State v. RolenState v. Rolen
We granted relator‘s application to resolve the split in the circuit courts of appeal over the question of whether Acts 1993, No. 669, which amended
The prior D.W.I. convictions used by the state in a repeat offender prosecution under
The district court granted relator‘s motion in a judgment subsequently reversed by the Second Circuit when the state sought review. 26,933 (La.App. 2nd Cir. 9/1/94), 642 So.2d 325. This Court denied relator relief from the court of appeal‘s remand order on grounds that he had an adequate remedy on review in the event of conviction. 94-2468 (La. 10/7/94), 644 So.2d 647. Relator then entered a conditional plea of guilty to D.W.I. second offense in the district court, reserving his right to seek review from the adverse ruling on the motion to quash. State v. Crosby, 338 So.2d 584 (La.1976). The Second Circuit denied review on the basis of its previous ruling that “Act 669 of 1993 punishes conduct occurring after its effective date.” 27,413 (La.App. 2nd Cir. 1/12/95), ___ So.2d ___. We then granted relator‘s application to resolve this important issue.
For purposes of analyzing the ex post facto implications of repeat offender statutes and statutes increasing penalties for future crimes based on past crimes, “the relevant `offense’ is the current crime, not the predicate crime.” United States v. Arzate-Nunez, 18 F.3d 730, 734 (9th Cir.1994); see also Witte v. United States, ___ U.S. ___, ___, 115 S.Ct. 2199, 2207, 132 L.Ed.2d 351 (1995) (“... consideration of information about the defendant‘s character and conduct at sentencing does not result in `punishment’ for any offense other than the one of which the defendant was convicted“); Nichols v. United States, 511 U.S. ___, ___, 114 S.Ct. 1921, 1927, 128 L.Ed.2d 745 (1994) (“[e]nhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes which are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction“); Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948) (the enhanced sentence “is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes,” but as “a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one“). In State v. Williams, 358 So.2d 943 (La.1978), this Court therefore upheld the validity of
In this case, the 1993 amendment did not eliminate any defense available under the law existing when relator committed his second D.W.I. offense, the only relevant crime for purposes of analysis under the Ex Post
Our decision in State v. Ferrie, 243 La. 416, 144 So.2d 380 (1962), does not compel a different result. Ferrie held that the state remains free to prosecute a defendant according to an enlarged prescriptive period adopted after the commission of the offense but only as long as the former and shorter period has not already fully accrued into a complete defense to the charge. At that point, Ferrie observed, the defendant would acquire a vested right in that defense which the law could not abridge. Id., 144 So.2d at 384. This part of the Ferrie decision rests on sound policy reasons flowing from what Judge Learned Hand called “our instinctive feelings of justice and fair play.” Falter v. United States, 23 F.2d 420, 425-26 (2nd Cir.), cert. denied, 277 U.S. 590, 48 S.Ct. 528, 72 L.Ed. 1003 (1928). Statutes of limitations are “designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past.” Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970). Statutes of limitations therefore at least in part implement the constitutional guarantee of a speedy trial. State v. Driever, 347 So.2d 1132 (La.1977). An individual may rely on the statute to disband his witnesses and discard evidence he would otherwise use to defend himself against the state once the time limit has passed with the assurance that the potential criminal consequences flowing from his act have abated. In this context, “[f]or the state to assure a man that he has become safe from its pursuit, and thereafter to withdraw its assurance,” Judge Hand observed in Falter, “seems to most of us unfair and dishonest.” Id., 23 F.2d at 426.
Cleansing periods are, however, purely statutory rules constituting self-imposed restraints on the state‘s plenary power to define and punish crimes. Due process does not require them and several Louisiana repeat offender statutes do not have them. See State v. Williams, 502 So.2d 1388 (La. 1987) (repeat possessory marijuana offenses under
The judgment of the Second Circuit is accordingly affirmed, and this case is remanded to the district court for all further proceedings in accord with the law.