State v. WheelerState v. Wheeler
- Reporters:
- ,
- Before:
- Barry
Eugene P. Redmann, New Orleans, for Defendant/Appellant.
Before BARRY, ARMSTRONG and G. WALTZER, JJ.
ARMSTRONG, Judge.
Defendant, Darlene M. Wheeler, was charged by bill of informatiоn with failing to yield the right of way while turning left, a violation of
The defendant claims the trial сourt erred (1) in allowing the district attorney to institute prosecution by an unnotarized citation and (2) in allowing the district attorney to amend the bill of information substantively after the commencement of trial.
The trial court tried Ms. Wheeler under
The defеndant first complains that the district attorney instituted prosecution with an unnotarized citation. The State answers by pointing to the sleeve into which the traffic ticket is placed; thе sleeve is printed so that the offender‘s name appears in a window in the sleevе; above the offender‘s name is written “John F. Rowley, District Attorney, charges that,” and below the offender‘s name is printed “violated the Louisiana Highway Regulatory Act in the manner desсribed in the enclosed complaint-Affidavit: Contrary to the law of the State of Louisiana and against the peace and dignity of the same.” The sleeve is signed by an assistant district attorney. Thus, the prosecution had a valid bill of information providing the accused with a written accusation of the crime and signed by a district attorney.
The defendant next argues that the charge against Darlene Wheeler was improperly amended after trial had begun. As noted above, the defendant was first charged with failing to yield the right of way, a violation of
Defense сounsel objected to the amendment and also initially requested a continuance. Subsequently, defense counsel stated that he did not wish a continuance and simply chose to stand on his objection to the amendment. The trial court then found the defendant guilty as charged.
Before trial begins the court may order an indictment amended with respect tо a defect of substance. After the trial begins a mistrial shall be ordered on the ground of a defect of substance.
The Louisiana Supreme Court recently spoke directly tо the issue before us in State v. Johnson, 93-0394 (La. 6/3/94), 637 So.2d 1033. There the defendant was charged with possession of cocaine with intent to distribute, a violation of
La. Const. 1974, Art. I, § 13 provides that “[i]n a criminal prosecution, an accused shall be infоrmed of the nature and cause of the accusation against him.” This requirement protects the accused‘s right to prepare a defense and exercise fully his rights of confrontation and cross-examination. The bill of information must therefore inform the defendant of the nature and cause of the accusation against him in sufficient detail to allow him to prepare for trial, as well as to allow the court to determine the admissibility of the evidence. Accordingly, the state may not substantively amend a bill of information to сharge a new offense once trial has begun.La.C.Cr.P. art. 487 . (Citations omitted). (Emphasis added).
State v. Johnson, 637 So.2d at 1035.
In the instant case, the State substantively amended the charge after the witnesses had testified. Under State v. Johnson, this was reversible error.
For the foregoing reasons we reverse the judgment of the trial court and remand this case for further proceedings.
REVERSED AND REMANDED.