State of Louisiana Versus Carol Lee Constantin

STATE OF LOUISIANA NO. 22-K-203

VERSUS FIFTH CIRCUIT

CAROL LEE CONSTANTIN COURT OF APPEAL

STATE OF LOUISIANA

May 24, 2022

Susan Buchholz
First Deputy Clerk

IN RE STATE OF LOUISIANA

APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT,
PARISH OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE
VERCELL FIFFIE, DIVISION "A", NUMBER 22,66735

Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Hans J. Liljeberg

WRIT GRANTED

Relator, State of Louisiana, seeks review of the trial court’s April 11, 2022
denial of its request for the issuance of a bench warrant for Defendant, Carol Lee
Constantin, in accordance with La. C.Cr.P. art. 333.

On January 17, 2022, a commercial surety bond in the amount of $11,000 was
posted by Branden Collins Bail Bonds to insure Defendant’s appearance in court on
Monday, April 11, 2022 at 9:00 a.m. After the bailiff sounded the hall at court on
the morning of April 11th, the State requested a bench warrant in accordance with
La. C.Cr.P. art. 333. The trial court denied the State’s request and, instead, issued
an attachment with a return date of May 9, 2022. The court reasoned that there was
uncertainty as to whether Sgt. J. Merritt1 was actually an ex-officio notary and
whether the law allowed for a deputy to execute the appearance bail bond as a
notary.2

The State argues in its writ application that the trial court erred in refusing to
issue the arrest warrant after the requirements pursuant to La. C.Cr.P. art 333 were
met, and the trial court abused its discretion by issuing an attachment, instead of a
warrant, as mandated by La. C.Cr.P. art 333. We agree.

La. C.Cr.P. art. 328 provides,

1
The transcript shows that the trial judge inquired as to whether Sgt. Dave Merritt is an ex-officio notary.
However, the “Appearance Bail Bond” form shows the signature of Sgt. J. Merritt.
2
On the “Appearance Bail Bond” form included with the writ application, Sgt. J. Merritt witnessed the
execution of the bail undertaking “[s]worn to and subscribed before [him], an officer authorized to take bail
undertakings,” by affixing his signature on the bail form line above the preprinted phrase “Ex Officio Notary/Deputy
Sgt. J. Merritt.”

A. The bail undertaking shall:
(1) Be in writing.
(2) State the court before which the defendant is bound to appear.
(3) Be entered into before an officer who is authorized to take it.
(4) State a single amount of bail for each charge.

B. The bail undertaking shall be enforceable if the above requirements
are met; and no officer may refuse to accept the posting of a bail
undertaking and releasing a defendant on bail if the conditions set by
this Title are met. A person shall not be discharged from his bail
undertaking, nor shall a judgment of forfeiture be stayed, set aside,
or reversed, nor the collection of any such judgment be barred or
defeated by reason of any defect of form, omission of a recital, or of
a condition of the undertaking, by reason of a failure to note or record
the default of any defendant or surety, or because of any other
irregularity. The bail undertaking shall run, subject to the provisions of
Article 626, in favor of the state of Louisiana, or the city or parish
whose ordinance is charged to have been violated, with the proceeds to
be disposed of according to law. No error, inaccuracy, or omission in
naming the obligee on the bail undertaking is a defense to an action
thereon. (Emphasis added).

Further, La. R.S. 13:55643 authorizes the sheriff, notwithstanding any
provisions of the law relative to qualifications of notaries public, to designate one
deputy per shift for each office location and appoint them as ex officio notaries
public. The appointed deputy can serve as an ex officio notary public until the sheriff
chooses to suspend or terminate their appointment, or until the appointment is
automatically terminated by severance.

La. R.S. 13:5564 further provides,

The deputy so appointed may exercise, in the parish which the sheriff
serves, the functions of a notary public only to administer oaths and
execute affidavits, acknowledgments, and other documents, all limited
to matters within the official functions of the office of sheriff, for the
enforcement of any statute which provides for criminal penalties, any

3
La. R.S. 13:5564 states,
A. Notwithstanding any provisions of the law relative to qualifications for notaries public, each
sheriff may designate one deputy per shift for each office location and appoint them as ex officio
notaries public.
B. (1) The deputy so appointed may exercise, in the parish which the sheriff serves, the functions
of a notary public only to administer oaths and execute affidavits, acknowledgments, and other
documents, all limited to matters within the official functions of the office of sheriff, for the
enforcement of any statute which provides for criminal penalties, any parish ordinance which the
sheriff is charged with enforcing, and any affidavit required for the enforcement of R.S. 32:661
through 669, and to execute property bonds. For each such action the notary shall use the official
seal of that respective sheriff's office.
(2) He shall fulfill the same bond requirements as provided by law for notaries in the parish which
the sheriff serves.
(3) The sheriff shall pay as an expense of his office the costs of the notarial seal, the notarial bond,
and any fees required for filing the bond.
C. All acts performed by such an ex officio notary public authorized by this Section shall be
performed without charge or other compensation.
D. The sheriff may suspend or terminate an appointment made pursuant to this Section at any
time, and separation from the employ of the sheriff shall automatically terminate the powers of
such an ex officio notary public.

parish ordinance which the sheriff is charged with enforcing, and any
affidavit required for the enforcement of R.S. 32:661 through 669, and
to execute property bonds. For each such action the notary shall use the
official seal of that respective sheriff's office.

Finally, La. C.Cr.P. art 333 provides:

If at the time fixed for appearance the defendant, who was properly
noticed, fails to appear as required by the court, the court shall, on its
own motion or on motion of the prosecuting attorney, immediately
issue a warrant for the arrest of the defendant. (Emphasis added).

