State of Louisiana Versus Marlon Sagastume

STATE OF LOUISIANA NO. 23-KA-224

VERSUS FIFTH CIRCUIT

MARLON SAGASTUME COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 21-6772, DIVISION "O"
HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING

December 27, 2023

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Scott U. Schlegel

APPEAL CONVERTED TO WRIT; WRIT DENIED
FHW
MEJ

SCHLEGEL, J., DISSENTS WITH REASONS
SUS

COUNSEL FOR PLAINTIFF/APPELLANT,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Darren A. Allemand

COUNSEL FOR DEFENDANT/APPELLEE,
MARLON SAGASTUME
John A. Venezia

WICKER, J.

The State of Louisiana seeks appellate review of the trial court’s January 19,

2023 judgment, granting defendants’ motion to quash the two predicate

convictions used to charge him with driving while intoxicated (“DWI”), third

offense. For the following reasons, we convert the State’s appeal to a writ

application and deny the relief sought.

PROCEDURAL HISTORY

On December 20, 2021, defendant, Marlon Sagastume, was charged by bill

of information with driving while intoxicated, third offense, in violation of La. R.S.

14:98(A) and La. R.S. 14:98.3(A). The bill of information provides that on June 6,

2021, defendant operated a vehicle while intoxicated having been previously

convicted of violating La. R.S. 14:98 on: 1) June 11, 2003, in the First Parish Court

for the Parish of Jefferson; and 2) June 24, 2004 in the 29th Judicial District Court

for the Parish of St. Charles. On February 8, 2022, defendant pled not guilty.

On August 30, 2022, defendant filed a motion to quash the bill of

information, asserting that the two predicate convictions could not be used to

enhance his DWI charge to a third offense, because the two predicate convictions

fell outside of the ten-year “cleansing period” set forth in La. R.S. 14:98(C)(3). On

November 28, 2022, the State filed a memorandum in opposition to defendant’s

motion to quash, arguing that the ten-year cleansing period had not elapsed,

because La. R.S. 14:98(C)(3) provides that the time period under which defendant

was “under an order of attachment for failure to appear” shall be excluded in

computing the ten-year period. The State attached documents pertaining to

defendant’s two predicate convictions to its opposition memorandum.

On December 13, 2022, a hearing was held on the motion to quash, during

which the parties presented their arguments and referred to the exhibits attached to

the State’s opposition memorandum, but no exhibits were introduced or admitted.

23-KA-224 1

At the conclusion of the hearing, the trial court deferred its ruling, requested

additional information from the State regarding the 2004 predicate conviction, and

continued the matter to January 19, 2022.

Defendant filed a reply to the State’s opposition on January 17, 2023, but the

State did not file any additional memoranda or exhibits. At the hearing on January

19, 2022, the parties presented arguments but did not move to introduce any

exhibits. The trial court granted defendant’s motion to quash the two predicate

convictions, and the State orally moved for an appeal. On February 14, 2023, at a

hearing on another case involving defendant, the trial court admitted into evidence

the State’s exhibits regarding the predicate convictions that were attached to its

memorandum in opposition to defendant’s motion to quash. On February 15,

2023, the State filed a motion for appeal and request for designation of the record,

which was granted.1

LAW AND DISCUSSION

Appealability of Judgment

Although the State’s motion for appeal was granted by the trial court, our

review reveals that the judgment granting defendant’s motion to quash is not a

final, appealable judgment. Under La. C.Cr.P. art. 912(A), “[O]nly a final

judgment or ruling is appealable.” A final judgment is one that puts an end to the

proceedings. State v. Millette, 14-76 (La. App. 5 Cir. 10/29/14), 164 So.3d 865.

La. C.Cr.P. art. 912(B)(1) provides that the State may appeal “[a] motion to

quash an indictment or any count thereof.” However, a ruling on a motion to

quash must be a final judgment that puts an end to the proceedings in order to be

appealable. Millette, 164 So.3d at 865.

1
In its motion, the State indicated that it had failed to formally offer, file, and introduce into evidence its
exhibits at the December 13, 2022 and January 19, 2023 hearings, but it had rectified this omission on
February 14, 2023.

23-KA-224 2

In Millette, 164 So.3d at 865, the defendant was charged with DWI, third

offense, and the trial court granted the defendant’s motion to quash one of the

predicate convictions. 165 So.3d at 865. The State appealed. This Court found

that the trial court’s judgment quashing one of the predicate offenses was not a

final, appealable judgment, because the quashing of one of the predicate offenses

did not put an end to the proceedings, but simply reduced the grade of the offense

by eliminating the use of that particular conviction. Id.

In the present case, defendant did not seek to quash the entire bill of

information against him or dismissal of the case; rather, he specifically sought to

quash the two predicate convictions. Further, the trial court did not dismiss the

case when it granted the motion to quash. At this point, in essence, defendant

faces a charge of first offense DWI, in violation of La. R.S. 14:98(A) and La. R.S.

