STATE of Louisiana v. Jerry TONEY.
No. 2002-K-0992.
Supreme Court of Louisiana.
April 9, 2003.
842 So. 2d 1083
CALOGERO, Chief Justice.
Richard P. Ieyoub, Attorney General, Eddie J. Jordan, Jr., District Attorney. Leslie P. Tullier, Esq., for Appellant.
Michael H. Idoyaga, Esq., for Respondent.
The sole issue in this appeal is whether the trial judge properly quashed a multiple offender bill against defendant, Jerry Toney, either because the bill was not timely filed by the State or because 17 months ensued between the filing of the multiple offender bill and the hearing on the matter. Finding on the basis of the facts reflected in the record that the bill was timely filed and that the 17-month delay was not unreasonable, we reverse the trial court decision and remand for a prompt hearing on the multiple offender bill.
FACTS
The defendant was arrested on August 30, 1996, for possession of cocaine with intent to distribute.1 On October 29, 1996, the defendant was charged with a violation of
Also on March 14, 2000, the district attorney filed a multiple offender bill, asserting that the defendant was a fourth felony offender3 pursuant to the provisions of
On June 29, 2001, the defendant filed a formal motion to quash the multiple offender bill, incorrectly asserting that the multiple bill had just been filed. The defendant also stated that the district attorney had failed to indicate which of the five previous offenses he intended to use, meaning that the defendant was unable to obtain meaningful discovery. At the hearing on the motion to quash, held on August 7, 2001, the trial judge denied the State‘s request for a continuance and granted the motion to quash. In support of his decision to quash the multiple offender bill, the trial judge referred to the “dilatory tactics of the State in handling the matter,” and found that the actions of the State “demonstrate[d] an unwillingness for the prosecutor‘s office to do what they‘re supposed to do.” The transcript of the hearing indicates that the trial judge was frustrated by the fact that the assistant district attorney, who was apparently one of a series of assistant district attorneys to work on the case, was not prepared to defend against
When the hearing resumed, the trial judge suggested that, after consideration of good time served, the defendant‘s sentence might be completed. The assistant district attorney responded by requesting a stay order, which the trial judge denied, again citing the fact that the State was not ready to try the case that day. The defense attorney then stated that the defendant‘s sentence had not been completed, though it was “almost up.” When the assistant district attorney announced his intention to seek review of the granting of the motion to quash. The trial judge then stated as follows:
[L]et the record reflect not only the basis of the dilatory nature of resetting the case, Multiple bill hearing on top of Multiple hearing, the State not going forward with the case, the State is too tardy—is tardy in filing the bill on 3/14/2000.
The State appealed the trial court‘s decision to quash the multiple offender bill. In an unpublished decision, a panel of the Fourth Circuit Court of Appeal affirmed the trial court judgment, with one judge dissenting. The appellate court found that the trial court was in a better posture to determine who was responsible for the delays in hearing the multiple offender bill and deferred to the discretion of the trial judge. State v. Toney, 2001-1823 (La.App. 4 Cir. 3/6/02), 812 So.2d 161. The only issue addressed by the appellate court is the trial court‘s finding that the State had been dilatory in proceeding with the multiple bill. This court granted the State‘s application for supervisory review. State v. Toney, 2002-0992 (La.11/22/02), 829 So.2d 1034-35.
DISCUSSION
Under the express provisions of Louisiana‘s multiple offender sentence enhancement statute, a multiple bill may be filed against a defendant who has been convicted of a felony “at any time, either after conviction or sentence.”
In the instant case, the multiple bill was clearly filed within the “reasonable time” mandated by McQueen and Broussard as it was filed on the same day the defendant was sentenced; thus, the trial court erred in his alternative finding that the multiple bill should be quashed because the State was tardy in filing the bill.
Thus, the pivotal issue raised by this appeal is whether a 17-month delay
The State argues that the lower courts erred in quashing the multiple bill under the facts and circumstances of the instant case because the record is unclear concerning the party requesting most of the continuances. In the absence of record evidence that the State was actually responsible for the delay, the motion to quash should not have been granted, the State argues, because the delay was not per se unreasonable. In support of its argument, the State cites State v. Grimes, 2001-0576 (La.App. 4 Cir. 05/02/01), 786 So.2d 876, which was decided by a different panel of the Fourth Circuit Court of Appeal than the panel that affirmed the trial court decision quashing the multiple bill in this case. The State argues that the two decisions are inconsistent.
In Grimes, some 16-months passed between the filing of the multiple bill and the hearing; the matter was continued between 16 and 18 times during that period. Id. at 1, 786 So.2d at 877. Moreover, at the time the trial court denied the defendant‘s motion to quash the multiple offender bill, the defendant had served 23 months of a three-year sentence. Id. Nevertheless, the court of appeal denied the defendant‘s application for supervisory writs, finding that the 16 month delay was not unreasonable under the facts and circumstances of that case. Id. at 16, 786 So.2d at 885. In reaching that conclusion, the court noted as follows:
The defendant has failed to show who requested the continuances of which he complains; he has failed to show that the continuances were not justified; and he has failed to show that he was prejudiced thereby.
Id. In reaching its decision to deny the writ application, the Grimes court cited to numerous previous Fourth Circuit cases in which the passage of an extended period passed between the filing of the multiple bill and the hearing was found to be reasonable. See Id. at 6-14, 786 So.2d 876 and cases cited therein.
In the instant case, we cannot say that dilatory tactics of the district attorney caused the delay between the filing of the multiple bill and the holding of the hearing because the record does not reflect the party requesting most of the continuances. What the record does reveal is that the district attorney set the multiple bill for hearing at least six separate times. Further, nothing in the record of this case indicates that the continuances were not justified. Finally, under the overall facts presented by this case, we see no great prejudice to the defendant caused by the delay. The multiple bill was timely charged, alerting the defendant to the possibility that his sentence would be enhanced. Thus, the defendant was not caught by surprise.
While McQueen and Broussard tell us, properly so, that
Our decision in this case should not, however, be read to indicate that the dilatory tactics of a district attorney in setting a hearing following the filing of a multiple bill could never ripen into a favorable situation for a defendant, or result in the quashing of a multiple bill. If the record clearly reflected that the district attorney was solely responsible for a 17-month delay because he had asked for multiple continuances, the result in this case might well have been different. However, under these facts and circumstances, we find that the trial judge abused his discretion when he quashed the multiple bill.
Conceivably, if evidence established an unreasonably long delay between the filing of the multiple offender bill and the hearing was attributable to a District Attorney who had developed a vindictive desire to prevent the defendant from getting out of jail, as the defendant neared that juncture, such evidence would be relevant. However, no such evidence exists in this matter.
DECREE
Accordingly, the trial court judgment quashing the multiple bill is hereby reversed. The case is remanded to the trial court for a prompt hearing on the multiple offender bill.
REVERSED AND REMANDED.