Summary
In Simmons, the defendant was charged by bill of information with attempted armed robbery on 11 December 2009, and found guilty of same on 6 December 2010.
Summary of this case from State v. EllisOpinion
No. 2013–KA–0312.
2013-10-16
STATE of Louisiana v. Denzil SIMMONS.
Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, Donna R. Andrieu, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant/State of Louisiana. Katherine Maris Mattes, Clinical Instructor, Criminal Clinic, Tulane Law Clinic, New Orleans, LA, for Defendant/Appellee.
Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, Donna R. Andrieu, Assistant District Attorney, Parish of Orleans, New Orleans, LA, for Appellant/State of Louisiana. Katherine Maris Mattes, Clinical Instructor, Criminal Clinic, Tulane Law Clinic, New Orleans, LA, for Defendant/Appellee.
(Court composed of Judge PAUL A. BONIN, Judge DANIEL L. DYSART, Judge ROSEMARY LEDET).
ROSEMARY LEDET, Judge.
This is a criminal appeal by the State. The State's sole assignment of error is that the district court erred when it granted the motion to quash the multiple bill of information filed by the defendant, Denzil Simmons. For the reasons that follow, we affirm.
STATEMENT OF THE CASE
On December 11, 2009, Mr. Simmons was charged by bill of information with attempted armed robbery. Following this charge, several events relevant to this appeal took place. These events are summarized below in chronological order.
| December 6, 2010 | Mr. Simmons was found guilty of attempted armed robbery following a bench trial. During the trial, Mr. Simmons testified that he had been convicted of a felony in the State of Mississippi at the age of sixteen. Mr. Simmons 1 was convicted of armed robbery on February 26, 1997. |
| January 27, 2011 | The district court sentenced Mr. Simmons to twenty-one months at hard labor with credit for time served. |
| February 2, 2011 | The Mississippi Department of Corrections mailed several documents to the Orleans Parish District Attorney's Office, which established that Mr. Simmons had a prior felony conviction in the State of Mississippi. |
| March 30, 2011 | Despite no indication that the State had filed a multiple bill against Mr. Simmons, a multiple bill hearing was set for this date. |
| On this date, Mr. Simmons did not appear in court in response to a State request to the DOC. | |
| The District Attorney requested that a multiple offender hearing be held on April 11, 2011.2 | |
| April 11, 2011 | Mr. Simmons did not appear with his attorney in court. The hearing was continued on a defense motion. |
| April 21, 2011 | Mr. Simmons did not appear with his attorney in court. The hearing was continued on the State's motion. |
| May 12, 2011 | The hearing was continued by the court. |
| June 2, 2011 | The hearing was continued by the court. |
| June 16, 2011 | Mr. Simmons appeared with his attorney in court. The hearing was continued on the State's motion. |
| June 30, 2011 | Mr. Simmons did not appear with his attorney in court. The hearing was continued on the State's motion. |
| July 20, 2011 | Mr. Simmons did not appear with his attorney in court.3 The hearing was continued on the State's motion. |
| August 25, 2011 | Mr. Simmons did not appear with his attorney in court. The hearing was continued at the request of both parties. |
| November 4, 2011 | Mr. Simmons did not appear with his attorney in court. The hearing was continued on the State's motion. |
| January 19, 2012 | Mr. Simmons did not appear with his attorney in court.4 The hearing was reset by the court. |
| February 9, 2012 | The State filed its Multiple Offender Bill of Information against Mr. Simmons. |
| Mr. Simmons did not appear with his attorney in court. The hearing was continued on the State's motion. | |
| February 24, 2012 | Mr. Simmons did not appear in court. The hearing was continued at the request of both parties. |
| March 5, 2012 | Mr. Simmons did not appear in court. The hearing was continued on the State's motion. |
| April 5, 2012 | Mr. Simmons did not appear in court.5 The hearing was reset by the court. |
| May 10, 2012 | Mr. Simmons did not appear in court. The hearing was reset by the court due to a trial in progress. |
| May 11, 2012 | Mr. Simmons did not appear in court. The hearing was continued on the State's motion. |
| The Orleans Parish Defender's office was appointed to represent Mr. Simmons. | |
| May 31, 2012 | Mr. Simmons did not appear in court. The hearing was continued on the State's motion. |
| July 15, 2012 | Mr. Simmons was released from prison after completing his sentence for the underlying charge of Attempted Simple Robbery. |
| August 8, 2012 | The State filed another Multiple Offender Bill of Information. |
| Mr. Simmons appeared with his attorney in court. The district court denied the State's motion for continuance and dismissed the hearing without prejudice. A multiple offender hearing was scheduled for October 16, 2012 | |
| October 16, 2012 | Mr. Simmons appeared without counsel in court. The district court appointed the Tulane Law Clinic to represent Mr. Simmons and scheduled a status hearing for October 31, 2012. |
| October 31, 2012 | Mr. Simmons appeared with his attorney in court. A motion to quash the bill of information was set for hearing on November 28, 2012. |
| November 28, 2012 | The Clerk's Office received Mr. Simmons written motion to quash the multiple bill and the State's response. After hearing testimony and reviewing evidence in the case, the district court granted Mr. Simmons' motion to quash the multiple bill. |
STANDARD OF REVIEW
This Court in reviewing a trial court's ruling on a motion to quash involving factual determinations—such as speedy trial violations and nolle prosequi dismissal-reinstitution cases—applies an abuse of discretion standard. State v. Hall, 13–0453, p. ––– (La.App. 4 Cir. 10/9/13), 127 So.3d 30, 39, 2013 WL 5568736;see State v. M.C., 10–1107, p. 11 (La.App. 4 Cir. 2/18/11), 60 So.3d 1264, 1270–71 (Bonin, J., concurring); see also State v. Tran, 12–1219, p. 2 (La.App. 4 Cir. 4/24/13), 115 So.3d 672, 673 n. 3 (explaining that “[in] reviewing rulings on motions to quash where there are mixed questions of fact as well as law, ... a trial judge's ruling on a motion to quash is discretionary and should not be disturbed absent a clear abuse of discretion”); State v. Love, 00–3347, pp. 9–10 (La.5/23/03), 847 So.2d 1198, 1206 (“[b]ecause the complementary role of trial courts and appellate courts demands that deference be given to a trial court's discretionary decision, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents an abuse of the trial court's discretion.”). However, in reviewing a ruling on a motion to quash involving solely a legal issue, this Court applies a de novo standard of review. State v. Guillott, 12–0652, p. 4 (La.App. 4 Cir. 2/20/13), –––So.3d ––––, ––––, 2013 WL 633093 (citing State v. Schmolke, 12–0406, pp. 2–4 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 298–99). Since this case involves a factual determination, we apply an abuse of discretionstandard of review to determine whether the district court erred in granting Mr. Simmons' motion to quash.
DISCUSSION
As noted at the outset, the State's sole assignment of error is whether the district court erred in granting Mr. Simmons' motion to quash the State's bill of information charging him as a multiple felony offender under La. R.S. 15:529.1.
DECREE
For the forgoing reasons, the judgment of the district court is affirmed.
AFFIRMED. BONIN, J., concurs with reasons.