State of Louisiana v. Davian Bessard

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

20-084

STATE OF LOUISIANA

VERSUS

DAVIAN BESSARD

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. CR-60736
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

**********

JONATHAN W. PERRY
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Candyce G. Perret and
Jonathan W. Perry, Judges.

CONVICTIONS AND SENTENCES AFFIRMED;
REMANDED WITH INSTRUCTIONS.

JaVonna R. Charles-Young
Public Defender’s Office, Fifteenth Judicial District
204 Charity Street
Abbeville, Louisiana 70510
(337) 898-2090
COUNSEL FOR DEFENDANT/APPELLANT:
Davian Bessard

Honorable Keith Stutes
District Attorney, Fifteenth Judicial District
Ted L. Ayo
Assistant District Attorney, Fifteenth Judicial District
100 North State Street, Suite 215
Abbeville, Louisiana 70510
(337) 898-4320
COUNSEL FOR APPELLEE:
State of Louisiana

PERRY, Judge.

Defendant appeals the denial of his motion to quash prosecution on the

grounds that it had prescribed. For the following reasons, we affirm Defendant’s

convictions and sentences. However, we remand this matter to the district court

with instructions to establish a payment plan for court costs and presentence

investigation report fee and to specify the amount of the monthly supervision fee,

which was imposed as a condition of Defendant’s probation.

FACTS

On August 26, 2016, the grand jury for Vermilion Parish returned a true bill

charging Defendant, Davian Bessard, with one count of second degree murder and

one count of second degree kidnapping, violations of La.R.S. 14:30.1 and La.R.S.

14:44.1, respectively. Specifically, the indictment alleged that on or about May 23,

2016, Defendant “did commit second degree murder of Jeremiah Walker” and “did

use Taiya Mitchell as a human shield wherein said Taiya Mitchell was physically

injured[.]” Defendant pled not guilty.

On April 4, 2019, the defense filed a written “Motion to Quash with

Incorporated Memorandum of Law” with the district court. In this pleading, the

defense sought to quash the charges based on arguments that the limitations on

prosecution under La.Code Crim.P. arts. 532(7), 578(A)(2), 580, and 581 had

expired.

On April 8, 2019, the State filed a “Memorandum of Law in Opposition to

Motion to Quash Filed Herein by Defendant, Davian Bessard.” In its brief, the State

argued the defense had suspended the running of the limitations on prosecution by

filing numerous preliminary pleas and motions for continuances. On May 6, 2019,

the State filed a supplemental memorandum in opposition to the motion to quash

listing with specificity the suspension of the limitations on prosecution.

On May 10, 2019, Defendant filed a “Defense Response to State’s Original

and Supplemental Memorandums of Law in Opposition to Defendant’s Motion to

Quash.” In its pleading, the defense disagreed with what suspended the time

limitations.

A hearing on Defendant’s motion to quash was conducted on May 17, 2019,

after which the matter was taken under advisement. On July 8, 2019, the district

court issued the following written reasons for denying Defendant’s motion to quash:

Defendant argues that on August 26, 2016, the Grand Jury
returned a true bill charging the defendant with second degree murder.
As a result, the two year prescriptive date period would be on August
26, 2018. Defense counsel filed motions for bond reduction and a
motion to compel outstanding discovery. He argues that neither
motions are preliminary pleas for the purpose of prescription. Further,
defendant cites to Jones and Brooks in support of his position that
numerous pre-trial status conferences were held however they are not
considered preliminary pleas unless something occurs at the pre-trial
status conference to delay trial. State v. Jones, 780 So.2d 1234, 34,542
(La.App. 2 Cir. 2/28/01), 34,543 (La.App. 2 Cir. 2/28/01); State
v. Brooks, 838 So.2d [778], 783 (La. [2/1/03]).

The state argues that they were engaged with the defense in plea
negotiations. There was a delay in the offering of a plea to a lesser
offense due to the state’s difficulty in contacting victim’s next of kin,
Ms. Bertha Willis. It was not until May 30, 2018, when Ms. Willis and
the state agreed to a manslaughter offer to extend to defense counsel.
Once Ms. Willis gave her approval of the plea offer[,] the matter was
set for trial on January 14, 2019, at the next status conference. Defense
counsel further, by written motion, moved to continue the trial date
from January 14th to April 8, 2019.

In non-capital felony cases, the state has two years [from] the
date of institution of prosecution in order to bring the matter to trial.
La. C.Cr.P. Art. 578. When a motion to quash or other preliminary plea
is filed on behalf of the defendant this may have the effect of
suspending prescription. La. C.Cr.P. Art. 580. When a defendant
brings a motion to quash based on the running of prescription, the
burden rest[s] on the state to either show an interruption or suspension
of the time limitation has occurred. State v. Jones 780 So.2d 1234,
34,542 (La.App. 2 Cir. 2/28/01), 34,543 (La.App. 2 Cir. 2/28/01).

