State of Louisiana v. Willie J. Stevens, Sr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-746

STATE OF LOUISIANA

VERSUS

WILLIE J. STEVENS, SR.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 20686-18
HONORABLE DERRICK D. KEE, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
CHIEF JUDGE

**********

Court composed of Elizabeth A. Pickett, Van H. Kyzar, and Guy E. Bradberry,
Judges.

REVERSED AND REMANDED.

Jeff Landry
Attorney General
Tasha Stockwell
Assistant Attorney General
1885 N. Third Street
Baton Rouge, La 70804-9005
(225) 326-6210
COUNSEL FOR APPELLANT:
State of Louisiana

Annette Fuller Roach
Roach & Roach, APLC
P. O. Box 6547
Lake Charles, LA 70606-6547
(337) 436-2900
COUNSEL FOR DEFENDANT-APPELLEE:
Willie J. Stevens, Sr.

Wilford D. Carter
Attorney at Law
1025 Mill Street
Lake Charles, LA 70601
(337) 564-6990
COUNSEL FOR DEFENDANT-APPELLEE:
Willie J. Stevens, Sr.

PICKETT, Chief Judge.

FACTS

On November 29, 2018, the defendant, Willie J. Stevens, Sr., was charged

by bill of indictment with first degree rape, in violation of La.R.S. 14:42. On

December 7, 2021, the defendant filed a motion to quash based on the state’s

failure to timely commence trial. The trial court granted the motion to quash

following a contradictory hearing held on January 13, 2022. The state now appeals

the trial court’s ruling. For the following reasons, the trial court’s ruling granting

the motion to quash is reversed and the matter is remanded for further proceedings.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by

this court for errors patent on the face of the record. The present appeal was filed

by the state seeking review of the trial court’s granting of the defendant’s motion

to quash. This court has found that an error patent review is required in such cases.

State v. Nguyen, 14-639 (La.App. 3 Cir. 11/5/14), 150 So.3d 562; State v. Jones,

13-395 (La.App. 3 Cir. 11/6/13), 130 So.3d 1; State v. Brignac, 10-276 (La.App. 3

Cir. 10/6/10), 49 So.3d 960; State v. Gutweiler, 06-561 (La.App. 3 Cir. 9/27/06),

940 So.2d 160, judgment affirmed in part, reversed in part on other grounds, 06-

2596 (La. 4/8/08), 979 So.2d 469. After reviewing the record, we find there are no

errors patent.

DISCUSSION

In its sole assignment of error, the state asserts the trial court abused its

discretion in granting the motion to quash. The state contends the dispositive

question before this court is “whether court closures caused by Hurricane Laura

qualify as ‘cause[s] beyond the control of the state’ under La. Code Crim. P. art.

579(A)(2) and thus interrupt the two-year period for bringing non-capital felony

cases to trial.” Relying on this court’s recent decision in State v. Simmons, 22-208

(La.App. 3 Cir. 10/19/22), 350 So.3d 599, writ denied, (La. 2/7/23), ___ So.3d

___, the state argues it does. In contrast, the defendant argues this court should not

follow Simmons for numerous reasons, and alternatively, if this court finds the time

limitation was interrupted by Hurricane Laura as this court found in Simmons, then

La.Code Crim.P. art. 579 is unconstitutional.

Before addressing the merits of the arguments, we set forth the applicable

law regarding a motion to quash. The standard of reviewing a motion to quash is as

follows:

Because the complementary role of trial courts and appellate
courts demands that deference be given to a trial court’s discretionary
decision, an appellate court is allowed to reverse a trial court
judgment on a motion to quash only if that finding represents an abuse
of the trial court’s discretion. State v. Love, 00-3347, pp. 9-10 (La.
5/23/03), 847 So.2d 1198, 1206. However, the trial court’s legal
findings are subject to a de novo standard of review. State v.
Hamdan, 12-1986, p. 6 (La. 3/19/13), 112 So.3d 812, 816; State v.
Smith, 99-0606, p. 3 (La. 7/6/00), 766 So.2d 501, 504. This case
presents both a question of law as to the proper interpretation of the
meaning of the La. C.Cr.P. art. 576 phrase “based on the same facts”
and a question as to the propriety of the trial court’s application of that
provision to the facts and circumstances of the instant case.