14:98.1. Accordingly, we find that the judgment at issue is not a final, appealable

judgment. See also State v. Lopez, 17-507 (La. App. 5 Cir. 3/28/18), 243 So. 3d

1269.

When an appeal is filed within the time delay for filing an application for

supervisory writs, and where the interests of justice and judicial economy would be

better served, an appellate court may convert an unauthorized appeal to a

supervisory writ. State v. Jackson, 22-34 (La. App. 1 Cir. 9/16/22), 353 So.3d 732,

735; State v. Houston, 19-615 (La. App. 1 Cir. 11/15/19), 291 So.3d 223, 225;

State v. Lyons, 13-180 (La. App. 5 Cir. 10/9/13), 128 So.3d 407. In the present

case, the State filed its motion for appeal within the time delays for filing an

application for supervisory writs, in accordance with Uniform Rules-Courts of

Appeal, Rule 4-3. Based on the timely filing and in the interest of justice and

judicial economy, we convert the State’s appeal to a writ application and address

the issues presented pursuant to our supervisory jurisdiction.

23-KA-224 3

Admission of Evidence

The State filed a memorandum in opposition to defendant’s motion to quash

and attached several exhibits thereto. However, the transcripts reflect that no

exhibits were introduced and admitted into evidence at either of the motion to

quash hearings. Based on the discussion at both hearings, it appears that the trial

court, nevertheless, relied on the State’s attached exhibits when ruling on the

motion to quash.

On February 14, 2023, approximately one month after the trial court granted

defendant’s motion to quash, the parties appeared before the court in defendant’s

misdemeanor case number 26-6773. The prosecutor stated that she wanted to go

on the record in the felony case 21-6772, which is the case at issue in this appeal,

though it was not on the docket that day due to the granting of defendant’s motion

to quash. She stated, “…in the felony record of 21-6772 I would like to formally

offer, file, and introduce the exhibits that were attached to the opposition motion

that was filed by the State on 11/28 of 2022.” Defense counsel indicated he had no

objection, and the trial court admitted the exhibits into evidence.

Exhibits and attachments not properly and officially offered and admitted

into evidence cannot be considered, even if they are physically filed into the trial

court record. State v. Whitley, 14-737 (La. App. 5 Cir. 3/25/15), 169 So.3d 658,

n.1. Therefore, the trial court erred by considering the exhibits attached to the

State’s memorandum when it ruled on defendant’s motion to quash on January 19,

2023.

This Court has previously remanded cases and re-opened motion hearings to

allow the admission of evidence. In State v. Whitley, 169 So.3d at 658, the trial

court granted the defendant’s motion to quash wherein the defendant alleged that

the State failed to timely institute prosecution. At a hearing on the motion, the

court did not hear testimony or receive evidence. This Court concluded that the

23-KA-224 4

record was not complete, vacated the judgment of the trial court, and remanded the

matter for a reopening of the motion to quash hearing. In State v. Young, 99-880

(La. App. 5 Cir. 1/12/00), 751 So.2d 364, 365, this Court conditionally affirmed

the defendant’s conviction and remanded for a reopening of a suppression hearing,

because the record failed to include the search warrant. See also State v. Perez, 02-

587 (La. App. 5 Cir. 11/26/02), 831 So.2d 542, writ denied, 03-221 (La. 5/2/03),

842 So.2d 1100; State v. Turner, 21-186 (La. App. 5 Cir. 6/23/21), 2021 WL

2582503 (unpublished opinion); and State v. Schexnayder, 14-479 (La. App. 5 Cir.

12/30/14), 167 So.3d 832, 836.

In the present case, because the exhibits were not admitted into evidence at

the motion hearings, or before the trial court ruled, granting defendant’s motion to

quash, this Court could remand this matter for reopening of the hearing on

defendant’s motion to quash to allow the evidence to be admitted, in accordance

with our prior decisions. However, such an exercise would be futile and inefficient

where the trial court admitted the State’s exhibits into evidence on February 14,

2023, and the State filed its motion for appeal the next day, February 15, 2023.

Accordingly, while we do not condone the State’s initial failure to introduce the

evidence it relied upon, because the State’s exhibits were ultimately admitted by

the trial court, we will, in this instance, consider them in our review of defendant’s

motion to quash.

Analysis of Cleansing Periods

A motion to quash is the proper vehicle to attack a predicate DWI conviction

on the basis that it falls outside of the cleansing period. State v. Collins, 19-231

(La. App. 5 Cir. 6/19/19), 275 So. 3d 401, 403. This Court applies an abuse of

discretion standard when reviewing a trial court's determination on a motion to

quash. State v. Brooks, 16-345 (La. App. 5 Cir. 12/28/16), 210 So.3d 514,

518. The granting of a defendant's motion to quash is a discretionary ruling by the

23-KA-224 5

trial court, and absent abuse, the ruling should not be disturbed by the appellate

court. Id. at 518-519. However, the trial court’s legal findings on a motion to

quash are subject to a de novo review. State v. Hamdan, 12-1986 (La. 3/19/13),

112 So.3d 812, 816.

In its sole assignment of error, the State argues that the trial court erred in

granting defendant’s motion to quash, because defendant’s 2003 and 2004

predicate convictions fall within the ten-year cleansing period set forth in La. R.S.