A preliminary plea is any plea filed after prosecution but before
trial that causes the trial to be delayed. State v. Jones 780 So.2d 1234,
34,542 (La.App. 2 Cir. 2/28/01), 34,543 (La.App. 2 Cir. 2/28/01). An

2

appearance in open court for the purpose of status conferences does not
constitute [a] “preliminary plea” that would suspend prescription. Id.
In State v. Brooks, the Court concluded that a continuance of a status
hearing, which allowed defendant to retain counsel for his inexplicably
missing counsel constituted a preliminary plea because the state’s
ability to prosecute the case was actually affected until the defendant
was able to once again obtain representation. State v. Brooks[,] 838
So.2d 778, 2002-0792 (La. 2/14/03).

After a review of the evidence submitted, this court finds that
prescription, on its face, ran on August 26, 2018. Therefore, the state
has the burden of showing an interruption or suspension of prescription
has occurred. The state submitted the transcript of the August 2, 2018,
status hearing. At this hearing, both the state and the defense certified
they were ready for trial. A date in November was originally suggested;
however, defense counsel stated she had another second degree murder
trial and would not want two serious trials that close to one another. At
that time, the state and defense mutually agreed to set the matter for
trial on January 14, 2019. Subsequently, defense requested the trial
date be continued to April 8, 2019.

This court disagrees with defense counsel’s argument. As in
State v. Fish 926 So.2d 493, 2005-1929 (La. 4/17/06), the state and
defense in this matter, at a pretrial status conference, mutually agreed
to a trial date beyond the two year prescriptive period. This mutual
agreement was on August 2, 2018, which was within the prescriptive
period. This court, therefore, follows the Court[’s] ruling in Fish and
finds that this mutual consent to set the matter outside of the
prescriptive period, suspended the running of prescription for one year
from the date of the hearing, that being August 2, 2018. As a result of
the foregoing, defendant’s Motion to Quash is denied.

On July 12, 2019, the defense filed with the district court notice of its intent

to seek supervisory review. On July 12, 2019, the district court issued an order

setting August 9, 2019, as the return date for the writ application.

On application for supervisory review, this court denied relief on the showing

made:

WRIT DENIED: Defendant filed a writ application with this court
seeking supervisory review of the trial court’s denial of Defendant’s
motion to quash the indictment based on the expiration of the time for
bringing the case to trial. Defendant’s writ application is deficient. It
does not comply with La.Code Crim.P. art. 912.1(C); Uniform Rules—
Courts of Appeal, Rule 4–5; and City of Baton Rouge v. Plain, 433
So.2d 710 (La.), cert. denied, 464 U.S. 896, 104 S.Ct. 246 (1983). The
writ application is missing a copy of the ruling complained of; a copy
of any written reasons for ruling; a copy of the minutes of court; a

3

transcript of the hearing held on Defendant’s motion to quash; and a
copy of all exhibits introduced at the hearing. Accordingly,
Defendant’s writ application is denied on the showing made.

State v. Bessard, 19-552 (La.App. 3 Cir. 10/3/19) (unpublished opinion).

Prior to this court’s writ ruling, Defendant, on August 8, 2019, entered a plea

of nolo contendere to the amended, reduced charges of manslaughter, in violation of

La.R.S. 14:31, and aggravated obstruction of a highway, in violation of La.R.S.

14:96. As part of the plea agreement, the district court ordered a pre-sentence

investigation, set a sentencing cap for each charge at ten years, agreed to run the

penalties concurrently, credited Defendant for all time served since his May 23,

2016, arrest date, and directed Defendant to pay a $150.00 fee in accordance with

La.Code Crim.P. art. 875(A)(4)(a). Also in accordance with the plea bargain, the

State agreed to refrain from filing a habitual offender bill in the instant case. At the

time of the plea, Defendant, in accordance with State v. Crosby, 338 So.2d 584

(La.1976), reserved his right to appeal the issues raised in his motion to quash.

Defendant appeared for sentencing on October 17, 2019. After considering

the information presented, the district court: 1) imposed four years at hard labor for

the manslaughter; 2) credited Defendant for all time served; 3) imposed eight years

at hard labor for the aggravated obstruction of a highway; 4) directed the penalties

to run concurrently with each other and any other; 5) suspended the eight-year

sentence; 6) placed Defendant, upon his release, on three years of supervised

probation with both general and special conditions; 7) fined Defendant $150.00;

8) ordered Defendant to pay $470.50 for costs of court; 9) and directed Defendant

to pay a $150.00 fee in accordance with La.Code Crim.P. art. 875(A)(4)(a).

Defendant now appeals the issue reserved at the time of his plea.

4

MOTION TO QUASH

In his sole assignment of error, Defendant contends the district court erred in

denying his motion to quash the bill of information on grounds the State failed to

timely commence trial within two years from the date of his indictment as required

by La.Code Crim.P. art. 578. He argues that because he was indicted on August 28,

2016, the State’s failure to commence trial by August 28, 2018, means the two-year

time limit expired and the charges against him must be dismissed pursuant to

La.Code Crim.P. art. 581. For the following reasons, we find no error in the district

court’s ruling.