State v. Gray, 16-687, pp. 3-4 (La. 3/15/17), 218 So.3d 40, 43.

Louisiana Code of Criminal Procedure Article 578 provides, in pertinent part,

“Except as otherwise provided in this Chapter, no trial shall be commenced nor

any bail obligation be enforceable: . . . [i]n other felony cases after two years

from the date of institution of the prosecution[.]” Once a defendant shows the state

has failed to bring him to trial within the time limitation, the state “bears a heavy

burden of demonstrating that either an interruption or a suspension tolled the

prescriptive period.” State v. Schmidt, 21-491, p. 3 (La. 1/28/22), 333 So.3d 411,

413 (citing State v. Morris, 99-3235 (La. 2/18/00), 755 So.2d 205 (per curiam)). In

2

State v. Rome, 93-1221 (La. 1/14/94), 630 So.2d 1284, the supreme court

summarized the difference between interruptions and suspensions as follows:

An interruption of prescription occurs when the state is unable,
through no fault of its own, to try a defendant within the period
specified by statute, in this case two years. The Louisiana Code of
Criminal Procedure article 579(A)(2) provides in pertinent part that
the two-year period of limitation will be interrupted if the defendant
“cannot be tried because of insanity or because his presence for trial
cannot be obtained by legal process, or for any other cause beyond the
control of the state.” Once the cause of interruption disappears, the
two-year time limit begins anew. See La.Code Crim.Proc.Ann. art.
579(B). In contrast, the prescriptive period is merely suspended, until
the trial court rules on the filing of preliminary pleas. The relevant
period is simply not counted, and the running of the time limit
resumes when the motions are ruled on. Note, however, that “in no
case shall the state have less than one year after the ruling to
commence the trial.” La.Code Crim.Proc.Ann. art. 580.

Rome, 630 So.2d at 1287 (emphasis added)(footnote omitted).

Since prosecution was instituted against the defendant on November 29,

2018, the state had until November 29, 2020, to commence trial unless the

prescriptive period was interrupted or suspended. See La.Code Crim.P. art.

578(A)(2). 1 The defendant had not proceeded to trial at the time his motion to

quash was filed on December 7, 2021. Therefore, his motion to quash was facially

meritorious.

At the motion to quash hearing held on January 13, 2022, the state argued

the prescriptive period had not yet lapsed for two reasons. First, the state argued

that the defense’s failure to object to the state’s motions to continue the February

18, 2020 and the November 8, 2021 trial dates qualified as joint motions to

continue. The state contended the unopposed motions to continue sufficiently

suspended the time limitation under La.Code Crim.P. art. 580, but the trial court

found the state’s unopposed motions did not constitute a suspension.

1
The motion to quash hearing was held before this court rendered its
decision in Simmons, 350 So.3d 599.
3

Second, the state asserted the prescriptive period was interrupted by

Hurricane Laura, which caused the prescriptive period to run anew. The state

discussed numerous fourth circuit cases which held that extended court closures

due to Hurricane Katrina constituted “cause[s] beyond the control of the state” and

interrupted the time limitation under La.Code Crim.P. art. 579(A)(2). The trial

court rejected the state’s interruption argument, because it determined that granting

the state an additional two-year prescriptive period was not “equitable, fair, or

constitutionally allowable.” The trial court then granted the defendant’s motion to

quash:

THE COURT:

I find that there was no cause beyond the control of the State at
the point that the time period began to run anew . . . . I take no joy in
interrupting -- in granting this motion. Quite honestly, this is -- this is
a very serious case. I’m sure the victim -- the alleged victim,
complaining witness want[s her] day in court. But I think that the
constitution of the State is designed to protect not only the rights of
victims, but firmly, the rights of the defendant --

....

