STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 KW 1859 VERSUS EARL LANE CONSOLIDATED WITH VERSUS DEBBIE LYNN LONG.

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1 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 KW 1859 STATE OF LOUISIANA VERSUS EARL LANE CONSOLIDATED WITH STATE OF LOUISIANA VERSUS DEBBIE LYNN LONG Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge Case No and Case No The Honorable Anthony J Marabella Jr Judge Presiding Judgment Rendered JUN KtllI r tjjc U 28 Mary Roper Parish Attorney Baton Rouge Louisiana and Lisa Freeman 1st Assistant City Prosecutor Baton Rouge Louisiana Counsel for Plaintiff Appellant City of Baton Rouge D Carson Marcantel Baton Rouge Louisiana Counsel for Defendant Appellee Earl Lane Glynn J Delatte Jr Baton Rouge Louisiana Counsel for Defendant Appellee Debbie Lynn Long BEFORE KUHN GAIDRY AND McCLENDON JJ

2 GAIDRY J This matter is before this court on grant of an application for writs of review by the City of Baton Rouge The matter involves two city court cases consolidated at the district court The pertinent procedural history of each case is essentially undisputed Debbie Lon On June Debbie Long was arrested by Baton Rouge City Police officers and issued a traffic citation for speeding improper lane usage and driving while intoxicated violations of Baton Rouge City Ordinances 1l 131A B The citation instructed her to appear in city court on August On August the prosecutor moved for a continuance and the matter was continued to November On October the city prosecutor filed a misdemeanor affidavit charging Long with Baton Rouge City Ordinance violations operating a vehicle while intoxicated speeding reckless driving and improper lane usage violations of Baton Rouge City Ordinances R A and B On November Long appeared for arraignment pled not guilty and trial was set for AprilS 2006 On AprilS 2006 the trial was continued to September on a motion by the city prosecutor On September Long filed a motion to quash wherein she alleged that the city failed to timely bring her to trial On May a hearing was held on the motion At the conclusion of the hearing the motion was taken under advisement On June Judge Wall denied Long s motion to quash In his written reasons for judgment Judge Wall stated that the defendant relied on State v Kimble 411 So 2d 430 La 1982 and argued that the uniform citation was notarized and therefore under Kimble was an 2

3 affidavit The defendant further argued that the citation was filed with the Clerk of Court when it was received into the traffic records and a file was opened by the Clerk of Court Judge Wall stated that there was testimony by the City Court Clerk of Court about the difference between a filing and a document being made part of the record The clerk stated that receiving the ticket was not a filing and a filing would not occur until the city prosecutor filed an affidavit with the clerk s office and it was stamped filed by the clerk s office Judge Wall declined to attempt to distinguish between a receiving and a filing The court concluded that a common sense approach should be applied and a determination of what constitutes institution of prosecution should be made The court held that institution of prosecution meant an instrument charging a crime filed by a person with the authority to prosecute that charge The court reasoned that the jurisprudence did not intend that a police officer writing a citation would be the person to institute prosecution as prosecution belongs to the prosecutors The court stated that a prosecutor has the authority and discretion to look at a set of facts and determine what crime should ultimately be charged In conclusion the court held that considering the clear and unambiguous language of the statute prosecution clearly is instituted when the appropriate affidavit charging the appropriate crime is filed by the prosecuting authority Long appealed to the 19th Judicial District Court the district court On July the district court issued an order reversing the ruling of the Baton Rouge City Court and granting Long s motion to quash The city is now seeking review of the district court s ruling Earl Lane On January Earl Lane was arrested by Baton Rouge City Police officers and charged with failure to yield no proof of insurance and 3