Louisiana Code of Criminal Procedure Article 578(A)(2) provides that trial of

noncapital felonies must be held within two years from the date of institution of

prosecution. “Institution of prosecution” includes the finding of an indictment which

is designed to serve as the basis of a trial. La.Code Crim.P. art. 934(7). Once the

issue is raised, the State bears “the burden of proving the facts necessary to show

that the prosecution was timely instituted.” La.Code Crim.P. art. 577; see also State

v. Duraso, 12-1463, 12-1465 (La.App. 3 Cir. 12/11/13), 127 So.3d 1015, writs

denied, 14-50, 14-74 (La. 6/20/14), 141 So.3d 286. A motion to quash is the proper

procedural vehicle for challenging an untimely commencement of trial. La.Code

Crim.P. art. 532(A)(7).

We review judgments on motions to quash for abuse of discretion. State

v. Gray, 16-687 (La. 3/15/17), 218 So.3d 40. “[A]n 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, the trial court’s legal findings are

subject to a de novo standard of review.” Id. at 43 (citations omitted).

The two-year limitation can be interrupted by the absence of the defendant,

which causes the time limitation to recommence once the defendant becomes

5

available. La.Code Crim.P. art. 579. The two-year time limitation for bringing the

case to trial can also be suspended:

A. When a defendant files a motion to quash or other preliminary
plea, the running of the periods of limitation established by Article 578
shall be suspended until the ruling of the court thereon; but in no case
shall the state have less than one year after the ruling to commence the
trial.

B. The periods of limitation established by Article 578 shall also
be suspended if the court grants a continuance in accordance with the
provisions of Paragraph B of Article 709 [a witness unavailable due to
their United States Military Service deployment].

La.Code Crim.P. art. 580. Generally, the filing of a preliminary plea suspends the

time limitation until the ruling thereon:

A suspension lasts from the date a qualifying motion is filed until
the date the trial court rules on the motion, at which time the running of
the time limit resumes. State v. Richter, [51,259 (La.App. 2 Cir.
8/9/17), 243 So.3d 1193, 1195]; State v. Otkins-Victor, [15-340
(La.App. 5 Cir. 5/26/16), 193 So.3d 479, 530, writ denied, 16-1495 (La.
10/15/18), 253 So.3d 1294]. The period of suspension is not counted
toward the prescriptive period. Id. After the trial court rules on the
motion, the state has either the remainder of the time limitation or a
minimum period of one year from the date of ruling in which to
commence trial, whichever time is longer. Id.

State v. Killingsworth, 53,059, p. 9 (La.App. 2 Cir. 11/20/19), 285 So.3d 84, 90, writ

denied, 20-164 (La. 7/24/20), 299 So.3d 68.

As the statutes do not define “other preliminary plea” for purposes of La.Code

Crim.P. art. 580(A), we must examine jurisprudence to determine whether any

suspension of the two-year time limitation occurred in the instant case. In State

v. Brooks, 02-792, p. 6 (La. 2/14/03), 838 So.2d 778, 782 (citations omitted), the

supreme court held that in order to qualify as a preliminary plea, the pleading must

have the effect of delaying trial:

[A] preliminary plea is any pleading or motion filed by the defense
which has the effect of delaying trial. These pleadings include properly
filed motions to quash, motions to suppress, or motions for a
continuance, as well as applications for discovery and bills of
particulars. Joint motions for a continuance fall under the same rule.

6

Pro se pleadings are not exempt from constituting preliminary pleas even if the trial

court denied them based on them not being filed or adopted by enrolled counsel.

State v. Sinclair, 45,625 (La.App. 2 Cir. 11/3/10), 55 So.3d 47, writ denied, 10-2718

(La. 4/29/11), 62 So.3d 110; and see, State v. Tillman, 43,569 (La.App. 2

Cir. 10/22/08), 997 So.2d 144, writ denied, 08-2836 (La. 9/25/09), 18 So.3d 85

(holding that a pro se motion for speedy trial did not constitute a preliminary plea

because it was not a dilatory motion).

Continuances

The continuance of a status conference does not constitute a preliminary plea

unless it impacts the trial date:

Respondent argues in this Court that the resetting of a status conference
is not the equivalent of granting a continuance of trial, particularly in a
case in which the state had not set a trial date until nearly three-quarters
of the prescriptive period had already elapsed.

We agree with respondent to the extent that the resetting of status
conferences may have no impact on a trial date and should therefore not
invariably provide the state with an additional year in which to bring
the defendant to trial. . . . [In this case,] the resetting of the status
conference did not constitute a preliminary plea for purposes of
La.C.Cr.P. art. 580[, thereby] providing the state with an additional year
to bring the case to trial[,] because it had no apparent impact on the
state’s ability to prosecute the case.

