State v. Jones

780 So. 2d 1234, 2001 WL 195054
Louisiana Court of Appeal·Decided February 28, 2001·No. 34,542-KA, 34,543-KA·Published·Cited by 4 cases

Opinion

780 So.2d 1234 (2001)

STATE of Louisiana, Appellee,
v.
Michael JONES, Appellant.

Nos. 34,542-KA, 34,543-KA.

Court of Appeal of Louisiana, Second Circuit.

February 28, 2001.

*1236 Indigent Defender Board, by John M. Lawrence, Benton, Counsel for Appellant.

Richard Ieyoub, Attorney General, James M. Bullers, District Attorney, J. Schuyler Marvin, Assistant District Attorney, Counsel for Appellee.

Before BROWN, CARAWAY & PEATROSS, JJ.

PEATROSS, J.

Defendant, Michael Jones, was initially charged with, and indicted on, one count of first degree murder and one count of attempted first degree murder. On February 22, 2000, Defendant pled guilty to one count of manslaughter and one count of attempted manslaughter. Defendant filed a motion to quash the indictment concurrent with his plea, asserting all charges should have been dismissed as they had prescribed due to lack of prosecution. The motion to quash was denied. On the count of manslaughter, the trial court sentenced Defendant to 25 years at hard labor, without benefit of parole, probation or suspension of sentence, to be served consecutively with a 5-year sentence for the count of attempted manslaughter, for a total sentence of 30 years. Defendant has appealed the denial of his motion to quash and further asserts that his sentence is excessive. For the reasons stated herein, we affirm.

FACTS AND PROCEDURAL HISTORY

To understand the instant case, it is necessary to sketch the time line of events that are the bases of Defendant's appeal. On November 13, 1994, Defendant fatally shot Demetrius Brown with a .12 gauge shotgun. During the incident, he also shot and wounded his former girlfriend Jane Harrison Sneed. On December 9, 1994, Defendant was indicted for first degree murder and attempted first degree murder. He pled not guilty to both counts on December 16, 1994.

Defendant was initially represented by the Indigent Defender Board ("IDB"). On *1237 March 3, 1995, however, Defendant hired private counsel, H. Cameron Murray. On April 9, 1995, Defendant escaped from custody and was at large until he was rearrested on October 31, 1996. On January 22, 1997, Defendant appeared in court and stated that he had retained counsel, though none was present with him, and the matter was continued. He appeared on several more occasions without counsel until February 9, 1998, when Mr. Murray appeared in open court as Defendant's counsel, and a status conference was set. Mr. Murray later filed a motion to withdraw as counsel on August 17, 1998, which was taken under advisement by the trial court. The matter was not addressed again until June 3, 1999, when the trial court appointed the IDB to represent Defendant. On July 16, 1999, a trial date of September 27, 1999, was set. Six days before the trial was to begin, however, the IDB filed a motion to withdraw as counsel citing a conflict of interest.[1] The conflict was waived; and, on February 22, 2000, Defendant pled guilty to one count of manslaughter and one count of attempted manslaughter.

DISCUSSION

Failure to Timely Prosecute

Defendant asserts that the State failed to timely prosecute him because the three- and two-year limitation periods for the commencement of trial applicable to the charges against him had expired. La. C.Cr.P. art. 578 states:

Except as otherwise provided in this Chapter, no trial shall be commenced:
(1) In capital cases after three years from the date of institution of the prosecution;
(2) In other felony cases after two years from the date of institution of the prosecution; and
(3) In misdemeanor cases after one year from the date of institution of the prosecution.

The offense charged shall determine the applicable limitation. First degree murder is a capital offense and is, therefore, subject to the three-year prescriptive period to commence prosecution. Attempted first degree murder is a felony and, thus, subject to the two-year prescriptive period to commence prosecution.

A motion to quash is the proper procedural vehicle for a defendant to allege that the time limitation for the commencement of trial has expired. See La. C.Cr.P. art. 532(7); State v. Morris, 99-3235 (La.2/18/00), 755 So.2d 205, citing State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284. The responsibility of proving timely prosecution rests with the state. State v. Harris, 29,574 (La.App.2d Cir.5/7/97), 694 So.2d 626. When a defendant has brought an apparently meritorious motion to quash based on prescription, the state bears a heavy burden to demonstrate either an interruption or a suspension of the time limit such that prescription will not have tolled. State v. Rome, supra.

La.C.Cr.P. art. 579 provides for an interruption of the prescriptive period:

A. The period of limitation established by Article 578 shall be interrupted if:
(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record. B. The periods of limitation established by Article 578 shall commence to run *1238 anew from the date the cause of interruption no longer exists.

In the context of this case, "institution of prosecution" occurred on the filing of an indictment. La.C.Cr.P. art. 934(7); see State v. Butler, 302 So.2d 585 (La.1974). On December 9, 1994, Defendant was indicted for first degree murder and attempted first degree murder.

There is a distinction between the terms suspension and interruption. Prescription is interrupted when the state is unable, through no fault of its own, to try a defendant within the period specified by statute. La.C.Cr.P. art. 579(A)(2); State v. Rome, supra. Once the cause of interruption is removed, the time limitation begins anew. La.C.Cr.P. art. 579(B); State v. Rome, supra.

In contrast, when a defendant files a preliminary plea, such as a motion for continuance, the time period established by Article 578 is suspended. La. C.Cr.P. art. 580; State v. Evans, 627 So.2d 664 (La.App. 2d Cir.1993). A preliminary plea, for the purposes of La.C.Cr.P. art. 580, means any plea filed after prosecution is instituted, but before the trial that causes the trial to be delayed. State v. Elfert, 175 So.2d 826, 247 La. 1047 (La. 1965). This suspension lasts only from the date the motion is filed until the date the trial court rules on the motion. State v. Cranmer, 306 So.2d 698 (La.1975). Where prescription is suspended, the relevant period is not counted toward the applicable time limitation. After the trial court rules on the motion, the state has a minimum period of one year from the date of the ruling in which to commence trial. La. C.Cr.P. art. 580, Official Comment (a); State v. Evans, supra.

When Defendant escaped custody in April 1995 and remained at large until he was re-arrested on October 31, 1996, the prescriptive period was interrupted under La.C.Cr.P. art. 579(A)(1).

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State v. Jones, 780 So. 2d 1234, 2001 WL 195054 (La. Ct. App. 2001).

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