author: LEON A. CANNIZZARO, JR., Judge. BELSOME, J.,

text:
    Charles McMAHON v. LOUISIANA STATE RACING COMMISSION.
    No. 2003-CA-2097.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 31, 2006.

      John M. Holahan, Jr., Metairie, LA, for Appellant, Charles McMahon.
    Charles C. Foti, Attorney General, Kim Raines Chatelain, Assistant Attorney General, New Orleans, LA, for Appellee, Louisiana State Racing Commission.
    (Court composed of Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR., Judge ROLAND L. BELSOME).
   LEON A. CANNIZZARO, JR., Judge.

11 Charles McMahon, the plaintiff/appellant, is a jockey licensed by the Louisiana State Racing Commission (“Racing Commission”), the defendant/ appellee. On April 4, 2002, the stewards at Delta Downs racetrack in Vinton, Louisiana, issued a ruling against Mr. McMahon suspending him for six (6) months and referred his case to the Racing Commission for further consideration. The stewards found Mr. McMahon had possessed an electric shocking device, also known as a “battery,” on racetrack grounds in violation of La. R.S. 4:175(D) and Louisiana Administrative Code (LAC) 35:1.1705. Mr. McMahon appealed the stewards’ ruling to the Racing Commission.

IgThe Racing Commission held a hearing on the stewards’ referral and Mr. McMahon’s appeal on April 22, 2002, but Mr. McMahon failed to appear. Following the hearing, the Racing Commission upheld the stewards’ findings and suspended Mr. McMahon’s jockey’s license for a period of five (5) years. After receiving notice of the suspension, Mr. McMahon retained counsel who filed a petition for rehearing, asserting that he had not received timely notice of the April 22, 2002 hearing. The Racing Commission granted the petition. After the rehearing on December 19, 2002, the Racing Commission again upheld the stewards’ ruling, but imposed a three (3) year suspension of Mr. McMahon’s license.

Pursuant to La. R.S. 49:964, Mr. McMahon filed a petition for judicial review with the Civil District Court for the Parish of Orleans. After reviewing the record of the administrative hearing and considering the argument of all counsel, the district court rendered a judgment that affirmed the decision of the Racing Commission and dismissed Mr. McMahon’s appeal. The district court also denied a request by Mr. McMahon to remand the matter to the Racing Commission for the taking of additional evidence. Mr. McMahon timely appealed the district court’s judgment.

THE FACTS PRESENTED TO THE RACING COMMISSION

A review of the transcript from the December 19, 2002 administrative hearing before the Racing Commission discloses the following facts.

On March 20, 2002, Mr. McMahon and ten other jockeys participated in the tenth race at Delta Downs. Following the race, Mr. Kent Pevoto and Mr. Troy Thibo-deaux, investigators for the Racing Commission and detectives for the Calcasieu Parish Sheriffs Office, along with Mr. Chad Bonneau, Director of ^Security for Delta Downs, and Ms. Kyleen Yerdine, a Delta Downs security officer, conducted a routine check of the jockeys and the jockeys’ room to search for any racing contraband or other evidence of racing violations. The jockeys’ room is a private locker room where the jockeys dress and clean themselves before and after races. At Delta Downs, a door opens from the jockeys’ room directly into the adjacent paddock area where the horses are saddled and mounted prior to a race and returned for dismount afterwards. Also, a privacy wall or partition measuring six (6) feet high is located immediately inside the jockeys’ room as one enters from the paddock area.

Pursuant to the authorized search, Mr. Bonneau, who was positioned immediately inside the entrance to the jockeys’ room, received the jockeys as they entered from the paddock area and directed them to Detectives Thibodeaux and Pevoto, who were to conduct pat down searches on the other side of the partition. The search proceeded without incident until the final jockey, Mr. McMahon, entered the room.