-- and his rights were violated. And I think the Motion to Quash
is not only the right mechanism, but I think it’s the only mechanism
under which you can attack this matter. And I think it was
appropriately filed. I find that was appropriate, and I grant the Motion
to Quash.

The following relevant events occurred between the institution of

prosecution and the filing of the motion to quash:

− November 29, 2018: Bill of indictment filed charging the defendant with
first degree rape.

− December 4, 2018: Motion for Discovery and Motion for Bill of
Particulars filed by the defendant (trial court order signed December 4,
2018).

− December 10, 2018: The defendant entered a plea of not guilty and
elected to be tried by jury. Pretrial conference fixed for March 4, 2019.
Discovery tendered by the state.

4

− December 18, 2018: Answer to Motion for Discovery and Motion for
Bill of Particulars filed by the state.

− June 13, 2019: Trial set for February 18, 2020.

− January 8, 2020: Second Motion for Discovery and Motion for Bill of
Particulars filed by the defendant (trial court ordered signed January 8,
2020).

− January 9, 2020: Answer to Second Motion for Discovery and Motion
for Bill of Particulars filed by the state.

− February 11, 2020: On the state’s unopposed motion, trial date
continued to September 21, 2020 (trial court granted motion on February
12, 2020).

− March 16, 2020: Louisiana Supreme Court ordered all jury trials
scheduled to commence between March 16, 2020, and March 27, 2020,
to be continued to a date no earlier than April 13, 2020. (Order #2020-4
and #2020-5).

− March 16, 2020: Governor’s Emergency Proclamation suspending all
legal deadlines, including liberative prescription and peremptive periods
applicable to legal proceedings, until at least Monday, April 13, 2020.
(Proclamation # 30 JBE 2020).

− March 20, 2020: Louisiana Supreme Court ordered all jury trials
scheduled to commence between March 20, 2020, and April 13, 2020, to
be continued to a date no earlier than April 14, 2020. (Order #2020-5).

− March 23, 2020: Louisiana Supreme Court repealed and replaced its
prior orders from March 16 and March 20, 2020, and ordered that all jury
trials set to commence between March 23, 2020 and May 1, 2020, to be
continued to a date no earlier than May 4, 2020. (Order #2020-7).

− April 2, 2020: Governor’s Emergency Proclamation suspending all legal
deadlines, including liberative prescription and peremptive periods
applicable to legal proceedings, until at least April 30, 2020.
(Proclamation # 41 JBE 2020).

− April 22, 2020: Louisiana Supreme Court ordered no jury trials were to
commence before June 30, 2020, and all provisions of previous orders
not explicitly altered remained binding. (Order #2020-10).

− April 30, 2020: Louisiana Supreme Court ordered all provisions of its
April 6, 2020 order (as modified on April 22) to remain in effect. (Order
#2020-12).

− April 30, 2020: Governor’s Emergency Proclamation suspending all
legal deadlines, including liberative prescription and peremptive periods

5

applicable to legal proceedings, until May 15, 2020. (Proclamation # 52
JBE 2020).

− May 14, 2020: Governor’s Emergency Proclamation suspending all legal
deadlines, including liberative prescription and peremptive periods
applicable to legal proceedings, until June 5, 2020. (Proclamation # 59
JBE 2020).

− May 15, 2020: Louisiana Supreme Court repealed and replaced the April
6, April 22, and April 29, 2020 orders and ordered that no jury trials shall
commence before June 30, 2020. (Order #2020-15).

− June 4, 2020: Governor’s Emergency Proclamation suspending all legal
deadlines, EXCLUDING LIBERATIVE PRESCRIPTION AND
PEREMPTIVE PERIODS APPLICABLE TO LEGAL PROCEEDINGS,
until June 15, 2020. Liberative prescriptive and preemptive [sic] periods
suspended through July 5, 2020. (Proclamation # 75 JBE 2020).

− June 5, 2020: Louisiana Supreme Court ordered that all provisions of the
May 15, 2020, order remain in effect. (Order #2020-17).

