Opinion
No. 2008 KW 1859.
June 1, 2009.
APPEALED FROM THE 19th JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE, CASE NO. 09-07-0458 AND CASE NO. 09-07-0544, THE HONORABLE ANTHONY J. MARABELLA, JR., JUDGE PRESIDING.
Mary Roper Parish Attorney Baton Rouge, Louisiana and Lisa Freeman 1st Assistant City Prosecutor Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant City of Baton Rouge.
D. Carson Marcantel, Baton Rouge, Louisiana, Counsel for Defendant/Appellee Earl Lane.
Glynn J. Delatte, Jr. Baton Rouge, Louisiana, Counsel for Defendant/Appellee Debbie Lynn Long.
BEFORE: KUHN, GAIDRY, AND McCLENDON, JJ.
This matter is before this court on grant of an application for writs of review by the City of Baton Rouge. The matter involves two city court cases consolidated at the district court. The pertinent procedural history of each case is essentially undisputed. Debbie Long
On June 21, 2005, Debbie Long was arrested by Baton Rouge City Police officers and issued a traffic citation for speeding, improper lane usage, and driving while intoxicated, violations of Baton Rouge City Ordinances 11:131 A(3), 11:53(B), 11:140. The citation instructed her to appear in city court on August 22, 2005. On August 11, 2005, the prosecutor moved for a continuance and the matter was continued to November 2, 2005. On October 25, 2005, the city prosecutor filed a misdemeanor affidavit, charging Long with Baton Rouge City Ordinance violations: operating a vehicle while intoxicated, speeding, reckless driving, and improper lane usage, violations of Baton Rouge City Ordinances 11:140-R, 11:131A(3), 11:142, and 11:53(B). On November 2, 2005, Long appeared for arraignment, pled not guilty, and trial was set for April 5, 2006. On April 5, 2006, the trial was continued to September 27, 2006 on a motion by the city prosecutor. On September 27, 2006, Long filed a motion to quash, wherein she alleged that the city failed to timely bring her to trial. On May 23, 2007, a hearing was held on the motion. At the conclusion of the hearing, the motion was taken under advisement. On June 1, 2007, Judge Wall denied Long's motion to quash.
In his written reasons for judgment, Judge Wall stated that the defendant relied on State v. Kimble, 411 So.2d 430 (La. 1982), and argued that the uniform citation was notarized and therefore, under Kimble, was an affidavit. The defendant further argued that the citation was filed with the Clerk of Court when it was received into the traffic records and a file was opened by the Clerk of Court. Judge Wall stated that there was testimony by the City Court Clerk of Court about the difference between a filing and a document being made part of the record. The clerk stated that receiving the ticket was not a filing and a filing would not occur until the city prosecutor filed an affidavit with the clerk's office and it was stamped "filed" by the clerk's office. Judge Wall declined to attempt to distinguish between a "receiving" and a "filing." The court concluded that a common-sense approach should be applied and a determination of what constitutes "institution of prosecution" should be made. The court held that institution of prosecution meant an instrument charging a crime filed by a person with the authority to prosecute that charge. The court reasoned that the jurisprudence did not intend that a police officer writing a citation would be the person to institute prosecution as prosecution belongs to the prosecutors. The court stated that a prosecutor has the authority and discretion to look at a set of facts and determine what crime should ultimately be charged. In conclusion, the court held that considering the clear and unambiguous language of the statute, prosecution clearly is instituted when the appropriate affidavit charging the appropriate crime is filed by the prosecuting authority.
