author: JUDGE SANDRA CABRINA JENKINS

text:
    STATE of Louisiana v. Timrek ANDREWS
    In re: Timrek Andrews
    NO. 2018-KA-0149 NO. 2018-K-0339
    Court of Appeal of Louisiana, Fourth Circuit.
    SEPTEMBER 12, 2018
    Leon Cannizzaro, District Attorney, Donna Andrieu, Assistant District Attorney, Michael Danon, Assistant District Attorney, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/APPELLANT
    Thomas Ward Frampton, HARVARD LAW SCHOOL, 1525 Massachusetts Avenue, Cambridge, MA 02138, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins )
   JUDGE SANDRA CABRINA JENKINS

The State appeals the trial court's September 25, 2017 ruling granting defendant's motion to quash for a violation of his constitutional right to a speedy trial. Based on our review of the record and in light of the factors set forth in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), we find no abuse of discretion in the trial court's ruling, and we affirm. In addition, we deny relief sought by defendant in the consolidated writ application.

FACTS AND PROCEDURAL HISTORY

On October 15, 2013, defendant, Timrek Andrews, was arrested following a traffic stop by two New Orleans Police Department ("NOPD") officers for a damaged driver-side mirror on defendant's vehicle. During the traffic stop, the officers requested defendant exit and step to the rear of the vehicle for officer safety. After defendant exited the vehicle, the officers observed defendant reach into his front left pocket, remove a clear plastic baggie containing an off-white powder substance, and place the baggie in his mouth. In an attempt to restrain defendant, a struggle ensued between the officers and defendant. Once the officers gained control of defendant, they placed him under arrest. Observing that defendant had suffered injuries during the scuffle and believing that he had ingested the plastic baggie containing the off-white powder substance, the officers contacted Emergency Medical Services to transport defendant to University Hospital for evaluation. Defendant was subsequently arrested and booked on a felony charge of obstruction of justice, a violation of La. R.S. 14:130.1, and misdemeanor charges of resisting an officer, a violation of s La. R.S. 14:108, and battery of a police officer (2 counts), a violation of La. R.S. 14:34.2.

On December 5, 2013, the State filed a bill of information in Orleans Parish Municipal Court charging defendant with the three misdemeanor offenses. Defendant was arraigned that same date and pled not guilty. The felony charge of obstruction of justice was refused by the Orleans Parish District Attorney's Office.

On May 20, 2014, the first trial setting in Municipal Court, a motion to continue the trial was filed, and trial was rescheduled for August 14, 2014. The record does not reflect which party requested the continuance. On August 14, 2014, the State was granted a continuance due to the failure of the victim to appear. On November 13, 2014, the Orleans Parish Public Defender was appointed to represent defendant; trial was rescheduled for February 10, 2015.

On February 10, 2015, defendant failed to appear for trial, an attachment was issued, and defendant's bond was forfeited. On March 4, 2015, the attachment was recalled; defendant was found in contempt of court, assessed a fine of one-hundred dollars, and ordered to spend five nights in jail. On May 14, 2015, the defense was granted a continuance of trial due to NOPD officers' failure to appear. On July 31, 2015, the defense sought another continuance, and trial was rescheduled for August 25, 2015. On that date, the State sought a continuance, and trial was rescheduled for September 29, 2015. After a subsequent status hearing, trial was scheduled for December 10, 2015.

On October 30, 2015, the State filed a second bill of information charging defendant in Orleans Parish Criminal District Court with one felony count of obstruction of justice and the three misdemeanor charges pending against defendant in Municipal Court. On November 13, 2015, defendant appeared for arraignment in Criminal District Court and entered a plea of not guilty. On December 10, 2015, the State nolle prosequied the charges pending against defendant in Municipal Court.

On September 28, 2016, the first trial setting in Criminal District Court, defendant failed to appear for trial; the trial court issued an alias capias. The following day, defendant appeared before the trial court; the court found him in contempt and imposed a fine; and the alias capias was recalled. Trial was scheduled for November 29, 2016. On that date, the trial court granted the State a continuance, over the defense's objection. On January 17, 2017, the trial court granted the defense a continuance, over the State's objection. Three more trial settings followed: March 21, 2017; May 22, 2017; and July 17, 2017. On each date, the trial court granted the State a continuance, over the defense's objection. Trial was then set for October 2, 2017. Prior to that trial setting, defense counsel appeared without defendant for unscheduled activity on July 21, 2017. On that date, the October 2, 2017 trial date was vacated, and trial was re-set for September 25, 2017.

On September 25, 2017, defendant filed a motion to quash for denial of defendant's constitutional right to a speedy trial. Defendant appeared in court that day ready for trial, but the State moved for another continuance of the trial. The trial court denied the State's motion for a continuance and granted defendant's motion to quash. In granting the motion to quash, the trial court reasoned that the four year delay since defendant was initially charged constituted a violation of his right to a speedy trial. The State objected to the trial court's ruling and noticed its intent to appeal. On that same date, the State filed its motion for appeal and designation of the record.

DISCUSSION

Motion to Dismiss the Appeal

Before considering the merits of the State's appeal, we address the defendant's motion to dismiss the appeal as untimely. Defendant argues that the State abandoned this appeal when the State failed to comply with its obligations as the party moving for the appeal pursuant to La. C.Cr.P. arts. 915 and 915.1.

A motion for an appeal must be made no later than thirty days after the rendition of the judgment or ruling from which the appeal is taken. La. C.Cr.P. art. 914. Once the motion for appeal is made, the trial court "shall" set the return date seventy-five days from the date the motion for appeal is granted, unless the trial court fixes a lesser period. La. C.Cr.P. art. 915(A). In addition, "[t]he party moving for the appeal must forward notice that a motion for appeal has been made to the appropriate appellate court within seven days of the date the motion is made." La. C.Cr.P. art. 915(B). Once the trial court signs an order of appeal setting a return date, "[t]he trial court may grant one extension of the return date of not more than thirty days," but "[a]n extension may not be granted after the return date has passed." La. C.Cr.P. art. 915.1. Further, "[t]he extension may be granted only upon proof presented by the moving party that additional time is necessary due to extenuating circumstances beyond the control of the moving party and that, without the extension, an unusual and undue hardship would be created." Id.

The record of this case reflects that the State timely filed its motion for appeal and designation of the record on the day of the trial court's ruling granting defendant's motion to quash, September 25, 2017. That same date, the trial court signed the order of appeal and set the return date for November 27, 2017. The record does not reflect that the trial court or this Court granted any extension of the return date. However, the appeal record was not lodged in this Court until February 23, 2018, 151 days from the date the motion for appeal was granted.

Defendant argues that the State's failure to request an extension of the return date and its failure to provide notice of the motion for appeal to this Court are grounds for dismissal of the appeal, because the State had a mandatory obligation as the party moving for the appeal to take affirmative steps to ensure that the record of the appeal was timely lodged in this Court, pursuant to La. C.Cr.P. arts. 915 and 915.1.