14:98(C)(3). It contends that the trial court incorrectly calculated the ten-year

cleansing period by failing to consider the plain language of La. R.S. 14:98(C)(3),

which provides that any period of time during which a defendant is under an order

of attachment for a DWI must be excluded from the running of the cleansing

period. Alternatively, the State asserts that these attachment orders extended

defendant’s probationary periods, which are excluded when calculating the ten-

year cleansing period.

Defendant responds that the trial court did not err in granting the motion to

quash. He argues that this Court should reject the State’s interpretation of the

language of La. R.S. 14:98(C)(3), because it is improper to interpret the language

“attachment for failing to appear…for an offense” in La. R.S. 14:98(C)(3) to

encompass attachments issued for failing to abide by a punishment for an offense.

Defendant further responds that the post-conviction attachments in the 2003 case

were for failure to pay fines and penalties and, therefore, cannot be used to

interrupt the cleansing period under La. R.S. 14:98(C)(3).

Additionally, defendant asserts that the State’s evidence does not prove that

either sentencing court extended his probation for either of the predicate

convictions. Further, he contends that while a court may extend an offender’s

probation period after a hearing pursuant to La. C.Cr.P. art. 900, the extension of

the probation period may not exceed the maximum period of two years for a

23-KA-224 6

misdemeanor offense. Therefore, he asserts that the period of probation for each of

the predicate misdemeanor convictions ended two years after the original sentence

and could not extend the cleansing period to meet the June 21, 2021 date of the

instant alleged offense.

Before we can determine if defendant’s prior convictions fell within the ten-

year cleansing period, a review of the applicable law is in order. First, we must

consider the language of La. R.S. 14:98(C)(3) to determine what time periods must

be excluded from the ten-year period.

The version of La. R.S. 14:98(C)(3) that was in effect at the time of the

instant offense provides in pertinent part:

For purposes of this Section, a prior conviction shall not include
a conviction for an offense under this Section…if committed more
than ten years prior to the commission of the crime for which the
defendant is being tried… However, periods of time during which the
offender was awaiting trial, under an order of attachment for failure
to appear, or on probation or parole for an offense described in this
Paragraph, or periods of time during which an offender was
incarcerated in a penal institution in this or any other state for any
offense, including an offense described in Paragraph (1) of this
Subsection, shall be excluded in computing the ten-year period.

(Emphasis added).

The State argues that in calculating the ten-year cleansing period, La. R.S.

14:98(C)(3) requires the exclusion of the time periods during which a defendant is

under an order of attachment for failure to appear, regardless of whether the

attachment was issued before or after the date of conviction. Defendant reads the

phrase “under an order of attachment for failure to appear” in conjunction with “for

an offense described in this Paragraph.” He construes this to mean that

“attachments later issued because a defendant disobeys punishment orders” are not

to be excluded.

The interpretation of any statutory provision starts with the language of the

statute itself. State v. Oliphant, 12-1176 (La. 3/19/13), 113 So.3d 165, 168; Oubre

23-KA-224 7

v. Louisiana Citizens Fair Plan, 11-0097 (La. 12/16/11), 79 So.3d 987, 997. When

the provision is clear and unambiguous and its application does not lead to absurd

consequences, its language must be given effect, and its provisions must be

construed so as to give effect to the purpose indicated by a fair interpretation of the

language used. La. C.C. art. 9; La. R.S. 1:4; Oliphant, 113 So.3d at 1154.

Here, the language of La. R.S.14:98(C)(3) does not suggest that “under an

order of attachment for failure to appear” applies only to attachments issued prior

to an offender’s conviction, because the statute additionally explicitly excludes the

“time during which the offender was awaiting trial” in computing the ten-year

period. Because the language at issue, “under an order of attachment for failure to

appear,” is not qualified by any timing specifications, the time defendant spent

under an order of attachment for failure to appear, whether issued pre or post-

conviction, must be excluded from the ten-year cleansing period.

The prior convictions used by the State in a repeat DWI offender

prosecution under La. R.S. 14:98 are essential matters of proof at trial, i.e. a

necessary element to the State bearing its burden of proving the defendant is a

repeat offender. Collins, 275 So. 3d at 403. The State has the burden of negating

the cleansing period. Id.

