State v. PriceState v. Price
The defendants were indicted by the Bossier Parish Grand Jury for the crime of perjury in connection with testimony given by them before thе grand jury. The
A motion to dismiss the appeal has been filed by the defendants. It is urged that an order for an extension of the return date and the time for filing bills of exceptions which was signed by Judge McClendon after his recusal was null and void. It is argued that since the appeal record was not lodged in this court until after the return date had elapsed on the original order for appeal, the appeаl cannot be considered and must be dismissed.
The original order for appeal by the State made the appeal returnable to the Supreme Court of Lоuisiana on October 31, 1972. On October 27, Judge McClendon, the recused judge, signed the order extending the return date “for filing Assignments of Error and Bills of Exceptions” to November 31 (althоugh there are only 30 days in November). Then, on November 9, after expiration of the original return date but before the extended return date, Judge Caldwell, judge ad hoc, issued another order. That order stated that Judge Caldwell was of the opinion that the local district court judge (Judge McClendon) would have more information than he would as to whether the return date should be extended, but that since Judge McClendon‘s order was not in accordance with his understanding, he was issuing a new order. That portiоn of Judge McClendon‘s order which extended the time for filing assignments of error and bills of exceptions was annulled and set aside, and that portion which extended the rеturn date for the appeal was to remain in effect with November 31 changed to December 1. No bills of exceptions were perfected during this time, and the record was filed in this court on November 30 without bills of exceptions.
It is well settled in our law that in criminal and civil cases the appeal will not be considered if it is nоt timely filed and if that failure is not the fault of the clerk but is due to some error or omission on the part of the appellant. See State v. Saucier, 133 La. 496, 63 So. 602 (1913). It necessarily follows that when an extension of the return date is obtained by the appellant which is contrary to the provisions of the law, it is without effect. In such a case the filing of the appellate record during the period provided in the extension would be to no avail.
The order issued by Judge Caldwell on November 9 cannot be considered to extend the return date given in the original appeal order, which expired on October 31. See Louisiana Power & Light Company v. Lasseigne, 255 La. 579, 232 So.2d 278 (1970), and Wischer v. Madison Realty Company, 242 La. 334, 136 So.2d 62 (1961), which recognized that a district court loses jurisdiction to extend a return date after the expiration of the return date last set. Although these are civil cаses, the rationale is equally applicable to criminal cases. Thus, if the extension by Judge McClendon is null and void, then this appeal must be dismissed.
Articles 916 and 919 of the Cоde of Criminal Procedure recognize the right of the “trial court” to extend the return date. Judge McClendon was a judge of
These provisions of the Code of Criminal Procedure are based upon similar provisions in the Code of Civil Procedure, and interpretation of the latter provisions is pertinent here. It has long been recognized in our civil procedure that once a judge is recused, or a motion for his recusal has been filed, he has no power to act (except tо appoint the proper person to sit ad hoc when the law provides for such an appointment). Any action taken by a recused judge is an absolutе nullity. State v. Judge of Twenty-First Judicial District, 37 La.Ann. 253 (1885); State v. Judge of Twenty-Second Judicial District Court, 39 La.Ann. 994, 3 So. 91 (1887); Jones v. Cunningham, 157 La. 208, 102 So. 309 (1924); State v. Savoy, 207 La. 982, 22 So.2d 402 (1945).
In considering the particular action taken by a recused judge, our cоurts have made no distinction between ministerial and judicial acts. We have determined that no action may be performed by the recused judge. Jones v. Cunningham, supra; State v. Savoy, supra. The theory of rеcusation is based upon public policy, for it is applied not only for the protection of the litigants but generally to see that justice is done by an impartial court. It is, therefore, for the sake of appearance to the general public as well as protection against the acts themselves that a judge be prohibited from any activity in a case in which he has been recused. Furthermore, since the extension of a return date requires the exercise of discretion or judgment, there can be no argument that this act was simply ministerial. The order of the judge ad hoc admits of the discretionary right of the extension of the return date of the appeal by the trial court.2 Moreover, mandamus could not lie to compel extension of a return date although our law thoroughly protects by other procedures the right to a late lodging of an appeal where the tardiness in lodging the appeal is assessed against court personnеl.
The motion to dismiss the appeal of the State must be granted under these circumstances since the appellate record in this court was not filed before the legal return date. The party appealing, the State, is directly responsible for this error since it did not attempt to obtain additional time in which to file аssignments of error and bills of exceptions. It applied to a judge whom it had caused to be recused and who was without authority to act. Cf. State v. Ash, 257 La. 337, 242 So.2d 535 (1971).
The complaint of thе State is to the sustaining of the motions to quash the indictments, yet the record shows that no bills of exceptions were reserved at the time of the court‘s rulings from which perfected bills of exceptions could be submitted.
The appeal is dismissed.
TATE, DIXON and CALOGERO, JJ., concur in the affirmance on the ground that no bills of exceptions were reserved or perfected.