This Court has previously addressed and rejected the same argument raised by defendants moving to dismiss the State's appeal as untimely and abandoned. See State v. Noel , 13-1218, pp. 2-4 (La. App. 4 Cir. 10/1/14), 151 So.3d 706, 709-10 ; State v. Hall , 13-0453, pp. 4-9 (La. App. 4 Cir. 10/9/13), 127 So.3d 30, 34-38 ; State v. Brooks , 13-0540, pp. 3-8 (La. App. 4 Cir. 9/18/13), 124 So.3d 1129, 1131-34. In each of those cases, the State timely moved for an appeal, and the trial court timely granted the motion and set a return date; however, years passed before the record of each case was lodged in this Court. In each case, this Court found that once the State timely moved for an appeal and the trial court granted the motion, the burden then fell upon the district court personnel, not the State, to prepare and lodge the record for appeal. See Noel , 13-1218, pp. 2-4, 151 So.3d at 709-710. "[T]here is no further action that must be taken by the State until the record is lodged with the court of appeal." Hall , 13-0453, p. 7, 127 So.3d at 36 (quoting State v. Ross , 06-1328, p. 4 (La. App. 3/14/07), 955 So.2d 167, 170 ). Moreover, "the failure of the trial court," or court personnel "to perform their functions in connection with the filing of a criminal appeal does not affect the validity of the appeal." Id. ; see also , La. C.Cr.P. arts. 915(A) and (B), 915.1(B).

Applying the aforementioned principles and jurisprudence, we find no merit to defendant's argument that the State abandoned its appeal. The State timely moved for this appeal and the trial court timely granted it. Thereafter, the district court personnel bore responsibility to prepare and lodge the record for appeal; and the State did not need to take further action until the record was lodged. Accordingly, defendant's motion to dismiss the State's appeal is denied.

Motion to Quash

In the first assignment of error, the State argues that the trial court abused its discretion in granting the defendant's motion to quash on constitutional grounds. The State contends defendant's constitutional right to a speedy trial was not violated and his motion to quash was improperly granted.

"The granting of a defendant's motion to quash the bill of information is a discretionary ruling by the trial court which should not be disturbed by the appellate court, absent an abuse of its discretion." Noel , 13-1218, p. 4, 151 So.3d at 710. The complementary role of trial courts and appellate courts demands that deference be given to a trial court's discretionary decision; thus, an appellate court is allowed to reverse a trial court judgment on a motion to quash only if that finding represents a clear abuse of the trial court's discretion. State v. Love , 00-3347, pp. 9-10 (La. 5/23/03), 847 So.2d 1198, 1206.

Louisiana jurisprudence recognizes two separate and distinct bases for a defendant's right to a speedy trial: a statutory right granted by La. C.Cr.P. art. 701 and a constitutional right guaranteed by the Sixth Amendment to the United States Constitution and Article I, § 16 of the Louisiana Constitution. See State v. Sorden , 09-1416, p. 7 (La. App. 4 Cir. 8/4/10), 45 So.3d 181, 185 (citing State v. Powers , 344 So.2d 1049 (La. 1977) ). The two are not equivalent; "the question of whether a speedy trial violation is statutory or constitutional involves wholly separate inquiries." Sorden , 09-1416, p. 7, 45 So.3d at 186.

A defendant's constitutional right to a speedy trial is a fundamental right guaranteed by the Sixth Amendment and imposed on the states by the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Love , 00-3347, p.14, 847 So.2d at 1209 (citing Klopfer v. North Carolina , 386 U.S. 213, 223, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) ); see also , La. Const. Art. I, § 16. In determining whether a defendant's constitutional right to a speedy trial has been violated, courts consider four factors: (1) the length of delay; (2) the reason for delay; (3) the defendant's assertion of his right to speedy trial; and (4) the prejudice to the defendant resulting from the delay. Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ; see also , State v. Reaves , 376 So.2d 136 (La. 1979) (adopting Barker . None of the four Barker factors is "either a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial." Love , 00-3347, p. 15, 847 So.2d at 1210. Rather, the factors are related and must be considered together in light of the circumstances of each case. Id.

The first factor, the length of the delay, is a "triggering mechanism" for further inquiry into the other three Barker factors, which need not be addressed unless the reviewing court finds the length of the delay to be presumptively prejudicial. State v. Gaines , 08-0967, p. 3 (La. App. 4 Cir. 2/11/09), 5 So.3d 915, 917 ; State v. DeRouen , 96-0725, p. 3 (La. App. 4 Cir. 6/26/96), 678 So.2d 39, 40. The weight ascribed to the length of the delay depends on the particular circumstances of the case, such as the gravity of the charged crime and the complexity of the case, because "the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge." Reaves , 376 So.2d at 138 (quoting Barker , 407 U.S. at 531, 92 S.Ct. at 2192 ); see Noel , 13-1218, p. 5, 151 So.3d at 710.

In the instant case, following defendant's arrest on October 15, 2013, the State filed the initial bill of information, charging three misdemeanors, on December 5, 2013.

Approximately twenty-three months later, on October 30, 2015, the State filed the second bill of information, charging the same three misdemeanors and the felony charge of obstruction of justice. Subsequent to filing the second bill of information, the State nolle prosequied the original bill of information filed in Municipal Court. Twenty-three months later, on September 25, 2017, the trial court granted defendant's motion to quash the second bill of information. Notably, the State concedes for the first time on appeal that the time limitation for prosecuting the three misdemeanors offenses expired prior to the filing of the second bill of information; but the State never dismissed the expired charges prior to the granting of the motion to quash.

Despite the nearly four-year delay between the filing of the initial bill of information and the granting of the motion to quash, the State argues that the length of delay in this case is not presumptively prejudicial. The State argues it was within the four-year statutory prescriptive period to institute the felony charge, pursuant to La. C.Cr.P. art. 572, and the two-year statutory prescriptive period to commence trial on that charge, pursuant to La. C.Cr.P. art. 578. Moreover, the State argues since it initially declined or dismissed the felony obstruction of justice charge in the initial bill of information, the twenty-three month time differential between the filing of the initial bill of information and the institution of that charge by the second bill of information does not weigh upon defendant's right to a speedy trial.

It is undisputed that there was no violation of the statutory time limitation for instituting prosecution and commencing trial for the felony charge, pursuant to La. C.Cr.P. arts. 572 and 578. The issue in this case is whether defendant's constitutional right to a speedy trial was violated even though there was no violation of the statutory time limitation.

Most cases discussing a defendant's constitutional right to a speedy trial measure the length of delay as the time between the filing of the bill of information and the granting of the motion to quash. Gaines , 08-0967, p. 4, 5 So.3d at 918 (collecting cases). In addition, the Louisiana Supreme Court has held that any time period during which the defendant is not under arrest or held to answer a criminal charge should not be used in calculating a constitutional speedy trial delay. State v. Mathews , 13-0525, pp. 3-4 (La. 11/15/13), 129 So.3d 1217, 1219 (finding the seventeen-month period during which defendants were not under arrest or charged did not weigh upon defendants right to a speedy trial). In State v. Smith , 16-0393, pp. 5-6 (La. App. 4 Cir. 11/23/16), 204 So.3d 1035, 1038, applying the Mathews method of calculation, this Court found that a twenty-five month delay on a charge of possession of heroin arguably constituted a presumptively prejudicial delay that triggered the consideration of the remaining Barker factors. In State v. Noel , supra , this Court found that a nineteen-month delay from the filing of the bill of information charging simple burglary of an outdoor shed was sufficiently great to trigger an analysis of the three remaining Barker factors. In State v. Harris , 03-0524, p. 6 (La. App. 4 Cir. 9/10/03), 857 So.2d 16, 19, this Court found the twenty-four month period from the filing of the first bill of information charging possession of heroin to the granting of the motion to quash, excluding periods of interruption, was a presumptively prejudicial delay.