4 driving while intoxicated violations of Baton Rouge City Ordinances and On February a misdemeanor affidavit was filed in city court charging Lane with Baton Rouge City Ordinance violations DWI failure to yield no proof of insurance reckless driving Baton Rouge City Ordinance and open container in vehicle Baton Rouge City Ordinance On March Lane was arraigned and pled not guilty to the charges against him and trial was set for August On August the city prosecutor moved to continue the case and a new trial date was set for January On that date the city court on its own motion and over the defense objection continued the case to February On February Lane filed a motion to quash alleging that the city failed to timely bring him to trial On April a hearing was held on the motion and at the conclusion of the hearing the motion was taken under advisement On June Judge Laura Davis of the Baton Rouge City Court denied the motion to quash In her written reasons for judgment Judge Davis incorporated the reasons set forth by Judge Wall in the Long case Lane appealed to the 19th Judicial District Court On July the district court reversed the city court s ruling and granted Lane s motion to quash The city is now seeking review of the district court s ruling 19th Judicial District Court rulin In his written reasons for judgment in both cases Judge Marabella of the 19th Judicial District Court noted that the institution of prosecution is governed under La Code Crim P art 382 B 2 which states that a prosecution for a violation of an ordinance and other criminal prosecutions in a city court shall be instituted by affidavit or information charging any offense supported by an affidavit The district court noted that La Code 4

5 Crim P art 385 defined an affidavit as a written accusation of a crime made under oath and signed by the affiant It must be filed in open court in a court having jurisdiction to try the offense or in the office of the clerk of court The district court citing Kimble stated that under La R S a traffic ticket may be sufficient to institute prosecution if it is sworn to and includes information necessary to charge a person with an offense According to Judge Marabella Kimble held that a Uniform Traffic Ticket and Complaint Affidavit if sworn or notarized can be an affidavit under Article 385 Judge Marabella stated that Long was given a citation which was signed by Officer M Duncan and was notarized on June by Officer A Munoz Earl Lane was given a citation that was signed and notarized on January The district court stated that because both parties received a signed and notarized citation this would satisfy the meaning of affidavit as contemplated by Kimble The district court stated that it must determine when the affidavits were filed in order to determine when prosecution was instituted The district court stated that the filing of an affidavit in open court clearly instituted prosecution and the district court believed that this occurs when the defendant is required to appear before the district court and when on such dates the prosecution moves for a continuance of that proceeding According to the district court Long was advised to appear on August and on that date the matter was reset to November based on a motion to continue filed by the prosecutor The district court stated that Long s motion to quash was filed more than one year from the time of the initial appearance and thus the motion to quash was proper and should have been granted by the city court 5

6 As to Lane the district court stated that he was advised to appear on March On March Lane was arraigned and that matter was set for trial The district court stated that calculating from the time of the first appearance it would appear that Lane filed his motion to quash prematurely Unlike the city court the district court attempted to determine what actually constituted a filing The district court noted that the citation was received by the city court records clerk on January and in the traffic division on January The city court created a file on January On February the city prosecutor filed an affidavit charging Lane The district court concluded after reviewing testimony from the Clerk of Court of the City Court of Baton Rouge that a filing occurred when the notarized citation was filed with the City Court Clerk of Court s Office Thus the court determined that the motion to quash was proper and should have been granted The City of Baton Rouge is now seeking review of the district court rulings The city argues that the Baton Rouge City Court judges were correct in denying the motions to quash and the district court erred in reversing these rulings The city contends the time delays did not commence until the prosecutor filed an affidavit in the respective cases The city argues that prosecution is instituted by the filing of formal charges by the entity with the authority to prosecute the charges not by the police officer s issuance of a summons In response the defendants argue that the filing of a notarized citation is sufficient to institute prosecution whether filed by the police officer or the prosecutor as it is considered a filed affidavit and meets the standards under La Code Crim P arts 382 and 385 6

