Opinion
No. 2006-KK-1731.
November 3, 2006.
In re Gomez, Marcus; — Defendant; Applying for Supervisory and/or Remedial writs, Parish of St. John, 40th Judicial District Court Division B, No. 2005-CR-211; to the Court of Appeal, Fifth Circuit, No. 06-K-382.
Denied.
VICTORY, TRAYLOR WEIMER, JJ., concur in the writ denial and assign reasons: The trial court's policy of denying a defendant's right to a preliminary examination because of the absence of the defendant is erroneous. See La.C.Cr.P. arts. 831 and 834 which do not require the defendant's presence at a preliminary examination. Based on these provisions and the constitutionally (La. Const, art. I, § 14) and statutorily (La.C.Cr.P. art. 292) recognized right to a preliminary examination, the trial court cannot initiate a policy which deprives an absent defendant of a preliminary examination when the defendant's presence is not required and can be waived. However, in this matter, the minutes do not reflect a contemporaneous objection and no writ was taken from the trial court's initial denial of the preliminary examination. Consequently, the writ should be denied on the showing made.