In consideration of the particular circumstances of this case, we find that the length of delay is presumptively prejudicial. From our review of the factual basis for these charges, we find the alleged offenses more akin to "ordinary street crime" rather than "a serious, complex conspiracy charge." See Reaves , 376 So.2d at 138 ; see also Doggett v. United States , 505 U.S. 647, 652, 112 S.Ct. 2686, 2691, n. 1, 120 L.Ed.2d 520 (1992) ("Depending on the nature of the charges, the lower courts have generally found post-accusation delay 'presumptively prejudicial' at least as it approaches one year."). In addition, although defendant was not charged with the felony offense until approximately twenty-three months prior to the granting of the motion to quash, defendant was held to answer the three misdemeanors, charged in both bills of information, for nearly four years. Even excluding the time period between the filing of the initial and second bill of information, we find the twenty-three month time delay to be presumptively prejudicial, thereby triggering consideration of the three remaining Barker factors.

Turning to the second factor, the reason for the delay, we review the record to determine which party is primarily responsible for the delay in commencing trial. Upon review of the entire length of delay since the filing of the initial bill of information, the record reflects five continuances of trial in Municipal Court and five continuances of trial in Criminal District Court. While in Criminal District Court, the State sought and was granted continuances on November 29, 2016; March 21, 2017; May 22, 2017; and July 17, 2017. The reasons for these continuances are not noted in the record. But, on each of those dates, defendant appeared ready for trial and objected to the continuance. Finally, on September 25, 2017, the State sought a fifth continuance of trial, stating that it was ready for trial in another matter, "an older case", and "we have a new ADA on [this] case."

The State argues that defendant is "equally culpable" for the delays in commencing trial. In support, the State points to defendant's failure to appear for the first trial setting on September 28, 2016, to a continuance sought and granted to defense on January 17, 2017, and to a discovery motion filed by defense on July 11, 2017. In response, defendant acknowledges responsibility for his failure to appear on September 28, 2016, for which he was found in contempt and fined the following day when he appeared in court. Defendant also acknowledges brief delays for motion hearings. Defendant argues, however, that the State was primarily responsible for the four year delay in this case. Moreover, defendant contends that the State used the continuances as a dilatory tactic to prompt defendant to accept a plea, which the State offered on three occasions; defendant, however, insisted on his right to a speedy trial rather than accept a plea.

From our review of the record, we find the majority of the multiple delays in commencing trial are attributable to the State. After two years of delays in Municipal Court, the State filed the second bill of information on October 30, 2015, and did not seek to commence trial until nearly one year later. Although defendant did not appear on the first trial date in September 2016, defendant appeared ready for trial on each of the five subsequent trial dates when the State sought continuances. Additionally, the record reflects two times when the State offered to dismiss the felony charge in exchange for defendant entering a guilty plea to misdemeanor charges, for which the time limitation to prosecute had long expired. Moreover, upon review of the consolidated writ application in this case, we note the State only obtained a search warrant for evidence in support of the felony charge of obstruction of justice after the trial court granted the motion to quash. Thus, it appears from the record that the State's interest in securing a guilty plea surpassed its interest in preparing this case for trial or providing defendant with a speedy trial. Given the lack of reasonably diligent efforts to bring defendant to trial, we find the State fails to establish a justifiable reason for a twenty-four month delay, much less a four year delay.

The third Barker factor concerns defendant's assertion of his right to a speedy trial. The record reflects that defendant did not file a motion for a speedy trial at any time prior to filing the motion to quash. However, defendant objected to each of the four trial continuances sought and granted to the State prior to filing the motion to quash. In Barker , the Court rejected a bright line rule that defendant must assert his right to speedy trial lest it be waived; instead, the Court implemented a balancing test, "in which the conduct of both the prosecution and the defendant are weighed." 407 U.S. at 529-30, 92 S.Ct. at 2191-92. "While the 'failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial', it is not dispositive as 'defendant's assertion of or failure to assert his right is one of the factors to be considered.' " Noel , 13-1218, pp. 7-8, 151 So.3d at 712 (quoting Barker , 407 U.S. at 528, 531-32, 92 S.Ct. at 2192 ).

In Reaves , the Louisiana Supreme Court found the failure of defendant to move for a speedy trial prior to his motion to quash did not weigh heavily under the facts of the case. 376 So.2d at 139. Defendant was charged with a simple misdemeanor possession of marijuana charge and he filed his motion to quash after only three and one-half months of delay. But, the Court found that after four continuances of the trial date, "defendant finally realized that the new trial setting was probably illusory in light of the prior course of the proceedings"; thus, "[h]is only avenue at that point, and the trial judge agreed, was to file a motion to quash." Id.

Similarly, in this case, there is a pattern of delay and continuances by the State. Although the State argued for a short continuance to October 2, 2017, the State had two-months notice of the September 25, 2017 trial date. We also note the State does not refute defense counsel's argument that he was informed five days prior to the September 25 trial date that the State was ready to proceed. But, anticipating that the State may seek another continuance, defense counsel also prepared a motion to quash to be filed in the event that the State sought to delay trial again. In consideration of the history of this case and defendant's numerous objections to continuing the trial date, we do not weigh heavily the defendant's failure to file a motion for speedy trial prior to filing the motion to quash.

Turning to the fourth and final Barker factor, we must assess the prejudice to defendant caused by the delay. Prejudice should be assessed particularly in light of three interests that the right to speedy trial was designed to protect: to prevent oppressive pretrial incarceration; to minimize anxiety and concern of the accused; and to limit the possibility that the defense will be impaired. Barker , 407 U.S. at 532-33, 92 S.Ct. at 2193. The Barker Court noted that "even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility." Id. The Court also stated that the impairment of a defendant's ability to prepare his defense is the most serious form of prejudice, because it "skews the fairness of the entire system." Id. As discussed further by the Court in Doggett , "the impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony 'can rarely be shown.' " 505 U.S. at 655, 112 S.Ct. at 2692-93. "Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify." Id. The Court concluded that "affirmative proof of particularized prejudice is not essential to every speedy trial claim;" the defendant's degree of proof of prejudice varies inversely with the State's culpability for the delay. Doggett , 505 U.S. at 655-57, 112 S.Ct. at 2692-93.

As discussed previously, we find the State primarily responsible for the delays in bringing defendant to trial. In addition to the delays, we note the State's official negligence in filing the second bill of information charging defendant with three misdemeanor offenses for which the time limitation to prosecute had expired. While there is no basis to find that the State acted in bad faith by failing to dismiss those expired charges, such official negligence does present a "threat to the fairness of the accused's trial." Doggett , 505 U.S. at 657, 112 S.Ct. at 2693.

