State v. Jones
| Decision Date | 28 February 2001 |
| Docket Number | No. 542-KA, No. 34, No. 543-KA. |
| Citation | 780 So.2d 1234 |
| Parties | STATE of Louisiana, Appellee, v. Michael JONES, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Indigent Defender Board, by John M. Lawrence, Benton, Counsel for Appellant.
Richard Ieyoub, Attorney General, James M. Bullers, District Attorney, J. Schuyler Marvin, Assistant District Attorney, Counsel for Appellee.
Before BROWN, CARAWAY & PEATROSS, JJ.
Defendant, Michael Jones, was initially charged with, and indicted on, one count of first degree murder and one count of attempted first degree murder. On February 22, 2000, Defendant pled guilty to one count of manslaughter and one count of attempted manslaughter. Defendant filed a motion to quash the indictment concurrent with his plea, asserting all charges should have been dismissed as they had prescribed due to lack of prosecution. The motion to quash was denied. On the count of manslaughter, the trial court sentenced Defendant to 25 years at hard labor, without benefit of parole, probation or suspension of sentence, to be served consecutively with a 5-year sentence for the count of attempted manslaughter, for a total sentence of 30 years. Defendant has appealed the denial of his motion to quash and further asserts that his sentence is excessive. For the reasons stated herein, we affirm.
To understand the instant case, it is necessary to sketch the time line of events that are the bases of Defendant's appeal. On November 13, 1994, Defendant fatally shot Demetrius Brown with a .12 gauge shotgun. During the incident, he also shot and wounded his former girlfriend Jane Harrison Sneed. On December 9, 1994, Defendant was indicted for first degree murder and attempted first degree murder. He pled not guilty to both counts on December 16, 1994.
Defendant was initially represented by the Indigent Defender Board ("IDB"). On March 3, 1995, however, Defendant hired private counsel, H. Cameron Murray. On April 9, 1995, Defendant escaped from custody and was at large until he was rearrested on October 31, 1996. On January 22, 1997, Defendant appeared in court and stated that he had retained counsel, though none was present with him, and the matter was continued. He appeared on several more occasions without counsel until February 9, 1998, when Mr. Murray appeared in open court as Defendant's counsel, and a status conference was set. Mr. Murray later filed a motion to withdraw as counsel on August 17, 1998, which was taken under advisement by the trial court. The matter was not addressed again until June 3, 1999, when the trial court appointed the IDB to represent Defendant. On July 16, 1999, a trial date of September 27, 1999, was set. Six days before the trial was to begin, however, the IDB filed a motion to withdraw as counsel citing a conflict of interest.1 The conflict was waived; and, on February 22, 2000, Defendant pled guilty to one count of manslaughter and one count of attempted manslaughter.
Defendant asserts that the State failed to timely prosecute him because the three- and two-year limitation periods for the commencement of trial applicable to the charges against him had expired. La. C.Cr.P. art. 578 states:
The offense charged shall determine the applicable limitation. First degree murder is a capital offense and is, therefore, subject to the three-year prescriptive period to commence prosecution. Attempted first degree murder is a felony and, thus, subject to the two-year prescriptive period to commence prosecution.
A motion to quash is the proper procedural vehicle for a defendant to allege that the time limitation for the commencement of trial has expired. See La. C.Cr.P. art. 532(7); State v. Morris, 99-3235 (La.2/18/00), 755 So.2d 205, citing State v. Rome, 93-1221 (La.1/14/94), 630 So.2d 1284. The responsibility of proving timely prosecution rests with the state. State v. Harris, 29,574 (La.App.2d Cir.5/7/97), 694 So.2d 626. When a defendant has brought an apparently meritorious motion to quash based on prescription, the state bears a heavy burden to demonstrate either an interruption or a suspension of the time limit such that prescription will not have tolled. State v. Rome, supra.
