Opinion
NO. 2013-KA-1266
04-01-2014
STATE OF LOUISIANA v. RANEY F. BIBBINS
, J., DISSENTS WITH REASONS
I respectfully dissent. Based on the chronology of events set forth in the docket master, the majority relies on June 26, 2012, the last date the defendant and the state moved for a joint continuance of trial, to conclude that the trial had to commence no later than June 26, 2013 and that the statutory time limits expired. I disagree with the majority's conclusion.
As a general rule, no trial shall commence in a non-capital felony case after two years from the date of institution of the prosecution. See La. C.Cr.P. art. 578(A)(2). However, La. C.Cr.P. art. 580 provides an exception to the general rule and states, in pertinent part:
A. 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.
The pertinent dates for purposes of a statutory prescription analysis are as follows: on June 26, 2012, the defendant and the state moved for a joint continuance of trial and the trial court ruled to commence trial on August 28, 2012; on August 28, 2012, the court was not in session; on September 10, 2012 at a pre-trial conference, the trial court ruled to commence trial on November 6, 2012; on November 6, 2012, the court was not in session because it was the General Election Day, a legal holiday pursuant to La. R.S. 1:55B(1)(a); on April 18, 2013 at a pre-trial conference, the trial court ruled to commence the trial on July 24, 2013; and on July 9, 2013, the defendant filed a motion to quash, arguing that prescription period set forth in La. C.Cr.P. art. 578 had run and that his constitutional right to a speedy trial was violated; and, on July 17, 2013, the trial court heard and granted the defendant's motion to quash.
The case docket master contains no entry for November 6, 2012. However, I take judicial notice of the date as the General Election Day and a legal holiday.
The record reveals that the trial court set trial on two days in which the court was not in session. The continuances by the trial court due to its improper scheduling of a court date will suspend the matter for the state until the matter is properly reset on the trial court's docket. Furthermore, the state had until at least April 18, 2014 to commence the trial, which would be one year from the last ruling by the trial court to commence trial. Thus, I find the trial court abused its discretion in quashing the bill of information on July 17, 2013, because the defendant's motion was filed prematurely and the state still had nine months remaining within which to commence the trial. In my opinion, the record does not provide a basis to quash the bill of information on statutory prescription grounds.
August 28, 2012 and November 6, 2012.
See State v. Dillon, 2013-0234 (La. App. 4 Cir. 9/18/2013), 124 So.3d 1144 (where this Court held that, pursuant La. C.Cr.P. art. 580, each continuance of the state due to a trial in progress operated to suspend the time limitations in which to bring the defendant to trial until the matter is reset on the trial court's docket.) See also State v. Brazile, 2006-1611(La. App. 4 Cir. 5/30/07), 960 So.2d 333 and State v. Thomas, 2010-0528 (La. App. 4 Cir. 7/15/10), 54 So.3d 1.
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The next issue to address is whether the defendant's constitutional right to a speedy trial was violated. In State v. Scott, 2006-1610, p. 5 (La. App. 4 Cir. 4/25/07), 958 So. 2d 725, 729, this Court discussed the standard for evaluating a constitutional speedy trial claim:
The standard for analyzing a defendant's claim that his constitutional right to a speedy trial has been violated is the four factor test enunciated in Barker v.
Wingo, 407 U.S. 514, 530, 531-32, 92 S.Ct. 2182, 2192-93 (1972), which is as follows: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his right to a speedy trial, and (4) the prejudice to the defendant. State v. Batiste, 05-1571, p. 7 (La. 10/17/06), 939 So.2d 1245, 1250. The circumstances of each individual case will determine the weight to be ascribed to the length of and the reason for the delay. "[T]he delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Id. (quoting Barker, 407 U.S. at 531, 92 S.Ct. at 2192).
This Court in State v. Jones, 2012-0653, p. 9 (La. App. 4 Cir. 2/6/13), 107 So.3d 1285, 1291 expounded upon the Barker analysis:
The first of the four Barker factors, the length of the delay, is the "triggering mechanism," and if the length of the delay is not "presumptively prejudicial," the court need not inquire into the other three Barker factors. See State v. Brown, 2011-0947 (La. App. 4 Cir. 3/7/12), 88 So. 3d 662; State v. Scott, 2004-1142 (La. App 4 Cir. 7/27/05), 913 So. 2d 843; State v. Santiago, 2003-0693 (La. App. 4 Cir. 7/23/03), 853 So.2d 671. The defendant has the burden of showing a violation of his constitutional right to a speedy trial. As noted in Scott, "Something that is acceptable in one case may not be acceptable in another because the complexity of the case must be considered. Gray v. King, 724 F.2d 1199, 1202 (5th Cir.1984), citing Barker, 407 U.S. at 531." Scott, 2004-1142 at p. 12; 913 So. 2d at 851. In State v. Love, 2000-3347, pp. 9-10 (La. 5/23/03), 847 So. 2d 1198, 1206, the Court stated: "Because the complementary role of trial courts and appellate courts demands that deference be given to a trial court's discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court's discretion." See also State v. Harris, 2003-0524 (La. App. 4 Cir. 9/10/03), 857 So. 2d 16.
Turning to the first Barker factor, the length of the delay endured by the defendant, the Court in Barker recognized that the length of delay must be judged relative to the peculiar circumstances of the case such as the complexity and seriousness of the crime. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. In Doggett v. U.S., 505 U.S. 647, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), the Court noted that "depending on the nature of the charges, the lower courts have generally found post-accusation delay 'presumptively prejudicial' at least as it approaches one year." Id. at 652, 112 S.Ct. at 2691, n. 1 (citations omitted). In this case, the record indicates that the length of time between the filing of the bill of information, March 18, 2010, and the filing of the motion to quash, July 9, 2013, is approximately three years and four months. The defendant was charged with theft of five hundred dollars or more, a violation of 14:67(B)(2). The sentence for that crime is imprisonment with or without hard labor for not more than five years. The delay endured by the defendant in this case may be deemed as a presumptively prejudicial delay; therefore, an evaluation of the remaining Barker factors is warranted.
As to the second Barker factor, the reason for the delay, the record reveals that the court scheduled two court dates on days on which the court was not in session. In addition, the case was transferred from Section "D" to Section "J" on May 19, 2011, more than a year after the bill of indictment. The state moved for continuances six times. The state also requested a bond hearing on January 7, 2012, for reasons that are unclear. The defense requested continuances three times. The state and the defense made joint motions for continuances four times. In my opinion, the reasons for delay fall equally upon the court, the state and the defense. As such, the second factor does not support a finding that the defendant's right to a speedy trial was violated.
The third Barker factor is the defendant's assertion of his right to a speedy trial. Here, the defendant invoked his right to speedy trial in the written motion to quash filed on July 9, 2013.
Regarding the fourth Barker factor, prejudice to the defendant, the defendant has failed to allege any prejudice, such as the loss of witnesses or evidence, due to the delay. Since the defendant did not specify how he was prejudiced as a result of the delay, the fourth factor does not support the trial court's conclusion that his right to a speedy trial was violated.
In summary, I find the record does not support the trial court's quashing of the bill of information on statutory prescription grounds and the defendant has not satisfied his burden of showing that the state violated his right to a speedy trial.
Accordingly, for the above reasons, I would reverse the ruling of the trial court and remand the matter for further proceedings.