2003 Predicate Conviction

To meet its burden of negating the ten-year cleansing period, the State

provided documents pertaining to defendant’s 2003 conviction, including the bill

of information, waiver of constitutional rights/guilty plea form, commitment, and

minute entries. These documents indicate that defendant’s first DWI offense

occurred on March 27, 2001; he pled guilty on June 11, 2003; and he was

sentenced to 60 days in the parish prison, suspended, and placed on active

probation for six months on June 11, 2003. The minute entries further reflect that

the conditions of defendant’s probation included: driver school, substance abuse

23-KA-224 8

evaluation, community service, installation of an ignition interlock system, as well

as a fine and court costs.

Based on that cases’ minute entries, the following is a timeline of the events

related to the attachments issued and recalled in the 2003 predicate conviction.

 September 10, 2003: It is ordered by the Court that an instanter attachment
be issued herein, for failure to appear for installment date.

 October 27, 2003: It is ordered by the Court that attachment be recalled.
Installment payments extended to 11/26/2003. COURT Fee/Fine Assessed
to Date: $833.50 Balance Due: $833.50: payment date 10/27/2003-today’s
payment is$250.00 New Balance After Payment Applied: $583.50.

 December 1, 2003: It is ordered by the Court that an Instanter attachment
be issued herein, for failure to appear for installment date.

 May 7, 2007: It is ordered by the Court that attachment be recalled.
Installment payments extended to 06/06/2007. COURT Fee/Fine Assessed
to Date: $843.00 TCMS: $50.00 Balance Due: $593.00: payment date
05/07/2007-today’s payment is $0.00 New Balance after Payment Applied
$593.00.”

 June 7, 2007: It is ordered by the Court that an Instanter attachment be
issued herein, for failure to appear for installment date.

 August 30, 2013: It is ordered by the Court that an Instanter attachment be
issued herein, for failure to appear for installment date.

 June 4, 2015: Contempt for Missed Installment Payment.

 March 16, 2016: Clerk Counter Program- Fine and cost paid in full. It is
ordered by the Court that attachment be recalled. Contempt paid in full.

 March 17, 2016: Fine and court cost paid in full this date. Finished record.

The minute entries indicate that all of the attachments issued were for failure

to appear for “installment dates,” which involve the payment of fines or fees. This

Court has clearly stated that “the purpose of cleansing periods such as the one

provided in section (F)(2) of R.S. 14:98 is to reward prior offenders with the

‘cleansing’ of their prior convictions if they are able to refrain from committing

another offense within the statutory time frame.”2 State v. Hoerner, 11-659 (La.

2
The provisions of La. R.S. 14:98(F)(2) are now contained in La. R.S. 14:98(C)(3).

23-KA-224 9

App. 5 Cir. 2/28/12), 88 So.3d 1128, 1131. The inclusion of such attachments

would punish prior offenders by preventing the “cleansing” of their prior

convictions if they are unable to pay their monetary obligations within the statutory

timeframe. As such, it appears the exclusion of the time period for attachments

issued for failure to fulfill monetary obligations was never intended under La. R.S.

14:98(C)(3).

Nevertheless, even if attachments for failure to appear to pay fines and fees

are properly excluded from the cleansing period, the State did not introduce any

evidence to show defendant was provided with the appropriate notice to appear on

those “installment dates.” While the relevant minute entries refer to “installment

dates,” there is no evidence in this record of the amount defendant was required to

pay on those dates; exactly what the term “installment date” means or requires;

where defendant was to pay the “installment;” or what the consequences of failing

to appear and pay the money would be.

In addition to the minute entries for the 2003 case, the State introduced the

commitment signed by the trial court and dated June 11, 2003. Although the

minute entry indicates that a $400 fine was assessed, the commitment sets forth the

sentence and various conditions but does not indicate that a fine was assessed.

Rather, the commitment provides, “A fine of $____, suspend $0.00 plus court

costs.”

The brief minute entries indicating attachments were issued in the 2003 case,

without more, are insufficient to prove that the time periods during which

defendant was under orders of attachment, as indicated on the minutes, must be

excluded from the cleansing period. Therefore, the time period excluded from the

cleansing period for this conviction ran from the date of the offense, March 27,

2001, until defendant’s probation expired by operation of law on December 11,

2003.

23-KA-224 10

2004 Predicate Conviction

In connection with the 2004 predicate conviction, the State introduced

copies of the bill of information, minute entries, a conditions of probation form,

and the transcript from the guilty plea hearing held on June 24, 2004. These

documents reflect that defendant’s second DWI offense occurred on December 7,

2003; he pled guilty on June 24, 2004; and he was sentenced to six months

imprisonment, suspended, and placed on active probation for two years on June 24,

2004.

The minute entries provide the following timeline of the events as it relates

to attachments issued and recalled in the 2004 predicate conviction.

 February 9, 2005: Rule for Contempt set 3-3-05.

 March 3, 2005: Contempt rule satisfied. Fine deferred until 7/1/05. Ordered
to perform a minimum of 20 hours of community service per month
commencing 7/05.

 August 11, 2005: Attachment issued, failure to pay fine and costs. Bond set
at $500.00 cash.