Brooks, 838 So.2d at 783. See also, State v. Marshall, 99-2884 (La.App. 1

Cir. 11/8/00), 808 So.2d 376 (holding the defendant’s motion to continue a status

conference was a preliminary plea where the testimony at the hearing showed that a

single status conference was customary and that it was set one month before trial,

which meant continuing the status conference delayed the trial).

“Oral motions to continue[, which affect the trial date,] can also suspend the

time period for bringing a defendant to trial.” State v. Catalon, 14-768, p. 4

7

(La.App. 3 Cir. 12/23/14), 158 So.3d 114, 117, writ denied, 15-462 (La. 1/8/16), 184

So.3d 692.

In State v. Fish, 05-1929 (La. 4/17/06), 926 So.2d 493, the supreme court

found that a mutual agreement to a trial date beyond the two-year limitation; whether

knowingly, unknowingly, in good faith, or in bad faith; suspended the prescriptive

period since the parties’ agreement directly affected the State’s ability to bring the

case to trial in a timely manner.

In State v. Elfert, 175 So.2d 826 (La.1965), the supreme court held that, when

a continuance is granted for the purpose of allowing a defendant to secure

representation by counsel, the period of suspension is extended beyond the date of

the ruling on the motion to continue and lasts until the defense notifies the trial court

that the defendant had obtained such representation. However, in order to qualify

for an extension of the suspension, the defendant’s lack of representation must have

the effect of delaying trial. See Brooks, 838 So.2d 778.

Discovery

In State v. Powell, 19-696, pp. 16-17 (La.App. 3 Cir. 3/25/20), 297 So.3d 841,

851-53, this court recently extended the period of suspension in reference to motions

for discovery to include the time between the trial court’s ruling and the date the

State filed its initial discovery answer:

We agree with the trial court’s ruling that prescription was
suspended until the motion for discovery was initially answered by the
State. In State v. Thomas, 51,346, pp. 10-11 (La.App. 2 Cir. 6/21/17),
223 So.3d 759, 766, writ denied, 17-1264 (La. 3/9/18), 237 So.3d 523,
the second circuit addressed the need for a ruling on a premature
defense motion as follows:

In State v. Oliver, 34,292 (La. App. 2 Cir. 5/9/01),
786 So.2d 317, this court found:

Obviously[,] a motion filed before formal
institution of prosecution cannot suspend the
prescriptive period for bringing a defendant

8

to trial because the prescriptive period has not
begun to run. Additionally, such motions are
subject to dismissal by either party. On the
other hand, if the motions have not been
dismissed when prosecution is instituted by
the filing of a bill of information or by
indictment, then the defect of prematurity is
cured and the motions become preliminary
pleas. When prescription is suspended, the
relevant period is not counted toward the
two-year time limitation. The suspension
lasts until the court rules thereon. State
v. Cranmer, 306 So.2d 698 (La.1975); State
v. Pratt, 32,302 (La. App. 2 Cir. 9/22/99),
748 So.2d 25.

In State v. Jackson, [40,376 (La.App. 2
Cir. 12/14/05), 916 So.2d 1274, writ denied, 06-442
(La. 9/22/16), 937 So.2d 376], this court expanded its
holding in Oliver, supra, by finding that the filing of the
state’s answer to an outstanding motion for bill of
particulars negated the trial court’s need for ruling on the
motion, and suspension of the prescriptive period ends
upon the filing of said answer.

....

A review of the record for timeliness issues shows
that several events occurred to suspend the running of the
two-year time limitation. First, a premature motion for bill
of particulars, filed on May 7, 2012, immediately
suspended the running of prescription because the defense
did not dismiss the premature motion after the filing of the
grand jury indictment. Failure to dismiss the motion after
institution of prosecution cured the defect of prematurity
and suspended prescription upon the filing of the
indictment. This suspension could not end until either the
trial court ruled upon the motion or the state filed a
response, whichever occurred first.

Accordingly, we find no error in the trial court’s findings that discovery
was satisfied three weeks after the motion for discovery was granted
and that the time for commencing trial was suspended until the motion
was satisfied.

Although Defendant complained about discovery in emails and
the State relies on those complaints to assert the motion for discovery
was not satisfied until the filing of Defendant’s “Motion and Order to
Set Aside Motion Date” on April 3, 2019, we find that correspondence
between the parties does not constitute a preliminary plea. Moreover,
“[t]he State is under a continuing obligation to promptly disclose

9

additional evidence that may be discovered or that it decides to use as
evidence at trial. La. C.Cr.P. art. 729.3.” State v. Humbles, 14-643,
pp. 14-15 (La.App. 5 Cir. 3/11/15), 169 So.3d 547, 557, writ denied,
15-725 (La. 3/24/16), 190 So.3d 1195.

