State v. Bryant

729 So. 2d 600, 97 La.App. 4 Cir. 1878, 1998 La. App. LEXIS 3324, 1998 WL 790668
CourtLouisiana Court of Appeal
DecidedOctober 21, 1998
DocketNo. 97-KA-1878
StatusPublished

This text of 729 So. 2d 600 (State v. Bryant) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bryant, 729 So. 2d 600, 97 La.App. 4 Cir. 1878, 1998 La. App. LEXIS 3324, 1998 WL 790668 (La. Ct. App. 1998).

Opinion

| PLOTKIN, J.

The defendant, Cheryl F. Bryant, appeals the denial of a motion to quash the bill of information in case number 383-670 on the ground that the conviction violates the double jeopardy clause.

In case number 383-290, defendant was charged by bill of information on May 28, 1996, with theft of more than $500, a violation of La.R.S. 14:67. At her arraignment on June 3,1996, she pleaded guilty. After waiving all legal delays, she was sentenced that same day to three years in the Department of Corrections; her sentence was suspended, and she was placed on three years of active and supervised probation. One of the conditions of her probation was restitution of $1,615.41.

In case number 383-670, the defendant was charged by a second bill of information on June 19, 1996, with theft of more than $500, in violation of La.R.S. 14:67. She pleaded not guilty at her arraignment on July 12, 1996. The defense filed a motion to quash, which the trial court denied. On January 17, 1997, the defendant pleaded guilty as charged under State v. Crosby, 338 So.2d 584 (La.1976)2, reserving her right to appeal the denial of the motion to quash. She was sentenced on that same day to serve two years in the Department of Corrections with credit for time served; this sentence is to be served concurrently to any other sentence imposed on the defendant.

Because the defendant pleaded guilty in both cases there are few facts in the record. However, attached to the State’s brief are two pages entitled “Gist” giving the police officer’s reasons for arresting the defendant. According to the March 21, 1996, record of Officer Michael Walsh, Anthony Pastor, the general manager of the Maiden Voyage Club, reported to the officer that the defendant, a bookkeeper for the club, gave herself an unauthorized salary increase of $1,615.41. She pleaded guilty to that charge and received a suspended sentence and probation requiring restitution of $1615.41. On March 22, 1996, in a second report Officer Michael Walsh states that the defendant “had altered [601]*601payroll checks and stolen $6,398.33 from the business by either altering or voiding payroll checks.” This offense was the basis of the second bill of information to which the defendant pleaded guilty.1

ASSIGNMENT OF ERROR:

In her sole assignment of error, the defendant argues that bill of information number 383-670 should be quashed for violating her right against double jeopardy. The defense points out that the bills of information in the two cases are almost identical. In case number 383-290 the defendant was charged with theft of $500 or more belonging to the Maiden Voyage Club between October, 1995, through the 6th of March 1996. In case number 383-670, she was charged with theft of $500 or hmore belonging to the Maiden Voyage Club between September, 1995, and February 1995. (The second date is obviously a mistake; it should be February 1996). The only difference in the two bills is the dates involved.

At the hearing on the motion to quash, the trial court stated his reasons for denial:

All right, for the record, the Court has gotten the file in Case Number 3-8-3-2-9-0, which was the Section “E” charge dealing with theft of U.S. currency from the Maiden Voyage valued at $500 or more. The Court has reviewed that file. Obviously, the defendant, in the Section “E” case pled guilty at arraignment, so there were no motions filed which would demonstrate exactly what was the subject of that theft. The Court would note that her sentence was ... Three (3) Years ... active probation, a special condition of restitution in the amount of $1,615.41, which is the Court’s understanding corresponds to one of her bookings — one of the two bookings that she had for theft from the Maiden Voyage in this case. The Court would note the second bill of information was filed about two weeks after that plea and this is the bill of information that the State alleges corresponds to the second booking for theft from the Maiden Voyage for a much larger amount. While the Court believes that the Screening Division of the District Attorney’s Office could have done a better job in screening this, the Court believes that from the beginning it was obvious that there were two bookings and two separate allegations, that she pled guilty in the Section “E” to the first allegation, the $1,615 one, and that the Section “B” one is built on the second booking. That being the case, the Court does not believe she is being placed in jeopardy twice for the same offense, so the Court is going to deny the Motion to Quash.

Both the Louisiana and the United States Constitutions provide that no person shall be twice put in jeopardy of life or liberty for the same offense. U.S. LConst. amend. V; La. Const. art. 1, section 15 (1974); C.Cr.P. art. 591 and 596.2 In determining whether the double jeopardy clause bars subsequent prosecution, our supreme court has recognized two standards. In State v. Knowles, 392 So.2d 651, 654 (La.1980), the court stated the two rules as follows:

[Under] the test in Blockburger v. United States, [284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), ... ] [T]he applicable rule is that where the same act or transaction constitutes a relation of two distinct statutory provisions the test to be applied is whether each provision requires proof of [602]*602an additional fact which the other does not
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The “same evidence” test depends upon the proof required to convict, not the evidence actually introduced at trial. Thus, if evidence necessary to support the second indictment would have been sufficient to support the former indictment, double jeopardy prohibits the second prosecution. (Citations omitted).

The ‘same evidence’ test is used in Louisiana. State v. Steele, 387 So.2d 1175 (La.1980); State v. Bonfanti, 262 La. 153, 262 So.2d 504 (La.1972). If the evidence required to support a finding of guilty of one crime would also have | .-¡supported conviction of the other, the two are the same under a plea of double jeopardy, and a defendant can only be placed in jeopardy for one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial. State v. Steele, 387 So.2d 1175 (La.1980); State v. Doughty, 379 So.2d 1088 (La.1980).

The defense maintains that under the Blockburger test, the double jeopardy clause prohibits prosecution of the second charge of theft. However, the Blockburger test is usually applied in situations where the defendant’s conduct violates two or more statutes rather than in cases like the one at bar where the defendant was charged with two violations of the same statute. See State v. Sandifer, 95-2226 (La.9/5/96), 679 So.2d 1324, 1329; State v. Woods, 94-2650 (La.App. 4 Cir. 4/20/95), 654 So.2d 809, writ denied, 95-1252 (La.6/30/95), 657 So.2d 1035; State v. Warner, 94-2649 (La.App. 4 Cir. 3/16/95), 653 So.2d 57, writ denied, 95-0943 (La.5/19/95), 654 So.2d 1089.

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Related

Blockburger v. United States
284 U.S. 299 (Supreme Court, 1931)
State v. Crosby
338 So. 2d 584 (Supreme Court of Louisiana, 1976)
State v. Joles
492 So. 2d 490 (Supreme Court of Louisiana, 1986)
State v. Bonfanti
262 So. 2d 504 (Supreme Court of Louisiana, 1972)
State v. Warner
653 So. 2d 57 (Louisiana Court of Appeal, 1995)
State v. Sandifer
679 So. 2d 1324 (Supreme Court of Louisiana, 1996)
State v. Knowles
392 So. 2d 651 (Supreme Court of Louisiana, 1980)
State v. Doughty
379 So. 2d 1088 (Supreme Court of Louisiana, 1980)
State v. Steele
387 So. 2d 1175 (Supreme Court of Louisiana, 1980)
State v. Woods
654 So. 2d 809 (Louisiana Court of Appeal, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
729 So. 2d 600, 97 La.App. 4 Cir. 1878, 1998 La. App. LEXIS 3324, 1998 WL 790668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bryant-lactapp-1998.