STATE of Louisiana, Appellant, v. Latara Faytrell HARRIS, Appellee.
No. 29574-KW
Court of Appeal of Louisiana, Second Circuit
May 7, 1997
694 So. 2d 626
Richard P. Ieyoub, Attorney General, Jerry L. Jones, District Attorney, J. Michael Ruddick, Asst. Dist. Atty., for Appellant.
Before WILLIAMS, GASKINS and PEATROSS, JJ.
WILLIAMS, Judge.
The defendant, Latara Faytrell Harris, was indicted by a Ouachita Parish grand jury for the offense of second degree murder, a violation of
Subsequently, the district court denied defendant‘s motion to quash the indictment, which asserted that the time period in which to commence trial had expired. This court denied her request for supervisory review. The Louisiana Supreme Court granted defendant‘s writ application and remanded the case to the trial court, which granted defendant‘s motion to quash. The state appeals. For the following reasons, we affirm.
FACTS
On March 2, 1993, a Ouachita Parish grand jury indicted the defendant for the offense of second degree murder. On April 26, 1993, defendant‘s counsel and the state jointly continued trial until August 1993. Following a jury trial, the defendant was convicted of manslaughter and was sentenced to serve forty years at hard labor. Defendant appealed, and this court reversed her conviction and remanded the case to the trial court for further proceedings. State v. Harris, 26,411 (La.App.2d Cir. 10/26/94), 645 So.2d 224.
At the state‘s request, the district court issued a writ of habeas corpus ordering the removal of the defendant from the state prison in St. Gabriel to Ouachita Parish for retrial. In November 1994, defendant was
This court denied the defendant‘s request for supervisory writ because her application failed to comply with URCA 4-5(f). State v. Harris, 29,060-KH (La.App.2d Cir. 7/11/96). Defendant then applied to the Louisiana Supreme Court, which granted her request for supervisory review and ordered the district court to reconsider defendant‘s motion to quash in light of
At the subsequent hearing, the state argued that the time limitation for instituting retrial pursuant to
The state applied to this court for supervisory writs. We noted that the state‘s remedy from an adverse judgment on a motion to quash is an appeal taken pursuant to
DISCUSSION
The state contends the trial court erred in granting defendant‘s motion to quash the indictment. The state argues that the time limitation in which to commence trial had not expired when defendant filed her motion to quash.
A motion to quash is the proper procedural vehicle where defendant alleges that the time limitation for the commencement of trial has expired. See
In the context of this case, “institution of prosecution” occurred upon the finding of an indictment.
There is a distinction between the terms suspension and interruption. Prescription is interrupted when the state is unable, through no fault of its own, to try a defendant within the period specified by statute.
In contrast, when a defendant files a preliminary plea such as a motion for continuance, the two-year time period established by Article 578 is suspended. See
Contrary to the state‘s contention, the prescriptive period is suspended when the preliminary motion is filed, not when it is ruled upon by the trial court. Moreover, the minutes of court reflect that the parties’ joint motion was filed and granted on the same day, so that the Article 578 time limitation was not suspended. See
Time Limitation for New Trial
In its brief, the state appears to argue that once a defendant‘s first trial is initiated, the Article 578 prescriptive period is suspended until a new trial is ordered and at that point prescription resumes running. Under this interpretation, the state contends that the deadline for retrying defendant had not expired when she filed the motion to quash.
If the state fails to commence trial within the time limits provided by Article 582, and defendant does nothing to suspend or interrupt the time limitation, a motion to quash for untimeliness should be sustained and the prosecution discharged. See State v. Brooks, 505 So.2d 714 (La.1987), cert. denied, 484 U.S. 947, 108 S.Ct. 337, 98 L.Ed.2d 363 (1987), reh‘g denied, 484 U.S. 1021, 108 S.Ct. 737, 98 L.Ed.2d 684 (1988). In such a case, there shall be no further prosecution against the defendant for that criminal conduct.
Here, the state did not apply for a rehearing or apply for review to the supreme court within 14 days after rendition of this court‘s judgment, which subsequently became final on November 9, 1994. See
The Louisiana Supreme Court applied the provisions of Article 582 in State v. Brown, supra. After having remanded the case for a new trial, on September 26, 1980, that order became final and Brown filed a motion to quash just over one year later on September 30, 1981. The supreme court held that the trial court erroneously denied Brown‘s motion to quash because the state failed to commence the second trial within one year from the date on which the order granting a new trial became final. The court also specifically considered the Article 578 time limitation, noting that:
[t]wo years from the date of the initial prosecution ... (July 31, 1978) had expired at the time this Court‘s judgment granting him a new trial became final (September 26, 1980) so that one year from this latter date was the longer time period and the appropriate one to apply under La.C.Cr.P. art. 582.
Similarly in the present case, when this court‘s judgment granting a new trial became final in November 1994, there were only a few months remaining before the Article 578 limitation period expired on March 2, 1995. Thus, the one-year time limit prescribed by Article 582 was the longer period and was applicable to the present situation, giving the state until November 9, 1995 to commence the defendant‘s second trial. The state has not presented any specific provisions of the Code of Criminal Procedure which support its argument that prescription is suspended during the defendant‘s first trial. Moreover, in the Brown case, the supreme court implicitly found that the statutory time limitation is
The state concedes in brief that it failed to undertake any steps to bring the defendant to trial within the prescribed period of one year from November 9, 1994. The record shows that in May 1996, when the defendant filed a motion to quash based on a claim of prescription, the statutory time period had expired. Upon the expiration of the time limitations for the commencement of trial, if the defendant files a motion to quash, the trial court is required to dismiss the indictment.
The state contends that it was unable to try the defendant because of circumstances beyond its control and as a result the running of the time limitation was interrupted. The state argues that it should not be prejudiced by the delays inherent in the appellate process.
As previously noted, prescription is interrupted under Article 579 when the state, through no fault of its own, is unable to try a defendant within the statutory period. We note that in the present situation, defendant was at all pertinent times held in custody. Thus, her presence for trial was available by legal process at the state‘s request. The state has not presented any authority to show that the defendant‘s appeal constitutes a cause beyond the state‘s control as contemplated by Article 579. Nor has the state established the manner in which it was prejudiced by the fact that defendant sought appellate review of her conviction.
After reviewing the entire record, we conclude that the state failed to carry its heavy burden of proving that it was unable to act or was prevented from acting to commence the new trial within the statutory time limits. Upon expiration of the time limitations for commencing trial, the Code of Criminal Procedure expressly requires the district court to dismiss the indictment. Therefore, the trial court did not err in granting the defendant‘s motion to quash the indictment based on prescription. The assignment of error lacks merit.
For the foregoing reasons, the trial court‘s judgment is affirmed.
AFFIRMED.