State v. Stewart

827 So. 2d 1277, 2002 WL 31207148
Louisiana Court of Appeal·Decided October 2, 2002·No. 02-0196·Published·Cited by 7 cases

Opinion

827 So.2d 1277 (2002)

STATE of Louisiana,
v.
Todd William STEWART.

No. 02-0196.

Court of Appeal of Louisiana, Third Circuit.

October 2, 2002.

J. Reed Walters, District Attorney, 28th JDC, Walter E. Dorroh, Jr., Asst. D.A., Jena, LA, for Plaintiff/Appellant State of Louisiana.

Lavalle Bernard Salomon, Monroe, LA, for Defendant/Appellee Todd William Stewart.

Court composed of SYLVIA R. COOKS, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.

GREMILLION, Judge.

In this case, the State appeals the trial court's order granting Defendant's Motion to Quash the Bill of Information charging him with D.W.I., fourth offense, and reducing the charge to D.W.I., third offense. *1278 For the following reasons, we vacate the order and remand for further proceedings.

FACTS AND PROCEDURE

The Defendant, Todd W. Stewart, was charged by bill of information with D.W.I., fourth offense, a violation of La.R.S. 14:98. The State filed a Notice of Certified Records to be Used at Trial to which it attached documents regarding the three prior guilty pleas. Defendant filed a motion to quash, attacking all three of the prior pleas upon which the charge of D.W.I., fourth offense, was based. Subsequently, the trial court issued a written ruling in which it held that a prior plea entered in Caldwell Parish could not be used as a basis for enhancement of Defendant's current charge. The trial court gave the following reason for its ruling:

On the occurrence of the defendant's plea colloquy is (sic) Caldwell Parish, the transcript plainly indicated that he did waive his right to remain silent on page 7 thereof. However, nowhere in the actual plea colloquy was the defendant advised of his right to a bench trial on the charge. The minutes of court simply recite that: "The court advised the defendant of all rights and accepted the plea." As a consequence, the court will not permit the state to rely upon this conviction as a prior predicate for enhancement of the penalty.

The State is now appealing the trial court's ruling.

ENHANCEMENT OF DWI CHARGE

The State contends the trial court's ruling was incorrect. Specifically, the State argues that it was not necessary for the trial court to advise Defendant of his right to a jury trial because he pled to a charge of D.W.I., first offense, and was, thus, not entitled to a jury trial. It contends that the trial court's statement, "By pleading guilty you're giving up the right to have a lawyer represent you at a trial of these DWIs," satisfied the requirement of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). (Emphasis added by the State).

Defendant, on the other hand, claims that he was entitled to a jury trial because two separate bills of information were filed in his prior case. Additionally, he states that "[h]ad he proceeded to trial, albeit without counsel in the matter, even an agreement between he and the prosecution to a consolidation would not have waived his right to jury trial." He contends that because there is no specific waiver of trial by judge or jury, the prior plea was inadequate and the waiver of rights deficient. Thus, he claims the trial court's ruling was correct and should be upheld.

As support for his position that he was entitled to a jury trial, Defendant directs us to La. Const. art. I, § 17, which states in pertinent part:[1]

A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, all of whom must concur to render a verdict.

Defendant additionally cites State v. Thomas, 98-231, p. 1 (La.App. 3 Cir. 1/6/99), 735 So.2d 669, 670, in which we stated:

When misdemeanor offenses are charged by separate bills of information and the aggregate penalty of the offenses exceeds six months imprisonment or a fine of $1,000.00, a defendant is *1279 entitled to a jury trial. State v. Hornung, 620 So.2d 816 (La.1993). At the time of his trial, the defendant had been charged by four separate charging instruments. His penalty exposure exceeded six months confinement.

A review of the documents regarding the Caldwell Parish offense and plea reveal that Defendant was originally charged by two separate bills of information with speeding, a violation of La.R.S. 32:61, and D.W.I., second offense, a violation of La. R.S. 14:98. The offenses both allegedly occurred on December 7, 1994. The Defendant ultimately pled guilty to D.W.I., first offense, and speeding.[2] At the time of the commission of the offenses, D.W.I., second offense, carried a fine of not less than three hundred dollars nor more than one thousand dollars, and imprisonment for not less than thirty days nor more than six months. However, a conviction for a first offense carried a fine of one hundred twenty-five to five hundred dollars, and imprisonment for not less than ten days nor more than six months. Speeding carried a fine of no more than one hundred seventy-five dollars or imprisonment for not more than thirty days or both, unless otherwise specifically provided. See La. R.S. 32:57. The State orally amended the D.W.I. charge to a first offense and Defendant pled to this offense as well as to speeding, both misdemeanors.

WAIVER OF JURY TRIAL

On appeal, Defendant contends he was entitled to a jury trial because there was no specific waiver of trial by judge or jury, therefore, the plea was inadequate. Defendant first contends that he was entitled to a jury trial and was not properly advised of this right. For the following reasons, we find that Defendant has failed to show either in the lower court or this court that he was entitled to a jury trial.

Standing alone, neither of the offenses to which Defendant pled guilty carried a fine in excess of one thousand dollars or imprisonment for more than six months. Although the excerpt Defendant cites from Thomas states a defendant is entitled to a jury trial if the offenses are charged by separate bills of information and the aggregate penalty of the offenses exceeds six months imprisonment or a fine of $1,000.00, we note that the offenses in Thomas were tried together. In State v. Booker, 98-0456, p. 1 (La.App. 1 Cir. 5/13/98), 780 So.2d 1070, 1070-71, our colleagues held the defendant was entitled to a jury trial "[s]ince [he] was charged by two separate bills of information with misdemeanors tried together and carrying a maximum aggregate penalty in excess of six months in jail." In the present case, although the offenses occurred on the same date, Defendant did not claim in his motion to quash or on appeal that the two charges were to be consolidated for purposes of trial. Accordingly, we find that Defendant has not affirmatively shown that he was entitled to a jury trial and that the Caldwell Parish judge was required to inform him of his right to a jury trial.

Thus, the next issue to consider is whether Defendant was adequately informed of and waived his right to a bench trial. At the 1995 plea proceeding, the trial court stated, "By pleading guilty you're giving up the right to have a lawyer represent you at a trial of these DWIs." The trial court later stated, "this will be *1280 entered upon your record the same as if c

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State v. Stewart, 827 So. 2d 1277, 2002 WL 31207148 (La. Ct. App. 2002).

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