7 Applicable Law Louisiana Code of Criminal Procedure art 578 provides for the time limitation for commencement of trial for a misdemeanor offense as follows A Except as otherwise provided in this Chapter commenced nor any bail obligation be enforceable no trial shall be 3 In misdemeanor cases after one year from the date of institution of the pro ecution According to La Code Crim P art 382 B 2 prosecution for violation of an ordinance and other criminal prosecutions in a city court shall be instituted by affidavit or information charging any offense supported by an affidavit An affidavit is a written accusation of a crime made under oath and signed by the affiant It must be filed in open court in a court having jurisdiction to try the offense or in the office of the clerk thereof La Code Crim P art 385 In State v Kimble 411 So 2d 430 La 1982 the defendant argued that the time limitation for commencement of trial after institution of prosecution had expired In Kimble the defendant was never charged by an affidavit The Louisiana Supreme Court stated that under La R S a traffic ticket may be sufficient to institute prosecution if it is sworn to and includes information necessary to charge a person with an offense However in Kimble the court noted that the defendant s ticket was not in the form of an affidavit and was not sufficient for the purpose of instituting prosecution in the city court The Kimble court concluded that the defendant s prosecution was timely instituted when a bill of information was filed in the district court less than two years after the crime was committed The court rejected the defendant s argument that prosecution was instituted on or before the day the city prosecutor moved to transfer the case to the 7

8 district court believing it to be a DWI third offense over which the city court had no jurisdiction Louisiana Revised Statutes A provides that prosecutions in any city parish or municipal court based on or arising out of the operation of a vehicle by a person while intoxicated may be charged and prosecuted under the provisions of La R S or under any applicable city parish or municipal ordinance which incorporates the standards elements and sentences of the offense of driving while intoxicated contained in La R S Section B sets forth that for purposes of this Section all city parish and municipal courts shall have concurrent jurisdiction with the district courts over violations otherwise subject to their jurisdiction provided for by R S except in those cases wherein the person or defendant is charged as a third or subsequent offender under the provisions ofr S D and E La R S C 1 provides that all such charges filed under the provisions of this Section shall be on affidavit and such charges shall be filed and prosecuted by the city attorney or the city prosecutor when said charges are filed because of violations of any city parish or municipal ordinance occurring within the territorial limits of the city or municipality and by the district attorney or his representative when said charges are filed because of violations of La R S occurring in or outside of such territorial limits of the city or municipality Louisiana Revised Statutes provides In the event the citation form provided for in this Part is sworn to and includes the necessary information required under the general laws of this state with respect to a complaint which charges commission of the offense alleged in said citation to have been committed then such citation when filed with a court of proper jurisdiction shall be deemed to be a lawful complaint for the purpose of prosecution under this Part 8

9 A motion to quash is the proper vehicle to assert that the time limitation for the commencement of trial is untimely La Code Crim P art When a defendant has brought an apparently meritorious motion to quash based on prescription the prosecution bears a heavy burden to demonstrate either an interruption or a suspension of time such that prescription will not have tolled An appellate court reviews a lower court s ruling on a motion to quash for an abuse of discretion State v Odom p 6 La App 1st Cir So 2d writ denied La So 2d 765 In the instant cases the city contends that under La Code Crim P art 382 B 2 prosecution for violation of an ordinance and other criminal prosecutions in a city court shall be instituted by affidavit or information charging any offense supported by an affidavit The city sets forth that in order for an affidavit to serve as a basis for trial it must be filed on behalf of one with the authority to prosecute the charges levied According to the city it was well developed at the hearings that the only affidavits filed with the court regarding the instant charges were the filings effected by the city prosecutor with his filing of the misdemeanor affidavits Specifically the city notes that Lon Norris the Clerk of Court for Baton Rouge City Court testified at the hearings that there was a distinction between documents received by the court and placed into the record and documents actually filed with the court Norris stated that in order for a document to be officially filed it must be physically presented by a third party for the purpose of filing into a traffic or criminal proceeding and given a stamp marking it as filed According to Norris documents which are not filed are merely marked with a stamp indicating the date upon which they are received

