State Of Louisiana v. Joseph B. Schmidt

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #005
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 28th day of January, 2022 are as follows:
PER CURIAM:
2021-K-00491 STATE OF LOUISIANA VS. JOSEPH B. SCHMIDT (Parish of St.
Tammany)
AFFIRMED; SEE PER CURIAM.

S
UPREME COURT OF LOUISIANA
No
. 2021-K-00491
S
TATE OF LOUISIANA
VS.
JOSEPH B. SCHMIDT
O
n Writ of Certiorari to the Court of Appeal, First Circuit, Parish of St. Tammany
PER CURIAM:
We granted the State’s application to determine, after reviewing the record,
whether the State carried its heavy burden of showing that the two -year limitations
period to commence trial on defendant’s non-capital felony charges, La.C.Cr.P. art.
578(A)(2), was interrupted by defendant’s failure “to appear at any proceeding
pursuant to actual notice, proof of which appears in the record.” La.C.Cr.P. art.
579(A)(3). After careful review, we find that the State failed to carry its burden of
showing that the statute of limitations was tolled. Specifically, there is no proof in
the record that defendant failed to appear at a proceeding in 1995 pursuant to actual
notice. Accordingly, we agree with the court of appeal and the district court that this
non-capital felony prosecution must be quashed because the St ate failed to timely
commence the trial.
The State instituted this non-capital felony prosecution by bill of information
on November 4, 1994. Thus, these charges are more than 25 years old and the State
has not commenced the trial. Code of Criminal Procedure article 578 provides:
A. E
xcept as otherwise provided in this Chapter, no trial shall be
commenced nor any bail obligation be enforceable:
(
1) I
n capital cases after three years from the date of institution of the
prosecution;
01/28/22

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(2) In other felony cases after two years from the date of institution of
the prosecution; and

(3) In misdemeanor cases after one year from the date of institution of
the prosecution.

B. The offense charged shall determine the applicable limitation.

This statute of limitations can be interrupted , however, as provided in Code of
Criminal Procedure 579(A)(3), if “[t]he defendant fails to appear at any proceeding
pursuant to actual notice, proof of which appears in the record.” Absent such an
interruption, the statute of limitations ran out about 25 years ago.
Much of the discussion of the court of appeal was devoted to events that
occurred after 1995, such as defendant’s failure to appear in 2000 and his subsequent
arrests in Texas in 2014 and 2019, and to questions of law pertinent to those events,
such as the effect of 2013 La. Acts 6, which added Part C to La.C.Cr.P. art. 579. See
State v. Schmidt, 2020-0145 (La. App. 1 Cir. 3/11/21) (unpub’d), available at 2021
WL 925566. However, upon close review of the record, it became clear that it is not
necessary to consider events occurring after 1995 and related questions of law, but
rather the record through 1995 is dispositive . The State all but acknowledges as
much in the portion of its reply brief that addresses the proof of actual notice missing
from this record. Nonetheless, the State proposes to remedy this absence of proof by
supplementing the record at this late stage with modified minute entries it has
constructed through an ex parte process, which alterations the lower courts did not
review.
The record, which the court of appeal relied upon to conduct its review, shows
that defendant was charged by bill of information on November 4, 1994. At the
arraignment on November 28, 1994, trial was set for January 23, 1995. Trial did not
occur on that date, for which there is no minute entry; there is only a partially
completed subpoena form directed to the defendant but not signed by him. The form

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states that pretrial conference was scheduled for February 21, 1995, and trial set for
March 1, 1995.
A minute entry for March 1, 1995, indicates that the parties were absent on
that date, and the matter was co ntinued. There is no minute entry for February 21,
1995. There is another subpoena form with this date, which is directed to defendant
but not signed by him. That form indicates that pretrial conference was scheduled
for April 19, 1995, and trial set for May 1, 1995. According to the minute entry for
May 1, 1995, the parties were again not present for trial. Two years from the date of
institution of the prosecution then passed by 1997, at the latest , without the State
commencing the trial.
Once the accused shows that the State has failed to bring him to trial within
the time period specified by La.C.Cr.P. art. 578, the State bears a heavy burden of
demonstrating that either an interruption or a suspension tolled the statute of
limitations. See, e.g., State v. Morris , 1999-3235 (La. 2/18/00) (per curiam), 755
So.2d 205. As noted above, the State can meet this burden by showing that the statute
of limitations was interrupted by defendant’s failure “to appear at any proceeding
pursuant to actual notice, proof of which appears in the record. ” La.C.Cr.P. art.
579(A)(3) (emphasis added) . The State here contends that the two-year period
afforded by La.C.Cr.P. art. 578 was interrupted when defendant failed to appear in
1995.
However, the record contains no proof tha t defendant received actual notice
of a proceeding in 1995 at which he failed to appear . The court of appeal ordered
that the record be supplemented with all minute entries for proceedings between the
start of the prosecution and November 1, 2000, and all summons, subpoenas,
subpoena returns, and notices of hearing dates. Despite this, the record still lacks the
necessary proof. Thus, the State fails to carry its heavy burden to show that the
statute of limitations was tolled, pursuant to La.C.Cr.P. art. 579(A)(3).

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In its reply brief filed in this court, the State alleges for the first time that it
has discovered that the minute entries are not accurate, and the State further alleges
that it has also found a missing minute entry. Therefore, the State filed a motion to
supplement the record with “corrected” minute entries, which the State alleges more
accurately reflect what occurred in these proceedings in 1995. However, it was
incumbent upon the State to cr eate a record in the t rial court, which could then be
reviewed by the appellate courts. The State’s efforts to perfect a record come too
late, and we deny the State’s motion to supplement the record with these alterations.
Furthermore, e ven with the State’s “corrected” minute e ntries, the record
would remain unclear. In addition to accepting its proposed alterations to the record,
the State asks this court to make a series of speculative leaps to infer that defendant
failed to appear pursuant to actual notice . See, e.g., Reply brief, p. 5 (“The record
shows that there is no question that the defendant failed to appear despite receipt of
actual notice, even if the precise date of the defendant’s failure to appear cannot be
pinpointed.”). Thus, even if we granted the State’s motion, the State would still fail
to carry its burden of proof.
Defendant was charged with these non -capital felony offenses more than 25
years ago. The State failed to commence trial within the two years afforded by
La.C.Cr.P. art. 578(A)( 2). We are constrained by the record to find that the State
failed to carry its heavy burden of showing that statute of limitations was tolled.
Accordingly, we affirm the court of appeal’s ruling, which found that the trial court
did not abuse its discreti on in granting defendant’s motion to quash the bill of
information for untimely prosecution.
AFFIRMED