Further, defendant asserts that in addition to the cloud of anxiety and suspicion related to the four years of criminal charges pending against him, he has suffered actual prejudice in the impairment of his defense. Specifically, defendant asserts that the State disclosed at an earlier trial setting that all NOPD audio recordings from eyewitnesses taken contemporaneous to defendant's arrest had been lost. In addition, defense counsel spoke with two defense eyewitnesses whose recollections of the events surrounding defendant's arrest in 2013 had faded to a point that they may not be reliable. Finally, defense investigators have been unable to locate a third potential witness who had left Orleans Parish.

As to the fourth factor, the State argues that defense counsel raised the constitutional speedy trial violation by a motion to quash as a "deliberate tactic" that would "actually cause Defendant more prejudice to his legal rights." The State does not address the defendant's assertions of actual prejudice from the loss of evidence and potential loss of eyewitness testimony. The State's failure to address defendant's assertion of actual prejudice does not weigh in its favor.

Upon a careful consideration of the Barker factors as they apply to the particular circumstances of this case, we find no abuse of discretion in the trial court's decision to grant defendant's motion to quash based on a violation of his constitutional right to a speedy trial. The State's persistent neglect in concluding this criminal prosecution indicates a feeble interest in bringing defendant to justice. To condone prolonged and unjustifiable delays in this case would both penalize defendant for the State's fault and "simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority." Doggett , 505 U.S. at 657, 112 S.Ct. at 2693.

Motion to Continue

In the second assignment of error, the State argues that the trial court abused its discretion in denying the State's oral motion to continue the motion to quash to allow for a response and a contradictory hearing.

"The trial court is vested with considerable discretion in ruling on a motion for continuance, and the reviewing court will not disturb the trial court's ruling absent a clear abuse of discretion." State v. German , 12-1293, p. 24 (La. App. 4 Cir. 1/22/14), 133 So.3d 179, 197. "To demonstrate that the trial court erred in denying a continuance, a showing of specific prejudice is generally required." State v. Brown , 12-0626, p. 16 (La. App. 4 Cir. 4/10/13), 115 So.3d 564, 575.

First, the State contends that it is entitled to a hearing on defendant's motion to quash and time in which to prepare. In support, the State first cites the statutory procedures relative to motions to quash within La. C.Cr.P. art. 535. However, as noted by the State, defendant did not file this motion to quash based on any grounds provided by La. C.Cr.P. art. 535 ; rather, defendant filed this motion to quash to assert his fundamental, constitutional right to a speedy trial. While Louisiana jurisprudence recognizes a motion to quash as "an all embracive plea" by which a defendant may assert a constitutional speedy trial claim, our jurisprudence does not hold that the same statutory procedures must be followed for filing a motion to quash based on constitutional grounds. See Reaves , 376 So.2d at 137-38 ; State v. Lang , 464 So.2d 776 (La. App 4th Cir. 1985) ; see also Sorden , 09-1416, p. 7, 45 So.3d at 185-86 (discussing the distinction between constitutional and statutory speedy trial claims).

Next, the State relies on this Court's recent decision in State v. Williams , 17-0239 (La. App. 4 Cir. 9/6/17), --- So.3d ----, unpub ., 2017 WL 3887457, to argue that it is an abuse of discretion for the trial court to grant a motion to quash without affording the State a reasonable opportunity to prepare an opposition. Here again, however, the motion to quash at issue in Williams , and each of the cases cited therein, was based on the grounds that the statutory prescriptive period for prosecution or commencement of trial had expired. When a defendant files an apparently meritorious motion to quash based on prescription, the State bears a heavy burden of proving facts necessary to show that prescription was interrupted or suspended. State v. Joseph , 93-2734 (La. 6/3/94), 637 So.2d 1032 ; see La. C.Cr.P. art. 577. Consequently, in consideration that a motion to quash based on statutory grounds of prescription places the burden on the State to prove facts necessary to show that the prosecution was instituted timely, this Court has found it to be an abuse of discretion for a trial court to deny the State time to respond and prepare to meet its high burden of proof. Williams , supra ; State v. Bryant , 14-0653 (La. App. 4 Cir. 12/10/14), not reported , 2014 WL 6989388. By contrast, a motion to quash raising a constitutional speedy trial claim places the burden on the defendant to establish facts showing that his constitutional right to a speedy trial has been violated. See State v. Dillon , 11-0188, p. 7 (La. App. 4 Cir. 8/24/11), 72 So.3d 473, 478 (remanding to allow State an opportunity to carry its burden to rebut defendant's prescriptive claim and to allow defendant an opportunity to establish his constitutional speedy trial claim); State v. Smith , 16-0393, p. 8 (La. App. 4 Cir. 11/23/16), 204 So.3d 1035, 1039 (remanding for a hearing to allow defendant to present evidence in support of his constitutional speedy trial claim); see also State v. Scott , 06-1610, p. 5 (La. App. 4 Cir. 4/25/07), 958 So.2d 725, 729 ("defendant challenging the State's nolle prosequi and reinstitution of charges has the burden of showing a violation of his constitutional right to a speedy trial.").

Accordingly, we find the holding in Williams inapplicable in this case.

Finally, the State asserts that the trial court's denial of its motion to continue the motion to quash violated the State's "fundamental right" to procedural due process, notice, and reasonable opportunity to be heard. Thus, the State posits that it is guaranteed the same constitutional right of due process as guaranteed to the criminal defendant by the Fourteenth Amendment to the United States Constitution and Article 1, § 2 of the Louisiana Constitution. This argument has no merit. Procedural due process as guaranteed by the United States Constitution and Louisiana Constitution protects a person from the deprivation of life, liberty, or property [through state action] without due process of law, notice, and opportunity to be heard.

We find no merit to any of the State's arguments. Further, we note that the State has failed to argue that it suffered any specific prejudice from the trial court's denial of a continuance. Thus, we find no abuse of discretion in the trial court's denial of the State's oral motion to continue the motion to quash.

Defendant's Writ Application

In the consolidated writ application, defendant seeks review of the Magistrate Commissioner's denial of defendant's petition to quash a search warrant and for sanctions against the State. For the following reasons, we deny the writ.

On March 16, 2018, while the State's appeal of the trial court's ruling granting defendant's motion to quash was pending in this Court, the State submitted to the Magistrate Commissioner an application for a search warrant to obtain defendant's medical records from Interim LSU Public Hospital for the date of his arrest in October 2013. The Magistrate Commissioner signed the search warrant authorizing the State to search for and obtain defendant's medical records. After learning that the State had obtained and executed the search warrant, defense counsel filed a "Petition" in Magistrate Court seeking sanctions against the State and the quashal of the search warrant.

At a hearing before the Magistrate Commissioner on April 3, 2018, defense counsel argued that the search warrant for defendant's medical records was improperly obtained pursuant to La. R.S. 13:3715.1. In its consideration of defendant's petition, the Commissioner noted that the State has the power to continue a criminal investigation while the motion to quash is on appeal and the Commissioner is authorized to sign a search warrant in an open criminal investigation. Ultimately, however, the Commissioner denied defendant's petition based on a lack of jurisdiction to grant the relief sought by defendant in a criminal case currently on appeal.

Defendant timely filed the instant writ of the Commissioner's ruling. On this Court's own motion, defendant's writ was consolidated with the State's pending appeal.