Long appealed to the 19th Judicial District Court (the district court). On July 29, 2008, the district court issued an order reversing the ruling of the Baton Rouge City Court and granting Long's motion to quash. The city is now seeking review of the district court's ruling. Earl Lane
On January 8, 2006, Earl Lane was arrested by Baton Rouge City Police officers and charged with failure to yield, no proof of insurance, and driving while intoxicated, violations of Baton Rouge City Ordinances 11:140, 11:81 and 11:288. On February 17, 2006, a misdemeanor affidavit was filed in city court charging Lane with Baton Rouge City Ordinance violations: DWI, failure to yield, no proof of insurance, reckless driving (Baton Rouge City Ordinance 11:142), and open container in vehicle (Baton Rouge City Ordinance 13:1081.1). On March 10, 2006, Lane was arraigned and pled not guilty to the charges against him, and trial was set for August 9, 2006. On August 9, 2006, the city prosecutor moved to continue the case and a new trial date was set for January 31, 2007. On that date, the city court, on its own motion, and over the defense objection, continued the case to February 16, 2007. On February 14, 2007, Lane filed a motion to quash alleging that the city failed to timely bring him to trial. On April 11, 2007, a hearing was held on the motion and at the conclusion of the hearing, the motion was taken under advisement. On June 25, 2007, Judge Laura Davis of the Baton Rouge City Court denied the motion to quash. In her written reasons for judgment, Judge Davis incorporated the reasons set forth by Judge Wall in the Long case. Lane appealed to the 19th Judicial District Court. On July 29, 2008, the district court reversed the city court's ruling and granted Lane's motion to quash. The city is now seeking review of the district court's ruling.
19th Judicial District Court ruling :
In his written reasons for judgment in both cases, Judge Marabella of the 19th Judicial District Court, noted that the institution of prosecution is governed under La. Code Crim. P. art. 382(B)(2), which states that a prosecution for a violation of an ordinance and other criminal prosecutions in a city court shall be instituted by affidavit or information charging any offense supported by an affidavit. The district court noted that La. Code Crim. P. art. 385 defined an affidavit as a written accusation of a crime made under oath and signed by the affiant. It must be filed in open court, in a court having jurisdiction to try the offense, or in the office of the clerk of court. The district court, citing Kimble, stated that under La.R.S. 32:398.4, a traffic ticket may be sufficient to institute prosecution if it is "sworn to" and includes information necessary to charge a person with an offense.
According to Judge Marabella, Kimble held that a Uniform Traffic Ticket and Complaint Affidavit, if sworn or notarized, can be an affidavit under Article 385. Judge Marabella stated that Long was given a citation, which was signed by Officer M. Duncan and was notarized on June 21, 2005, by Officer A. Munoz. Earl Lane was given a citation that was signed and notarized on January 9, 2006. The district court stated that because both parties received a signed and notarized citation, this would satisfy the meaning of affidavit, as contemplated by Kimble. The district court stated that it must determine when the affidavits were filed in order to determine when prosecution was instituted.
The district court stated that the filing of an affidavit in open court clearly instituted prosecution, and the district court believed that this occurs when the defendant is required to appear before the district court and when on such dates the prosecution moves for a continuance of that proceeding. According to the district court, Long was advised to appear on August 22, 2005, and on that date the matter was reset to November 2, 2005, based on a motion to continue filed by the prosecutor. The district court stated that Long's motion to quash was filed more than one year from the time of the initial appearance and thus, the motion to quash was proper and should have been granted by the city court.
As to Lane, the district court stated that he was advised to appear on March 9, 2006. On March 10, 2006, Lane was arraigned and that matter was set for trial. The district court stated that calculating from the time of the first appearance; it would appear that Lane filed his motion to quash prematurely. Unlike the city court, the district court attempted to determine what actually constituted a filing. The district court noted that the citation was received by the city court records clerk on January 10, 2006, and in the traffic division on January 19, 2006. The city court created a file on January 19, 2006. On February 17, 2006, the city prosecutor filed an affidavit charging Lane. The district court concluded, after reviewing testimony from the Clerk of Court of the City Court of Baton Rouge, that a filing occurred when the notarized citation was filed with the City Court Clerk of Court's Office. Thus, the court determined that the motion to quash was proper and should have been granted.
The City of Baton Rouge is now seeking review of the district court rulings. The city argues that the Baton Rouge City Court judges were correct in denying the motions to quash and the district court erred in reversing these rulings. The city contends the time delays did not commence until the prosecutor filed an affidavit in the respective cases. The city argues that prosecution is instituted by the filing of formal charges by the entity with the authority to prosecute the charges, not by the police officer's issuance of a summons. In response, the defendants argue that the filing of a notarized citation is sufficient to institute prosecution, whether filed by the police officer or the prosecutor, as it is considered a filed affidavit and meets the standards under La. Code Crim. P. arts. 382 and 385. Applicable Law :
Louisiana Code of Criminal Procedure art. 578 provides for the time limitation for commencement of trial for a misdemeanor offense, as follows:
A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable . . .
