State v. Dauzart, 07-KA-15.

• Citation: 960 So.2d 1079
• Decision Date: 15 May 2007
• Docket Number: No. 07-KA-15.,07-KA-15.
• Parties: STATE of Louisiana v. Noel E. DAUZART.
• Court: Court of Appeal of Louisiana (US)

960 So.2d 1079

STATE of Louisiana v. Noel E. DAUZART.

No. 07-KA-15.

Court of Appeal of Louisiana, Fifth Circuit.

May 15, 2007.

Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District Parish of Jefferson, Terry M. Boudreaux, Megan L. Gorman, Walter G. Amstutz, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.

Martin E. Regan & Associates, Martin E. Regan, Jr., Karla M. Baker, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellant.

Margaret S. Sollars, Attorney at Law, Louisiana Appellate Project, Thibodaux, Louisiana, for Defendant/Appellant.

Panel composed of Judges CLARENCE E. McMANUS, THOMAS F. DALEY and GREG G. GUIDRY.

CLARENCE E. McMANUS, Judge.

Defendant is appealing his second felony offender sentence. This is defendant's second appeal from his second conviction in this case. A brief history of the case reflects that defendant was charged by bill of information with three counts of armed robbery, in violation of LSA-R.S. 14:64. The matter subsequently proceeded to trial on two of the counts. After considering the evidence presented, the twelve person jury unanimously found defendant guilty as charged on the two counts. The trial judge sentenced defendant to sixty years at hard labor without benefit of parole, probation or suspension of sentence on each count, to run concurrently.

This Court, in State v. Dauzart, 99-730 (La.App. 5 Cir. 11/30/99), 749 So.2d 806, affirmed defendant's convictions and sentences. Thereafter, the Louisiana Supreme Court reversed defendant's convictions based on a violation of his right to testify and remanded the matter to the trial court for a new trial. State v. Dauzart, 99-3471 (La.10/30/00), 769 So.2d 1206.

A second trial was held, and the jury found defendant guilty of count two, but not count one. As a result of his conviction for one count of armed robbery, the trial judge sentenced defendant to fifty years at hard labor.

Thereafter, the state subsequently filed a bill of information alleging defendant to be a third felony offender, LSA-R.S. 15:529.1. After a hearing, the judge found defendant to be a third felony offender, vacated defendant's previous sentence, and imposed an enhanced sentence of life imprisonment at hard labor without benefit of parole, probation or suspension[.]

On appeal, this Court affirmed defendant's armed robbery conviction but vacated his multiple offender adjudication and sentence. State v. Dauzart, 02-1187 (La App. 5 Cir. 3/25/03), 844 So.2d 159. In an error patent review, we concluded that the state erroneously used defendant's 1989 conviction for attempted possession of a firearm as well as the underlying felony conviction used to support the firearm charge in finding him to be a triple felony offender. We indicated that using both convictions was prohibited as that constituted double enhancement. Accordingly, defendant's multiple offender adjudication and sentence were vacated, and the matter was remanded for further proceedings.

On June 4, 2003, the trial court resentenced defendant as a second felony offender to 100 years at hard labor. This appeal followed.

The facts were set forth in defendant's previous appeal, State v. Dauzart, 749 So.2d at 807-808, as follows:

On October 4, 1996, Hannon entered the Metro Bank brandishing a gun and demanded that the tellers hand over all the money in their drawers. A silent alarm was activated during the robbery and the police arrived immediately on the scene.

Office Oscar Munoz of the Kenner Police Department parked his unit next to a green Maxima parked in the rear of the bank. The vehicle was driven by Dauzart. As Officer Munoz surveyed the scene, Hannon exited the bank and jumped into the rear seat of the vehicle driven by Dauzart. The officer attempted to detain the suspects, but they fled the scene. At no time did the officers see a gun in view, nor did it appear that Dauzart was being threatened by Hannon.

Dauzart and Hannon were chased to the Esplanade Mall. They entered the mall and were spotted by Officer Labarriere. He gave chase to the two suspects, who split up once they entered the mall. Dauzart was apprehended by two other officers, with the assistance of Officer Labarriere. He was in possession of a backpack containing some of the money stolen from the bank. Dauzart resisted arrest and had to be physically manhandled back to the police car and secured within. Hannon was also arrested in the mall in possession of some of the money from the bank and a nine-millimeter revolver.

Two of the tellers from the bank were brought to the Esplanade Mall for identification purposes. They both affirmatively identified Hannon as the perpetrator of the robbery. Officer Munoz identified Dauzart as the driver of the vehicle.