First, we agree that the Commissioner was without jurisdiction to rule on a pleading in a criminal case on appeal. Upon the entering of the order of appeal in the criminal case, the Criminal District Court and its ancillary Magistrate Court were divested of jurisdiction. See La. C.Cr.P. art. 916 ; La. R.S. 13:1336 ; 13:1347; see also , La. C.Cr.P. art. 913.

In addition, we find no merit in defendant's substantive argument. Defendant contends that the State was required to obtain defendant's medical records in accordance with La. R.S. 13:3715.1. We disagree.

In State v. Skinner , 2008-2522 (La. 5/5/09), 10 So.3d 1212, the Louisiana Supreme Court was presented with the issue of the proper procedure by which the State could obtain a defendant's medical records. The Louisiana Supreme Court found as follows:

Considering the federal jurisprudence and Louisiana's constitutional requirement of a heightened privacy interest for its citizens, we find that the right to privacy in one's medical and prescription records is an expectation of privacy that society is prepared to recognize as reasonable. Therefore, absent the narrowly drawn exceptions permitting warrantless searches, we hold a warrant is required to conduct an investigatory search of medical and/or prescription records. We are not prepared to extend Whalen [v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) ], which balanced the individual's privacy interest against the state's reasonable exercise of its regulatory power, to find Louisiana allows warrantless searches and seizures of its citizens' medical and pharmacy records for criminal investigative purposes.
Because we find a warrant was required for an investigative search of the defendant's prescription and medical records, the trial court erred in finding the remedy was for the State to comply with requirements of La.Code Crim. Proc. art. 66 and La. Rev. Stat. 13:3715.1 , which the State had admittedly failed to comply with in obtaining the defendant's prescription and medical records, in order for these records to be admissible at trial. The trial court's ruling essentially permits the State to re-subpoena the prescription and medical records, allowing the State to introduce them at trial if the State has followed all the procedural requirements of La.Rev.Stat. 13:3715.1 and/or La.Code Crim. Proc. art. 66 in procuring these records a second time. However, because we find the Fourth Amendment and La. Const. art. I, § 5 require a search warrant before a search of prescription and medical records for criminal investigative purposes is permitted, the State cannot cure its warrantless search and seizure of the records by a second subpoena of these records.
A search warrant for property where one has a reasonable expectation of privacy may issue only upon probable cause established to the satisfaction of a magistrate, by the affidavit of a credible person, particularly describing the person or place to be searched and the things to be seized. La. Const. art. I, § 5 ; La. Code Crim. Proc. art. 162. The procedural requirements of La.Rev.Stat. 13:3715.1 simply and clearly do not suffice to comply with the constitutional requirements of probable cause supported by a sworn affidavit for the issuance of a search warrant. Thus, it is irrelevant whether or not the State complied with the requirements of La.Rev.Stat. 13:3715.1, and any subsequent compliance with its procedural requirements is insufficient to permit the introduction of evidence that was illegally searched and seized. This evidence must be suppressed.

Skinner , 2008-2522, pp. 10-11, 10 So.3d at 1218 (emphasis added).

Based on the foregoing, we find no error in the Commissioner's ruling denying defendant's petition to quash the search warrant and for sanctions. Defendant's writ is denied.

CONCLUSION

For the foregoing reasons, defendant's motion to dismiss the appeal is denied; the State's motion for sanctions is denied; the trial court's judgment granting defendant's motion to quash on the grounds of a constitutional speedy trial violation is affirmed; and defendant's writ is denied.

AFFIRMED; MOTIONS DENIED; WRIT DENIED

LOBRANO, J., DISSENTS AND ASSIGNS REASONS.

I respectively dissent from the majority opinion that affirmed the denial of the State's motion to continue to allow for a contradictory hearing on the motion to quash filed by Timrek Andrews ("Defendant").

It is well settled that district court rulings on motions to quash are reviewed under an abuse of discretion standard. State v. Brown , 15-1319, p. 7 (La. App. 4 Cir. 4/20/16), 193 So.3d 267, 271.

This court addressed the issue of whether the state is entitled to a hearing on a defendant's motion to quash and time in which to prepare in State v. Williams , 17-0239 (La. App. 4 Cir. 9/6/17), --- So.3d ----, 2017 WL 3887457. We reviewed the case law and held that a district court was required to grant a continuance to the state so that it could better prepare to defend against the motion. In State v. Bryant , 14-0653 (La. App. 4 Cir. 12/10/14), unpub. , 2014 WL 6989388, we stated:

"[O]ur jurisprudence has established that the State should have been afforded an opportunity to review and prepare an argument against the motion to quash."

14-0653 at p. 2.

La. C.Cr.P. art. 537 mandates that "[a]ll issues, whether of law or fact, that arise on a motion to quash shall be tried by the court without a jury." Louisiana jurisprudence has consistently held that La. C.Cr.P. art. 537 mandates a contradictory hearing on motions to quash. State in Interest of M.J. , 14-0622, p. 15, fn. 10 (La.App. 4 Cir. 2/4/15), 160 So.3d 1040, 1049 (noting trial court erred in failing to hold a hearing on the merits of a motion to quash); State v. Nguyen , 14-639, p. 17 (La.App. 3 Cir. 11/5/14), 150 So.3d 562, 572 (granting motion to quash without a hearing was improper); State v. Sensat , 07-425, p. 4 (La.App. 3 Cir. 11/7/07), 969 So.2d 1274, 1276 (the state was entitled to a contradictory hearing on motion to quash); State v. Stewart , 02-0196 (La.App. 3 Cir. 10/2/02), 827 So.2d 1277, 1281-82 ( La. C.Cr.P. art. 537 required a hearing); State v. Lowry , 00-107, p. 6 (La.App. 5 Cir. 6/27/00), 762 So.2d 1275, 1278 (citing La. C.Cr.P. art. 537 and remanding for hearing on motion to quash).

The transcript from September 25, 2017 reflects that the State requested to continue the trial in order to proceed to trial on another matter. The State noted a new assistant district attorney had been assigned to Defendant's case. Defendant objected and provided the State with a courtesy copy of his motion to quash immediately prior to the district court announcing it would consider the motion on the date it was filed. The State requested it be given an opportunity to prepare a response to the motion to quash. The district court found Defendant was prejudiced by the delay and granted Defendant's motion to quash without providing the state with an opportunity to prepare for the hearing or file a response.

I find that the district court abused its discretion in failing to allow the State an opportunity to prepare a response and hold a meaningful hearing on Defendant's motion to quash. Williams; La. C.Cr.P. 537. Accordingly I would reverse the district court's judgment and remand the matter to the district court for an appropriate hearing.

      The State concedes that the institution of the misdemeanor charges, by the second bill of information filed on October 30, 2015, were out of time pursuant to La. C.Cr.P. art. 572(A)(3), and, accordingly, the State does not seek relief as to those counts of the bill of information.

      At the time the motion is made, the party moving for the appeal shall also designate the record by requesting the transcript of the necessary portions of the proceeding, in light of the assignments of error urged. La. C.Cr.P. art. 914.1.

      "Subsequent extensions may be granted by the appellate court for sufficient cause or at the request of the court reporter as provided in [La. C.Cr.P. art.] 919." La. C.Cr.P. art. 915.1(B).

