State v. Boudreaux

605 So. 2d 608 (1992)

STATE of Louisiana v. Louis D. BOUDREAUX.

No. 92-KK-0211.

Supreme Court of Louisiana.

September 25, 1992.

PER CURIAM.

Granted, vacated, and remanded.

An insanity acquittee confined by the state is entitled to release when he has recovered his sanity or is no longer dangerous, i.e., he may be held as long as he is both mentally ill and dangerous but no longer. Moreover, even if his continued confinement is constitutionally possible, the state may continue confinement only if it shows by clear and convincing evidence that he is mentally ill and dangerous. Foucha v. Louisiana, ___ U.S. ___, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992). It is evident that at the time of the hearing below, which occurred prior to the Supreme Court's decision in Foucha, the trial court did not apply these and perhaps other constitutional principles made clear by Foucha. Accordingly, the judgments of the trial court and the court of appeal are vacated and the case is remanded to the trial court for a new hearing in light of Foucha v. Louisiana, ___ U.S. ___, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992).

COLE, J., concurs.

MARCUS, J., concurs in the remand, but expresses doubt that the Foucha standard applies in this factual situation. See State v. Perez, 563 So. 2d 841 (La.1990), cert. denied, ___ U.S. ___, 112 S. Ct. 2320, 119 L. Ed. 2d 239.