 November 21, 2005: Contempt/revocation hearing set 1-5-06.

 January 5, 2006: Attachment issued, failure to comply with conditions of
probation. Bond set at $2,500.00 cash.

 June 19, 2006: $660.00 of fine paid

 July 18, 2018: Motion to Recall Attachment and to Terminate Probation
filed by attorney Wendy Williams is set 9/4/2018 at 9:00 a.m.

 October 5, 2018: Accused present in court with counsel, Wendy Williams.
Motion to Recall Attachment and to Terminate Probation hearing held:
Argument by Ms. Williams. Motion granted. Attachment recalled.
Probation terminated. Case closed.

In computing the ten-year cleansing period, the State relies upon the

following periods of time in the 2004 predicate conviction when defendant was

under an order of attachment: 1) the time from August 11, 2005 until October 5,

2018; or 2) the time from January 5, 2006 until October 5, 2018. Excluding either

of these time periods, the State asserts, causes the ten-year cleansing period not to

23-KA-224 11

have lapsed, and defendant’s predicate convictions to be properly used to enhance

the instant offense.

The August 11, 2005 minute entry provides, “Attachment issued, failure to

pay fine and costs. Bond set at $500.00 cash.” The November 21, 2005 minute

entry provides that a “contempt/revocation hearing” was set for January 5, 2006,

and the January 5, 2006 minute entry provides, “Attachment issued, failure to

comply with conditions of probation. Bond set at $2,500.00 cash.”

The August 11, 2005 minute entry does not contain enough information to

conclude that a hearing was set for August 11, 2005, that defendant was notified to

appear, or that the attachment was issued because defendant failed to appear on

that date. Rather, it only provides that an attachment was issued because of

defendant’s “failure to pay fine and costs.” The January 5, 2006 minute entry

reflects that an attachment was issued for “failure to comply with conditions of

probation.” However, it does not indicate the condition of probation that was

allegedly violated. The conditions of probation form in evidence indicated that

there were several conditions of probation, including payment of fines and fees.

At the December 13, 2022 hearing on the motion to quash, the trial court

stated that the evidence provided was minimal, pointing out that the only evidence

before it was “one little minute entry [that] says rule for contempt/revocation

hearing,” which was handwritten and did not indicate the particular basis for the

rule. The court stated that it would like to see the “rule for contempt/revoke” on

which the minute entry was based in order to determine whether the rule to revoke

was based on failure to pay fees. The trial court requested the State to provide this

additional information and continued the matter for that purpose. At the follow-up

hearing on January 19, 2022, the trial court asked if there was any additional

information regarding the attachments arising from defendant’s prior convictions,

other than the “little blurbs” that were provided in the minutes. The State and

23-KA-224 12

defense counsel replied that they did not have any additional information.

Thereafter, the trial court granted the motion to quash.

There were seventeen years between defendant’s 2004 conviction and the

2021 offense at issue in this case. In order to show the cleansing period did not

elapse prior to the current offense, the State had the burden of proving the time

periods that were to be excluded from the cleansing period. However, the minute

entries, which were ultimately considered by the trial court, reflect that the

attachments were issued for failure to meet monetary obligations and not

necessarily for failure to appear. Although one entry indicated that the attachment

was issued for failure to comply with conditions of probation, there is no evidence

to show what condition was allegedly violated. Payment of fees was included in

the probation conditions, and it may or may not have been the grounds for the

issuance of the attachment. Further, the State failed to provide any evidence to

show defendant received notice of the hearing dates or that the attachments were

properly issued and valid.

Our review of the record reveals that the State failed to prove that these

attachments triggered a period of time that should be excluded from the cleansing

period under La. R.S. 14:98(C)(3). Accordingly, we find that these periods of time

should not be excluded in computing the ten-year cleansing period.

As an alternative method for computing the ten-year cleansing period, the

State contends that because of these attachments, defendant was still on probation

in the 2004 case until it was terminated on October 5, 2018. As such, the State

avers that the cleansing period had not yet elapsed as to the prior offenses by the

time defendant committed the instant crime on June 6, 2021.

Considering our finding that the State did not prove the attachments were

properly issued, with notice to defendant to appear, we also find that these

attachments did not extend the probation period.

23-KA-224 13

When considering the motion to quash the predicate convictions, the trial

court pointed out that a rule to revoke was not filed in the 2004 case and that there

was a “scant bit of information” available. In the 2004 case, defendant was

sentenced to two years of active probation. Therefore, his probation was set to

conclude in 2006. Although the court acknowledged that a minute entry showed

defendant’s probation terminated years later in 2018, the court agreed with defense

counsel that defendant’s probation terminated by operation of law prior to that

time. The court reasoned that because a rule to revoke was not filed, defendant

could not have been on misdemeanor probation for such length of time.

