State of Louisiana v. Deke Edmond Duraso

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-1463 C/W 1465

STATE OF LOUISIANA

VERSUS

D.E.D.

Cooks, J., dissents.

This court has too often attempted to circumvent the law to protect the State

when it fails to timely prosecute criminal defendants. This case was “bumped” at

the State’s request six times because of conflicts on the court’s docket. Such

delays in the prosecution of this Defendant cannot be attributed to him. Under the

majority’s ruling in this case Louisiana’s mandatory, statutory time frame within

which to timely prosecute the criminally accused is rendered meaningless.1 In

response to the majority’s assertion that Duraso’s counsel’s acceptance of a trial

date set beyond the statutory time limit amounts to a joint motion for continuance,

thus affording the State an additional year to try the case, I note that the majority

cites no case in support of this proposition and I have found none. Moreover, La.

Code Crim. Pro. Art. 707 provides:

A motion for continuance shall be in writing and shall
allege specifically the grounds upon which it is based and, when
made by a defendant, must be verified by his affidavit or that of his
counsel. It shall be filed at least seven days prior to the
commencement of trial. Upon written motion at any time and after
contradictory hearing, the court may grant a continuance, but only

1
While I too am quite disturbed by the State’s failure in this case, its failure
may not totally forfeit the people’s interest in fully accessing the court or the
victim’s right to a just outcome in this case. The State may not be prevented from
prosecuting this Defendant for a more serious offense than originally charged
despite the dismissal of the less serious charges at issue here.

1

upon a showing that such motion is in the interest of justice.
(emphasis added)
As the majority admits, but ascribes no significance to, there was no written

motion in this case by either the State or Defendant.

The majority correctly points out La. Code Crim P. arts. 578, 579 and 580

address limitations upon trial. Article 579 gives the reasons for interruption of the

time limitations which do not include a continuance. Article 580 addresses

suspension of time limitations and states: “A. When a defendant files a motion to

quash or other preliminary plea …[ ] 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.” Article 709 deals with

“continuance based on absence of a witness” which is not applicable herein. As

the majority acknowledges, Defendant did not file a motion to continue, thus I

believe Art. 580 cannot apply. The record clearly demonstrates that the State

made an oral motion for continuance in open court. Article 707 states the

mandatory requirement that a Motion for Continuance shall be in writing and

shall state the grounds for the motion. Additionally, any such motion made by a

Defendant must not only be in writing but must be verified by affidavit.

Clearly, Defense Counsel’s mere acknowledgement the date orally broadcasted in

the State’s improper oral motion for continuance was available on his calendar

cannot be parlayed into a conscious decision by Defendant to join the State’s

request for continuance. To do so completely ignores the code requirements set

forth above and circumvents the statutory requirements for timely prosecution of

Defendant’s charged offense.

2

I would further point out that the majority’s reasoning appears to confuse the

cases on the constitutional right-to-speedy-trial with Louisiana’s statutory

provision regulating timely prosecution of criminal cases. They are not at all the

same and are not governed nor determined by the same principles. The Louisiana

State Supreme Court has plainly stated in State v. Joseph, 637 So.2d 1032 (La.

1994):

The state has a heavy burden of justifying an apparently
untimely commencement of trial on grounds that the time limits in
Art. 578 were either interrupted or suspended. (citations omitted)
Unparticularized allegations of a crowded docket [such as caused the
delays herein] do not satisfy that burden. Administrative problems
within the court system [as occurred in this case resulting in delays]
generally do not constitute causes of interruption beyond the control
of the state because ‘the court system cannot excuse itself from
affording an accused a trial within the delay required by law, simply
by relying upon internal operating procedures which result in
noncompliance with the statutory mandate. (citation omitted) .
Moreover, as the Louisiana Fifth Circuit points out in State v. Williams, 631

So.2d 1370 (La. App. 5 Cir. 1994):

The Jurisprudence reveals that the purpose of the statutory
scheme dealing with interruptions or suspension of time limitations on
trial is: … to enforce the right of an accused to a speedy trial and to
prevent the oppression of citizens by suspending criminal
prosecutions over them for an indefinite period of time…
As noted, the trial court in this case set a future trial date, and two additional

alternate dates in case the first one did not work out, all of which were beyond the

statutory time limitation.

