State v. Will

536 So. 2d 601, 1988 WL 126176
CourtLouisiana Court of Appeal
DecidedNovember 22, 1988
DocketKW 88 0820
StatusPublished
Cited by4 cases

This text of 536 So. 2d 601 (State v. Will) 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. Will, 536 So. 2d 601, 1988 WL 126176 (La. Ct. App. 1988).

Opinion

536 So.2d 601 (1988)

STATE of Louisiana
v.
Russell WILL.

No. KW 88 0820.

Court of Appeal of Louisiana, First Circuit.

November 22, 1988.

William R. Campbell, Jr., New Orleans, for State.

Walter P. Reed, Dist. Atty., Covington, Wendell E. Tanner, Slidell, for Will.

Before CARTER, LANIER and LeBLANC, JJ.

LANIER, Judge.

The defendant, Russell Will, was charged with third offense driving while intoxicated (DWI), in violation of La.R.S. 14:98. He filed a motion to quash, asserting the predicate offenses could not be used to enhance the charge because he was not properly Boykinized when he pled guilty to them. The trial court quashed one of the predicate offenses on this basis. The state deleted the quashed predicate offense and amended the charge to second offense DWI. The defendant then verbally amended and reurged his motion to quash, asserting the second predicate offense was not valid because there was no "written judgment of disposition signed by the trial court" for it, citing State v. Jackson, 519 So.2d 254 (La.App. 5th Cir.1988). The state stipulated there was no written judgment for the second predicate offense. The trial court denied the amended motion to quash. The defendant then pled guilty to second offense DWI and reserved his right to contest the trial court's ruling on the amended motion to quash in a writ of review. State v. Crosby, 338 So.2d 584 (La.1976). On the defendant's application, this writ of review was granted.

*602 FACTS

Russell Will was charged with committing third offense DWI on June 7, 1987, in St. Tammany Parish, Louisiana. The state alleged he previously pled guilty to DWI in the Slidell City Court on January 19, 1984, and pled guilty to DWI in the Twenty-Second Judicial District Court on May 1, 1986. The trial court quashed the Slidell City Court predicate offense.

The bill of information, court minutes and Boykin transcript for the Twenty-Second Judicial District Court predicate offense were filed in evidence. The bill of information shows that Will was charged with committing second offense DWI on September 20, 1985. The minute entry for May 1, 1986, pertaining to this predicate offense shows, in pertinent part, the following:

The defendant being present in open Court attended by his Counsel, Richard M. Larson and this matter being on assignment for trial, asked leave of Court to withdraw his previously entered plea of not guilty and entered a plea of guilty, the defendant being charged with driving while intoxicated, 2nd offense, whereupon, Court questioned the defendant as to the knowledge of the charge against him, his right to an attorney, right to trial or trial by jury, right against self-incrimination, right to confront his accusers, and the right to appeal if he were to go to trial and been found guilty and further advising him that subsequent convictions could result in greater penalties having been fully explained to him by the Court and the Court being satisfied that the defendant is fully aware of his rights, accepted the plea of guilty and the following sentence was imposed: ...

The extract of the minute entry indicates it was signed by Judge Stephen A. Duczer.

NECESSITY FOR A WRITTEN JUDGMENT WHEN A GUILTY PLEA IS ENTERED BY A DEFENDANT IN A CRIMINAL CASE

The defendant contends the trial court erred "in denying relator's Motion to Quash and/or Suppress which alleged the guilty plea entered May 1, 1986, # 140004, 22nd Judicial District Court, Parish of St. Tammany, Louisiana, was invalid due to the lack of a written judgment of disposition signed by the trial court." Defendant cites as authority the cases of State v. Jennings, 478 So.2d 913 (La.App. 5th Cir. 1985), writ denied, 481 So.2d 636 (La.1986); State v. Jones, 517 So.2d 402 (La.App. 5th Cir.1987), writ denied, 522 So.2d 560 (La. 1988); State v. Jackson, 519 So.2d 254 (La. App. 5th Cir.1988); State v. Weilbaecher, 520 So.2d 456 (La.App. 5th Cir.1988); State v. Davenport, 520 So.2d 463 (La.App. 5th Cir.1988). See also State v. Robert, 518 So.2d 1169 (La.App. 5th Cir.1988).

In Jennings, the defendant was charged with criminal neglect of family, in violation of La.R.S. 14:74. He pled not guilty and subsequently was found guilty and sentenced. Part of his sentence required him to make weekly support payments. He then filed a motion to terminate the support payments because his child was no longer in destitute and necessitous circumstances, and the record in his case did not contain proof of his conviction. The trial court dismissed the motion. The court of appeal reversed and terminated the support payments with the following rationale:

Under the provisions of Article 810 of the Code of Criminal Procedure, the verdict of the jury (which forms the basis for a subsequent sentence) must be in writing and signed by the foreman. Article 820 of the Code of Criminal Procedure provides "all provisions of this Chapter [both Articles 810 and 820 in the same chapter of the Criminal Code] regulating the responsiveness and effect of verdict shall apply to cases tried without a jury." Hence, it follows that where the conviction is by the bench, the judge must sign the judgment for it to have the responsiveness and effect of a verdict.
Additionally, Article 87 of the Code of Juvenile Procedure requires the court to enter into the record a written judgment of its disposition following a hearing of a matter tried under its juvenile jurisdiction over children. Although the matter involved here is the conviction of an adult for criminal neglect of family, the *603 primary purpose is to provide support for children in destitute or necessitous circumstances and, therefore, falls under the trial court's juvenile jurisdiction and, hence, must comply with the provisions of Article 87 of the Code of Juvenile Procedure.
Consequently, to supply the basis for the fixing and ordering of support payments, as contemplated by R.S. 14:74 and R.S. 15:302, absent an agreement for support, there must be a written judgment of conviction signed by the court. There is no prescribed form for the judgment and therefore an extract of minutes of the court signed by the judge would satisfy the written judgment requirements. (See Article 87 C of the Code of Juvenile Procedure.) The absolute necessity for such a rule is amply demonstrated by the effort here to provide the needed conviction by the simple expediency of correcting an extract of the minutes more than two years after the contended conviction.

The instant case is distinguishable from Jennings on two grounds: (1) the predicate offense herein is not subject to the jurisdiction of the juvenile court as was the criminal neglect of family charge in Jennings (La.C.J.P. art. 16, subd. A[3]), and, thus, La.C.J.P. art. 87[1] does not apply to it, and (2) the conviction in the predicate offense herein is based on a plea of guilty, and not on a judgment of guilty as in Jennings, and, thus, La.C.Cr.P. arts. 810 and 820 are not applicable.

La.C.Cr.P. art. 872 provides as follows:
A valid sentence must rest upon a valid and sufficient:
(1) Statute;
(2) Indictment; and
(3) Verdict, judgment, or plea of guilty. (Emphasis added.)

The words, verdict, judgment and plea, are separated by the disjunctive conjunction "or"; thus, a verdict of guilty, a judgment

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Cite This Page — Counsel Stack

Bluebook (online)
536 So. 2d 601, 1988 WL 126176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-will-lactapp-1988.