The bill of information was filed on July 27, 2016. The only
preliminary pleas filed by Defendant were a motion for discovery and
a motion to recuse. As previously noted, the motion for discovery was
signed four days after it was filed. Even given the three weeks the trial
court added to the prescriptive period for the filing of the State’s initial
answer to discovery, the State failed to request a trial date until after the
time for bringing Defendant to trial lapsed. Additionally, the motion to
recuse was granted the same day it was filed, adding nothing to the time
period to commence trial. Even assuming, arguendo, that the trial could
not proceed until the Attorney General took over prosecution of the case
on September 18, 2017, the time to commence trial would still have
expired before the State moved to set a trial date on January 7, 2019.
After the trial date was set, Defendant filed a “Motion and Order to Set
Aside Motion Date,” but that motion did not disturb the trial date.

This court had previously found that the filing of discovery motions suspended the

two-year limitation until the State filed its answers to those motions. State

v. Fanguy, 94-143 (La.App. 3 Cir. 10/5/94), 643 So.2d 860, writ denied, 94-2726

(La. 4/21/95), 653 So.2d 563.

The fourth circuit has held that a trial court’s sua sponte recognition that an

order for discovery had not been satisfied and was, therefore, outstanding,

constituted a motion and order for continuance made by the trial court on behalf of

and to the benefit of the defense; as such, it was a preliminary plea and triggered a

suspension of the time limitation. State v. Lewis, 16-224 (La.App. 4 Cir. 12/29/16),

209 So.3d 202, writ denied, 17-340 (La. 9/14/18), 251 So.3d 1087, vacated on other

grounds, ___ U.S. ___, 140 S.Ct. 2711 (2020).1

In State v. Jones, 41,449 (La.App. 2 Cir. 9/20/06), 940 So.2d 61, the second

circuit examined whether a motion for discovery constituted a preliminary plea

where the defense had already received a copy of the requested discovery prior to

1
The United States Supreme Court vacated Lewis’s conviction and remanded to the fourth
circuit for consideration in light of Ramos v. Louisiana, 590 U.S. ___, 140 S.Ct. 1390 (2020).

10

the motion being filed. The second circuit determined that the unnecessary motion

for discovery constituted a preliminary plea:

By filing the motion for discovery, at the very least, the state is required
to review the motion and determine if it must comply with the discovery
request. Moreover, it is the filing of the preliminary plea, such as a
motion for discovery, that triggers the suspension of the prescriptive
period. The suspension lasts until the motion is ruled upon, but in no
event does the state have less than one year from the ruling to
commence trial. La. C. Cr. P. art. 580. In this instance, there was no
ruling required and Swift [(the filing attorney)] subsequently informed
the D.A. he would not be enrolling as counsel of record. We conclude,
however, that the filing did trigger the one-year period provided by
Art. 580.

Id. at 74.2

Bail

“A motion to reduce bond is not a preliminary plea that operates to suspend

the two-year time limitation where the motion does not concern evidentiary matters

bearing on the offense and is unlikely to have caused any delay in the matter

proceeding to trial.” State v. Barnett, 50,213, p. 10 (La.App. 2 Cir. 8/12/15), 174

So.3d 748, 755.

Analysis

In this instant case, there were no interruptions of the two-year time limitation

for bringing the matter to trial. Therefore, the following timeline will discuss the

possible suspensions of the time limitation. The preliminary pleas filed and ruled

upon more than a year before the initial trial deadline extend the deadline for

commencing by the number of days between the filing of and the ruling on the

pleading; whereas, preliminary pleas filed closer to the end of the prescriptive period

2
Defense counsel contends that only the first motion for discovery filed by counsel in a
case should be considered a preliminary plea; however, we find no jurisprudence supporting this
assertion. Defense counsel rationalizes this contention by claiming the subsequent filings for
discovery directly resulted from the prosecution’s failure to fulfill the initial discovery order.
However, as all motions to quash and all motions to continue that delay trial, however many filed,
are computed as suspensions of the time limitation for bringing a case to trial, it seems that all
motions for discovery should, likewise, suspend the two-year time limitation.

11

have a greater impact as they extend the trial deadline to a year from the ruling

thereon. La.Code Crim.P. art. 580(A).

The grand jury indicted Defendant on August 26, 2016. Thus, the initial

deadline for Defendant’s trial was August 26, 2018.

Defendant, acting pro se, initiated the requests for discovery by filing a

“Motion for Production of Public Records” on September 12, 2016. The district

court denied the motion on September 21, 2016: “Denied. Motion not signed. Also,

Defendant is represented by attorney. All motions to be filed by attorney.” Nothing

in the record shows that the State provided Defendant with any discovery as a result

of this filing. This pro se motion for discovery suspended the running of the time

limitations for nine days, which extended the time for bringing the case to trial to

September 4, 2018.