− August 27, 2020: Hurricane Laura made landfall.

− August 28, 2020: Louisiana Supreme Court issued an emergency order
suspending all prescriptive, peremptive, and abandonment periods
statewide for a period of thirty days commencing from Governor’s
August 21, 2020 declaration of state of emergency. (Order #2020-25).

− September 9, 2020: Louisiana Supreme Court issued an emergency
order suspending all time periods, limitations, and delays pertaining to
the initiation, continuation, prosecution, defense, appeal, and post-
conviction relief of any prosecution within twenty-one parishes,
including Calcasieu Parish. The suspended period commenced on
August 21, 2020, and lasted thirty days. (Order #2020-28).

− September 21, 2020: The defendant’s trial date passed due to the
Fourteenth Judicial District Court’s continued closure.

− September 22, 2020: Louisiana Supreme Court issued an emergency
order suspending all time periods, limitations, and delays pertaining to
the initiation, continuation, prosecution, defense, appeal, and post-
conviction relief of any prosecution within eight parishes, including
Calcasieu Parish. The suspension commenced on September 21, 2020,
and was for thirty days. (Order #2020-32).

NOTE: November 29, 2020 is two years after the bill of indictment was
filed.

− January 6, 2021: Trial date reset for November 8, 2021.

6

− January 11, 2021: Louisiana Supreme Court ordered that no jury trials
commence before March 1, 2021. (Order #2021-2).

− February 11, 2021: Louisiana Supreme Court ordered that no jury trials
commence before April 1, 2021. (Order #2021-6).

− November 8, 2021: On the state’s unopposed motion, trial date is
continued and reset for January 24, 2022.

− December 7, 2021: Motion to Quash filed by the defendant.

In brief to this court, the state argues the trial court erred in granting the

motion to quash, because the extended court closure caused by Hurricane Laura

was a “cause beyond the control of the state” which interrupted the two-year time

limitation for commencing trial. Because an interruption causes the time limitation

to run anew, the state argues that the time for commencing trial had yet to expire at

the time the defendant filed his motion to quash. The state does not argue, as it did

in the trial court, that the state’s unopposed motions to continue constituted joint

motions, which would suspend the time limitation under La.Code Crim.P. art. 580.

Rather, the state maintains its interruption argument and relies on this court’s

decision in Simmons, 350 So.3d 599, asserting the application of Simmons requires

reversal of the trial court’s ruling.

Before addressing the defendant’s arguments in brief, we will discuss

Simmons. In Simmons, the trial court granted the defendant’s motion to quash

based on the state’s failure to timely commence trial, and the state filed an appeal.

A panel of this court determined the trial court erred in finding the prescriptive

period for commencing trial had expired for three different reasons: (1) the

supreme court’s January 11, 2021, and February 11, 2021 COVID-19 orders

suspended the prescriptive period for seventy-nine days; (2) the extended court

closure due to Hurricane Laura interrupted the prescriptive period and caused the

prescriptive period to run anew for an additional two years; and (3) the governor’s

7

emergency proclamations related to COVID-19 suspended the prescriptive period

for ninety days. Simmons, 350 So.3d at 612. Regarding the state’s interruption

argument, this court discussed the issue as follows:

The State argues that the various court closures due to COVID-
19 and hurricanes should be treated as interruptions to the prescriptive
period for commencing trial. According to La.Code Crim.P. art. 579,
the State asserts, these interruptions caused the time period for
commencing trial to start anew.