A jockey’s valet carrying a saddle was standing in the line immediately preceding Mr. McMahon. As the valet and Mr. McMahon approached, Mr. Bonneau opened the door to the jockeys’ room wider to allow the valet to enter. As he did, Mr. Bonneau noticed Mr. McMahon make a sudden and suspicious move to his left and behind the door. Directly next to the opened door stood a steel, I-beam support column and an adjacent bench. Mr. McMahon then entered the jockeys’ room and was directed to Detectives Thibodeaux and Pevoto. Mr. Bonneau then walked through the opened door into the paddock area and looked behind the support I-beam and the adjacent bench. There, on the ground, he saw an electric shocking device. Although it had rained that day and the grounds were |4very sloppy, the device was dry and clean. Mr. Bonneau retrieved the battery and reentered the jockeys’ room to inform the detectives conducting the search that Mr. McMahon would have to see the stewards. However, before Mr. Bonneau could phone the stewards to tell them of his discovery, Mr. McMahon became irate and yelled, “you didn’t find it on me, you found it on the ground.” As the detectives searched Mr. McMahon, Mr. Bonneau notified the stewards of the discovered contraband.

Mr. McMahon claimed that as he and the valet were approaching the jockeys’ room he moved to his left and slightly behind the door to hold it open for the valet whose hands were full. He denied that he had ever possessed the battery. Mr. McMahon also claimed that Mr. Bon-neau had reentered the jockeys’ room and announced that he had found the battery on the ground prior to his (Mr. McMahon’s) stating that device was not found on him but on the ground.

ASSIGNMENTS OF ERROR

Mr. McMahon asserts the following assignments of error:

1. The district court erred in determining that the Racing Commission’s finding that he possessed an illegal electric device on racetrack grounds was supported by a preponderance of the evidence;
2. The district court erred in not conducting its own review of the evidence pursuant to La. R.S. 49:964(F) or allowing the submission of additional evidence;
3. The district court erred in upholding the Racing Commission’s suspension of Mr. McMahon’s license;
4. The district court erred in not remanding the matter to the Racing Commission for further review; and,
5. This Court would err in affirming the district court’s judgment, as the record contains no transcript of the trial court’s July 28, 2003 hearing.

[.STANDARD OF REVIEW

The judicial standard of review for final agency decisions is found in La. R.S. 49:964. Pursuant to the statute, the reviewing court determines whether the administrative findings are supported by a preponderance of the evidence. In doing so, the reviewing court makes its own findings based on what it determines to be a preponderance of the evidence. Doe v. La. State Board of Medical Examiners, 2000-1987 (La.App. 4 Cir. 5/30/01), 788 So.2d 1234. The statute, however, mandates that the reviewing court give due regard to the agency’s determination of credibility issues. La. R.S. 49:964(G)(6).

DISCUSSION

In his first assignment of error, Mr. McMahon argues that the Racing Commission did not satisfy its burden of proof by a preponderance of the evidence. He asserts that the only evidence presented at the Racing Commission hearing that even remotely connected him to the battery found in the paddock area was Mr. Bonneau’s testimony that he saw him make a sudden and suspicious move to his left and behind the door as the valet entered the jockeys’ room. That statement alone, Mr. McMahon contends, did not establish that he ever possessed the battery on the racetrack grounds.

Mr. McMahon also argues that the search conducted by Mr. Bonneau and the racing investigators following the tenth race was unreliable and deficient in several respects. He points to the fact that the investigators failed to inspect the jockeys’ room and paddock area prior to the post tenth race search to ascertain whether the premises was, in fact, free of any contraband and/or illegal devices. Thus, Mr. McMahon argues, any jockey, valet or other track employee who might | (¡have passed through the area prior to the search and the discovery of the device could have discarded it behind the door. He also noted that the investigators failed to check the electrical device for fingerprints.

Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, establishes that the fact sought to be proved is more probable than not. Cay v. State, Dept. of Transportation and Development, 93-0887 (La.1/14/94), 631 So.2d 393, 395.

In affirming the Racing Commission’s decision, the district court gave no reasons for judgment. However, it is apparent from the record that the Racing Commission relied on the testimony of Detectives Thibodeaux and Pevoto that Mr. McMahon knew of the battery before Mr. Bonneau had the opportunity to show them the device or inform them of its discovery, as evidenced by the timing of his statement, “you didn’t find it on me, you found it on the ground.” In other words, Mr. McMahon implicated himself when he made that statement.

Specifically, Detective Thibodeaux testified as follows:

A. When he come (sic) in, I couldn’t see it. I could see [Mr.Bonneau]. When I see (sic) the device, Mr. Bonneau was on the telephone, and I would see it. He had it cupped in his hand, something like this. I don’t remember if it was his right or left that he was on the phone to the stewards. That is whenever (sic) I knew what we were holding Mr. McMahon for.
Q. So, its you testimony, if I understand you correctly, that this gentlemen over here this jockey started saying where ...
Q. Started saying where something was found before Mr. Bonneau had even said anything about what was found?
A. Yes.

