State v. Jordan

802 So. 2d 933, 0 La.App. 5 Cir. 282, 2001 La. App. LEXIS 2729, 2001 WL 1504225
CourtLouisiana Court of Appeal
DecidedNovember 27, 2001
DocketNo. 00-KA-1508
StatusPublished
Cited by3 cases

This text of 802 So. 2d 933 (State v. Jordan) 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. Jordan, 802 So. 2d 933, 0 La.App. 5 Cir. 282, 2001 La. App. LEXIS 2729, 2001 WL 1504225 (La. Ct. App. 2001).

Opinion

[JAMES L. CANNELLA, Judge.

Defendant, Shone Jordan, appeals from his guilty plea conviction of theft of goods valued over $1,000 and his sentence to seven years imprisonment at hard labor, concurrent with other sentences which he is serving. Defendant reserved his rights under State v. Crosby,1 to have considered on appeal the trial court ruling denying his motion to quash because the prosecution was untimely. For the reasons which follow, we affirm the conviction and sentence.

The facts giving rise to this prosecution are not pertinent to this appeal which only seeks review of the trial court denial of Defendant’s motion to quash. On November 30, 1997 at approximately 5:30 p.m., Officer Robert Gerdes of the Jefferson Parish Sheriffs Office was working a paid detail at Dillard’s Department Store (Dillard’s) in Metairie, Louisiana, when he heard the alarm, indicating that someone had left the store with a security tagged item. Officer Gerdes saw the Defendant outside of the door cradling a large shopping bag from ^another store which was torn and clothes were spilling out of the bag. Officer Gerdes requested that Defendant stop, but he ran through the fire exit into the parking lot. There was a serious altercation in the parking lot. The Defendant attempted to crush Gerdes with a vehicle and at least one gun shot was fired. The Defendant fled in a vehicle with several marked police units in pursuit. Defendant eventually lost control of the vehicle at Causeway Boulevard and Jefferson Highway, causing the vehicle to crash into an oncoming car, killing the driver and two of her passengers in that vehicle. A more detailed account of the incident is contained in the Defendant’s appeal from his manslaughter convictions. State v. Jordan, 00-282 (La.App. 5th Cir.10/19/00), 774 So.2d 267.

On January 28, 1998, the Defendant was charged by bill of information with theft of goods valued at over $1,000 from Dillard’s, a violation of La. R.S. 14:67.10.2 On February 9, 1998, the Defendant was arraigned and initially pled not guilty. On March 23 and 27, 2000 a hearing was held on Defendant’s Motion to Quash and a supplemental Motion to Quash, because the prosecution was allegedly not timely. The trial court denied both motions. Thereafter, the Defendant withdrew his plea of not guilty and entered a plea of guilty as charged, reserving his right to appeal the [935]*935trial court’s denial of his motion to quash pursuant to State v. Crosby. The Defendant executed a waiver of rights form. After advising the Defendant of his constitutional rights, the trial judge accepted the guilty plea and sentenced him to seven years imprisonment at hard labor. This appeal followed.

|40n appeal, Defendant’s counsel filed a brief pursuant to the procedure approved by the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Anders procedure used in Louisiana was discussed in State v. Benjamin, 573 So.2d 528, 529-530 (La.App. 4th Cir.1990), approved by the Louisiana Supreme Court in State ex rel. Hawkins v. Criminal Dist. Court, 92-3200 (La.11/30/93), 629 So.2d 421, adopted for use in this Circuit in State v. Bradford, 95-929 (La.App. 5th Cir.6/25/96), 676 So.2d 1108, 1110, and expanded by the Louisiana Supreme Court in State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241, 242.

To comply with Jyles, appellate counsel not only must review the procedural history of the case and the evidence presented at trial, but also the appellate counsel’s brief must contain “a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” Jyles, 704 So.2d at 242 (quoting State v. Mouton, 95-0981 (La.4/28/95), 653 So.2d 1176, 1177).

When an Anders brief is filed, the appellate court reviews (1) the bill of information to insure that the defendant was properly charged; (2) all minute entries to insure that the defendant was present at all crucial stages of the proceedings, the jury composition, verdict, and the sentence; (3) all pleadings in the record; and (4) all transcripts to determine if any ruling provides an arguable basis for appeal. State v. Bradford, at 1110-1111. If, in its independent review, the appellate court finds a legal point arguable on the merits, it may either deny appellate counsel’s motion to withdraw and order him to file a brief arguing the legal point identified by the Court or it may grant the motion to withdraw and appoint substitute appellate counsel. State v. Bradford, at 1110.

[ RPefendant’s appellate counsel has asserted that, after a detailed review of the record, he could find no non-frivolous issues to raise on appeal and he has filed a Motion to- Withdraw as counsel, which states that he sent Defendant a letter to inform him that an Anders brief had been filed and of his right to file a supplemental brief. In addition, this Court sent Defendant a letter by certified mail, informing him that an Anders brief had been filed and granting him until July 6, 2001 to file a supplemental brief. The Defendant has not filed a supplemental brief.3

In his appellate brief, Defendant’s counsel has addressed the denial of the motion to quash in which Defendant sought to quash the bill of information because the prosecution was untimely. He concludes that there is no non-frivolous issue regarding this ruling. After an independent re[936]*936view of the record, we find that Defendant’s appellate counsel’s conclusion is correct.

La.C.Cr.P. art. 578 establishes a two-year prescriptive period from institution of prosecution to commencement of trial in non-capital felony cases. The date of institution of prosecution is the date when the indictment is returned or the bill of information is filed. State v. Gladden, 260 La. 735, 743, 257 So.2d 388, 391 (La.1972), cert. denied, 410 U.S. 920, 93 S.Ct. 1377, 35 L.Ed.2d 581 (1973); State v. Watts, 99-57 (La.App. 5th Cir.5/19/99), 738 So.2d 628, 629.

La.C.Cr.P. art. 580 provides for suspension of that prescriptive period when a defendant files a motion to quash or another preliminary plea. The article | ¿further provides that the period is suspended until the ruling of the trial court, but in no case shall the state have less than one year after the ruling to commence trial. A motion for a continuance filed by a defendant is a preliminary plea under La.C.Cr.P. art. 580 that suspends the running of the prescriptive period. State v. Fabacher, 362 So.2d 555, 556 (La.1978). Oral motions to continue, made by the defense or jointly with the State, can also suspend the period of limitation. State v. Watts, 738 So.2d at 630; State v. Jones, 620 So.2d 341, 343 (La.App. 5th Cir.1993).

In the instant case, the trial judge denied Defendant’s motions to quash because the trial court minutes showed several oral motions to continue by the defense, as well as joint motions to continue with the State. Because Defendant’s trial counsel asserted that he did not recall agreeing to or making any motions to continue, Defendant’s appellate counsel had the record supplemented with transcripts of these dates.

The bill of information was filed on January 28,1998.

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Bluebook (online)
802 So. 2d 933, 0 La.App. 5 Cir. 282, 2001 La. App. LEXIS 2729, 2001 WL 1504225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jordan-lactapp-2001.