State v. Jones

115 So. 3d 643, 2013 WL 1771298
Louisiana Court of Appeal·Decided April 24, 2013·No. Nos. 2012-KA-0565, 2012-KM-0350·Published·Cited by 5 cases

Opinions

MADELEINE M. LANDRIEU, Judge.

_JjThe State appeals the district court’s granting of Lloyd Jones’ motion to quash the bill of information based on double jeopardy. Mr. Jones was charged with aggravated flight from an officer, a violation of La. R.S. 14:108(C). For the reasons stated herein, we reverse and remand.

Statement of the Case

Mr. Jones was charged with aggravated flight from an officer, a violation of La. R.S. 14:108.1(C). On August 2, 2011, Mr. Jones filed a motion to quash the bill of information based upon grounds of double jeopardy. In the motion, Mr. Jones asserted that prosecuting him for the aggravated flight charge subjected him to double jeopardy because he had already been prosecuted for the following traffic violations: (1) moving a parked vehicle, a violation of La. R.S. 32:103; (2) improper lane usage, a violation of La. R.S. 32:79; (3) failure to use a turn signal, a violation of La. R.S. 32:105; and (4) failure to obey signs, a violation of La. R.S. 32:56(B). He further asserted that he had pled guilty to all of these traffic charges on November 30, 2010, and had paid fines. Mr. Jones argued that these charges arose out of the same facts, occurring on November 29, 2010, which led to the ^aggravated flight charge, so that double jeopardy attached to his guilty pleas, prohibiting the instant prosecution.

The trial court heard Mr. Jones’s motion on September 22, 2011, and later granted it in open court on November 17, 2011. The State took the instant appeal.

Facts

According to testimony adduced at the June 27, 2011 motions hearing, Officer Paige Brouillette saw a white pickup truck accelerating across the intersection of St. Bernard Avenue and North Derbigny Street on November 29, 2010. According to Officer Brouillette, the white truck was “squealing its tires and pealing out once the light turned green.” The pickup truck continued moving erratically through the streets, and a chase ensued until the pickup truck came to a stop in a driveway and Mr. Jones exited the vehicle. When Mr. Jones got out of the vehicle, Officer Brouil-lette commanded him to “get down in a prone position,” at which time, according to Officer Brouillette, Mr. Jones began to “pick up his shirt.” At that point, Officer Brouillette was not sure what Mr. Jones was doing. A backup officer arrived and used an electronic control device on Mr. Jones, who then complied and was cuffed. Officer Brouillette testified that she did not know how fast Mr. Jones had been driving and that his speed had not been recorded on radar.

The State produced a copy of the police report to the trial court.1 According to the police report narrative, the following occurred:

On Monday, November 29, 2010 at 2:51 A.M. Officer Paige Brouillette, manning unit 105C, of the First District was on proactive patrol in a fully marked police unit in the area of St. Bernard and [646]*646|,sNorth Robertson Street, when she observed a White 2007 Chevrolet pickup truck bearing license plate # X775863 at the intersection of St. Bernard Avenue and North Derbigny Street squealing the tires and accelerating at a high rate of speed.
As the truck crossed paths with the police unit he slowed down. The officer activated her head light bar and got behind the vehicle. At this time the driver of the vehicle later identified as Lloyd Jones accelerated to a high rate of speed in an attempt to evade the officer.
Jones turned South onto North Villere Street, West onto Laharpe. As the vehicle turned North onto North Robertson Street, a vehicle traveling the correct way on the road had to swerve onto the shoulder to narrowly avoid getting into a head on collision with the White pick up truck.
The officer observed Jones turn West onto St. Bernard Avenue, then down the wrong way onto North Robertson. Jones veered West onto Annette Street before making a turn onto North Claiborne Avenue. The subject turned onto St. Anthony Street into oncoming traffic before getting back to North Robertson Street. Finally the vehicle came to a stop in a driveway at 2121 Pauger Street after Jones made the wrong way up the one way street.
Officer Brouillette observed Jones exit the vehicle and command him to a prone position multiple times. Jones was hesitant to comply and raised his shirt two times instead of complying to the commands. At which time assisting Officer Melford, Unit 107C, deployed his electronic control device to gain compliance from Jones.
The subject began to comply after the electronic control device was used at which time Officer Brouillette placed Jones in handcuffs that were checked for proper fit and double locked. Officer Brouillette advised Jones of his rights per Miranda, which he acknowledged that he understood.
The vehicle was released to the owner. Jones was transported to University Hospital by Officer Brouillette and was granted medical clearance by the emergency room doctor. The subject was then transported to central lock up w[h]ere custody was transferred to the Orleans Parish Criminal Sheriffs Office and booked accordingly.

Jurisdictional Issue

Mr. Jones has filed a motion to dismiss the appeal as untimely.

14At the November 17th hearing, the State orally noted its “intent to seek an appeal.” However, a December 7, 2011 minute entry reflects that the State filed a “Notice of Intent to File a Writ,” which was granted and given a December 17, 2011 return date. A December 14, 2011 minute entry notes that the State was granted an extension of time to file the writ, and that the trial court assigned a January 4, 2012 return date. On January 5, 2012, the State filed a “Motion and Order to Convert Notice of Intent to Seek a Writ into a Motion for Appeal and Designation of Record.” The trial court granted the motion on January 5, 2012. On that same day, the motion was filed in this court and given case number 2012-KM-0017. On January 6, 2012, the State filed under the same case number a “Notice of Trial Court’s Granting of State’s Motion,” and a “Motion and Order to Supplement State’s Motion to Convert Writ Application to an Appeal.” We subsequently consolidated those motions with the instant appeal under case number 2012-KA-0565.

La.C.Cr.P. art. 914 provides, in pertinent part:

[647]*647A. A motion for an appeal may be made orally in open court or by filing a written motion with the clerk.
B. The motion for appeal must be made no later than:
(1) Thirty days after the rendition of the judgment or ruling from which the appeal is taken.
(2) Thirty days from the ruling on a motion to reconsider sentence....

In the interest of justice, we find, and the record supports, that when the State orally proclaimed, “[yjour Honor, note the State’s intent to seek an appeal” at the November 17, 2011 ruling, the statement constituted an oral motion for appeal that was made on the same day as the ruling, and therefore was timely for purposes of article 914. La.C.Cr. P. art. 915 provides, in pertinent part:

|sA. When a motion for an appeal is made ... the trial court shall grant or deny the motion within seventy-two hours, exclusive of legal holidays, after the motion is made.

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State v. Jones, 115 So. 3d 643, 2013 WL 1771298 (La. Ct. App. 2013).

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