Detective Pevoto then testified as follows:

17Exactly how it happened was myself and Investigator Thibodeaux were standing in that confined area so the jockeys would have to walk through us to get into the jockeys room so no one could avoid being searched. [Mr. McMahon] walked hurriedly between us. Investigator Thibodeaux grabbed him by the arm and asked him to stop. As they were going behind the partition wall, [Mr. Bonneau] was entering the room. [Mr. Bonneau] said, hold him, he’s got to go to the stewards office.
At that point, I didn’t know why he had asked [Det. Thibodeaux] to hold him or for him to stop. [Mr. Bonneau] then cupped his hand towards me and showed me the device and said he found it on the ground outside the jockeys’ room. He proceeded to call the stewards.

Later, Detective Pevoto reiterated, “I am saying that [Mr. McMahon] was standing on the other side of the wall and could not see what was in [Mr. Bonneau’s] hand and [Mr.] Bonneau never stated what was in his hand.”

At the hearing to review the Racing Commission’s decision, the trial court heard argument of counsel only. No live witness testimony was presented. The credibility calls by the Racing Commission are therefore entitled to “due regard” as the Racing Commission had the advantage of first-hand observation of the demeanor of witnesses and the reviewing court did not. Cathey v. Louisiana State Racing Commission, 2003-0923, p. 7 (La.App. 4 Cir. 9/24/03), 855 So.2d 414, 418.

In our opinion, the stewards presented sufficient evidence to the Racing Commission to support the claims against Mr. McMahon. Detectives Thibodeaux and Pevoto were very clear in their testimony that when Mr. Bonneau informed them that Mr. McMahon would need to see the stewards they had no idea why and were taken aback by Mr. McMahon’s excited utterance, “you didn’t find it on me, you found it on the ground.” Although they acknowledged that they had not searched the paddock area or the valets and other jockeys for contraband prior to Iscommencing the post tenth race search, they testified Mr. McMahon could not have made the statement when he did unless he was aware of the existence and location of the electrical device. In addition to the detectives’ testimony, the stewards submitted the testimony of Mr. Bon-neau and the investigation report. In view of the totality of the evidence, the Racing Commission’s findings were not arbitrary or capricious. See La. R.S. 49:964(G)(5). Its decision was supported by a preponderance of the evidence. See La. R.S. 49:964(G)(6). The Racing Commission’s decision was a fair exercise of its administrative authority, and it did not prejudice Mr. McMahon’s substantial rights. Also, we find the trial court applied the proper standard of review by giving due regard to the Racing Commission’s determination of credibility.

The second and fourth assignments of error relate to the scope of review. Mr. McMahon argues in the second assignment of error that the trial court judge erred in not conducting her own review of the evidence pursuant to La. R.S. 49:964(F) and (G) and in not allowing him to submit additional evidence pursuant to La. R.S. 49:964(E). In the fourth assignment of error, he argues that the trial court erred in not remanding the matter to the Racing Commission for further review.

Specifically, Mr. McMahon argues that he was precluded from subpoenaing witnesses on his behalf to testify at the rehearing before the Racing Commission because he was not given sufficient notice of the December 19, 2002 hearing date. He contends that he intended to subpoena other jockeys who were in the jockey room at the time of the incident who would have refuted the stewards’ claim that he was aware of the electrical device prior to Mr. Bonneau’s informing the detectives of its discovery, but he did not receive notice of the hearing until | ^December 10, 2002. Such short notice, Mr. McMahon argues, precluded him from subpoenaing the witnesses at least fifteen days prior to the hearing as required by the Administrative Procedure Act. Thus, Mr. McMahon argues the trial judge should have allowed him to submit additional evidence or should have remanded the matter to the Racing Commission for the taking of additional testimony and further review.

The record reflects that Mr. McMahon’s hearing before the Racing Commission was originally scheduled for August 16, 2002, but was continued to September 20, 2002. After continuing the matter a second time, the Racing Commission heard Mr. McMahon’s case on December 19, 2002. Each time, notice of the continuance was sent to Mr. McMahon. In addition, the record contains a copy of a letter dated November 4, 2002, from Mr. Paul Bonin, Special Counsel for the Racing Commission, to Mr. McMahon’s attorney informing him that the matter had been rescheduled to December 19, 2002. As evidenced by the stamped date, Mr. McMahon’s attorney had received the letter on November 5, 2002. In view of this evidence, we find no merit to Mr. McMahon’s claim that he did not have sufficient prior notice of the December 19, 2002 hearing to subpoena witnesses on his behalf.

