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STATE OF LOUISIANA                                                       *   NO. 2005-KA-1143
VERSUS                                                                   *   COURT OF APPEAL
KENDRICK REDDICK                                                         *   FOURTH CIRCUIT
                                                                         *   STATE OF LOUISIANA
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APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 455-226, SECTION “K”
Honorable Arthur Hunter, Judge
Judge Roland L. Belsome
(Court composed of Chief Judge Joan Bernard Armstrong, Judge Dennis R.
Bagneris Sr., Judge Roland L. Belsome)
Eddie J. Jordan, Jr., District Attorney
Autumn L. Cheramie, Assistant District Attorney
1340 Poydras Street
7th Floor
New Orleans, LA 70112-1221
COUNSEL FOR PLAINTIFF/APPELLANT
REVERSED AND REMANDED




FACTS AND PROCEDURAL HISTORY
On March 31, 2004, the defendant Reddick was charged in case 446-989
with one count each of simple escape and simple possession of marijuana.   The
case was designated a fourth class case and was allotted to Section “C,” which then
ordered it reallotted to the magistrate court.   On April 14, 2004, Reddick appeared
in court, and the court ordered the case be reallotted because the escape charge was
a felony charge.   On April 28, 2004, the State nolle prosequied both counts of the
bill of information.
On October 5, 2004 the State reinstituted the escape charge in case 452-428.
Reddick appeared for arraignment on October 20, 2004, and pled not guilty.   The
record indicates that on November 19, 2004, the court found no probable cause and
ordered Reddick released.    The court reset a motion hearing for December  10,
2004.   Apparently, by that time Reddick was back in jail, and the court reset the
hearing to December 16, 2004, at which time, Reddick appeared with counsel, but
the court again found no probable cause to hold him due to the fact that the State’s
witnesses  did  not  appear  for  the  hearing.    The  court  again  ordered  Reddick
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released, and it set trial for December 29, 2004.   On December 29, 2004 the State
nolle prosequied the case.
On January 12, 2005, the State reinstituted the escape charge yet again in the
present case.   The case was allotted to Section “G” and then reallotted to Section
“K” to follow case 452-428.   Reddick appeared for arraignment on February 2, and
the court set trial for February 28, 2005.   On February 28, 2005, Reddick filed a
motion to quash the bill of information.   The court set a hearing on the motion for
March 14, 2005.   When Reddick did not appear on March 14, 2005, the court reset
the hearing to March 18, 2005.   On March 17, 2005 the State filed its opposition to
the motion to quash, and on March 18, 2005 the court granted the motion.
DISCUSSION
By its sole assignment of error, the State argues that the trial court erred by
quashing the charge against the defendant in the present case.   The transcript of the
hearing  shows  that  the  trial  court  granted  the  motion  to  quash  without  oral
argument.   The trial court did not assign reasons at the time it granted the motion.
However, the trial court’s per curiam, filed on May  10,  2005, states that in a
number of cases including the instant case, the State had nolle prosequied cases as
a way of obtaining a continuance after failing to comply with La. C.Cr. P. art. 7071.
1 Motion for continuance; time for filing - A motion for a continuance shall be in writing and
shall allege specifically the grounds upon which it is based and, when made by a defendant,
must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior
to the commencement of trial.
Upon written motion at any time and after contradictory hearing, the court may grant a
continuance, but only upon a showing that such motion is in the interest of justice. La.C.Cr.P.
art. 707.
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The State argues that it had the authority to dismiss the previous bills of
information and reinstitute the charges in the present bill.2   It further argues that its
decision to nolle prosequi did not infringe on the defendant’s constitutional or
statutory rights to a speedy trial.   Approximately 12 months had elapsed from the
time the charges were initially brought until the time the trial court quashed the bill
of information.   For the type of felony alleged in this case, La. C.Cr.P. art. 578(2),
allows  the  State  two  years  from  the  institution  of  prosecution  to  bring  the
defendant to trial.
The Supreme Court has most recently discussed this issue in State v.
Battiste, 05-1571 (La. 10/17/06); ___So.2d ___.    Citing State v. Love, 00-3347
(La. 5/23/03), 847 So.2d 1198, the court reiterated:
A court’s resolution of motions to quash in cases where the district
attorney entered a nolle prosequi and later reinstituted charges should
be decided on a case-by-case basis.   In those cases ' where it is evident
that the district attorney is flaunting his authority for reasons that
show that he wants to favor the State at the expense of the defendant,
such as putting the defendant at risk of losing witnesses, the trial court
should  grant  a  motion  to  quash  and  an  appellate  court  can
appropriately reverse a ruling denying a motion to quash in such a
situation.' (citations omitted).
Battiste, p. 5
Absent a specific finding by the trial court that the State was
intentionally flaunting its authority, we must follow Battiste. Based on
the record of the present case we have no evidence to indicate that the
State was attempting to gain a tactical advantage.   Although it seems
2
Dismissal of prosecution by district attorney - The district attorney has the power, in his
discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that
power it is not necessary that he obtain consent of the court. The dismissal may be made orally
by the district attorney in open court, or by a written statement of the dismissal signed by the
district attorney and filed with the clerk of court. The clerk of court shall cause the dismissal to
be entered on the minutes of the court. La.C.Cr.P. art. 691.
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that  the  trial  court  would  be  in a better position to make such a
determination, we are a court of review and thus bound by the record.
In light of the Supreme Court’s opinion in Battiste and the
record as a whole, we must find the State was within its authority to
nolle prosequi and reinstate the instant matter.   Therefore, we reverse
the trial court and remand the matter for further proceedings.
REVERSED AND REMANDED
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