On September 13, 2016, defense counsel filed a “Motion for Discovery, Bill

of Particulars and Motion for Production Including Evidence Favorable to the

Accused.” The district court signed the discovery order granting the requested

discovery on the following day; it ordered production within thirty days. The State

filed its initial discovery, “Discovery List,” with the district court on November 22,

2016, along with a statement that there were DVDs and CDs that would be provided

at a later date. The defense signed a document acknowledging receipt of the discs

on March 2, 2017. The State filed supplemental discovery with the district court on

June 27, 2017. Both parties signed a document acknowledging the filing of

discovery on November 16, 2017. Thereafter, on December 21, 2018, the State filed

a copy of the lab reports it intended to introduce at trial. Following our rulings in

Powell, 297 So.3d 841, and Fanguy, 643 So.2d 860, this filing added seventy days

to the September 4, 2018, trial deadline, which extended the date to November 13,

2018. Alternatively, if this date limits the suspension to the time from filing until

12

the date of ruling, this filing added one day to the time limitation, which means the

new date would be September 5, 2018.

On November 23, 2016, the defense filed another motion for discovery,

“Motion for Brady/Giglio Material,”3 specifically requesting an autopsy report by

Dr. Christopher Tape (autopsy reports were requested in the prior discovery motion)

as well as all DNA analysis reports (not requested in the prior discovery motion),

generally requesting exculpatory and impeachment evidence, and specifically

requesting the prosecution to affirm its compliance with its obligations under Brady,

373 U.S. 83, and Giglio, 405 U.S. 150. The district court signed the order granting

Defendant’s motion on December 1, 2016. Since the State had already provided an

initial discovery response and was, therefore, under a continuing duty to produce

any additional discovery, there is no need to extend the suspension to the date the

State turned over these documents. Thus, this filing suspended the prescriptive

period for eight days and added eight days to the trial deadline: November 21, 2018,

or September 13, 2018.

On March 7, 2017, the defense filed a “Motion to Compel Discovery” with

the district court alleging it had not yet received the documents granted by the district

court on December 1, 2016. In response, the district court, on the same date, issued

a ruling directing the prosecution to produce the autopsy report and DNA analysis

within fourteen days or show cause for the delay on May 11, 2017. The district court

ended up conducting a hearing on the motion on May 11, 2017. After the

prosecution asserted it was still waiting to receive the requested information, the

district court ordered the State to produce the discovery by August 1, 2017. The

3
Upon a defense request, the state must disclose evidence that is favorable to the defendant
when it is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 (1963).
The rule has been expanded to include evidence which impeaches the testimony of a witness,
where the reliability or credibility of the witness may be determinative of guilt or innocence.
Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763 (1972).

13

time from the filing of the pleading until the final ruling thereon suspended the

prescriptive period for sixty-five days, which extended the trial deadline to January

25, 2019, or November 17, 2018.

On September 19, 2017, the defense filed another “Motion for Brady/Giglio

Material” seeking production of specific exculpatory evidence: a digital copy of

crime scene photographs referenced on page forty-three of discovery, a digital copy

of the autopsy photographs referenced on page fifty of discovery, and any medical

records of Jeremiah Walker. These items were not specifically listed in the prior

discovery motions, but the prior pleadings included a general request for all

exculpatory information. On September 25, 2017, the district court signed an order

directing the State to provide discovery of all exculpatory evidence, including the

listed items. On October 19, 2017, the State filed with the district court supplemental

discovery consisting of four CDs containing photographs. This filing is evidenced

by a letter dated October 3, 2017; defense counsel signed the letter acknowledging

the discs were received on October 12, 2017. We again find there is no need to

extend the suspension until the date the State provided the documents because the

prosecution had already produced initial discovery and because it was under a

continuing duty to turn over additional evidence. Therefore, the time from the filing

of the pleading until the ruling thereon suspended the prescriptive period for six

days, which extended the trial deadline to January 31, 2019, or November 23, 2018.

The parties appeared for a felony status hearing on September 28, 2017. At

the hearing, the defense indicated the State was in the process of preparing digital

copies of the pictures requested by Defendant’s expert witness. The defense then

moved to schedule the next status hearing for December 21, 2017, and the district

court granted the motion. This continuance had no apparent effect on the trial date;

as such, it did not suspend the prescriptive period.

14

In an email dated November 13, 2017, defense counsel asked a secretary for

the prosecution, Autumn R. Rougeaux, whether they had surveillance footage from

D&T Crawfish (D&T). This was not a filing with the district court; as such, it did

not suspend the prescriptive period.

In a letter dated November 29, 2017, the defense indicated the State had

broached the issue of a plea agreement in February 2017 but had been unable to

follow through because the victim’s family refused consent; however, the defense

was ready to consider a new plea offer to manslaughter with a PSI and a ten-year

cap. This was not a filing with the district court; as such, it did not suspend the

prescriptive period.

At the December 21, 2017, felony status hearing, the defense indicated it was

still working with the State to obtain outstanding discovery. Defense counsel, again,

moved for another status conference to be set for March 1, 2018, and for a trial date

thereafter. The district court then set another status conference for March 1, 2018.