Furthermore, the record indicates that Mr. McMahon filed his petition for judicial review in January 2003. The review hearing was originally scheduled for March 23, 2003, but was continued twice. Eventually the case was heard on July 28, 2003. However, at no time between the filing of his petition for judicial review and the day of the hearing, did Mr. McMahon ever inform the trial court of any alleged procedural irregularities, including deficient notice, before the Racing Commission. In the absence of any alleged procedural irregularities, the trial court |inwas not required to order the Racing Commission to take and consider additional evidence. La. R.S. 49:964(E) and (F).

In the judgment, the trial court judge stated the ease would not be remanded to the Racing Commission for the taking of additional evidence pursuant to La. R S. 49:964(E) because “no application for additional evidence was timely filed before the matter was set for hearing on the merits.” The judge also noted that “[Mr. McMahon] could have requested witnesses to be subpoenaed to appear before the Commission to testify on his behalf, and did not.” Considering the evidence, we find the trial court did not err by not allowing Mr. McMahon to subpoena witnesses for the review hearing or remanding the matter to the Racing Commission for further consideration. Thus, we conclude Mr. McMahon’s second and fourth assignments of error are without, merit.

Mr. McMahon argues in the third assignment of error that the trial court erred in upholding the Racing Commission’s decision suspending his jockey’s license for three (3) years. We disagree.

La. R.S. 4:175(G) provides that “[w]ho-ever violates or attempts to violate [La. R.S. 4:175] shall be fined not less than one thousand dollars nor more than five thousand dollars, or imprisoned with or without hard labor for not less than one nor more than five years, or both.” Moreover, LAC 35:I.1706(A) provides that the license of any person whom the Racing Commission finds to have violated La. R.S. 4:175(D) and/or LAC 35:1.1705 as it pertains to an electrical or mechanical device or other expedient, shall be revoked and such person shall be ineligible for licensing for a period not less than five years from the date such revocation takes effect. LAC 35:I.1706(B) provides that in addition to the license revocation and a In minimum period of ineligibility, the commission may fine the violator an amount not less than $3,000.00 and not more than $10,000.00. In this case, the Racing Commission suspended Mr. McMahon’s license for a period of three (3) years even though it could have imposed a greater suspension and a fine as well. The imposed penalty, in our opinion, is both reasonable and appropriate considering the evidence, Mr. McMahon’s past racing history, and the state’s interest in maintaining the integrity of the sport.

Finally, in the fifth assignment of error, Mr. McMahon argues that the appeal record is deficient because it does not contain the transcript of the July 28, 2003 review hearing, and, therefore, this Court cannot render a fair decision.

Regarding judicial review of the Racing Commission’s adjudication, La.R.S. 49:964(F) allows the parties to request oral argument; however, oral argument is not guaranteed much less transcribed, as the scope of review is limited to a review of the administrative record. In this case, although the district court heard oral argument from both parties, which apparently was transcribed, the fact that the appellate record does not contain a transcript from those arguments does not prevent us from rendering a fair judgment. A review of the certified record of the Racing Commission, including the transcript from the December 19, 2002 hearing and the documentary evidence, indicates that the district court had a sufficient basis to conclude that the Racing Commission satisfied its burden of proof by a | ^preponderance of the evidence. Mr. McMahon’s fifth assignment of error is without merit.

CONCLUSION

Accordingly, for the above reasons, the judgment of the trial court upholding the decision of the Racing Commission to suspend Mr. McMahon’s license for a period of three (3) years is affirmed.

AFFIRMED.

BELSOME, J., concurs in the result.

BELSOME, J.,

concurs in the result.

hBoth sides presented conflicting evidence regarding both the discovery of the battery and Mr. McMahon’s behavior before and after the discovery. Under the abuse of discretion standard, this court should give great deference to the factfin-der’s factual determinations. In light of this deference, the trial court’s judgment should be affirmed.