      In response to defendant's motion to dismiss, the State filed a motion to impose sanctions against defense counsel "for his lack of candor to the Court," in reference to a statement within the motion to dismiss regarding communications between defense counsel and an Assistant District Attorney. The State's motion for sanctions is denied.

      La. C.Cr.P. art. 572 provides in pertinent part:
      A. Except as provided in Articles 571 and 571.1, no person shall be prosecuted, tried, or punished for an offense not punishable by death or life imprisonment, unless the prosecution is instituted within the following periods of time after the offense has been committed:
      (2) Four years, for a felony not necessarily punishable by imprisonment at hard labor.
      (3) Two years, for a misdemeanor punishable by a fine, or imprisonment, or both.
      La. C.Cr.P. art. 578 provides in pertinent part:
      A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
      (2) In other felony cases after two years from the date of institution of prosecution; and
      (3) In misdemeanor cases after one year from the date of institution of prosecution.
      Thus, as the State now concedes, the time to prosecute the three misdemeanor charges expired prior to the filing of the second bill of information, on October 30, 2015, more than two years after the offenses were allegedly committed. The State was within the time limitations to institute prosecution and commence trial for the felony charge.

      Upon review of the three remaining Barker factors, this Court found that defendant should have been afforded an opportunity, as requested, to present evidence on the issue of whether his constitutional right to a speedy trial was violated. Smith , 16-0393, p. 8, 204 So.3d at 1039. Consequently, this Court vacated the trial court's judgment granting defendant's motion to quash and remanded for an evidentiary hearing on the constitutional speedy trial issue.

      The docket minutes from Municipal Court reflect five continuances of trial on the three misdemeanors charged in the initial bill of information. Of the five continuances, one was granted to the State, two were granted to the defense, and two are not attributed to either party. We note, however, one of the continuances granted to defense states "NO NOPD." Given the factual basis for the charges, the NOPD officers presumably would be witnesses for the State.

      In its brief, the State notes that in mid-September 2015, the State "tendered a plea offer to defendant to plead guilty to avoid restitution, however that was denied." One month later, the State filed the second bill of information charging the felony obstruction of justice and the three expired misdemeanors. On October 6, 2016, at a pre-trial hearing, the record reflects that the State tendered a misdemeanor plea offer. On September 25, 2017, after defense filed the motion to quash and the State requested a fifth continuance, the State entered on the record an offer to dismiss the felony charge in exchange for defendant pleading guilty to amended misdemeanor charges of simple battery with a sentence of six months probation.

      Notably, the State concedes for the first time on appeal that the time limitation for prosecuting the three misdemeanors offenses expired prior to the filing of the second bill of information; but the State never dismissed the expired charges.

      The State filed an application for a search warrant for defendant's medical records on March 16, 2018. The application for search warrant seeks for the first time the medical records of defendant from the date of his arrest on October 15, 2013. The affidavit states the arresting officers witnessed defendant ingest a clear baggie containing an off-white powder substance; subsequent to his arrest, defendant was transported to the hospital for medical treatment; and, according to the affidavit, "[r]esults of TOX were positive for cannabinoids and opiates." Although the arresting officers could testify regarding defendant's actions prior to his arrest, the medical records would provide scientific evidence that defendant had ingested illegal substances ostensibly for the purpose of tampering with evidence to distort the results of a criminal investigation, i.e., obstructing justice. See La. R.S. 14:130.1(A)(1).

      Specifically, the State cites La. C.Cr.P. art. 535(B), which provides, "[a] motion to quash on the ground that the time limitation for commencement of trial has expired may be filed at any time before commencement of trial." This provision applies to the assertion of the statutory right to speedy trial pursuant to La. C.Cr.P. art. 701. The State also cites La. C.Cr.P. art. 535(E), which provides, "[t]he court may, in order to avoid a continuance, defer a hearing on a motion to quash until the end of trial." The State contends that the language of the provision intends for a hearing to be held on the motion to quash. However, in this case, defendant did not file the motion to quash based on any grounds provided in La. C.Cr.P. art. 535(A) ; and, pursuant to subsection (C), "[a] motion to quash on grounds other than those stated in Paragraphs A and B of this Article shall be filed in accordance with Article 521 [time for filing of pretrial motions]."


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Sybil SCHROEDER v. HANOVER INSURANCE COMPANY, et al.
    18-294
    Court of Appeal of Louisiana, Third Circuit.
    September 19, 2018
    Paul Edward Mayeaux, 1421 N. Causeway Boulevard, Suite 100, Metairie, LA 70570, (504) 831-1031, COUNSEL FOR PLAINTIFF/RESPONDENT: Sybil Schroeder
    Kristen B. Guidry, Law Offices of Robert D. Ford, 111 Veterans Memorial Boulevard, Suite 1670, Metairie, LA 70005, (337) 504-6366, COUNSEL FOR DEFENDANTS/RELATORS: AIX Specialty Insurance Company, Kings Travel Plaza Corporation d/b/a PGS Diner
    Court composed of John D. Saunders, Marc T. Amy, Elizabeth A. Pickett, Van H. Kyzar, and Candyce G. Perret, Judges.
   AMY, Judge.

The plaintiff filed suit against the defendant travel plaza and its insurer alleging that, while a customer at the business, she sustained injury due to a fall on a wet floor. The travel plaza and its insurer filed a motion for summary judgment, asserting that the plaintiff would be unable to satisfy her burden of proof that it failed to exercise reasonable care in adequately warning of the wet floor. After the trial court denied the motion for summary judgment, the defendants filed the present application for supervisory writs. For the following reasons, we grant the writ and, by decree below, dismiss the plaintiff's suit against the defendants.

Factual and Procedural Background

Sybil Schroeder alleged in the petition for damages instituting this matter that she sustained physical injury and related damages when she slipped and fell while in the restroom of a travel plaza on December 27, 2014. The plaintiff named Kings Travel Plaza Corp. d/b/a PGS Diner and its insurer as defendants.

The defendants filed a motion for summary judgment asserting that the plaintiff would be unable to satisfy her evidentiary burden of proof at trial that the travel plaza failed to exercise reasonable care in the condition of its floor. In particular, the defendants noted the plaintiff's deposition wherein she explained that she noticed two "wet floor" signs before her fall. In opposition, and although she acknowledged having seen "wet floor" signs before she fell, the plaintiff asserted that genuine issues of material fact remained due to her allegations that "[i]t was the excessive amount of water left on the floor and the excessive amount of soap therein that created an unreasonable risk of harm." She alleged that such a "risk of harm is not cured by the use of wet floor signs under the facts at issue in this case."

Following a March 2018 hearing, the trial court denied the defendants' motion for summary judgment. The defendants sought supervisory writs from that denial. By order dated June 27, 2018, this court granted the writ and allowed the parties time to file additional briefs and to request oral argument pursuant to La.Code Civ.P. art. 966(H). In this regard, La.Code Civ.P. art. 966(H) provides: "On review, an appellate court shall not reverse a trial court's denial of a motion for summary judgment and grant a summary judgment dismissing a case or a party without assigning the case for briefing and permitting the parties an opportunity to request oral argument." The parties neither filed additional briefs nor requested oral argument. Accordingly, we turn to consideration of the application by which the defendants challenge the trial court's denial of the motion for summary judgment.