La.C.Cr.P. art. 579 provides for an interruption of the prescriptive period:
In the context of this case, "institution of prosecution" occurred on the filing of an indictment. La.C.Cr.P. art. 934(7); see State v. Butler, 302 So.2d 585 (La.1974). On December 9, 1994, Defendant was indicted for first degree murder and attempted first degree murder.
There is a distinction between the terms suspension and interruption. Prescription is interrupted when the state is unable, through no fault of its own, to try a defendant within the period specified by statute. La.C.Cr.P. art. 579(A)(2); State v. Rome, supra.
Once the cause of interruption is removed, the time limitation begins anew. La.C.Cr.P. art. 579(B); State v. Rome, supra.
In contrast, when a defendant files a preliminary plea, such as a motion for continuance, the time period established by Article 578 is suspended. La. C.Cr.P. art. 580; State v. Evans, 627 So.2d 664 (La.App. 2d Cir.1993). A preliminary plea, for the purposes of La.C.Cr.P. art. 580, means any plea filed after prosecution is instituted, but before the trial that causes the trial to be delayed. State v. Elfert, 175 So.2d 826, 247 La. 1047 (La. 1965). This suspension lasts only from the date the motion is filed until the date the trial court rules on the motion. State v. Cranmer, 306 So.2d 698 (La.1975). Where prescription is suspended, the relevant period is not counted toward the applicable time limitation. After the trial court rules on the motion, the state has a minimum period of one year from the date of the ruling in which to commence trial. La. C.Cr.P. art. 580, Official Comment (a); State v. Evans, supra.
When Defendant escaped custody in April 1995 and remained at large until he was re-arrested on October 31, 1996, the prescriptive period was interrupted under La.C.Cr.P. art. 579(A)(1). A new prescriptive period, therefore, began to run anew on October 31, 1996. Consequently, the State had until October 31, 1999, to commence a trial in this case as to the first degree murder charge and until October 31, 1998, to commence trial of the attempted first degree murder charge. This is a total of 1095 and 730 days, respectively.
Defendant contends that the time for the State to commence trial as to the first degree murder charge had elapsed by 114 days, and that the time to commence trial as to the attempted first degree murder charge had elapsed by 479 days. After his second arrest in 1996, however, we find that there were delays sufficient to bring both of Defendant's guilty pleas within the required two-year and three-year periods.
Following Defendant's recapture on October 31, 1996, there were no further interruptions of the prescriptive period. In regard to suspension of the prescriptive period, however, the following minute entries and filings are shown:
January 22, 1997 Defendant appeared in open court without counsel for a scheduled status conference. At that time, Defendant informed the court that he had hired counsel and the status conference was passed until the next jury term.
This did not act as a suspension of time as it was not a preliminary plea. At that time, 82 days of the prescriptive period had elapsed.
April 16, 1997 State filed a motion to determine counsel which was to be heard on April 18, 1997. State also filed notice of trial in which status conference was set for May 12, 1997, and trial is set for November 3, 1997.
April 18, 1997 Defendant appeared for a status conference pursuant to previous notice. The State's motion to determine counsel was withdrawn on this day as well.
This did not act as a suspension of time as it was not a preliminary plea. An additional 86 days, or a total of 168 days, had elapsed.
May 12, 1997 Defendant appeared for a status conference pursuant to notice. This did not act as a suspension of time as it was not a preliminary plea. An additional 24 days, or a total of 192 days, had elapsed.
July 31, 1997 Defendant's counsel, Mr. Murray, filed a motion for continuance for the prior August 18, 1997 status conference and November 3, 1997 trial date. There was a notation on the order stating, "Judge Bolin said this was now moot." Presumably, this was because the date had already been refixed.
August 18, 1997 Defendant appeared without counsel for a status conference.
This did not act as a suspension of time as it was not a preliminary plea. An additional 98 days, or a total of 290 days, had elapsed.
November 24, 1997 Defendant appeared for status conference without counsel. The notice setting this date was filed by the State on November 17, 1997, and set the trial date for...
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