      . Stewards are racing officials appointed by the Louisiana State Racing Commission for a race meeting who supervise the daily conduct of racing. The stewards have full authority to investigate, inspect, search, and inquire into all matters under their supervision. The stewards are authorized to suspend racing privileges of an individual licensee for up to six months. If the stewards determine a six-month suspension to be inadequate, they may refer the matter to the Racing Commission for a de novo determination of the penalty. See La. R.S. 4:143 and 4:172.

      . An electrical shocking device is approximately the size of a cigarette lighter and is made of one or two batteries wired by a copper coil with one stationary and one spring-loaded for contact. The device delivers a shock when contact is made with the horse and is used to achieve greater speed.

      . The suspension is below the mandatory minimum of five (5) years. The stewards, however, did not appeal the imposed penalty. Thus, it will not be disturbed.

      . The record indicates that Mr. McMahon has been a jockey for more than twenty years. His past racing violations include testing positive on drug screen tests in 1990 and 1991, a 14-day suspension for failure to ride due to weather conditions in 1999, and a 7-day suspension and $200.00 fine for careless riding in 1999.


source: Caselaw Access Project

author: LEON A. CANNIZZARO, JR., Judge. McKAY, J.,

license: Public Domain

text:
    STATE of Louisiana v. Michael POLK.
    No. 2005-KA-1118.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 31, 2006.

      Eddie J. Jordan, Jr., District Attorney, Autumn L. Cheramie, Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    (Court composed of Judge JAMES F. MeKAY, III, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

h The defendant, Michael Polk, filed a motion to quash the bill of information against him. The district court granted the motion, and the State of Louisiana is appealing the judgment granting Mr. Polk’s motion.

STATEMENT OF THE CASE

On January 6, 2004, Mr. Polk was charged with one count of possession of cocaine. He entered a not guilty plea at his arraignment on February 6, 2004, and on June 16, 2004, the district court found probable cause to try Mr. Polk. The case was set for trial, but the trial was continued several times. On December 9, 2004, Mr. Polk appeared for trial, but the State made an oral motion for a continuance. Because the State had not followed the procedures set forth in La.C.Cr.P. art. 707 et. seq. for requesting a continuance, the trial court denied the continuance. The State then entered a nolle prosequi. Mr. Polk was released, and the case was closed.

On January 19, 2005, the State reinsti-tuted the prosecution pursuant to La. _jC.Cr.P.2 art. 691. On April 11, 2004, Mr. Polk filed a written motion to quash the bill of information, and the trial court granted the motion. On May 9, 2005, the district court granted the State’s written motion for an appeal.

STATEMENT OF THE FACTS

There are no transcripts in the record before us, but the facts of the case are contained in the narrative of the police report that is in the record. According to the police report, two New Orleans Police Department officers were on patrol in a marked police vehicle in the Iberville Housing Development in New Orleans. When they saw three men sitting on the steps of an abandoned building, one of the officers exited the police car and walked toward the men. When the men saw the police officer approaching them, they fled. Although Mr. Polk fled with the others, the officers were able to stop him. After they stopped Mr. Polk, the officers asked him if he was a resident of the housing development and if he had any identification. Mr. Polk replied negatively to both questions.

The officers checked the police department database and learned that there was an outstanding juvenile warrant for Mr. Polk’s arrest. The officers then arrested Mr. Polk, and in a search that was conducted incidental to the arrest, the police officers found crack cocaine and marijuana in Mr. Polk’s possession.

JjDISCUSSION

The only issue raised on appeal is whether the district court erred by granting Mr. Polk’s motion to quash the bill of information. Although the transcript of the hearing on the motion to quash does not contain any argument by the parties or the reasons for the district court’s ruling, the trial court judge later issued a per curiam to explain why he granted the motion to quash in Mr. Polk’s case and in a number of similar cases. The trial court judge explained in the per curiam that he granted the motion to quash, because after he denied the State’s motion to continue on the grounds that the motion did not conform to the requirements of La. C.Cr.P. art. 707, the State had entered a nolle prosequi Article 707 provides that a motion for a continuance must be in writing, must specifically allege the grounds upon which it is based, and must be filed at least seven days prior to the commencement of trial. This had the effect of giving the State the continuance it sought but had been denied, and it was for this reason that the trial court judge granted the motion to quash.