As further stated in Williams:

Moreover the case law, as well as the statutes, demonstrate that
to interrupt or suspend requires action or inaction by the defendant—
for example, escape or absence, or the defendant’s filing of motions or
pleadings which delay the prosecution. (citations omitted) We agree
with the analysis utilized by the Chapman court. Interruption of

3

prescription in these cases require action or inaction by the defendant,
actions which inure to his benefit. …. Causes beyond the control of
the state do not, under the law or the jurisprudence, involve
motions or actions taken by the state. The court system cannot
excuse itself from affording an accused a trial within the delay
required and mandated by law using the mandatory language “shall,”
simply by relying upon internal operating procedures which result in
non-compliance with the statutory mandate. (citations omitted). If this
were so, the delay could be any length of time and the door would be
open to manipulation of the period of delay afforded the state, both to
the detriment of the accused.
The majority acknowledges that this court, in State v. C.W.W., 2010 WL

5027175 (La.App. 3 Cir. 12/8/10), an unreported case, held “We find no cases

involving the statutory right to speedy trial in which a court has held that by

failing to object to the setting of a trial outside the two-year time limitation, a

defendant acquiesced in the setting.” It is disingenuous for the majority to assert,

without citation, that Defendant’s failure to object at the time and his lawyer’s

acknowledgment that the date set beyond a timely prosecution was “acceptable” to

“the lawyer” equates to some sort of waiver of Defendant’s right to the statutory

speedy trial requirements. It is not the Defendant’s obligation to see to it that the

State follow the statutory requirement for timely prosecuting him.

This case was set for trial numerous times after April 19, 2010. Each time, it

was “bumped” in favor of another trial. On October 25, 2010, the State moved to

continue the trial date to November 29, 2010. This court has previously rejected

the notion that a defendant’s failure to object to the State’s motion to re-fix a trial

date outside the two-year time limitation for prosecution amounts to some sort of

waiver or acquiescence in such setting. State v. C.W.W., 2010 WL 5027175 (La. 3

Cir. 12/8/10), writ denied 75 So.3d 920 (La. 11/4/11). Additionally, I note that the

Louisiana State Supreme Court has held that Louisiana’s statutory provision

regarding speedy trial is “broader than” the state and federal constitutional right to

4

speedy trial “because, for example, there is no need to assess prejudice to the

accused nor to require that an accused make known his desire for an early trial.”

State v. Powers, 344 So.2d 1049, 1051 (La. 1977). (emphasis added). The United

States Supreme Court, in its landmark decision on speedy trial, rejected the

sometimes invoked “demand-waiver” rule used in some jurisdictions because it

found that such a rule does not comport with the high court’s holding that the right

to speedy trial is a “fundamental” constitutional right. Barker v. Wingo, 407 U.S.

514, 530, 92 S.Ct. 2182, 2191 (1972). I note additionally that the only code

provision concerning waiver of Defendant’s right to a dismissal is contained in the

Code of Criminal Procedure Article 581 which states in pertinent part “This right

of dismissal is waived unless the motion to quash is made prior to trial.”

Defendant filed his motion to quash on two separate occasions prior to trial. It is

also of no moment that Defendant entered a plea of guilty after this court

erroneously refused his writ of review attacking the trial court’s failure to grant his

motion to quash. As this court previously ruled, Defendant’s guilty plea did not

preclude review of the untimely prosecution as such is a jurisdictional defect, i.e.

the trial court was without jurisdiction to accept Defendant’s guilty plea as his

motion to quash should have been granted and his prosecution dismissed as

untimely. D.E.D., 12-590.

The majority would require Defendant’s lawyer to act in a manner quite

contrary to the interests of his client. I am mindful of the anguish that dismissal

will cause the victim and her family, but the State has breached its obligation and

the Legislature has statutorily implemented the consequence which must flow from

that failure. To do otherwise is to render the statutory right to speedy trial in

5

Louisiana utterly meaningless. I therefore respectfully dissent for the reasons as

stated.

