State v. HearinState v. Hearin
The three defendants in this case were charged with simple battery by bill of information filed on March 19, 1980. The сharge stemmed from a fist fight which occurred on November 24, 1979 outside the Athens Restaurant and Bar in Baton Rouge. Lambros Randis, a Greek National employed at the Athens Restaurant, was badly injured in the altercation. Trial of the сase was twice delayed and eventually rescheduled for October 30, 1980.
One week prior to trial, the statе learned that Randis, the complaining witness, could not be located for service of subpoena. On Octоber 23, 1980, the state met with defense counsel to discuss the upcoming trial. At that meeting, the state, with the consent of аll defendants, agreed to dismiss charges because of its inability to locate the complaining witness.
Early in Marсh of 1981, the state was able to contact Randis through his brother
Both the state and defense premise their arguments on
“Article 576. Filing of new charges upon dismissal of prosecution.
When a criminal prosecution is timely instituted in a court of proper jurisdiction and the prosecutiоn is dismissed by the district attorney with the defendant‘s consent, or before the first witness is sworn at the trial on the merits, or the indictment is dismissed by a court for any error, defect, irregularity, or deficiency, a new prosecution for the same оffense or for a lesser offense based on the same facts may be instituted within the time established by this Chapter оr within six months from the date of dismissal, whichever is longer.
A new prosecution shall not be instituted under this article following a dismissаl of the prosecution by the district attorney unless the state shows that the dismissal was not for the purpose of аvoiding the time limitation for commencement of trial established by
Article 578 .”1
As the first bill of information was dismissed with the consent of defendants, and prosecution was reinstituted within six months of that dismissal, the state contends that the filing of the second bill of infоrmation was timely under
In the motion to quash, defendants argued that the first bill of information was dismissed solely for the purpose of avoiding the time limitations for commencement of trial on the misdemeanor charge. Thereforе, a new prosecution was expressly prohibited by the second paragraph of
Opposing the defense argument, the state notes that prosecution was dismissed a full five months before the March 19, 1981 deadline for commencemеnt of trial on the misdemeanor charge, therefore, the state had no need to resort to a dismissal in ordеr to gain additional time for trial preparation. Moreover, when defendants requested confirmation of the October 23 dismissal in writing, the state sent the following letter to all defense counsel:
Gentlemen:
Be advised that the above charges will be dismissed by the District Attorney‘s Office at this time due to this office‘s inability to locate the alleged victim оf the incident.
The second paragraph of
The first bill of information was dismissed with the consent of all defendants.
For the foregoing reasons, the order to quash the bill of informatiоn filed on March 19, 1981 is vacated, and the case remanded to the trial court for further proceedings consistent with this opinion.
WATSON, Justice, dissents and assigns reasons.
WATSON, Justice, dissenting.
It is crystal clear that the reason for the dismissal by the State, facing an October 30, 1980 trial date for which there was no complaining witness, was that the State feared that the trial judge would not grant a continuance over the objection of defendants. It is also clear that the defendants, through counsel, agreed tо the dismissal because they thought it represented a termination of the prosecution. Therefore, the State failed to show that the dismissal was not for the purpose of avoiding the time limitation.
Accordingly, I respectfully dissent.