No. CA 91 0799 Precedential Processed

Lewis v. State ex rel. Department of Public Safety & Corrections

Louisiana Court of Appeal, First Circuit · Filed May 22, 1992 · 602 So. 2d 68

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Opinion text

SHORTESS, Judge, concurring. The majority paints with too broad a brush. I disagree with the majority’s statements that (1) “[although the law of obligations (contracts) can be used by analogy to analyze the legal relations of the parties to a plea bargain, the validity of the plea bargain and the remedies for breach of it are controlled by criminal substantive and procedural law,” and (2) “[t]he trial court correctly held that a plea bargain in a criminal case is not a conventional obligation,” In State v. Lewis, 539 So.2d 1199, 1204 (La.1989), Justice Cole, writing for the supreme court, after noting that “a plea bargain is a contract between the state and one accused of a crime,” discussed Louisiana Civil Code articles 1779 and 1948 through 1950 when dealing with a question of a negotiated plea bargain: A long-standing rule of contract law is that consent of both parties is required for a valid contract. La.C.C. art. 1927. Consent may be vitiated by error, fraud, or duress. La.C.C. art. 1948. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La.C.C. art. 1949. Finally, the Civil Code provides: Error may concern a cause when it bears on the nature of the contract, or the thing that is the contractual object ..., or the law, or any other circumstance that the parties regarded, or should in good faith have regarded, as a cause of the obligation. La.C.C. art. 1950. Further, the supreme court in State v. Caminita, 411 So.2d 13 (La.1982), cites State v. Nall, 379 So.2d 731 (La.1980), where the supreme court voided a plea bargain under the principles of civil law obligation because of defendant’s misrepre *76 sentation as to what his testimony would be. I agree with the result, however, in my opinion, under the facts presented in this case, because defendant was immune from suit. Plaintiffs recourse was through ha-beas corpus. The record even shows that the trial court offered to submit an affidavit helpful to defendant. I respectfully concur.