6

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-1463 C/W 1465

STATE OF LOUISIANA

VERSUS

D.E.D.

Cooks, J., dissents.

This court has too often attempted to circumvent the law to protect the State

when it fails to timely prosecute criminal defendants. This case was “bumped” at

the State’s request six times because of conflicts on the court’s docket. Such

delays in the prosecution of this Defendant cannot be attributed to him. Under the

majority’s ruling in this case Louisiana’s mandatory, statutory time frame within

which to timely prosecute the criminally accused is rendered meaningless.1 In

response to the majority’s assertion that Duraso’s counsel’s acceptance of a trial

date set beyond the statutory time limit amounts to a joint motion for continuance,

thus affording the State an additional year to try the case, I note that the majority

cites no case in support of this proposition and I have found none. Moreover, La.

Code Crim. Pro. Art. 707 provides:

A motion for continuance shall be in writing and shall
allege specifically the grounds upon which it is based and, when
made by a defendant, must be verified by his affidavit or that of his
counsel. It shall be filed at least seven days prior to the
commencement of trial. Upon written motion at any time and after
contradictory hearing, the court may grant a continuance, but only

1
While I too am quite disturbed by the State’s failure in this case, its failure
may not totally forfeit the people’s interest in fully accessing the court or the
victim’s right to a just outcome in this case. The State may not be prevented from
prosecuting this Defendant for a more serious offense than originally charged
despite the dismissal of the less serious charges at issue here.

1

upon a showing that such motion is in the interest of justice.
(emphasis added)
As the majority admits, but ascribes no significance to, there was no written

motion in this case by either the State or Defendant.

The majority correctly points out La. Code Crim P. arts. 578, 579 and 580

address limitations upon trial. Article 579 gives the reasons for interruption of the

time limitations which do not include a continuance. Article 580 addresses

suspension of time limitations and states: “A. When a defendant files a motion to

quash or other preliminary plea …[ ] 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.” Article 709 deals with

“continuance based on absence of a witness” which is not applicable herein. As

the majority acknowledges, Defendant did not file a motion to continue, thus I

believe Art. 580 cannot apply. The record clearly demonstrates that the State

made an oral motion for continuance in open court. Article 707 states the

mandatory requirement that a Motion for Continuance shall be in writing and

shall state the grounds for the motion. Additionally, any such motion made by a

Defendant must not only be in writing but must be verified by affidavit.

Clearly, Defense Counsel’s mere acknowledgement the date orally broadcasted in

the State’s improper oral motion for continuance was available on his calendar

cannot be parlayed into a conscious decision by Defendant to join the State’s

request for continuance. To do so completely ignores the code requirements set

forth above and circumvents the statutory requirements for timely prosecution of

Defendant’s charged offense.

2

I would further point out that the majority’s reasoning appears to confuse the

cases on the constitutional right-to-speedy-trial with Louisiana’s statutory

provision regulating timely prosecution of criminal cases. They are not at all the

same and are not governed nor determined by the same principles. The Louisiana

State Supreme Court has plainly stated in State v. Joseph, 637 So.2d 1032 (La.

1994):

The state has a heavy burden of justifying an apparently
untimely commencement of trial on grounds that the time limits in
Art. 578 were either interrupted or suspended. (citations omitted)
Unparticularized allegations of a crowded docket [such as caused the
delays herein] do not satisfy that burden. Administrative problems
within the court system [as occurred in this case resulting in delays]
generally do not constitute causes of interruption beyond the control
of the state because ‘the court system cannot excuse itself from
affording an accused a trial within the delay required by law, simply
by relying upon internal operating procedures which result in
noncompliance with the statutory mandate. (citation omitted) .
Moreover, as the Louisiana Fifth Circuit points out in State v. Williams, 631

So.2d 1370 (La. App. 5 Cir. 1994):

The Jurisprudence reveals that the purpose of the statutory
scheme dealing with interruptions or suspension of time limitations on
trial is: … to enforce the right of an accused to a speedy trial and to
prevent the oppression of citizens by suspending criminal
prosecutions over them for an indefinite period of time…
As noted, the trial court in this case set a future trial date, and two additional

alternate dates in case the first one did not work out, all of which were beyond the

statutory time limitation.

