State v. Olsen

496 So. 2d 1260
CourtLouisiana Court of Appeal
DecidedOctober 15, 1986
DocketKA 860253
StatusPublished
Cited by6 cases

This text of 496 So. 2d 1260 (State v. Olsen) 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. Olsen, 496 So. 2d 1260 (La. Ct. App. 1986).

Opinion

496 So.2d 1260 (1986)

STATE of Louisiana
v.
Ronald A. OLSEN.

No. KA 860253.

Court of Appeal of Louisiana, First Circuit.

October 15, 1986.

*1263 William Campbell, Jr., New Orleans, & David J. Knight, Asst. Dist. Atty., Covington, for appellee.

Peter J. Garcia, Covington, for appellant.

Before GROVER L. COVINGTON, C.J., and LANIER and ALFORD, JJ.

GROVER L. COVINGTON, Chief Judge.

Ronald Olsen was charged by bill of information with the theft of currency in the amount of $15,250.00, a violation of La.R.S. 14:67. He was tried by a jury, which convicted him of the theft of property having a value of five hundred dollars or more, and he was subsequently sentenced to a term of three and one-half years at hard labor. The sentence was suspended; and the court imposed a probationary term of five years, with the condition that defendant pay full restitution to the victim of the offense. He appealed, setting forth seven assignments of error, to wit:

1. The trial court erred by denying defendant's motion for a continuance after the state amended the bill of information on the date trial was to begin.
2. The trial court erred by denying defendant's motion for a continuance and stay order, requested on the belief the state intended to introduce other crimes evidence without proper notice to defendant and without a hearing to determine the admissibility of this evidence.
3. The trial court erred in permitting the state to introduce evidence of other crimes allegedly committed by the defendant.
4. The trial court erred by refusing to grant defendant sufficient time in which to prepare and file an application for supervisory writs to the First Circuit Court of Appeal.
5. The trial court erred by permitting the state to introduce evidence of a prior conviction for which defendant had received a full pardon.
6. The state failed to prove every element of the crime charged beyond a reasonable doubt.
7. The court imposed excessive restitution.

Assignment of error number five was not briefed on appeal and is therefore considered abandoned. Uniform Rules— Courts of Appeal, Rule 2-12.4.

FACTS

The victim, Gil Gagnon, testified that defendant, Ronald Olsen, with whom he had been friends for about seven years, attended a party at Gagnon's home in November, 1982, and offered to sell his (Olsen's) car to several persons attending the party. Gagnon testified defendant specifically stated the car, a 1982 Mercedes Benz 300 CD-T, belonged to him and that he intended to sell all his belongings and live on a boat he was building. Several days later, defendant and Gagnon reached an agreement whereby Gagnon was to buy the car for *1264 $14,000.00 and an Act of Sale was passed. Gagnon testified further that he was unaware of the book value of the vehicle, but that it was worth approximately $18,000.00 more than the price he paid for it.

On December 1, 1982, Gagnon paid defendant $15,250.00 in cash for the car, which included the purchase price and an additional $1,250.00 for tax and registration costs. Gagnon accepted the vehicle without the title, which was to be transferred shortly thereafter.

Gagnon also testified that he pursued defendant for several months, seeking to obtain the title to the car. He said defendant finally told him that the car belonged to Jim Miller, defendant's roommate, and admitted that he (defendant) never owned the car.

Approximately two years later the car was seized in Gagnon's possession by the mortgage holder, a credit company located in New Orleans. After the car was seized, charges were pressed against defendant and Miller, resulting in the instant conviction of Olsen.

DENIAL OF CONTINUANCE

In assignment of error number one, defendant argues that the trial court erred in denying his motion to continue the trial to a later date after the state amended the bill of information from a charge of unauthorized use of a movable to the charge of theft.

The bill of information as originally filed provided as follows:

That one ... Ronald Olsen [,] ... [u]nlawfully violated R.S. 14:68 by committing the theft of currency, property of Gilles Gagnon, valued at $15,250.00, ...

On October 21, 1984, David J. Knight, the assistant district attorney, amended the bill of information to reflect the statutory designation of 14:67, which relates to the crime of theft. Defendant immediately objected to the amendment and moved for a continuance, claiming that he was prepared to defend a charge of unauthorized use of a movable, a violation of La.R.S. 14:68, but was not prepared to defend a charge of theft. The state objected to a continuance and advised the court the true nature of the charges had been discussed between the attorneys for several months prior to trial, and that defense counsel was well aware the state intended to charge the offense of theft. The court denied the continuance. Defendant contests this ruling.

A prosecutor may make substantive amendments to a bill of information before trial begins. An indictment which contains a formal defect, imperfection, omission, or uncertainty may be amended at any time to correct such error. La.C. Cr.P. art. 487. Thus, the amendment was timely irrespective of its classification as one of substance or of form.

Defendant argues the trial court should have ordered the continuance because the designated charge, La.R.S. 14:68, most commonly refers to automobiles and applies to a taking without intent to permanently deprive. Therefore, he contends that, upon determining the facts presented by the state closely resembled this type of charge, the court should have granted a continuance.

We note initially, that the facts defendant argues in support of a charge of unauthorized use of a movable were developed at trial after the denial of the continuance. The record does not reflect a hearing at which the court might have been informed of the nature of the evidence to be presented. Further, we find no support for defendant's allegations that the charge of unauthorized use of a movable was obviously considered by the state in determining the charge. It appears, rather, that the original designation of La.R.S. 14:68 was merely a typographical error since the information form otherwise tracks the statutorily authorized form for the offense of theft, rather than the unauthorized use of movables. Compare La.C.Cr.P. art. 465(A)(44), (46).

As a general rule, the denial of a continuance is not grounds for reversal of *1265 a criminal conviction absent an abuse of discretion and a showing of specific prejudice caused by denial of the continuance. State v. Jones, 395 So.2d 751 (La.1981). It is incumbent upon defendant to show in what respect his defense has been prejudiced by the amendment of the bill. Id. In determining whether the defendant has been prejudiced in his defense upon the merits, the court shall consider all the circumstances of the case and the entire course of the prosecution. La.C.Cr.P. art. 489. Where the continuance motion is based upon the want of time for preparation by counsel, this specific prejudice requirement has been disregarded only in cases where the preparation time was so minimal as to cast doubt on the basic fairness of the proceedings. State v. Dupre, 408 So.2d 1229 (La.1982).

Defendant sets forth no specific prejudice to his defense caused by the amendment.

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Bluebook (online)
496 So. 2d 1260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-olsen-lactapp-1986.