In this appeal, defendant's counsel filed a brief in which two allegations of error are alleged. Defendant first argues that the trial court erred in failing to quash the multiple bill. Next it is argued that error patent was committed when defendant was not given a full evidentiary hearing before sentence was imposed.

A second brief was filed by different counsel in which the above allegations of error are also urged. In addition, defendant argues that the trial court erred in imposing an excessive sentence, and in failing to order a presentence investigation prior to resentencing.

In his first allegation of error, defendant argues that the trial court erred in denying his motion to quash the multiple bill. He contends that the delay in filing the multiple bill was unreasonable, as it was not filed until five years after the robbery and three years after he was originally convicted and sentenced, (later overturned by the Louisiana Supreme Court). Defendant also argues that the enhanced sentence imposed was vindictive and given to penalize him for having successfully attacked his first conviction.

The State counters that the defendant failed to file a written motion to quash the multiple bill in the trial court and therefore he is precluded from seeking review of this issue. The State further contends that this allegation is without merit and the delay in filing the multiple bill was not unreasonable and the multiple bill was not filed for a vindictive purpose.

Defendant did not file a written motion to quash, and raised the issue orally after he was adjudicated a third felony offender. A motion to quash is a procedural vehicle for challenging an indictment or a bill of information. LSA-C.Cr.P. articles 531-533. Such a motion must be in writing. State v. Branch, 00-1668 (La. App. 5 Cir. 3/28/01), 784 So.2d 43; State v. Bentel, 00-0057 (La.App. 5 Cir. 9/26/00), 769 So.2d 1247. The record in this case reflects that the state did not object to the lack of a written motion in the court below, and has raised this issue for the first time on appeal. The record further reflects that the trial judge considered the oral motion without objection by the state and then denied it. We find that the State's position that the assignment of error should not be heard is unwarranted and that defendant should be allowed to address the issue on appeal. State v. Kunzman, 31,976 (La.App. 2 Cir. 5/5/99), 741 So.2d 112.

LSA-C.Cr.P. art. 874 provides that a sentence shall be imposed without unreasonable delay. Under LSA-R.S. 15:529.1 D(1)(a), a multiple bill may be filed against a defendant who has been convicted of a felony "at any time, either after conviction or sentence." While LSA-R.S. 15:529.1 does not establish a time limit for habitual offender proceedings, the jurisprudence holds that a multiple offender bill must be filed within a reasonable time after the state learns the defendant has prior felony convictions. State v. Muhammad, 03-2991 (La.5/25/04), 875 So.2d 45, 55. This rationale is based upon a defendant's constitutional right to a speedy trial and to know the full consequences of the verdict within a reasonable time. State v. Anderson, 01-158 (La.App. 5 Cir. 5/16/01), 788 So.2d 561, 562.

Speedy trial concerns require that habitual offender proceedings also be completed in a timely manner. State v. Muhammad, 875 So.2d at 55. The Muhammad court stated, "Abusive or vindictive delays should not be tolerated. The longer the state delays filing and is responsible for postponing the completion of the habitual offender proceeding, the more likely it is that the delay will be charged against the state." Id. The Louisiana Supreme Court, overruling State ex rel. Williams v. Henderson, 289 So.2d 74 (La.1974), found that there is no bright line deadline by which a multiple offender proceeding must be completed. Muhammad, 875 So.2d at 56. Any conclusion as to what constitutes a reasonable time must be determined on a case-by-case basis. State v. Broussard, 416 So.2d 109, 110-111 (La.1982); State v. Anderson, 01-158 (La.App. 5 Cir. 5/16/01), 788 So.2d 561, 563.

The defendant bears the burden of proving prosecutorial vindictiveness. State v. Darensbourg, 06-572 (La.App. 5 Cir. 12/27/06), 948 So.2d 1128. In determining whether there has been prosecutorial vindictiveness, the court examines the state's actions in the context of the entire proceeding. Id. If, to a reasonable mind, the filing of the habitual offender bill can only be explained by a desire to deter or punish the defendant's exercise of legal rights, the events in the case will create a presumption of vindictiveness. Id.

The district attorney has the discretionary power to charge a defendant under the habitual offender law just as he has the initial unlimited power to prosecute "whom, when, and how" he chooses. State v. Dorthey, 623 So.2d 1276, 1279 (La.1993); LSA-C.Cr.P. art. 61. The district attorney's use of the habitual offender laws "provides an ancillary sentencing factor designed to serve important and legitimate societal purposes." State v. Orange, 02-711 (La.App. 1 Cir. 4/11/03), 845 So.2d 570, 578, writs denied, 03-1352 (La.5/21/04), 874 So.2d 161, and...