The State argues that granting Mr. Polk’s motion to quash was not a permissible response to the State’s failure to comply with the La.C.Cr.P. art. 707 et. seq. La.C.Cr. P. art. 532 sets forth the general grounds upon which a motion to quash can be granted. That article provides:

A motion to quash may be based on one or more of the following grounds:
(1) The indictment fails to charge an offense which is punishable under a valid statute.
(2) The indictment fails to conform to the requirements of Chapters 1 and 2 of Title XIII. In such case the court may permit the district attorney to amend the indictment to correct the defect.
14(3) The indictment is duplicitous or contains a misjoinder of defendants or offenses. In such case the court may permit the district attorney to sever the indictment into separate counts or separate indictments.
(4) The district attorney failed to furnish a sufficient bill of particulars when ordered to do so by the court. In such case the court may overrule the motion if a sufficient bill of particulars is furnished within the delay fixed by the court.
(5) A bill of particulars has shown a ground for quashing the indictment under Article 485.
(6) Trial for the offense charged would constitute double jeopardy.
(7) The time limitation for the institution of prosecution or for the commencement of trial has expired.
(8) The court has no jurisdiction of the offense charged.
(9) The general venire or the petit jury venire was improperly drawn, selected, or constituted.

La.C.Cr.P. art. 584 sets forth the special grounds for a motion to quash a bill of information. La.C.Cr.P. art. 534 provides:

A motion to quash an information may also be based on one or more of the following grounds:
(1) The information was not signed by the district attorney; or was not properly filed.
(2) The offense is not one for which prosecution can be instituted by an information.

There is nothing in the record to indicate that Mr. Polk’s written motion to quash asserts any of the grounds enumerated in La.C.Cr.P. art. 532 or 534 as a basis for quashing the bill of information against him. Additionally, the Louisiana Code of Criminal Procedure does not provide for quashing a bill of information for failure to comply with the mandates of La.C.Cr.P. art. 707 et. seq. Although the district court judge may have been frustrated by the State’s failure to be prepared for trial, we find no valid basis upon which he could quash the bill of information in this case.

IsThe trial court judge specifically stated in his per curiam that the denial of the right to a speedy trial was not the basis upon which Mr. Polk’s motion to quash was granted. We also note that the record does not indicate that a motion for a speedy trial was ever filed by Mr. Polk. The sole basis upon which the motion to quash was granted was the State’s failure to comply with La.C.Cr.P. arts. 707 et. seq. in moving for a continuance and its using a nolle prosequi to obtain indirectly the continuance that had been denied by the trial court.

The State has plenary authority pursuant to La.C.Cr.P. art. 576 to dismiss a charge and then reinstitute prosecution in a case, such as this one, where doing so will not circumvent the statutory time limits for commencing trial under La.C.Cr.P. art. 578. Therefore, considering the circumstances of this case, the trial court abused his discretion in quashing the bill of information.

CONCLUSION

The judgment of the trial court granting Mr. Polk’s motion to quash the bill of information is reversed. The case is remanded to the trial court for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

McKAY, J., dissents with reasons.

McKAY, J.,

dissents with reasons.

hi respectfully dissent from the majority opinion in this matter.

The Louisiana Supreme Court emphasized in State v. Love, 2000-3347 (La.5/23/03), 847 So.2d 1198, the trial court’s ruling on a motion to quash on speedy trial grounds must be given deference and should only be reversed by the appellate court if there was a palpable abuse of discretion.

The right to a speedy trial is guaranteed by both the federal and state constitutions. U.S. Const. Amendment 6; La. Const. Art. I, § 16. In addition to the statutory right to a speedy trial recognized by La. C.Cr.P. art. 701(A), a defendant also has a fundamental, constitutional right to a speedy trial. In analyzing a constitutional speedy trial violation claim, the four factor test forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) is applied; to wit: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right to a speedy trial, and (4) the prejudice to the defendant.

On April 11, 2005, fifteen months and five days after the original bill of information was filed, the court granted the motion to quash. Based on applicable jurisprudence the delays in this case appear sufficient to warrant a consideration of the other Barker factors.

|2The second Barker factor concerns the reason for delay, which must be evaluated.

Of the fifteen-month delay, approximately four months were clearly the defendant’s fault as the record shows he had been notified in court of the scheduled trial dates.