Discussion

Louisiana Code of Civil Procedure Article 966 allows a party to seek summary judgment, which "shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La.Code Civ.P. art 966(A)(3). The burden of proving entitlement to summary judgment "rests with the mover." In cases such as the present, where the defendants are not required to bear the burden of proof at trial, La.Code Civ.P. art. 966(D)(1) provides:

Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.

A reviewing court considers a trial court's judgment on a motion for summary judgment pursuant to the de novo standard. Larson v. XYZ Ins. Co. , 16-0745 (La. 5/3/17), 226 So.3d 412.

With regard to merchant liability, La.R.S. 9:2800.6, states, in pertinent part:

B. In a negligence claim brought against a merchant by a person lawfully on the merchant's premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant's premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.

By their motion, the defendants asserted that the plaintiff would be unable to prove that the travel plaza "failed to exercise reasonable care" as two "wet floor" signs had been placed in or near the restroom where the fall occurred. In support of their motion, the defendants referenced Melancon v. Popeye's Famous Fried Chicken , 10-1109 (La.App. 3 Cir. 3/16/11), 59 So.3d 513. As in the present matter, the plaintiff in Melancon alleged a slip and fall on a recently mopped floor in a commercial establishment. Unlike in the present case, however, the plaintiff in Melancon denied the presence of "wet floor" signs. Despite such a denial, the panel explained that:

Video surveillance from the Popeye's restaurant shows two bright yellow standard "wet floor" signs in the Popeye's restaurant-one near the counter and the other at the entrance, both of which are readily visible to anyone entering the store. Upon entering the Popeye's restaurant, Melancon walks directly past a bright yellow "wet floor" sign. It then shows her turning from the counter, food in hand, looking directly at a bright yellow mop bucket. She then walks past a "wet floor" sign and directly past the employee who is mopping the floor. The only explanation for Melancon's lack of awareness regarding the wet floor is her inattentiveness.

Melancon , 59 So.3d at 515-16. Thus, the panel affirmed the trial court's grant of summary judgment in favor of the defendant merchant.

In affirming the trial court's ruling, the Melancon panel rejected the plaintiff's argument that the merchant "should only mop its floor when the store is closed and that mopping during business hours creates an unreasonable risk of harm." Melancon , 59 So.3d at 516. Such an assertion was instead observed to be "an unreasonable duty to impose upon store owners." Id. The panel explained that, in fact, "[j]urisprudence has specifically found that mopped floors do not create an unreasonable risk of harm when the appropriate signage is used to warn patrons of the condition of the floor." Id. (citing Rowell v. Hollywood Casino Shreveport , 43,306 (La.App. 2 Cir. 9/24/08), 996 So.2d 476 ; Lee v. Ryan's Family Steak Houses, Inc ., 06-1400 (La.App. 1 Cir. 5/4/07), 960 So.2d 1042, writ denied , 07-1577 (La. 10/12/07), 965 So.2d 405 ). The Melancon panel concluded by stating that:

Popeye's exercised reasonable care by placing two different "wet floor" signs to alert customers that the floor had been mopped. Based on the evidence before this court, there is no genuine issue of fact that Melancon will be unable to prove that [the defendant] did not adequately warn of its freshly mopped floor with the many and obvious signs indicating "wet floors."

Id. at 516.

Turning to the parties' submissions in this matter, we note that the defendants submitted the plaintiff's petition for damages, as well as excerpts of her deposition in support of their motion. By that deposition, the plaintiff explained that:

The automatic door opened, there was an industrial grade rug right there. I wiped my feet on the rug. The other door opened, there was another industrial grade rug there. I wiped my feet again. I walked to go to the bathroom. I noticed the wet sign that the floor was wet.

When counsel inquired as to the location of the referenced sign, the plaintiff responded: "To the best of my recollection, there was one - - like, when you go in there the bathroom is split like that, I mean, a female and a male. There was one right there and then there was another one sitting right there." The plaintiff subsequently explained that when she stepped into the restroom, she looked at the floor and observed "[t]hat the floor was wet." When counsel inquired as to the subsequent events, the plaintiff responded:

A. I continued to walk in. I passed up these two stalls and I went to the handicapped. The door was open. As I was - - I took another step, and as I took that step, somebody jumped out of the stall.
Q. Out of the handicapped stall?
A. Yes. I fell. My feet came from under me, jammed up against the wall like this. I had a - - I hit my leg on the side, so I had a contusion there.

The plaintiff alleged bodily injuries from the resulting fall.

In opposition to the motion, the plaintiff attached her affidavit, wherein she reported, in part, that:

2. Upon entering King's Plaza I decided to use the lady's restroom to my left. As I approached the lady's restroom, I noticed a wet floor sign and consciously exercised more caution as I entered the lady's room.
3. Despite exercising increased caution, I fell on the floor in the King's Plaza lady's room. Once on the ground, I realized that my clothing was soaking wet and that the amount of water and disinfectant smelling and slippery component of the water was extreme. The floor was so wet, that hours later after my daughter met me at the emergency room, went to King's Plaza and picked up [my] car that my clothes were still soaking wet. Obviously[,] a damp floor from normal mopping would not saturate my clothes to remain soaking wet for hours.

By her attached memorandum in opposition, the plaintiff thus asserted that the floor created an unreasonable risk of harm and that the "risk of harm [was] not cured by the use of wet floor signs under the facts at issue in this case." The plaintiff further cited jurisprudence for the proposition that: "It is well settled law in Louisiana that floors which are wet from mopping have been found to [ ] create [an] unreasonable risk of harm that is reasonably foreseeable." Citing Harrison v. Horseshoe Entm't , 36,294 (La.App. 2 Cir. 8/14/02), 823 So.2d 1124 ; Carter v. Brookshire Grocery Co. , 29,166 (La.App. 2 Cir. 2/26/97), 690 So.2d 933, writ denied , 97-0782 (La. 5/01/97), 693 So.2d 734 ; Knower v. Peranio , 96-105 (La.App. 5 Cir. 7/1/96), 678 So.2d 574, writ denied , 96-2004 (La. 11/8/96), 683 So.2d 270 ; and Sampson v. Lemoine , 94-1568 (La.App. 3 Cir. 5/3/95), 657 So.2d 181. However, reference to those cases reveals important distinctions undermining the plaintiff's contention.

For instance, in Harrison , 823 So.2d at 1129, the second circuit explained, upon review of Carter , 690 So.2d 933, Knower , 678 So.2d 574, and Sampson , 657 So.2d 574, that the earlier cases "do not establish that a floor wet from mopping is negligence per se or always creates an unreasonable risk of harm." The Harrison panel ultimately affirmed the jury's verdict denying the plaintiff's recovery. Id. As for Sampson , 657 So.2d at 183, a panel of this court explained therein that a jury found that the defendant merchant "exercised reasonable care in its mopping operations." The panel affirmed that finding of fact on review.

Finally, reference to Carter , 690 So.2d 933, indicates that, although the second circuit affirmed a trial court's finding of the defendant merchant's liability in that case, the present matter is factually distinguishable. Notably, the second circuit observed that the warning signs utilized by the defendant in Carter were not readily visible where the plaintiff fell and were placed too far apart. Id.