As stated previously, in [State v.] Bibbins, [14-971, pp. 1-2 (La.
12/8/14),] 153 So.3d [419,] 419 (alterations in original), the supreme
court took judicial notice of the landfall of Hurricane Isaac and
ultimately concluded that Hurricane Isaac interrupted the prescription
at issue in that case:

Writ granted. The ruling of the trial court is
reversed. We may take judicial notice that the impending
landfall of Hurricane Isaac in southeast Louisiana led to
the closure of the Orleans Parish Criminal District Court
on August 28, 2012 and prevented the state from
bringing defendant to trial on that date. La.C.E. art.
201(C) (“A court may take judicial notice [of
adjudicative facts], whether requested or not.”); State v.
Fonseca, 378 So.2d 389, 392 [(La. 1979)] (“[W]e are
entitled to take judicial notice of the facts of nature [such
as time of sunset on a particular day] under
[former] La.Rev. Stat. 15:422(6).”); State v. Lundy, 131
La. 910, 60 So. 613, 614 (1913) (“This court takes
judicial notice of the fact that, when the defendant was
called for trial and for some time prior to that date, a
considerable portion of the parish of Pointe Coupee was
under water from the crevasses in the levees of the
Mississippi river . . . .”). This cause beyond control of the
state interrupted the two-year prescriptive period in
which to bring defendant to trial. La.C.Cr.P. art.
579(A)(2); State v. Patin, 11-0488, p. 18 (La.App. 4 Cir.
5/23/12), 95 So.3d 542, 552 (Hurricane Katrina
interrupted three-year prescriptive period to bring capital
murder defendant to trial until jury trials resumed in
Orleans Parish); State v. Brazile, 06-1611, p. 4 (La.App.
4 Cir. 5/30/07), 960 So.2d 333, 336 (same), writ
denied, 07-1339 (La. 1/7/08), 973 So.2d 733. Therefore,
the motion to quash filed by defendant on July 9, 2013
was premature and the trial court erred in granting him
relief. The ruling of the trial court is reversed and the
matter is remanded back to the trial court for further
proceedings.

8

In State v. Brazile, 06-1611, pp. 4-5 (La.App. 4 Cir. 5/30/07),
960 So.2d 333, 335-36 (alterations in original), writ denied, 07-1339
(La. 1/7/08), 973 So.2d 733, the court found that Hurricane Katrina
was a cause beyond the control of the State, interrupting the
prescriptive period for bringing Brazile to trial:

Given the language in La.C.Cr.P. art. 579, we find
it unnecessary to piece together periods of suspension as
provided by article 580. Article 579 provides that the
period of limitation set forth in article 578 shall be
interrupted if “the defendant cannot be tried because of . .
. any . . . cause beyond the control of the state.” Under
La.C.Cr.P. art. 579(B) “periods of limitation established
by Article 578 shall commence to run anew from the date
the cause of interruption no longer exists.” As noted
in State v. Rome, 93-1221, p. 4, 630 So.2d at 1287: “An
interruption of prescription occurs when the state is
unable, through no fault of its own, to try a defendant
within the period specified by statute.”

This Court acknowledges that the State was
prevented from trying Mr. Brazile on September 19,
2005 and for some time thereafter while the court was
not in operation due to Hurricane Katrina. An application
of article 579 allows for the two-year limitation period
imposed by article 578 to commence anew once the
causes preventing the State from trying the defendant
were removed and the court reconvened. This court need
not determine exactly when this occurred as the motion
to quash was granted after only a little more than one
year had elapsed since Hurricane Katrina struck the Gulf
Coast. At that point, the State still had at least a year in
which to commence trial. Although the renewal of the
entire two-year period could be construed as extremely
prejudicial to the defendant, the constitutionality of
article 579 was not raised in this matter and therefore is
not currently before this court. As a court of review, we
are restricted by the contents of the record. Thus, this
Court must determine that the trial court erred in granting
defendant’s motion to quash.

According to the National Weather Service website, Hurricane
Katrina made landfall on August 29, 2005. The fourth circuit’s
timeline of Brazile’s trial indicates a joint motion to continue trial was
made on August 23, 2005, continuing the trial until September 8,
2005. Thus, unlike in Bibbins, the trial in Brazile was not scheduled to
be held the same day that Hurricane Katrina hit. Trial was scheduled,
however, shortly after the hurricane hit.

