389 So. 2d 1124 | La. | 1980
On February 17, 1978, relator Debbie Cooper was charged by bill of information with theft, a violation of La. R.S'. 14:67. On July 22, 1980, after more than two years had elapsed without the case’s having been brought to trial, relator filed a motion to quash, asserting that prescription had run on the prosecution under Louisiana Code of Criminal Procedure Article 578.
What the trial court regarded as a “preliminary plea” was a motion filed by former defense counsel to withdraw as counsel of record. Although cognizant of this Court’s holding that such a motion would not suspend prescription, State v. Carr, 271 So.2d 871, (La. 1973), the trial court found that here counsel had employed the motion to withdraw as a stratagem for effecting a continuance, thus altering its fundamental character. Were this the case, prescription would indeed have been suspended. However, the record does not support the court’s factual finding that counsel withdrew to force a continuance of the trial. Despite counsel’s release from his representation on November 21, 1979, he appeared in court with relator on December 10, 1979, the next scheduled trial date; and there is nothing in
Accordingly, as there was no suspension of the two-year period of limitation, the ruling denying relator’s motion to quash is reversed, and the motion to quash is granted; the defendant is ordered released.
. Article 578 provides that in non-capital felony cases no trial shall be commenced after two years from the date of institution of the prosecution.
. La. C.Cr.P. art. 580 provides: “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 assistant district attorney prosecuting the case confirmed that retained counsel continued to act on relator’s behalf, not disclosing his withdrawal until July 1980.