This continuance had no apparent effect on the trial date since none had been set; as

such, it did not suspend the prescriptive period.

At the March 1, 2018, felony status hearing, the district court, at defense

counsel’s request, “maintained” the discovery status discussion until March 22,

2018. Defense counsel also indicated the prosecution was attempting to speak to the

victim’s family (presumably about a plea offer). This continuance had no apparent

effect on the trial date since none had been set; as such, it did not suspend the

prescriptive period.

In an email dated March 22, 2018, the defense followed up on the November

13, 2017, email requesting the disc from D&T and additionally noted it was having

problems opening the DVD labeled “Nail Salon on Pine”. This was not a filing with

the district court; as such, it did not suspend the prescriptive period.

15

At the March 22, 2018, hearing, the defense moved to continue the matter

until May 24, 2018, and the district court granted the requested continuance. The

record does not contain a transcript of the March 22, 2018 hearing. This continuance

had no apparent effect on the trial date since none had been set; as such, it did not

suspend the prescriptive period.

In an email dated April 3, 2018, Autumn Rougeaux responded to the defense’s

requests pertaining to the “Nail Salon on Pine” DVD and the disc from D&T. She

provided the defense with instructions on how to open the “Nail Salon on Pine” DVD

with surveillance video, offered to allow defense counsel to watch the disc on her

own computer, denied having a disc from D&T, and noted she had requested the

evidence custodian provide her with a copy of the missing disc from D&T, if

possible. This was not a filing with the district court; as such, it did not suspend the

prescriptive period.

In a letter dated May 9, 2018, the defense requested a status update on the

prosecution’s progress with getting the victim’s family to agree to a plea bargain.

This was not a filing with the district court; as such, it did not suspend the

prescriptive period.

In emails dated May 14, 2018, the prosecution informed the defense that it

had been unable to contact the victim’s mother. The defense emailed a response

query on the same date asking whether the State would extend a plea offer without

speaking first to the victim’s mother. The prosecutor then emailed a reply stating he

could not make a plea offer without the consent of the victim’s mother and that he

would try reaching her. This was not a filing with the district court; as such, it did

not suspend the prescriptive period.

At the May 24, 2018, hearing, the defense moved to continue the matter until

August 2, 2018; the district court, again, granted the continuance. The record does

16

not contain a transcript of the May 24, 2018, hearing. This continuance had no

apparent effect on the trial date since none had been set; as such, it did not suspend

the prescriptive period.

On May 30, 2018, the State issued a written plea offer of manslaughter with

a PSI, no sentencing cap, and dismissal of the second charge. This did not suspend

the prescriptive period.

Thus, going into the August 2, 2018 hearing, the trial deadline had been

extended to either January 31, 2019, or November 23, 2018. At the August 2, 2018

hearing, the defense requested a January 14, 2019 felony trial date, and the district

court granted the requested continuance:

MS. YOUNG [defense counsel]: Page 14, Davian Bessard. He’s an
inmate. Discovery is satisfied[,] and we have an offer. We
would like a trial date.

YOUR HONOR: Motion to set for trial on 10-8 or 1-26.

MS. YOUNG: That’s a murder, Your Honor. If we can go past
November 26th, because I know I have one set, November 26.

YOUR HONOR: You do; okay.

MS. YOUNG: So I would prefer to not have two so close.

YOUR HONOR: Is [the] State ready for trial?

MR. GHIO [prosecutor]: Yes, Your Honor.

....

YOUR HONOR: 1-14? [D]o you agree with 1-14?

MR. GHIO: That’s fine.

YOUR HONOR: Okay.

MS. YOUNG: He is also on the motions docket, page three, for a bond
modification. If we could continue that one, I would like to speak
to Mr. Ayo[,] and that will give us a chance to talk about the case
again.

17

YOUR HONOR: All right. So if you want it put back on the docket,
just send an order[,] and I will put it back on the docket.

MS. YOUNG: Okay.

YOUR HONOR: Motion to continue granted.

Because the parties were ready for trial, a trial date requested, and a trial date of

October 8, 2018 (a date within either extended time limitation) offered, the defense’s

motion to continue past November to a January trial date resulted in delaying the

trial. Additionally, the defense agreed (knowingly or unknowingly, in good faith or

in bad faith) to the January trial date. Thus, this motion for, and grant of, a

continuance resulted in suspending the trial deadline until August 2, 2019, under the

provision of La.Code Crim.P. art. 580(A) granting the State a year from the ruling

to commence trial.

On December 21, 2018, the defense filed a written motion to continue with

the district court asking to have the January 14, 2019, trial date reset for April 8,

2019. On January 3, 2019, the district court granted Defendant’s request for

continuance and reset trial for April 8, 2019. At the January 14, 2019, felony trial

date, the district court acknowledged it had, on January 3, 2019, granted Defendant’s

motion to continue trial until April 8, 2019. This motion to continue and grant

thereof also resulted in delaying trial. Therefore, this pleading reset the trial deadline

for January 3, 2020, which was well after Defendant’s plea in the instant case.