(3) In misdemeanor cases after one year from the date of institution of the prosecution.
According to La. Code Crim. P. art. 382(B)(2), prosecution for violation of an ordinance and other criminal prosecutions in a city court shall be instituted by affidavit or information charging any offense supported by an affidavit. An affidavit is a written accusation of a crime made under oath and signed by the affiant. It must be filed in open court in a court having jurisdiction to try the offense, or in the office of the clerk thereof. La. Code Crim. P. art. 385.
In State v. Kimble, 411 So.2d 430 (La. 1982), the defendant argued that the time limitation for commencement of trial after institution of prosecution had expired. In Kimble, the defendant was never charged by an affidavit. The Louisiana Supreme Court stated that under La.R.S. 32:398.4, a traffic ticket may be sufficient to institute prosecution if it is "sworn to" and includes information necessary to charge a person with an offense. However, in Kimble, the court noted that the defendant's ticket was not in the form of an affidavit and was not sufficient for the purpose of instituting prosecution in the city court. The Kimble court concluded that the defendant's prosecution was timely instituted when a bill of information was filed in the district court less than two years after the crime was committed. The court rejected the defendant's argument that prosecution was instituted on or before the day the city prosecutor moved to transfer the case to the\ district court, believing it to be a DWI third offense over which the city court had no jurisdiction.
Louisiana Revised Statutes 13:1894.1(A) provides that prosecutions in any city, parish, or municipal court, based on or arising out of the operation of a vehicle by a person while intoxicated may be charged and prosecuted under the provisions of La.R.S. 14:98 or under any applicable city, parish, or municipal ordinance which incorporates the standards, elements, and sentences of the offense of driving while intoxicated contained in La.R.S. 14:98. Section B sets forth that for purposes of this Section, all city, parish, and municipal courts shall have concurrent jurisdiction with the district courts over violations otherwise subject to their jurisdiction provided for by R.S. 14:98, except in those cases wherein the person or defendant is charged as a third or subsequent offender under the provisions of R.S. 14:98(D) and (E). La.R.S. 13:1894.1(C)(1) provides that all such charges filed under the provisions of this Section shall be on affidavit and such charges shall be filed and prosecuted by the city attorney or the city prosecutor when said charges are filed because of violations of any city, parish, or municipal ordinance occurring within the territorial limits of the city or municipality and by the district attorney or his representative when said charges are filed because of violations of La.R.S. 14:98 occurring in or outside of such territorial limits of the city or municipality.
Louisiana Revised Statutes 32:398.4 provides:
In the event the citation form provided for in this Part is sworn to and includes the necessary information required under the general laws of this state with respect to a complaint which charges commission of the offense alleged in said citation to have been committed, then such citation, when filed with a court of proper jurisdiction, shall be deemed to be a lawful complaint for the purpose of prosecution under this Part.
A motion to quash is the proper vehicle to assert that the time limitation for the commencement of trial is untimely. La. Code Crim. P. art. 532(7). When a defendant has brought an apparently meritorious motion to quash based on prescription, the prosecution bears a heavy burden to demonstrate either an interruption or a suspension of time such that prescription will not have tolled. An appellate court reviews a lower court's ruling on a motion to quash for an abuse of discretion. State v. Odom, 2002-2698, p. 6 (La.App. 1st Cir. 6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La. 10/17/03), 855 So.2d 765.
In the instant cases, the city contends that under La. Code Crim. P. art. 382(B)(2), prosecution for violation of an ordinance and other criminal prosecutions in a city court shall be instituted by affidavit or information charging any offense supported by an affidavit. The city sets forth that in order for an affidavit to serve as a basis for trial, it must be filed on behalf of one with the authority to prosecute the charges levied.
According to the city, it was well developed at the hearings that the only affidavits filed with the court regarding the instant charges were the filings effected by the city prosecutor with his filing of the misdemeanor affidavits. Specifically, the city notes that Lon Norris, the Clerk of Court for Baton Rouge City Court, testified at the hearings that there was a distinction between documents received by the court and placed into the record and documents actually filed with the court. Norris stated that in order for a document to be officially filed it must be physically presented by a third party for the purpose of filing into a traffic or criminal proceeding, and given a stamp marking it as "filed." According to Norris, documents which are not filed are merely marked with a stamp indicating the date upon which they are received.