La. C.Cr.P. art. 898 provides that “[u]pon completion of the period of

suspension of sentence or probation, ... the defendant shall have satisfied the

sentence imposed.” However, probation may be revoked for failure to satisfy the

probation conditions. See La. C.Cr.P. art. 900(A)(5). Contrary to the State’s

argument, the issuance of the attachments would not have automatically extended

the probationary period in his predicate convictions. At that time, a revocation or

extension of probation could have been sought on the basis of defendant’s failure

to pay a fine, but the trial court was required to consider the reasons for the failure

to pay. See Bearden v. Georgia, 416 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221

(1983); State v. Castille, 623 So.2d (La. App. 5th Cir. 1993); State v. Chelette, 558

So.2d 770 (La. App. 5th Cir. 1990). The evidence in this record does not show that

the procedures outlined in La. C.Cr.P. arts. 899 and 900 for extending a

probationary period were followed in either of the underlying 2003 and 2004 cases

upon which defendant’s current charge was predicated.

La. C.Cr.P. art. 894.4 currently provides: “[p]robation shall neither be

revoked nor extended based solely upon the defendant’s inability to pay fines, fees,

or restitution to the victim.” However, effective August 15, 2006, after

defendant’s sentencing in his predicate convictions, La. C.Cr.P. art. 894.4 stated

23-KA-224 14

when a defendant “has been sentenced to probation or is on parole and has a

monetary obligation, including but not limited to court costs, fines, costs of

prosecution, and any other monetary costs associated with probation or parole, the

judge may extend the period of probation or parole until the monetary obligation is

extinguished.” (Emphasis added.) See 2006 La. Acts No. 823, § 1. In the instant

case, however, the evidence presented by the State does not demonstrate that any

action was taken that would have extended the probationary period in defendant’s

predicates.

At the time of the predicate offenses, La. C.Cr.P. art. 899(A) provided that

during the probationary period, the court may issue a warrant for the arrest of a

defendant “for violation of any of the conditions of probation” or may issue a

summons to appear “to answer to a charge or violation or threatened violation” of

those conditions. In addition, La. C.Cr.P. art. 899(B) provides that a probation

officer may issue a written or oral detainer authorizing the arrest of a probationer if

the officer has “reasonable cause to believe” that a violation has occurred or is

imminent, or in case of emergency. See State v. Black, 97-774 (La. 12/12/97), 706

So.2d 423, 424.

Specifically, La. C.Cr.P. art. 899(D) provided for three events upon which

the running of the period of probation shall cease: the time of the issuance of the

probationary warrant, summons, or detainer.3 The Louisiana Supreme Court has

interpreted La. C.Cr.P. art. 899(D) to mean that the issuance of a detainer suspends

the running of the probationary term pending a final violation hearing. See Black,

706 So.2d at 425.

3
La. C.Cr.P. art. 899(D) stated, in part:
When a warrant for defendant’s arrest or a summons for defendant’s appearance issued under
Paragraph A or a detainer is issued under Paragraph B of this Article, the running of the period of
probation shall cease as to the time the warrant, summons, or detainer is issued.

23-KA-224 15

Here, defendant was sentenced on June 24, 2004, to six months

imprisonment, suspended, and placed on active probation for two years that same

day. As such, defendant’s probationary period was set to end on June 24, 2006.

Based solely on the minute entries, an action under La. C.Cr.P. arts. 899(A) or (B)

may have been taken for probation violations because of the “contempt/revocation

hearing” set for January 5, 2006. This action would have occurred prior to the

completion of defendant’s probationary period on June 24, 2006. However, on

January 5, 2006, the court issued an attachment for “failure to comply with

conditions of probation.” The January 5, 2006 minute entry says nothing about

that court either extending or revoking defendant’s probation, nor, as discussed

above, does it state what conditions of probation defendant failed to comply with—

whether monetary or otherwise. Even though the trial judge here asked for more

information regarding this specific issue at one of the motion to quash hearings, the

State did not present any further information. As such, no further details are

provided beyond the minute entries.

The State’s evidence did not definitively prove any action was taken, such

as the filing of a rule to revoke or the issuance of a warrant, summons, or detainer

issued by the trial court under La. C.Cr.P. art. 899, which suspended or extended

defendant’s probationary period. Furthermore, the State’s evidence does not show

that defendant was served with notice of the “contempt/revocation hearing” set for

January 5, 2006. Accordingly, because the State failed to prove that defendant’s

probationary period terminated at a later date, we decline to exclude either alleged

period of time presented by the State in computing the ten-year period under La.

R.S. 14:98(C)(3).

Similarly, as to the 2003 predicate conviction, any argument that the

numerous attachments, which were issued and recalled on several occasions until

March 16, 2016, extended defendant’s probationary period would fail. As

23-KA-224 16

recounted above, in connection with this prior offense, defendant was sentenced on

June 11, 2003, to sixty days in the parish prison, suspended, and placed on active

probation for six months. Thus, it would seem that defendant’s probationary

period was set to end on December 11, 2003. The minute entries provide that the

trial court issued and recalled several attachments for defendant’s “failure to

appear for installment date,” which can be surmised to pertain to his court costs

and fines. Several of the attachments were issued and recalled well beyond the

date that defendant’s probation was set to end in this case. Based on the evidence

presented by the State, under La. C.Cr.P. art. 899(A) or (B), the State did not prove

that the attachments issued by the court suspended the running of the probationary

term pending a final violation hearing. The minute entries do not reflect any

actions were taken which would extend defendant’s probationary period. See La.

