State v. Foster

Supreme Court of Louisiana

State v. Foster

675 So. 2d 1101, 1996 La. LEXIS 1902, 1996 WL 366005

CourtSupreme Court of Louisiana

DecidedJune 28, 1996

DocketNo. 96-K-0670

StatusPublished

Cited by7 cases

This text of 675 So. 2d 1101 (State v. Foster) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Foster, 675 So. 2d 1101, 1996 La. LEXIS 1902, 1996 WL 366005 (La. 1996).

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Opinion

In re Foster, Herbert; — Defendant(s); applying for writ of certiorari and/or review; Parish of Orleans, Criminal District Court, [1102]*1102Div. “J” No. 343-037; to the Court of Appeal, Fourth Circuit, No. 95KA-0585.

Granted in part; denied in part. The single attempt at domiciliary service upon relator by leaving the subpoena with an unidentified Ms. Lewis, who indicated that she did not see relator often at that address and refused to sign the return, did not establish that relator had actual notice of the proceedings and did not discharge the state’s heavy burden “to exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him.” State v. Estill, 614 So.2d 709, 710 (La.1993). This case is remanded to the district court for purposes of reopening the hearing on relator’s motion to quash. The state may present evidence of what additional steps, if any, it took to execute the capias issued after relator’s failure to appear in court and thereby secure his presence at trial. Cf., City of Baton Rouge v. Wheat, 377 So.2d 1234 (La.1970). Relator may also present evidence on the question of whether he absented himself from his usual abode or had actual notice of the arraignment for which he failed to appear. La.C.Cr.P. art. 579 A(1) and (3). The district court is to rule anew on the basis of the expanded record. Relator may appeal from an adverse ruling. In all other respects, the application is denied.

LEMMON and BLEICH, JJ., would deny the writ. JOHNSON, J., not on panel.

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In re Foster, Herbert; — Defendant(s); applying for writ of certiorari and/or review; Parish of Orleans, Criminal District Court, [1102]*1102Div. “J” No. 343-037; to the Court of Appeal, Fourth Circuit, No. 95KA-0585.

Granted in part; denied in part. The single attempt at domiciliary service upon relator by leaving the subpoena with an unidentified Ms. Lewis, who indicated that she did not see relator often at that address and refused to sign the return, did not establish that relator had actual notice of the proceedings and did not discharge the state’s heavy burden “to exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him.” State v. Estill, 614 So.2d 709, 710 (La.1993). This case is remanded to the district court for purposes of reopening the hearing on relator’s motion to quash. The state may present evidence of what additional steps, if any, it took to execute the capias issued after relator’s failure to appear in court and thereby secure his presence at trial. Cf., City of Baton Rouge v. Wheat, 377 So.2d 1234 (La.1970). Relator may also present evidence on the question of whether he absented himself from his usual abode or had actual notice of the arraignment for which he failed to appear. La.C.Cr.P. art. 579 A(1) and (3). The district court is to rule anew on the basis of the expanded record. Relator may appeal from an adverse ruling. In all other respects, the application is denied.

LEMMON and BLEICH, JJ., would deny the writ. JOHNSON, J., not on panel.

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Bluebook (online)

675 So. 2d 1101, 1996 La. LEXIS 1902, 1996 WL 366005, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-foster-la-1996.

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