10 The city notes that in the Long case the traffic citation at issue was marked with the date June which signifies the date when the citation was placed in the record by a staff member of the clerk s office Norris stated that the citation was never filed because it was not stamped accordingly Norris stated that the only affidavit within Long s file that was filed was the misdemeanor affidavit filed by the city prosecutor on October According to Norris the citation issued by the officer was received by the traffic division on June and a file was created that same day The city further notes that at the Lane hearing Norris again testified regarding the difference between items filed and received Norris indicated that the traffic citation in the Lane case was marked with the notation Received January 10t traffic records Norris stated that the citation was not filed According to Norris the only affidavit within Lane s file which was filed was the misdemeanor affidavit filed by the prosecutor on February The city sets forth that the supreme court s decision in Kimble is inapplicable to the instant case The city states that the issue of whether the issuance of a citation by a police officer could have served to commence prosecution had it been notarized was not before the supreme court The city sets forth that the supreme court only had to decide if the action of bringing a defendant before the city court commenced prosecution The city asserts that in Kimble the supreme court made comments addressing matters totally unnecessary to the issue before the court Although the supreme court stated that a traffic ticket may be sufficient to institute prosecution if it is sworn to and includes information necessary to charge a person with an offense the city argues that this is dicta and should not be 10

11 given precedential value Thus the city concludes that the prosecution in both of these cases was instituted with the filing of a misdemeanor affidavit and the time limits had not yet expired when the defendants filed their respective motions to quash Discussion After reviewing the records in these cases we find that the district court erred in reversing the city court rulings In denying the motions to quash the city court judges held that institution of prosecution means an instrument charging a crime filed by a person with the authority to prosecute that charge We find that the record and the law both support this finding At the hearing in the Long case Administrative Judge for the Baton Rouge City Court Judge Trudy White was called to testify Judge White explained that the city court arraigns for DWI offenses based upon affidavits prepared by prosecutors the city court does not arraign from traffic citations Judge White further explained that because police officers only cite and do not charge alleged violations the traffic ticket issued by the officer only serves to initiate the process of getting an individual before the court The actual charges and corresponding arraignment are based upon a charging document filed into the record by the prosecutor s office Institution of prosecution means the finding of an indictment or the filing of an information or affidavit which is designed to serve as the basis of a trial La Code Crim P art 934 As previously noted La R S C clearly provides that prosecution for the operation of a vehicle by a person while intoxicated under a city ordinance shall be on affidavit and such charges shall be filed and prosecuted by the city attorney or the city prosecutor Emphasis added Furthermore La Code Crim P art 61 provides that subject to the supervision of the attorney general as provided 11

12 in Article 62 the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district and determines whom when and how he shall prosecute Louisiana Code of Criminal Procedure article 7 states that the term district attorney includes a municipal prosecuting officer The law does not bestow prosecutorial authority on arresting police officers Considering the prosecutorial discretion afforded to prosecutors under our law and in light ofthe testimony provided by Judge Trudy White we find that that city court judges were correct in their rulings on the motions to quash in these cases Under both La R S and La R S the prosecutions were not instituted until the city prosecutor s office exercised its prosecutorial authority and filed the misdemeanor affidavits thereby providing the bases for trial 1 In the Lane case the affidavit was filed February In Long the affidavit was filed October Therefore when the motions to quash were filed February in Lane and September in Long the one year delay for bringing the matters to trial had not yet expired The motions to quash were properly denied This assignment of error has merit Conclusion For the foregoing reasons we reverse the district court s ruling granting the motions to quash The city court rulings denying the motions to quash are reinstated REVERSED CITY COURT RULINGS REINSTATED 1 Addressing the defendant s reliance on State v Kimble 411 So 2d 430 La 1982 we note that the issue of whether a traffic citation in the form of an affidavit is sufficient to institute prosecution was not before the Court in Kimble Therefore the portion ofthe Kimble opinion addressing the issue before this court is arguably dicta 12