State v. Martin

487 So. 2d 1295
Louisiana Court of Appeal·Decided May 15, 1986·No. K85-1257·Published·Cited by 6 cases

Opinion

487 So.2d 1295 (1986)

STATE of Louisiana, Plaintiff,
v.
James F. MARTIN, Defendant.

No. K85-1257.

Court of Appeal of Louisiana, Third Circuit.

May 15, 1986.
Writ Denied July 1, 1986.

*1296 Sheryl L. Laing, Asst. Dist. Atty., Alexandria, for plaintiff.

Eugene P. Cicardo, Alexandria, for defendant.

Before YELVERTON and KING, JJ., and COX, Judge Pro Tem.[*]

KING, Judge.

The sole issue presented by this supervisory writ is whether or not the trial court erred in granting the defendant's motion to suppress evidence that was obtained pursuant to an allegedly defective search warrant.

James F. Martin (hereinafter referred to as defendant) was arrested and charged by bill of information with possession of marijuana, a violation of LSA-R.S. 40:966(D)(1).

Defendant filed a motion to suppress all evidence obtained in the search of his residence alleging that the search warrant, which had been issued to search his residence, was defective and invalid. After a hearing on the motion, the trial judge granted defendant's motion to suppress. On application of the State, we granted a supervisory writ to review the correctness of the trial court's granting of the motion to suppress and ordered the record transcribed and filed, briefs filed by the parties, and scheduled the matter for oral argument. On April 18, 1986, the day on which oral arguments were scheduled, defendant filed in Open Court a motion to dismiss the writ of review, alleging that the writ was not originally properly filed. This Court took the motion to dismiss under advisement. We now deny defendant's motion to dismiss the writ of review and reverse the *1297 trial court's ruling, which granted the defendant's motion to suppress the evidence seized from his residence, and remand the matter to the trial court for further proceedings.

MOTION TO DISMISS WRIT

Defendant, by written motion filed in Open Court on the morning of scheduled oral argument in this Court, has moved this Court to recall, rescind and dismiss the Writ of Certiorari previously granted. The basis of defendant's Motion to Dismiss the writ is that the State did not perfect its writ application, pursuant to the Uniform Rules-Courts of Appeal, Rules 4-1, 4-3, and 4-5. Defendant contends that the State did not timely file a properly verified writ application and did not timely forward a copy of its writ application to the trial judge, all as required by Rule 4 of the Uniform Rules of the Louisiana Courts of Appeal, and for this reason this Court should not have considered or granted the writ.

It is true that the writ application did not fully comply with the Uniform Rules of the Courts of Appeal. The failure to properly verify the writ application and to serve a copy on the trial judge is a valid ground for a refusal to consider the application or for a denial of the writ. But once the writ has been granted, the record is brought up. The record normally contains all pleadings, documents, and evidence necessary for appellate review. Under these circumstances, the Court has the same power and authority to review the case as if it had been brought to the Court by direct appeal. The writ will not then be recalled for the applicant's prior failure to comply with the court rules. The purpose of the Rules are to establish the practice and procedure to be followed in this Court. These Rules can be waived by this Court. The Louisiana Supreme Court has recognized that the prior failure of the applicant for a writ of review to comply with court rules, requiring pleadings and other documents to be annexed to the writ application, will not justify the dismissal of a writ after it has been issued. See Wischer v. Madison Realty Company, 242 La. 334, 136 So.2d 62 (1961); Britt v. Merritt, 219 La. 333, 53 So.2d 121 (1951); Davies v. Consolidated Underwriters, 199 La. 459, 6 So.2d 351 (1942); Laurent v. Unity Industrial Life Ins. Co., 189 La. 426, 179 So. 586 (1938); Hatten v. Haynes, 175 La. 743, 144 So. 483 (1932); Pipes v. Gallman, 174 La. 265, 140 So. 43 (1932). The failure to verify a writ application was raised by a motion to dismiss the writ in the case of Davies v. Consolidated Underwriters, where our Supreme Court stated:

"If the failure of the petitioner for a writ of review to comply with the law requiring certain documents to be annexed to the petition will not justify the dismissal of the writ after it has been issued, by a parity of reasoning, the failure of the petitioner to verify the petition for the writ will likewise not justify the dismissal of the writ when issued. This is particularly so where no issue can arise before this Court based on the failure of the petitioner for the writ to fulfill the requirement." Davies v. Consolidated Underwriters, 199 La. 459, at page 469, 6 So.2d 351 at page 355 (1942).

The State's original application for supervisory writs contained an index of all authorities and items contained therein, a concise statement of the grounds on which the jurisdiction of the Court was invoked, a concise statement of the case, the issues and questions of law presented for determination by the Court, the assignments of error, a transcript of the note of evidence of the hearing on the defendant's motion to suppress, a transcript of the trial judge's oral reasons for judgment and ruling, a copy of the pleadings on which the judgment was founded, a brief and argument on the assignments of error, and a certificate that a copy of the writ application was served on defendant's counsel. Only the applicant's affidavit verifying the allegations of the application and certifying that a copy of the application was delivered or mailed to the respondent judge and opposing counsel are missing. Written notice of *1298 the filing of the State's writ application in this Court was given by the Clerk of this Court to the trial judge, opposing counsel, and the District Clerk of Court on December 31, 1985. There is no dispute that the trial judge and opposing counsel knew that the State's writ was filed in this Court and that no written opposition to the writ application was filed by either the trial judge or opposing counsel before this Court acted on the State's writ application on January 20, 1986. No question has been raised or is now being raised as to the correctness of the documents submitted with the writ application. The entire record of the proceedings in the trial court is now before this Court for review. In these circumstances, we fail to see how the defendant has been prejudiced by the failure of the applicant to swear to matters as to which there is and can be no dispute or to verify service of a copy of the writ application on the trial court and opposing counsel.

For the reasons set forth above, the defendant's motion to recall, rescind, and dismiss the Writ of Certiorari will be overruled and denied.

FACTS

The only witness to testify at the hearing of the motion to suppress was the affiant, Sgt. Mike Rodgers of the Rapides Parish Sheriff's Department. The facts are, therefore, derived from his testimony.

On February 7, 1985, Sgt. Mike Rodgers of the Metro Parish Narcotics Division received information from a confidential informant that he had legally been in defendant's residence and had seen marijuana therein. Pursuant to this information, Sgt. Rodgers executed an affidavit and appeared before Judge William P. Polk to obtain a warrant to search defendant's residence.

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