Opinion
No. 17150-KW.
March 7, 1985.
APPEAL FROM FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO, STATE OF LOUISIANA, HONORABLE JOHN R. BALLARD, J.
Susan D. Scott, Shreveport, for applicant.
William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Gary Parker, Asst. Dist. Atty., Shreveport, for respondent.
Before JASPER E. JONES, SEXTON and LINDSAY, JJ.
ON APPLICATION FOR SUPERVISORY WRIT
Writ granted and made peremptory.
The action of the trial court in revoking defendant's probation is reversed, the defendant is ordered released from custody, and the defendant's probation is ordered deemed to have expired.
This defendant received a one year suspended probated sentence subsequent to a DWI conviction. He gave the probation office an address in Carthage, Texas. The sentence was imposed December 7, 1983, and the defendant apparently reported to the probation office on that day or shortly thereafter. He never made another contact with the probation office, although the record shows he consistently maintained his residence at the Carthage, Texas address which he gave the probation office. On September 17, 1984, a warrant was issued for the defendant's arrest. This information was forwarded to the probation office's Baton Rouge headquarters and the information was placed in the National Crime Information Computer making that information available to all law enforcement agencies. The record does not show any other action by the state to execute the arrest warrant. The defendant was not arrested on the probation warrant until January 22, 1985 subsequent to a traffic stop in DeSoto Parish.
The law is firmly established that where the defendant is arrested subsequent to the expiration of the period of probation on a warrant charging violation of that probation, that the state bears the affirmative duty of establishing that the warrant could not be executed. LSA-C.Cr.P. Art. 899; State ex rel. DeGreat v. Phelps, 377 So.2d 341 (La. 1979); State v. Harris, 342 So.2d 179 (La. 1977); State v. Martens, 338 So.2d 95 (La. 1976); State v. Jones, 285 So.2d 231 (La. 1973). Moreover, it has been held that simply the placing of this information in the N.C.I.C. without further action, particularly where the defendant's possible whereabouts are known, is not sufficient. Harris, supra.
Thus, the state has not established that the arrest warrant could not be executed. Therefore, defendant's probation has expired. The writ is granted and made peremptory.