The city notes that, in the Long case, the traffic citation at issue was marked with the date June 21, 2005, which signifies the date when the citation was "placed" in the record by a staff member of the clerk's office. Norris stated that the citation was never filed, because it was No. stamped accordingly. Norris stated that the only affidavit within Long's file that was "filed" was the misdemeanor affidavit filed by the city prosecutor on October 25, 2005. According to Norris, the citation issued by the officer was received by the traffic division on June 27, 2005, and a file was created that same day.
The city further notes that, at the Lane hearing, Norris again testified regarding the difference between items filed and received. Norris indicated that the traffic citation in the Lane case was marked with the notation "Received January 10th, traffic records." Norris stated that the citation was not filed. According to Norris, the only affidavit within Lane's file which was "filed" was the misdemeanor affidavit filed by the prosecutor on February 17, 2006.
The city sets forth that the supreme court's decision in Kimble is inapplicable to the instant case. The city states that the issue of whether the issuance of a citation by a police officer could have served to commence prosecution had it been notarized was not before the supreme court. The city sets forth that the supreme court only had to decide if the action of bringing a defendant before the city court commenced prosecution. The city asserts that in Kimble, the supreme court made comments "addressing matters totally unnecessary to the issue before the court." Although the supreme court stated that a traffic ticket may be sufficient to institute prosecution if it is sworn to and includes information necessary to charge a person with an offense, the city argues that this is dicta and should not be given precedential value. Thus, the city concludes that the prosecution in both of these cases was instituted with the filing of a misdemeanor affidavit and the time limits had not yet expired when the defendants filed their respective motions to quash. Discussion :
After reviewing the records in these cases, we find that the district court erred in reversing the city court rulings. In denying the motions to quash, the city court judges held that institution of prosecution means an instrument charging a crime filed by a person with the authority to prosecute that charge. We find that the record and the law both support this finding. At the hearing in the Long case, Administrative Judge for the Baton Rouge City Court, Judge Trudy White, was called to testify. Judge White explained that the city court arraigns for DWI offenses based upon affidavits prepared by prosecutors; the city court does not arraign from traffic citations. Judge White further explained that, because police officers only cite (and do not charge) alleged violations, the traffic ticket issued by the officer only serves to initiate the process of getting an individual before the court. The actual charges and corresponding arraignment are based upon a charging document filed into the record by the prosecutor's office.
Institution of prosecution means the finding of an indictment, or the filing of an information, or affidavit, which is designed to serve as the basis of a trial. La. Code Crim. P. art. 934. As previously noted, La.R.S. 13:1894.1(C) clearly provides that prosecution for the operation of a vehicle by a person while intoxicated under a city ordinance "shall be on affidavit and such charges shall be filed and prosecuted by the city attorney or the city prosecutor[.]" (Emphasis added). Furthermore, La. Code Crim. P. art. 61 provides that subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute. Louisiana Code of Criminal Procedure article 7 states that the term "district attorney" includes a municipal prosecuting officer. The law does not bestow prosecutorial authority on arresting police officers. Considering the prosecutorial discretion afforded to prosecutors under our law and in light of the testimony provided by Judge Trudy White, we find that that city court judges were correct in their rulings on the motions to quash in these cases. Under both La.R.S. 13:1894.1 and La.R.S. 32:398.4, the prosecutions were not instituted until the city prosecutor's office exercised its prosecutorial authority and filed the misdemeanor affidavits, thereby providing the bases for trial. In the Lane case, the affidavit was filed February 17, 2006. In Long, the affidavit was filed October 25, 2006. Therefore, when the motions to quash were filed (February 14, 2007 in Lane and September 27, 2006 in Long) the one year delay for bringing the matters to trial had not yet expired. The motions to quash were properly denied. This assignment of error has merit. Conclusion :
Addressing the defendant's reliance on State v. Kimble, 411 So.2d 430 (La. 1982), we note that the issue of whether a traffic citation in the form of an affidavit is sufficient to institute prosecution was not before the Court in Kimble. Therefore, the portion of the Kimble opinion addressing the issue before this court is arguably dicta.
For the foregoing reasons, we reverse the district court's ruling granting the motions to quash. The city court rulings, denying the motions to quash, are reinstated.