Thereafter, defense counsel filed additional preliminary pleas that further

extended the trial deadline. On January 2, 2019, the defense filed a written

Confrontation Clause objection with the district court. On March 11, 2019, the

defense filed a “Motion in Limine to Preclude Introduction of Gruesome or

Otherwise Extremely Prejudicial Photographs or Evidence,” a “Motion to Include

Proposed Jury Instructions,” and a memorandum in support thereof with the district

18

court. On March 25, 2019, the defense filed a “Motion to Compel the Disclosure of

Transcripts of Grand Jury Testimony of Taiya Mitchell” with the district court. On

April 1, 2019, the defense filed with the district court a pleading titled “Motions in

Limine” and another titled “Motion in Limine to Preclude Forensic Pathologist from

Offering any Opinion Testimony Not Contained in his Written Reports.” Also on

April 1, 2019, the defense filed a “Supplemental Motion to Require a Unanimous

Jury” with the district court. Therefore, when the defense, on April 4, 2019, filed its

“Motion to Quash with Incorporated Memorandum of Law” with the district court

seeking to have the charges dismissed due to prescription of the two-year time

limitation for bringing the case to trial, defense counsel filed the motion long before

the extended and subsequently further-suspended January 3, 2020, trial deadline.

After both parties filed multiple pleadings relating to the motion to quash and

after the defense moved to continue trial and the hearings set for the remaining

preliminary pleas, the district court conducted the motion to quash hearing on May

17, 2019. On July 8, 2019, the district court issued written reasons for denying the

motion to quash.

On July 12, 2019, the defense filed with the district court notice of its intent

to seek supervisory review. On July 12, 2019, the district court issued an order

setting August 9, 2019, as the return date for the writ application. The defense timely

filed its writ application with this court on July 31, 2019. On October 3, 2019, this

court denied the writ application on the showing made. Bessard, 19-552

(unpublished opinion). Consequently, Defendant’s application for supervisory

review and the resulting ruling thereon extended Defendant’s trial deadline until

October 3, 2020.

Thus, Defendant’s August 8, 2019, nolo contendere plea was also within the

extended prescription period allowed for the State to commence trial. As

19

Defendant’s motion to quash and nolo contendere plea fell within the time allotted

for commencing trial following indictment under La.Code Crim.P. arts. 578 and 580,

we find no abuse of the district court’s discretion in ruling the State carried its burden

of showing the time to commence trial was suspended. Defendant’s motion to quash

was rightfully denied.

ERROR PATENT REVIEW

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors

patent on the face of the record. We find two errors patent involving the sentence

imposed. The district court failed to establish a payment plan as to certain fees

imposed as conditions of probation and the district court failed to set a probation

supervision fee.

As part of the sentence imposed by the district court, Defendant was ordered

to pay $420.50 in court costs and a fee of $150.00 in accordance with La.Code

Crim.P. art. 875(A)(4)(a).4 The trial judge stated “[c]ourt costs will run concurrent.”

This court has held that if costs or fines are imposed as a condition of probation, the

district court must establish a specific payment plan. State v. Mace, 17-220

(La.App. 3 Cir. 12/6/17), 258 So.3d 658, writ denied, 18-154 (La. 11/14/18), 256

So.3d 287; State v. Arisme, 13-269 (La.App. 3 Cir. 10/9/13), 123 So.3d 1259.

Accordingly, we remand this matter for the establishment of a payment plan

for the court costs and presentence investigation report fee, noting that the plan may

either be determined by the district court or by the Department of Probation and

Parole with approval by the district court before implementation. See State

v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597.

4
The judge referred to this article as 875.4 rather than 875(A)(4)(a), but it is clear the judge
was imposing a fee to cover the presentence investigation and preparation of the resultant report.

20

Next, the sentencing transcript indicates the court ordered Defendant to pay a

supervision fee, but it did not specify the amount. The conditions of probation form,

signed by the judge but not the parties, states Defendant is to pay a supervision fee

“in the approximate amount of $60.00 per month.”

Louisiana Code of Criminal Procedure Article 895(A) requires the court to

impose a supervision fee to defray the costs of probation supervision. Louisiana

Code of Criminal Procedure Article 895.1(C) requires the court to impose a monthly

fee of not less than sixty nor more than one hundred ten dollars to defray the cost of

supervision. We, therefore, order the district court upon remand to specify the

amount of the monthly supervision fee it imposed as a condition of probation.

DECREE

Defendant’s convictions and sentences are affirmed. We remand this matter

to the district court with instructions to both specify the amount of the monthly

supervision fee and to establish a payment plan for the court costs and presentence

investigation report fee. We reiterate the payment plan may either be determined by

the district court or formulated by the Department of Probation and Parole and

approved by the district court before implementation.

CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH

INSTRUCTIONS.

21