In State v. Davis, 09-53 (La.App. 4 Cir. 9/30/09), 21 So.3d
1038, the fourth circuit found the interruption caused by Hurricane
9

Katrina applied to a case that was set for a pre-trial conference (not
trial) on the same day the hurricane hit. Finally, in State v. Williams,
08-1046, p. 2 (La.App. 4 Cir. 2/10/09), 5 So.3d 904, 905-06, the
fourth circuit found the prescriptive period was interrupted by
Hurricane Katrina, even though the trial judge found the State could
have brought Williams to trial prior to Katrina. Reversing the trial
court’s grant of Williams’ motion to quash, the fourth circuit stated:

Thus, it appears to this Court that the trial court did
not allow the La.C.Cr.P. art. 578 two-year period in
which to bring the defendant to trial to be interrupted by
Katrina believing that the State knew where the
defendant was and could have tried him sooner. This
inference seems to be a reference to La.C.Cr.P. art.
579(A)(1) which provides for interruption of the time
period where the defendant absents himself for the
purpose of avoiding detection which the defendant did
not do in this case. However, this fails to take into
account the provisions of La.C.Cr.P. art. 579(A)(2)
which allows for interruption of the two-year period “for
any other cause beyond the control of the state.” The fact
that the State could have tried the defendant sooner is
impertinent as long as the State brings the defendant to
trial within the time period allowed by La.C.Cr.P. art.
578, subject to the interruptions allowed by La.C.Cr.P.
art. 579 and the suspensions allowed by La.C.Cr.P. art.
580. Pursuant to Rome, Brazile and Francis cited, supra,
we find that the State is not untimely and that the filing
by the defendant of the motion to quash has further
extended the time in which the State must commence
trial in accordance with La.C.Cr.P. art. 580.

Williams, 5 So.3d at 905-06.

Although no trial was scheduled in the present case at or near
the time of the court closure due to Hurricane Laura, a pre-trial
conference was scheduled for September 22, 2020. Thus, activity was
taking place in Defendant’s case. Accordingly, we find the two-year
prescriptive period in the present case was interrupted on August 27,
2020, by the extended court closure due to Hurricane Laura. Although
there was some question in the Hurricane Katrina cases as to when the
period of interruption ended and prescription began to run anew, such
an analysis need not be made in this case. Even if the prescriptive
period began to run anew on the same day Hurricane Laura hit, the
State would have until August 27, 2022, to commence trial against
Defendant. Thus, at the time of Defendant’s motion to quash, the State
would still have had almost a year to commence Defendant’s trial.

Defendant contends that none of the supreme court orders
regarding the hurricanes state that the time period was interrupted.
Defendant asserts, “Louisiana Supreme Court’s orders must prevail,
10

and those calculations state that they are meant to suspend time
periods for cases that were continued because of the Court’s
Order….” The supreme court’s orders should not change the
legislature’s statutory provision that a cause beyond the control of the
State interrupts prescription.

....

We further find the court closure due to Hurricane Laura interrupted
the time period for commencing Defendant’s trial and caused the time
period to run anew for an additional two-year period.

Simmons, 350 So.3d at 609-12.

In the case sub judice, the defendant contends the discussion of the

interruption issue in Simmons is dicta—which this court is not bound to follow—

because this court determined the seventy-nine-day suspension due to the supreme

court’s COVID-19 orders was sufficient to find the prescriptive period had not

lapsed at the time Simmons filed his motion to quash. The defendant supports his

assertion that the interruption discussion is dicta by noting the argument was raised

for the first time on appeal and, therefore, he contends it “was not squarely before

the appellate court.” Thus, the defendant asserts the finding that Hurricane Laura

constituted an interruption in Simmons is not binding precedential law. Regardless

of whether the interruption discussion is dicta, the defendant’s argument attempts

to make a distinction that does not make a difference. First, this court found the

state’s interruption argument to be a purely legal question which could be raised

for the first time on appeal:

There is no factual dispute that Hurricanes Laura and Delta and
COVID-19 caused courts to close during the two-year time period in
which Defendant’s trial was to commence. Thus, the issue is not a
factual issue but a legal issue as to whether the closures due to
hurricanes and COVID-19 constituted a cause beyond the control of
the State and, thus, interruptions of the time period under La.Code
Crim.P. art. 579. Since this is purely a legal question, we find the
issue is properly before this court.

