Opinion
NO. 2022-K-0218
05-11-2022
STATE of Louisiana v. Chaz DELATTE
Jason Rogers Williams, District Attorney, G. Benjamin Cohen, Chief of Appeals, Victoria J. Cvitanovic, Assistant District Attorney, ORLEANS PARISH DISTRICT ATTORNEY'S OFFICE, 619 S. White Street New, Orleans, LA 70119, COUNSEL FOR RELATOR/STATE OF LOUISIANA Annie Flanagan, Orleans Public Defenders, 2601 Tulane Avenue, Suite 700, New Orleans, LA 70119, COUNSEL FOR RESPONDENT/DEFENDANT
Jason Rogers Williams, District Attorney, G. Benjamin Cohen, Chief of Appeals, Victoria J. Cvitanovic, Assistant District Attorney, ORLEANS PARISH DISTRICT ATTORNEY'S OFFICE, 619 S. White Street New, Orleans, LA 70119, COUNSEL FOR RELATOR/STATE OF LOUISIANA
Annie Flanagan, Orleans Public Defenders, 2601 Tulane Avenue, Suite 700, New Orleans, LA 70119, COUNSEL FOR RESPONDENT/DEFENDANT
(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins )
Judge Joy Cossich Lobrano Defendant was arrested on September 22, 2021 for theft of goods valued at over $1000. At Defendant's first appearance on the following day, the magistrate commissioner set a rule to show cause on November 7, 2021 pursuant to La. C.Cr.P. art. 701. On November 7, 2021, the rule to show cause was continued to December 21, 2021. Because defendant was released on bond, on December 21, 2021, the rule to show cause was reset to February 20, 2022. At the show cause hearing conducted on February 20, 2022, the commissioner ordered Defendant released from his bond obligation. The State timely filed a writ seeking review of the release order.
According to the arrest register, Defendant was booked with violation of La. R.S. 14:67.10. We note this statute was repealed by Acts 2017, No. 281, § 3.
La. C.Cr.P. art. 701(B)(2)(a) requires that when a defendant is not continued in custody subsequent to arrest for a felony, an indictment or information be filed within one hundred fifty days of the defendant's arrest.
On February 22, 2022, the State filed a bill of information charging Defendant with theft of items valued in excess of $1000 but less than $5000, a violation of La. R.S. 14:67(B)(3).
The State first argues that the commissioner abused his discretion in ordering Defendant's release pursuant to La. C.Cr. P. art. 701 without a contradictory hearing. Recently, this Court in State v. Sidney Cheneau , 22-0084 (La. App. 4 Cir. 3/22/22), 336 So.3d 908, held that art. 701 does not require a prior defense motion requesting release and that a magistrate commissioner has authority to set a rule to show cause hearing pursuant to art. 701 absent a prior motion requesting release by the defendant.
In the matter sub judice , because Defendant was out on bail, the State had one hundred and fifty days from the date of Defendant's arrest to file an indictment or bill of information. See La. C.Cr.P. art. 701(B)(2)(a). On December 21, 2021, the commissioner set the hearing on the rule to show cause on February 20, 2022, the one hundred fifty-first day after Defendant's arrest. The State had adequate notice that it must show good cause on February 20, 2022 why Defendant should not be released from his bail obligation pursuant to art. 701. The record reflects that the rule to show cause hearing was held on February 20, 2022 with the State present. We find that a contradictory hearing was conducted prior to Defendant's release under art. 701.
The State next argues that at the time of the show cause hearing, the deadline for instituting prosecution set forth in La. C.Cr.P. 701 had not run and that the commissioner therefore erred in ordering the release of Defendant's bail obligation. We agree.
The one hundred fiftieth day after Defendant's arrest fell on February 19, 2022, which was a Saturday. La. C.Cr.P. art. 13 provides: "In computing a period of time allowed or prescribed by law ... [t]he last day of the period is to be included, unless it is a legal holiday, in which event the period runs until the end of the next day which is not a legal holiday."
The State asserts incorrectly that "150 days fell on Sunday, February 20, 2022." State's Writ Application, p. 2.
Under La. R.S. 1:55(A)(1) and (2), Sunday is a legal holiday, and, in certain parishes, including Orleans parish, Saturday is a legal holiday. See also State v. Thom , 615 So.2d 355, 364 (La. App. 5th Cir. 1993) (recognizing Saturdays and Sundays as legal holidays for purposes of computation of time under La. C.Cr.P. art. 13 ). The following Monday, February 21, 2021, was Washington's Birthday (Presidents’ Day), a legal holiday. See La. R.S. 1:55(A)(1) and (E)(1)(a)(i). These three days should be excluded from the art. 701 deadline computation. The State had until February 22, 2022 to timely institute prosecution. We find that the magistrate commissioner erred in ordering Defendant's release prior to the expiration of the 701 deadline. Accordingly, we grant the writ and reverse the commissioner's order releasing the bail obligation.