In State v. Wafer, 27,433 (La. App. 2 Cir. 9/27/95); 661 So.2d 569, 571, the
appellate court refused to set aside a bond forfeiture judgment at the request of the
bond company, who challenged the validity of an appearance bond on the basis that
a deputy signed the affidavit that declared that the sheriff witnessed the bond
undertaking. The Second Circuit found:

[T]he legal requirement that the bail undertaking must be entered into
before an authorized officer is provision enacted in the interest of and
for the protection of the State of Louisiana. Article [328]4 of the Code
of Criminal Procedure does not require that an officer actually sign the
bond undertaking; however, by having the bond contract executed
before an officer of the state, there will be a witness who can, if
necessary, testify in future proceedings concerning the execution of the
bail undertaking.

***

Reason dictates that a deputy sheriff, rather than the sheriff, would be
the party before whom most bail undertakings are executed. It would
be illogical that a deputy, before whom a bond is executed and who in
fact signed the bond as a witness, would not have the authority to accept
the bail obligation.

Id.

Upon review of the writ application and the applicable law, we find that Sgt.
J. Merritt was authorized to witness the execution of the bond as an ex officio notary
public, and Defendant received proper notice by way of a validly executed bail
undertaking documented using St. John the Baptist Parish’s pre-printed Appearance

4
La. C.Cr.P. art. 328 was previously enacted as La. C.C.P. art. 327 (effective June 22, 1993 – August 15,
1999) and provided:

Art. 327. Requisites of the bail undertaking
A. The bail undertaking shall:
(1) Be in writing;
(2) State the court before which the defendant is bound to appear;
(3) Be entered into before an officer who is authorized to take it; and
(4) State the amount of the bail.
B. The bail undertaking shall be enforceable if the above requirements are met; and a person shall
not be discharged from his bail undertaking, nor shall a judgment of forfeiture be stayed, set aside
or reversed, or the collection of any such judgment be barred or defeated by reason of any defect
of form, omission of a recital or of a condition of the undertaking, by reason of a failure to note or
record the default of any defendant or surety, or because of any other irregularity.

Bail Bond form. If the deputy/ex officio notary public was required to list his full
name, badge number5 (in lieu of a notary number), and the expiration date of his
commission as an ex officio notary public, then the failure to do so were
irregularities—which did not relieve Defendant of his undertaking to appear in court
on the date noticed on the form, according to La. C.Cr. P. art. 328.6

While we note the trial judge’s reasons for denying the State’s motion, we
find that the judge is constrained by the plain language of La. C.Cr.P. art. 333, which
mandates the issuance of an arrest warrant for a defendant who received proper
notice of the time fixed for his appearance but failed to appear in court as required.
Even the precursor statute of Article 333 in effect prior to 2017, La. C.Cr.P. art.
349.17, stated the court shall issue the arrest warrant upon the motion of the district
attorney. (See State v. Pittman, 15-718 (La. App. 4 Cir. 8/26/15); 175 So.3d 1021,
1023–24, where a denial of the State’s request for an alias capias for a defendant
arrested in 2008 for possession of marijuana, who had not been arrested for several
years, was reversed. The appellate court reasoned that the trial court did not have
the discretion to deny the State’s request). Because it was not permitted to exercise
its discretion, we find that the trial court erred in failing to issue a warrant for the
arrest of Defendant, as requested by the State.

Accordingly, the writ application is granted. The trial court is ordered to issue
a warrant for the arrest of Defendant, as requested by the State, within seven days of
the date this disposition is rendered.

Gretna, Louisiana, this 24th day of May, 2022.

MEJ
FHW
HJL

5
See, La. R.S. 35:12(C), which provides:
No person other than a regularly commissioned notary public shall use the title “Notary Public.”
Every person, other than a regularly commissioned notary, who is otherwise given notarial powers
or authorized as a notary ex officio, shall clearly indicate his actual position or title from which his
authority to notarize is derived, in addition to his notary identification number.
6
See also, La. C.Cr.P. art. 334 which provides in part, “The notice to the commercial surety shall include
the power of attorney number used to execute the bail undertaking. Failure to include the power of attorney number
shall not affect the validity or enforcement of a resulting judgment.”
7
La. C.Cr.P. art. 349.1 provided, “If at the time fixed for appearance the defendant fails to appear as
required by the court, the judge may, or shall on motion of the prosecuting attorney, issue a warrant for the arrest of
the defendant.”

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

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I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN
TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS
DAY 05/24/2022 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF
THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY
COUNSEL, AS LISTED BELOW:

22-K-203
E-NOTIFIED
40th District Court (Clerk)
Honorable Vercell Fiffie (DISTRICT JUDGE)
Honorable Bridget A. Dinvaut (Relator)

MAILED
Carol Lee Constantin (Respondent) Jason M. Galjour (Relator)
In Proper Person Assistant District Attorney
1813 Rosale Drive Fortieth Judicial District
Baton Rouge, LA 70806 Post Office Box 99
Edgard, LA 70049

I•• Complete items 1, 2, and 3.
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I 1. Article Addressed to: D. Is item 1? Cl Yes
If YES, enter delivery address below; CJ No
Jason M. Galjour
Assistant District Attorney
Fortieth Judicial District
Post Office Box 99
Edgard, LA 70049
22-K-200 05-24-22

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Car<.ft\Lee Constantin , In Proper Person
1'8'!~osale Drive
Baton llouge, LA 70806
22-&,203 05-24-22

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