As further stated in Williams:

Moreover the case law, as well as the statutes, demonstrate that
to interrupt or suspend requires action or inaction by the defendant—
for example, escape or absence, or the defendant’s filing of motions or
pleadings which delay the prosecution. (citations omitted) We agree
with the analysis utilized by the Chapman court. Interruption of

3

prescription in these cases require action or inaction by the defendant,
actions which inure to his benefit. …. Causes beyond the control of
the state do not, under the law or the jurisprudence, involve
motions or actions taken by the state. The court system cannot
excuse itself from affording an accused a trial within the delay
required and mandated by law using the mandatory language “shall,”
simply by relying upon internal operating procedures which result in
non-compliance with the statutory mandate. (citations omitted). If this
were so, the delay could be any length of time and the door would be
open to manipulation of the period of delay afforded the state, both to
the detriment of the accused.
The majority acknowledges that this court, in State v. C.W.W., 2010 WL

5027175 (La.App. 3 Cir. 12/8/10), an unreported case, held “We find no cases

involving the statutory right to speedy trial in which a court has held that by

failing to object to the setting of a trial outside the two-year time limitation, a

defendant acquiesced in the setting.” It is disingenuous for the majority to assert,

without citation, that Defendant’s failure to object at the time and his lawyer’s

acknowledgment that the date set beyond a timely prosecution was “acceptable” to

“the lawyer” equates to some sort of waiver of Defendant’s right to the statutory

speedy trial requirements. It is not the Defendant’s obligation to see to it that the

State follow the statutory requirement for timely prosecuting him.

This case was set for trial numerous times after April 19, 2010. Each time, it

was “bumped” in favor of another trial. On October 25, 2010, the State moved to

continue the trial date to November 29, 2010. This court has previously rejected

the notion that a defendant’s failure to object to the State’s motion to re-fix a trial

date outside the two-year time limitation for prosecution amounts to some sort of

waiver or acquiescence in such setting. State v. C.W.W., 2010 WL 5027175 (La. 3

Cir. 12/8/10), writ denied 75 So.3d 920 (La. 11/4/11). Additionally, I note that the

Louisiana State Supreme Court has held that Louisiana’s statutory provision

regarding speedy trial is “broader than” the state and federal constitutional right to

4

speedy trial “because, for example, there is no need to assess prejudice to the

accused nor to require that an accused make known his desire for an early trial.”

State v. Powers, 344 So.2d 1049, 1051 (La. 1977). (emphasis added). The United

States Supreme Court, in its landmark decision on speedy trial, rejected the

sometimes invoked “demand-waiver” rule used in some jurisdictions because it

found that such a rule does not comport with the high court’s holding that the right

to speedy trial is a “fundamental” constitutional right. Barker v. Wingo, 407 U.S.

514, 530, 92 S.Ct. 2182, 2191 (1972). I note additionally that the only code

provision concerning waiver of Defendant’s right to a dismissal is contained in the

Code of Criminal Procedure Article 581 which states in pertinent part “This right

of dismissal is waived unless the motion to quash is made prior to trial.”

Defendant filed his motion to quash on two separate occasions prior to trial. It is

also of no moment that Defendant entered a plea of guilty after this court

erroneously refused his writ of review attacking the trial court’s failure to grant his

motion to quash. As this court previously ruled, Defendant’s guilty plea did not

preclude review of the untimely prosecution as such is a jurisdictional defect, i.e.

the trial court was without jurisdiction to accept Defendant’s guilty plea as his

motion to quash should have been granted and his prosecution dismissed as

untimely. D.E.D., 12-590.

The majority would require Defendant’s lawyer to act in a manner quite

contrary to the interests of his client. I am mindful of the anguish that dismissal

will cause the victim and her family, but the State has breached its obligation and

the Legislature has statutorily implemented the consequence which must flow from

that failure. To do otherwise is to render the statutory right to speedy trial in

5

Louisiana utterly meaningless. I therefore respectfully dissent for the reasons as

stated.

6