11

Id. at 609. Second, we agree with Simmons, which, as discussed, analyzed

numerous fourth circuit and supreme court cases before determining Hurricane

Laura constituted a cause beyond the control of the state under La.Code Crim.P.

art. 579(A)(2).

Despite this court’s finding to the contrary, the defendant argues that

La.Code Crim.P. art. 579(A)(2) does not apply to the present case, because the

extended closure of the Fourteenth Judicial District Court due to Hurricane Laura

was not attributable to his actions or inactions. The defendant argues the phrase

“for any other cause beyond the control of the state” should not be read standing

alone but should be read in pari materia with the other phrases set forth in La.Code

Crim.P. arts. 579 and 580. Without citing to any supporting jurisprudence, the

defendant asserts those articles permit interruption or suspension of the

prescriptive period only when fault can be attributed to the defendant.

Louisiana Code of Criminal Procedure Article 579 provides, in pertinent

part:

A. The period of limitation established by Article 578 shall be
interrupted if:

(1) The defendant at any time, with the purpose to avoid
detection, apprehension, or prosecution, flees from the state, is outside
the state, or is absent from his usual place of abode within the state; or

(2) The defendant cannot be tried because of insanity or
because his presence for trial cannot be obtained by legal process, or
for any other reasons beyond the control of the state; or

(3) The defendant fails to appear at any proceeding pursuant to
actual notice, proof of which appears of record.

B. The periods of limitation established by Article 578 shall
commence to run anew from the date the cause of interruption no
longer exists.

Louisiana Code of Criminal Procedure Article 580 sets forth the situations in

which the prescriptive period is suspended:
12

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.[2]

In contrast, the state argues it is irrelevant, based on the plain language of

La.Code Crim.P. art. 579(A)(2), whether the court closures were causes beyond the

defendant’s control; it only matters that the court closures were beyond the state’s

control. The state also observes that the defendant concedes the court closures

were beyond the state’s control in his brief by arguing:

It is clear the legislature did not specifically address closure of
courts within these articles, a matter that would be beyond the control
of either party. It is submitted that the Code of Criminal Procedure
fails to provide a proper remedy in the extraordinary situations the
Fourteenth Judicial District Court faced in 2020 and 2021. The
closures due to weather events and Covid-19 were not caused by
either party. Thus, one party should not be placed at a disadvantage to
the other party as a result of the closures.

The defendant’s argument ignores the plethora of cases which apply La.Code

Crim.P. 579(A)(2) to extended court closures caused by hurricanes, none of which

were attributable to the defendants’ actions or inactions. See, e.g., State v. Bibbins,

14-971 (La. 12/8/14), 153 So.3d 419; State v. Brazile, 06-1611 (La.App. 4 Cir.

5/30/07), 960 So.2d 333, writ denied, 07-1339 (La. 1/7/08), 973 So.2d 733; and

State v. Williams, 08-1046 (La.App. 4 Cir. 2/10/09), 5 So.3d 904.

The defendant also contends that because the supreme court orders regarding

Hurricane Laura did not specifically state that the prescriptive period

was interrupted, the orders must be construed as suspensions. However, when

faced with the same argument in Simmons, 350 So.3d at 611, this court stated,

2
Louisiana Code of Criminal Procedure Article 709(B) concerns an “absent
witness [who] is on active military duty in the United States Armed Forces.”
13

“The supreme court’s orders should not change the legislature’s statutory provision

that a cause beyond the control of the state interrupts prescription.” We agree.

Finally, the defendant argues that to find the supreme court orders regarding

Hurricane Laura were interruptions, causing the prescriptive period to run anew,

could result in absurd and unfair consequences for incarcerated defendants when

courts are closed for “one day due to water issues, weather issues, [and] bomb

threats[.]” Such is not the case here. The defendant’s trial was set for September

21, 2020, but the state was unable to bring the defendant to trial due to the landfall

of Hurricane Laura on August 27, 2020. The Fourteenth Judicial District Court was

not closed for one day like in the defendant’s hypothetical. The case before this

court was not affected by a one-day court closure but by an extended, months-long

court closure outside the state’s control.

