opinion, the Fifth Circuit dismissed a surety' s appeal as premature due to the lack of a signed judgment. Later, however, the sureTy timely applied for a rehearing and attached a certified copy of a written judgment. On reheazing, the Ramee court noted that the filing of the written judgment had cured the prematurity of the appeal and then granted the rehearing for the purpose of setting the case for argument. Ramee, 922 So. 2d at 1248 ( on rehearing). We decline to follow such a practice, noting that, were the trial caurt herein to now sign a judgment denying Allegheny' s " Motion to Set Aside Judgment of Bond Forfeiture," the signing of a written judgment alone would be insufficient to allow this court to exercise appellate jurisdiction under the procedural posture of this case. Because no written judgment has apparently been signed ( in contrast to the situation where a written judgment has been signed, but contains defective wording), the delays for filing a motion for new trial and an appeal have never begun to run. Thus, this court could not exercise appellate jurisdiction, and this appeal could not proceed, without documentation in the appellate record demonstrating that a writte judgment has been signed, that the trial court' s notice ofjudgment has been issued, and either that the delay for applying for a new trial has run, or that a timely Sled motion for new trial has been acted upon by the trial court. See LSA- C.C. P. arts. 1913 and 1971, et s. 5 CONCLUSION For the above and faregoing reasons, this appeal is hereby dismissed as premature. Costs of the appeal are assessed to appellants, A Affordable Bail Bonds and Allegheny Casualty Company. APPEAL DISMISSED. 6

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