After the defendant’s arrest in September, trial was set four times: October 20, 2004, November 16, 2004, November 23, 2004, and December 9, 2004. The defendant, who was incarcerated, was present for each setting. The minute entries do not reflect any reasons for the continuances, although the per curiam indicates that at least on December 9th the State requested a continuance and entered the nolle prosequi when the court denied its request.

There was a five-week delay attributable to the State between December 9th, when the State entered the nolle prosequi, and January 19, 2005 when it filed the new bill of information. Delays following reinstitution again appear to be related solely to problems providing the defendant, who was not incarcerated or on bond following the December 9th dismissal of the charge, with notice that the charge had been reinstituted. While the problem of notice may not be directly the fault of the State, it cannot be attributed to the defendant until he received actual notice, which the record indicates occurred by March 17th when the trial court ordered a capias with a $25,000 bond to issue. Less than one month later the court granted the motion to quash.

The next factor to be considered is the defendant’s assertion of his right to a speedy trial. As to this factor, the court in its per curiam noted that the defense had never filed a written motion for speedy trial pursuant to La.C.Cr.P. art. 701(D), which provides that a motion “in order to be valid” must be accompanied by an affidavit by counsel that he and the defendant are ready to proceed to trial within |sthe delays set forth in the article. However, La.C.Cr.P. art. 701(D) is statutory and provides as a remedy that the defendant be released without bail or that the surety be discharged. Here, the defendant had been released without bond for much of the duration of the proceedings, and therefore the defense counsel may have seen no purpose in filing such a written motion. Also, the defense counsel did object to the granting of the State’s motion to continue the motion hearing on February 20, 2004. However, the record does not affirmatively show any defense objections to the continuances of the trial, which occurred throughout the fall of 2004.

The final factor to consider under Barker is the prejudice to the defendant. As noted by this Court in State v. Batiste, 2004-1200 (La.App. 4 Cir. 5/11/05), 904 So.2d 766, this factor should be assessed in light of the interests of a defendant, which the right to a speedy trial was designed to protect. The Barker court identified those interests as preventing oppressive pretrial incarceration, minimizing the anxiety and concern of the defendant, and limiting the possibility that the defense would be impaired.

Here the defendant suffered incarceration before the bill of information was filed, again after he had missed court appearances, resulting in bench warrants for his arrest which were recalled on more than one occasion, and again after the State reinstituted prosecution five weeks after the first bill of information had been dismissed. Stated another way, this particular defendant, instead of being continually incarcerated, suffered the anxiety of repeatedly being arrested and incarcerated and then released for the same offense. The record does not indicate whether he lost work or suffered other personal hardships. The record also does [4not indicate whether he had witnesses or evidence, which became unavailable to him as a result of the failure to bring him to trial more expeditiously.

The weight to be given to all of the Barker factors must be evaluated on the circumstances of the individual case. Here, the charge against the defendant was a non-violent felony which can only be described as a routine drug case. The only witnesses for the State according to its witness list were two police officers assigned to the C.O.P.S. unit at the Iber-ville Housing Development and an officer from the Crime Laboratory. The trial court clearly believed that the State was not entitled to a continuance when it denied the State’s request for a continuance on December 9th, which at that point was the fourth trial setting in less than two months, during which period the defendant had been continuously incarcerated.

As the court emphasized in State v. Love, supra, the trial court’s ruling on a motion to quash on speedy trial grounds must be given deference and should only be reversed by the appellate court if there was a palpable abuse of discretion.

Accordingly, based on the facts of this case I cannot determine that the trial court abused its discretion and would affirm the judgment of the trial court.

      . Article 707 provides that a motion for a continuance must be in writing, must specifically allege the grounds upon which it is based, and must be filed at least seven days prior to the commencement of trial.

      . Article 691 gives the district attorney the discretionary power to dismiss a charge against a defendant, and the permission of the court is not required. La.C.Cr.P. art. 693 provides that the dismissal of the charge is not a bar to subsequent prosecution except in certain instances not applicable in the instant case.

      . Mr. Polk was charged with possession of marijuana, a misdemeanor, but that case is not before us.

      . La.C.Cr. P. art. 578 provides that no felony trial, except in a capital case, shall commence after two years from the date of institution of the prosecution. The two-year time limit in this case had not expired.

      . The delays for commencing trial after the filing of a valid motion for speedy trial in a felony case are one hundred twenty days if the defendant is in custody and one hundred eighty if he is not. See La.C.Cr.P. art. 701(D)(1)(a).