C.Cr.P. art. 899(D).

Accordingly, in relying upon the foregoing methods for computing the ten-

year cleansing period, we find that the State has not met its burden of negating the

cleansing period contained in La. R.S. 14:98(C)(3) as to defendant’s two predicate

convictions.

DECREE

For the foregoing reasons, we convert this appeal to a writ application and

review this matter under our supervisory jurisdiction. Based on our review, we

find that the trial court did not err in granting defendant’s motion to quash his two

predicate convictions, because the State did not meet its burden in negating the

cleansing period. Accordingly, this writ application is denied.

APPEAL CONVERTED TO WRIT;
WRIT DENIED

23-KA-224 17

STATE OF LOUISIANA NO. 23-KA-224

VERSUS FIFTH CIRCUIT

MARLON SAGASTUME COURT OF APPEAL

STATE OF LOUISIANA

SCHLEGEL, J., DISSENTS WITH REASONS

I respectfully dissent from the majority opinion.

The record shows that there was an attachment issued on January 5, 2006

because defendant violated the conditions of his probation under the 2004

predicate offense in the 29th Judicial District Court: “[a]ttachment issued, failure

to comply with conditions of probation.” The majority, however, focuses on the

fact that the minute entry does not “state what conditions of probation defendant

failed to comply with—whether monetary or otherwise.” The majority also

focuses on the fact that the State failed to “definitely prove any action was taken,

such as the filing of a rule to revoke or the issuance of a warrant, summons, or

detainer issued by the trial court under La. C.Cr.P. art. 899” or show that

defendant was served with notice of the “contempt/revocation hearing” set for

January 5, 2006.

The pertinent records for the 2004 predicate show the following actions:

June 24, 2004: “Sentenced to 6 months parish prison, suspended. Placed on
2 years misdemeanor probation supervised through the DA’s office. Fined
$750.00 and costs, payable at the rate of $100.00 per month commencing
7/04. Ordered to perform 240 hours of community service by 12/31/04.
Ordered to attend and complete a driver’s improvement program by
10/31/04. Ordered to attend and complete a substance abuse program by
12/31/04. Ordered to install a ignition interlock device on his vehicle and
not drive a vehicle that doesn’t have one. Ordered not to consume alcoholic
beverage during probationary period.”

February 9, 2005: “Rule for Contempt set for 3-3-05.”

23-KA-224 1

March 3, 2005: “Contempt rule satisfied. Fine deferred until 7/1/05.
Ordered to perform a minimum of 20 hours of community service per month
commencing 7/05.”

August 11, 2005: “Attachment issued, failure to pay fine and costs. Bond
set at $500.00 cash.”

November 21, 2005: “Contempt/revocation hearing set 1-5-06.”

January 5, 2006: “Attachment issued, failure to comply with conditions of
probation. Bond set at $2,500.00 cash.”

June 19, 2006: “$660.00 of fine paid.”

July 18, 2018: “Motion to Recall Attachment and to Terminate Probation
filed by attorney Wendy Williams is set 9/4/2018 at 9:00 a.m.”

October 5, 2018: “Accused present in court with counsel, Wendy Williams.
Motion to Recall Attachment and to Terminate Probation hearing held:
Argument by Ms. Williams. Motion granted. Attachment recalled.
Probation terminated. Case closed.”

I agree that the State did not provide any evidence that defendant received

notice of any of the hearings in this case. But there is a distinction between issuing

an attachment for failure to appear and an attachment issued for violating

conditions of probation. And La. R.S. 14:98(C)(3) provides an additional and

separate basis for periods of time during which a defendant is “on probation or

parole for an offense described in this Paragraph.”

On November 21, 2005, before the probation period expired, a

“contempt/revocation hearing” was set for January 5, 2006. On January 5, 2006,

within the two-year probation period, an attachment was issued by the Court for

“failure to comply with conditions of probation.” Notably, this attachment is

worded differently than the previously-worded “failure to pay fine and costs”

attachment that was issued on August 11, 2005. Furthermore, the hearing on

January 5, 2006 included a “revocation hearing,” not just a “Rule for Contempt,”

which had previously been set for March 3, 2005. As set forth above, defendant’s

conditions of probation included: payment of fines, 240 hours of community

service, attend and complete a driver’s improvement program, attend and complete

23-KA-224 2

a substance abuse program, install an interlock device on his vehicle and not drive

a vehicle without one, and not consume alcohol during the probationary period.

