State v. Avery

Louisiana Court of Appeal

State v. Avery

548 So. 2d 85, 1989 La. App. LEXIS 1458, 1989 WL 82019

Louisiana Court of Appeal·Decided July 24, 1989·No. No. K89-772·Published

Opinion

ORDER

WRIT GRANTED AND MADE PEREMPTORY:

Under the aggregate punishment rule, relator is entitled to a jury trial since the potential aggregate punishment for the charged offense exceeds six months. State v. Williams, 404 So.2d 954 (La.1981). The granting of a motion to consolidate lies within the discretion of the trial judge. However, it is an abuse of discretion to refuse to order consolidation unless the state demonstrates a legitimate prosecuto-rial end in opposing consolidation. La.C. Cr.P. art. 706; State v. Comeaux, 408 So.2d 1099 (La.1981). Depriving an accused of a jury trial is not a legitimate prosecutorial end. State v. Comeaux, supra; State v. Jones, 396 So.2d 1272 (La.1981). See also State v. Wallace, 539 So.2d 123 (La.App. 2 Cir.1989). Therefore, the trial judge erred in denying relator’s motion for consolidation solely for the purpose of preventing relator from having a jury trial. This case is remanded to the district court for further proceedings consistent with this order.

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ORDER

WRIT GRANTED AND MADE PEREMPTORY:

Under the aggregate punishment rule, relator is entitled to a jury trial since the potential aggregate punishment for the charged offense exceeds six months. State v. Williams, 404 So.2d 954 (La.1981). The granting of a motion to consolidate lies within the discretion of the trial judge. However, it is an abuse of discretion to refuse to order consolidation unless the state demonstrates a legitimate prosecuto-rial end in opposing consolidation. La.C. Cr.P. art. 706; State v. Comeaux, 408 So.2d 1099 (La.1981). Depriving an accused of a jury trial is not a legitimate prosecutorial end. State v. Comeaux, supra; State v. Jones, 396 So.2d 1272 (La.1981). See also State v. Wallace, 539 So.2d 123 (La.App. 2 Cir.1989). Therefore, the trial judge erred in denying relator’s motion for consolidation solely for the purpose of preventing relator from having a jury trial. This case is remanded to the district court for further proceedings consistent with this order.

State v. Avery, 548 So. 2d 85, 1989 La. App. LEXIS 1458, 1989 WL 82019 (La. Ct. App. 1989).

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Opinion

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