Preview:

IMMEDIATE NEWS RELEASE NEWS RELEASE # 24 FROM: CLERK OF SUPREME COURT OF LOUISIANA The Opinions handed down on the 9th day of April, 2003, are as follows: BY CALOGERO, C.J.: 2002-K -0992 STATE OF LOUISIANA v. JERRY TONEY (Parish of Orleans) (Possession of Cocaine with Intent to Distribute, Multiple Offender) Accordingly, the trial court judgment quashing the multiple bill is hereby reversed. The case is remanded to the trial court for a prompt hearing on the multiple offender bill. REVERSED AND REMANDED.

04/09/03 SUPREME COURT OF LOUISIANA No. 02-K-0992 STATE OF LOUISIANA VERSUS JERRY TONEY ON WRIT OF CERTIORARI TO THE COURT OF APPEAL FOURTH CIRCUIT, PARISH OF ORLEANS CALOGERO, Chief Justice The sole issue in this appeal is whether the trial judge properly quashed a multiple offender bill against defendant, Jerry Toney, either because the bill was not timely filed by the State or because 17 months ensued between the filing of the multiple offender bill and the hearing on the matter. Finding on the basis of the facts reflected in the record that the bill was timely filed and that the 17-month delay was not unreasonable, we reverse the trial court decision and remand for a prompt hearing on the multiple offender bill.

FACTS The defendant was arrested on August 30, 1996, for possession of cocaine with intent to distribute.1 On October 29, 1996, the defendant was charged with a violation of La. Rev. Stat. 40:967(A)(1). Following eleven continuances, eight of which were requested by the defendant and two of which were requested jointly by the State and the defendant, defendant was tried and convicted of the charged offense on December 2, 1998. Pursuant to the provisions of La. Rev. Stat. 40:967(B)(1)2, the defendant was
1

The defendant claims that he had 10 rocks of crack in a film canister.

La. Rev. Stat. 40:9676(B)(1) provides that a defendant who has been convicted of violation of La. Rev. Stat. 40:987(A)(1) "shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years." 1

2

sentenced to 10 years at hard labor on March 14, 2000. Also on March 14, 2000, the district attorney filed a multiple offender bill, asserting that the defendant was a fourth felony offender3 pursuant to the provisions of La. Rev. Stat. 15:529.14, and set the multiple offender bill for hearing on April 14, 2000. The hearing was then reset 13 times before it was finally set for hearing on June 29, 2001. According to the record, two of the continuances were requested by the defendant and two were requested jointly by the State and defendant; the record does not reflect the party requesting the other nine continuances. On June 29, 2001, the defendant filed a formal motion to quash the multiple offender bill, incorrectly asserting that the multiple bill had just been filed. The defendant also stated that the district attorney had failed to indicate which of the five previous offenses he intended to use, meaning that the defendant was unable to obtain meaningful discovery. At the hearing on the motion to quash, held on August 7, 2001, the trial judge denied the State's request for a continuance and granted the motion to quash. In support of his decision to quash the multiple offender bill, the trial judge referred to the "dilatory tactics of the State in handling the matter," and found that the actions of the State "demonstrate[d] an unwillingness for the prosecutor's office to do what they're supposed to do." The transcript of the hearing indicates that the trial judge was frustrated by the fact that the assistant district attorney, who was apparently one of a series of assistant district attorneys to work on the case, was not prepared to defend against the motion to quash. After finding that the motion should be quashed

According to the multiple bill, defendant actually had four previous felony convictions, as follows: (1) December 2, 1998 - possession of crack with intent to distribute in violation of La. Rev. Stat. 467(A)(1); (2) May 2, 1990 - felon in possession of a firearm in violation of La. Rev. Stat. 14:95.1; (3) April 14, 1989 - possession of cocaine in violation of La. Rev. Stat. 40:967(C)(2); and (4) August 29, 1984 - burglary in violation of La. Rev. Stat. 14:62. It appears that under the provisions of La. Rev. Stat. 15:529.1, as it existed at the time of defendant's arrest, the defendant could be sentenced to life in prison without benefit of parole, probation, or suspension of sentence, if convicted under the multiple bill. 2
4

3

because the hearing had not been timely held after the filing of the multiple bill, the trial judge directed defense counsel to file a motion to quash on those grounds. The defendant's attorney then filed a second, handwritten motion to quash. The hearing was then interrupted by other matters. When the hearing resumed, the trial judge suggested that, after consideration of good time served, the defendant's sentence might be completed. The assistant district attorney responded by requesting a stay order, which the trial judge denied, again citing the fact that the State was not ready to try the case that day. The defense attorney then stated that the defendant's sentence had not been completed, though it was "almost up." When the assistant district attorney announced his intention to seek review of the granting of the motion to quash. The trial judge then stated as follows: [L]et the record reflect not only the basis of the dilatory nature of resetting the case, Multiple bill hearing on top of Multiple hearing, the State not going forward with the case, the State is too tardy -- is tardy in filing the bill on 3/14/2000. The State appealed the trial court's decision to quash the multiple offender bill. In an unpublished decision, a panel of the Fourth Circuit Court of Appeal affirmed the trial court judgment, with one judge dissenting. The appellate court found that the trial court was in a better posture to determine who was responsible for the delays in hearing the multiple offender bill and deferred to the discretion of the trial judge. State v. Toney, 2001-1657 (La. App. 4 Cir. 3/6/02), 812 So. 2d 161. The only issue addressed by the appellate court is the trial court's finding that the State had been dilatory in proceeding with the multiple bill. This court granted the State's application for supervisory review. State v. Toney, 2002-0992 (La. 11/22/02),829 So.2d 1034-35.

DISCUSSION Under the express provisions of Louisiana's multiple offender sentence
3

enhancement statute, a multiple bill may be filed against a defendant who has been convicted of a felony "at any time, either after conviction or sentence." La. Rev. Stat. 15:529.1(D)(1)(a). Although the statute does not provide a specific time period during which a multiple bill may be filed, this court has held that it "does not allow an indefinite time in which the district attorney may file the multiple offender bill once the necessary information is available." State v. McQueen, 308 So. 2d 752, 755 (La. 1975). In reaching this conclusion, the court in McQueen relied both on a defendant's Constitutional right to a speedy trial5 and the provisions of La. Code of Crim. Proc. art. 874, which requires that criminal sentences be imposed without unreasonable delay. Id. This court then concluded that the multiple bill must be filed "within a reasonable time after the necessary information is available to the appropriate district attorney." Id. See also State v. Broussard, 416 So. 2d 109, 110 (La. 1982). In the instant case, the multiple bill was clearly filed within the "reasonable time" mandated by McQueen and Broussard as it was filed on the same day the defendant was sentenced; thus, the trial court erred in his alternative finding that the multiple bill should be quashed because the State was tardy in filing the bill. Thus, the pivotal issue raised by this appeal is whether a 17-month delay between the filing of the multiple bill and the holding of a hearing on the issue demands that the multiple bill be quashed. This court has not previously expressly considered that issue. However, given the fact that the rule adopted in McQueen and Broussard is based on the requirement of La. Code of Crim. Proc. art. 874 that sentences be imposed without unreasonable delay, we find that the hearing on a multiple bill must be held within a reasonable time, under the facts and circumstances of the specific case, after the filing of the bill. The State argues that the lower courts erred in quashing the multiple bill under
5

La. Const. art 1,

Download 2002-K-0992 STATE OF LOUISIANA v. JERRY TONEY.pdf

Louisiana Law