The majority appears to focus on the court costs, fines and fees issue and the

failure to provide evidence of service. But respectfully, I do not believe we can

ignore the evidence that has been provided. Although the evidence does not note

which conditions of probation were violated, the minute entry from January 5,

2006 clearly indicates that the attachment was issued because the defendant had

violated his conditions of probation: “attachment issued, failure to comply with

conditions of probation.” And the minute entry from November 21, 2005 clearly

indicates that a revocation hearing was set for January 5, 2006, at which time the

Court issued an attachment and set a bond in the amount of $2,500.00. The record

does not say that it was issued for failure to appear or that it had anything to do

with court costs, fines and fees. In fact, a review of the minute entries shows that

the Court understood the distinction. Only five months earlier on August 11, 2005,

the Court issued an attachment for “failure to pay fine and costs” and set a bond in

the amount of $500, which is a much lower amount.

In State v. Lewis, 18-600 (La. App. 3 Cir. 8/31/18), 254 So.3d 1219, the

defendant pled guilty to misdemeanor charges on March 6, 2017 and was placed

on probation for one year. The State filed a rule to revoke defendant on March

6, 2018, exactly one year later. On the same date, the district court signed the

rule to show cause setting the matter and ordered that all parties be served. Two

days later, the clerk of court issued a notice to the defendant. At the hearing,

defense counsel moved to quash the rule arguing that neither an arrest warrant

nor a summons had been issued to defendant during his probationary period.

The district court denied the motion and held that the relevant date was the date

it signed the order attached to the motion and order to revoke probation. Mr.

Lewis argued that the issuance of the summons did not occur until the notice to

23-KA-224 3

appear was served on him, not when it was issued. The Third Circuit disagreed

and found that such a reading of the statute “conflates the issuance of the

summons in the first paragraph of section (A) with the service of the summons to

appear in the second paragraph of section (A).” Id. at 1221. The Third Circuit

ultimately found that the issuance of the summons ceased the running of the

period of probation and thus the summons was timely issued before the

expiration of the defendant’s probation. The Court further noted that under La.

C.Cr.P. art 898, a defendant’s sentence is not satisfied until his probation is

complete.

The Louisiana Supreme Court’s holding in State v. Black, 97-0774 (La.

12/12/97), 706 So.2d 423, is consistent with State v Lewis. The Black case

involved interpretation of Paragraph B of La. C.Cr.P. art. 899. The Supreme

Court addressed the issue of whether an affidavit was necessary for a rule to

revoke probation under Article 899(B), which permits a probation officer to

issue a written or oral detainer authorizing the arrest of a probationer if the

officer has “reasonable cause to believe” that a violation has occurred, or is

imminent, or in case of emergency. Analyzing paragraphs A and B of Article

899, the Supreme Court found that the statute did not contain a requirement for

an affidavit under either paragraph. The Court concluded: “[T]he detainer issued

by the relator’s probation officer before relator’s release from state supervision

suspended the running of the probationary term pending a final violation hearing

even though it was not supported by an affidavit. La. C.Cr.P. art. 899(D).” Id.

at 425. The Supreme Court reasoned:

However, “[a] probationer has a different status. He has already
been convicted of a crime, has had a sentence of imprisonment imposed
and remains free not by right but solely by the exercise of the trial judge’s
discretion....” (Citation omitted.) In fact, jurisprudence has long
established that while probationers facing revocation retain some
constitutional and statutory rights, those rights do not in every
instance match those enjoyed by non-criminals facing trial.

23-KA-224 4

Id. at 424. (Emphasis added.)

If the Louisiana Supreme Court found that it was enough for a probation

officer to simply issue a written or oral detainer that authorized the arrest of a

probationer to suspend the running of probation when the officer had

“reasonable cause to believe” that a violation had occurred, certainly the

issuance of an attachment by a judge for “failure to comply with conditions of

probation” is sufficient to suspend the running of probation.

Additionally, the record shows that on June 19, 2006, defendant paid $660

of his fines; 6 months after the attachment was issued for “failure to comply with

conditions of probation.” But the attachment was not recalled and his probation

was not terminated until July 18, 2018, after defendant’s attorney filed a motion

to recall attachment and terminate probation.

Accordingly, defendant was under legal restraint from December 7, 2003

to October 5, 2018 for the 2004 predicate offense.4 This period must be

excluded from computing the ten-year cleansing period.

Therefore, I would find that the State has borne its burden of negating the

cleansing period for the two predicates. I agree with converting the appeal to a

writ application, but would grant the writ.

4
I agree that defendant’s probation for the 2003 predicate offense expired by operation of law on
December 11, 2003, as found by the majority.

23-KA-224 5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL 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

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 27, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-KA-224
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DANYELLE M. TAYLOR (DISTRICT JUDGE)
DARREN A. ALLEMAND (APPELLANT) THOMAS J. BUTLER (APPELLANT) JOHN A. VENEZIA (APPELLEE)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLANT)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053