Thus, the court closure due to Hurricane Laura constitutes a “cause beyond

the control of the state” under La.Code Crim.P. art. 579(A)(2) and Simmons, 350

So.3d 599. The two-year prescriptive period for commencing trial was interrupted

on August 27, 2020. Even if the two-year prescriptive period began running anew

on the same day Hurricane Laura made landfall, and even if the various

suspensions are not calculated, the state had until at least August 27, 2022, to bring

the defendant to trial. At the time the defendant filed his motion to quash on

December 7, 2021, the state had at least 263 days to bring him to trial. It is,

therefore, unnecessary to calculate the periods of suspension. The motion to quash

was premature, and the trial court erred in granting the motion.

Finally, the defendant asserts that in the event this court finds the

prescriptive period was interrupted by Hurricane Laura, La.Code Crim.P. art. 579

is unconstitutional as applied to him under the facts and circumstances of this case.

As the state correctly notes, the defendant failed to challenge the constitutionality
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of La.Code Crim.P. art. 579 in the trial court and does so for the first time on

appeal. The defendant requests this court remand the case to the trial court to

allow him to specially plead the unconstitutionality of La.Code Crim.P. art. 579,

and he relies on State v. Sadeghi, 16-993, pp. 1-2 (La. 6/28/16), 194 So.3d 611,

611 (per curiam), wherein the supreme court stated the following:

Writ Granted. The longstanding jurisprudential rule in
Louisiana is that litigants must raise constitutional issues in the trial
court, not the appellate courts, and the constitutional challenge must
be specially pleaded and the grounds for the claim
particularized. Vallo v. Gayle Oil Company, Inc., 94-1238, p. 8
(La.11/30/94), 646 So.2d 859, 864-865. In addition, the specific plea
of unconstitutionality and the grounds therefor must be raised in a
pleading. State v. Hatton, 02-2377, p. 15 (La.7/1/08), 985 So.2d 709,
720. The purpose of these procedural rules is to afford interested
parties sufficient time to brief and prepare arguments defending the
constitutionality of a challenged statute so as to provide the trial court
with thoughtful and complete arguments regarding the constitutional
issues presented and to provide reviewing courts with an adequate
record. Id. 02-2377 at 14, 985 So.2d at 719.

Given the unique posture in which this case presents itself,
wherein the defendant prevailed in the district court on grounds that
did not require a determination of the constitutionality of La. R.S.
46:1846 and the constitutional issue was first raised in a memorandum
in opposition to the State’s writ application in the court of appeal,
submitted on an expedited basis, within less than two hour’s time
[sic], in the interests of justice, we exercise our plenary, supervisory
jurisdiction, vacate the judgment of the court of appeal, and remand
this case to the district court to allow defendant to specially plead the
unconstitutionality of La. R.S. 46:1846 as applied to him and for the
issue to be fully litigated.

However, the supreme court expressly delineated that, generally, defendants

must first raise a constitutional challenge in the trial court, and the supreme court

only deviated from the general rule due to expedited nature of that particular case.

In this case, no such circumstance existed. It is well-established that the grounds

for the unconstitutionality of a statute must be specially pleaded in the trial court.

Because the unconstitutionality of La.Code Crim.P. art. 579 was raised for the first

time on appeal, this court will not to address that issue. See, e.g., State v.

15

Campbell, 263 La. 1058, 270 So.2d 506 (1972) (per curiam); State v. Williams, 08-

1046 (La.App. 4 Cir. 2/10/09), 5 So.3d 904.

For the foregoing reasons, the trial court erred in granting the motion to

quash and the ruling is reversed.

CONCLUSION

This court hereby reverses the trial court’s ruling granting the motion to

quash and remands the matter for further proceedings in accordance with this

court’s opinion.

REVERSED AND REMANDED.

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