Additionally, the case was remanded to us for consideration of the assignments of error pretermitted on original appeal with respect to that conviction and sentence. SeeState v. Schwehm, 98-1599 (La. 3/19/99); 729 So.2d 548. FACTS
Consistent with this limiting definition, that the duty be one expressly defined by the legislature, the court in State v. Perez, supra, found a "duty lawfully required," in the duty not to interfere with the execution of the constitution and laws of this state, imposed upon public officials (and upon the defendant district attorney) by virtue of the oath of office set forth in La.Const. art. X, § 30. Perez, 464 So.2d at 742. Similarly, in State v. Schwehm, 98-1599 (La.3/19/99), 729 So.2d 548, the court upheld the malfeasance conviction of a former Justice of the Peace on evidence that he failed to remit littering fines that by statute, LSA-R.S. 25:1112(A), he was required to remit to the governing authority of the parish. The court found that by failing to remit the fines and converting them to use for his own benefit and the benefit of his public office, the defendant had "intentionally refused to perform the duty placed upon him by law" to remit the fines to the parish governing authority.
Consistent with this limiting definition, that the duty be one expressly defined by the legislature, the court in State v. Perez, supra, found a “duty lawfully required,” in the duty not to interfere with the execution of the constitution and laws of this state, imposed upon public officials (and upon the defendant district attorney) by virtue of the oath of office set forth in La. Const. art. X, § 30. Perez, 464 So.2d at 742. Similarly, in State v. Schwehm, 98–1599 (La.3/19/99), 729 So.2d 548, the court upheld the malfeasance conviction of a former Justice of the Peace on evidence that he failed to remit littering fines that by statute, LSA–R.S. 25:1112(A), he was required to remit to the governing authority of the parish. The court found that by failing to remit the fines and converting them to use for his own benefit and the benefit of his public office, the defendant had “intentionally refused to perform the duty placed upon him by law” to remit the fines to the parish governing authority.
Jurisprudence demonstrates this court has a history of requiring more than the circumstantial evidence presented here to uphold a conviction for malfeasance. SeeState v. Schwehm , 729 So.2d 548 (La. 1999) ; State v. Davis , 634 So.2d 1168 (La. 1994) ; State v. Harris , 46,721 (La. App. 2 Cir. 12/9/11), 79 So.3d 1248. As acknowledged by the majority, defendant correctly contended that to sustain a conviction for malfeasance in office, there must be proof that defendant intentionally refused or failed to perform a duty imposed on him by law.
In State v. Schwehm , 97-1544, p. 16 (La.App. 1 Cir. 5/15/98), 713 So.2d 697, 707-08, writ granted , 98-1599 (La. 11/13/98), 728 So.2d 872, rev'd in part , 98-1599 (La. 3/19/99), 729 So.2d 548, writ denied, 98-1942 (La. 11/13/98), 730 So.2d 933, the court stated: In imposing this condition, the trial court stated that defendant was to "make full restitution to all of the affected victims in this case."
Under Louisiana law, prosecutions for malfeasance in office as defined by La. R.S. 14:134(1) and 14:134(2) presuppose the existence of "a statute or provision of the law which delineates an affirmative duty upon the official." State v. Perez, 464 So. 2d 737, 741 (La. 1985); State v. Schwehm, 98-1599 (La. 3/19/99), 729 So. 2d 548. This duty "must be expressly imposed by law upon the official because the official is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will subject him to criminal charges."
State v. Perez, 464 So.2d 737, 741 (La.1985); State v. Schwehm, 98–1599 (La.3/19/99), 729 So.2d 548. This duty “must be expressly imposed by law upon the official because the official is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will subject him to criminal charges.”
Under Louisiana law, prosecutions for malfeasance of office as defined by La.R.S. 14:134(1) and 14:134(2) presuppose the existence of "a statute or provision of the law which delineates an affirmative duty upon the official." State v. Espejel, 38,071 (La.App. 2 Cir. 3/3/04), 867 So.2d 863, citing State v. Perez, 464 So.2d 737, 741 (La. 1985); State v. Schwehm, 98-1599 (La. 3/19/99), 729 So.2d 548. This duty "must be expressly imposed by law upon the official because the official is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will subject him to criminal charges."
Under Louisiana law, prosecutions for malfeasance of office as defined by LSA-R.S. 14:134(1) and 14:134(2) presuppose the existence of "a statute or provision of the law which delineates an affirmative duty upon the official." State v. Perez, 464 So.2d 737, 741 (La. 1985); State v. Schwehm, 98-1599 (La. 3/19/99), 729 So.2d 548. This duty "must be expressly imposed by law upon the official because the official is entitled to know exactly what conduct is expected of him in his official capacity and what conduct will subject him to criminal charges."
The opinion of this court also considered and disposed of several assignments of error dealing with ineffective assistance of counsel that applied to both of the criminal counts; additional assignments of error were pretermitted, because they applied to the litter fee count only.State v. Schwehm, 98-1599 (La. 3/19/99), 729 So.2d 548.State v. Schwehm, 97-1544 (La.App. 1st Cir. 9/24/99), 754 So.2d 264,writ denied, 99-2964 (La. 3/31/00), 759 So.2d 68.