In this case, and while the plaintiff focuses on whether genuine issues of material fact exist with regard to a condition presenting an unreasonable risk of harm pursuant to La.R.S. 9:2800.6(B)(1), it is clear that no such genuine issue of material fact exists as to whether the store exercised reasonable care pursuant to La.R.S. 9:2800.6(B)(3). Louisiana Revised Statutes 9:2800.6 indicates that the plaintiff has the burden of proving all elements of his or her cause of action. See also White v. Wal-Mart Stores, Inc. , 97-0393, p. 5 (La. 9/9/97), 699 So.2d 1081, 1085 (providing that " La. R.S. 9:2800.6(B) clearly and unambiguously requires the claimant to prove each of its three subsections with no shifting of the burden[.]").

Aside from the plaintiff's argument, the submissions establish that "wet floor" signs were in place and, by the plaintiff's admission, she saw those signs. See, e.g. , Melancon , 59 So.3d 513 (determining that the defendant merchant exercised reasonable care by its placement of "wet floor" signs so as to alert customers of the mopped floor). Accordingly, we conclude that the plaintiff has failed "to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." La.Code Civ.P. art. 966(D)(1).

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. Summary judgment is granted in favor of the defendants/relators, AIX Specialty Insurance Company and Kings Travel Plaza Corp., d/b/a PGS Diner, dismissing the claims of the plaintiff/respondent, Sybil Shroeder, with prejudice at her cost.

WRIT GRANTED AND MADE PEREMPTORY; JUDGMENT REVERSED; MOTION FOR SUMMARY JUDGMENT GRANTED; MATTER DISMISSED.

Saunders, J., dissents and would find no error in the trial court's ruling.

      This court has previously explained that "[s]ince the denial of a motion for summary judgment is an interlocutory ruling from which no appeal may be taken, the only practical remedy available to avoid a possibly useless trial on the merits is to request that the appellate court exercise its supervisory jurisdiction to review the propriety of this ruling." Blanchard v. Mitchell , 17-444, p. 1 (La.App. 3 Cir. 7/12/17), 233 So.3d 719, 720 (citing Louviere v. Byers , 526 So.2d 1253 (La.App. 3 Cir.), writ denied , 528 So.2d 153 (La.1988) ).

      Louisiana Court of Appeal Third Circuit Internal Rules, Internal Rule 30 further provides:
      When this Court issues an order in a summary judgment proceeding assigning a case for briefing and permitting the parties an opportunity to request oral argument in accordance with La.Code Civ.P. art. 966.H, the parties shall have fourteen (14) days from the mailing of this order within which to file a motion requesting oral argument on the merits. The motion shall state the reasons why oral argument is necessary and shall be accompanied with the appropriate filing fee.


author: Judge Tiffany G. Chase

text:
    Pablo GUTH, Jacob Guth, Nicholas Guth, Amanda Guth and Mason Guth v. CITIGROUP, INC., Citigroup Global Markets, Inc., and Legg Mason, Inc.
    NO. 2018-CA-0172
    Court of Appeal of Louisiana, Fourth Circuit.
    SEPTEMBER 19, 2018
    Gregory D. Guth, LAW OFFICE OF GREGORY D. GUTH, 1618 New York Street, New Orleans, LA 70112, COUNSEL FOR PLAINTIFFS/APPELLANTS
    Thomas A. Roberts, BRESSLER AMERY & ROSS, 17 State Street, 34th Floor, New York, NY 10004, COUNSEL FOR DEFENDANTS/APPELLEES
    (Court composed of Judge Terri F. Love, Judge Rosemary Ledet, Judge Tiffany G. Chase )
   Judge Tiffany G. Chase

Plaintiffs, Pablo Guth, Jacob Guth, Nicholas Guth and Amanda Guth, (hereinafter the "Guths") appeal the trial court's December 1, 2015 order denying a motion and order to set aside an order of dismissal for abandonment. For the reasons that follow, we vacate the trial court's order and remand the case for further proceedings.

Factual and Procedural History

On September 14, 2011, the Guths filed suit against Citigroup, Inc., Citigroup Global Markets, Inc., and Legg Mason, Inc. (hereinafter collectively referred to as "the Citigroup Defendants"), alleging breach of contract, theft by fraud, negligent misrepresentation and tortious conduct. The Guths served the Citigroup Defendants on September 28, 2011, through the Louisiana Secretary of State. On April 16, 2012, the Citigroup Defendants collectively responded with an exception of prematurity, and an answer to the petition, The trial court record reflects the following subsequent actions/filings:

• September 12, 2012- Motion to compel discovery filed by the Guths;
• October 4, 2012- Motion for Leave and opposition to the Guth's motion to compel filed by the Citigroup Defendants;
• October 10, 2012- Sheriff's Service coversheet for service on the Guths of the opposition to the motion to compel;
• October 11, 2012- Contradictory hearing on the motion to compel; and
• October 15, 2012- Sheriff's return reflecting service on the Guths with Citigroup Defendants' opposition to the motion to compel.

On November 5, 2015, the Citigroup Defendants filed an ex parte motion and order of dismissal for abandonment. The memorandum in support of the motion stated "[f]rom October 16, 2012 through November 2, 2015-a period of more than three years-no steps were taken in the prosecution or defense of this action." The ex parte order dismissing the case as abandoned was signed by the duty judge on November 6, 2015.

On November 13, 2015, the Guths served counsel for the Citigroup Defendants with discovery requests. The Citigroup Defendants notified the Guths that the case had been dismissed for abandonment. On November 18, 2015, counsel for the Guths provided, to the Citigroup Defendants, "proof sufficient to demonstrate that action taken in the prosecution or defense of this case occurred on November 16, 2012." In light of this information, on November 24, 2015, the Citigroup Defendants filed an ex parte "motion to restore action to docket" and to "vacate an order and judgment dismissing this matter for abandonment." In the motion, the Citigroup Defendants explained that the dismissal was premature by eleven days and sought to set the dismissal aside.

On December 1, 2015, the trial court denied the Citigroup Defendants' ex parte motion and order to set aside the order of dismissal for abandonment. In a handwritten notation, the trial court wrote denied across the order and cited to La. C.C.P. art. 561A(4). On October 31, 2017, the Guths' requested sheriff's service of the order of denial; and the Guths were formally served on November 2, 2017. The Guths now appeal the December 1, 2015 order denying the Motion to Set Aside.

Discussion

The sole assignment of error raised by the Guths on appeal is whether the trial court erred by denying the ex parte motion to set aside the order of dismissal for abandonment pursuant to La. C.C.P. art 561A(4). Accordingly, we must determine whether the trial court properly interpreted and applied the law. Questions of law are reviewed de novo. An Erny Girl, L.L.C. v. BCNO 4 L.L.C., 2016-1011, p. 9 (La.App. 4 Cir. 3/30/17), 216 So.3d 833, 839, reh'g denied (Apr. 18, 2017), writ denied , 2017-0815 (La. 6/29/17), 222 So.3d 48 (citations omitted).

The trial court denied the motion and order, finding the motion was untimely pursuant to La. C.C. P. art 561A(4) which provides:

A motion to set aside a dismissal may be made only within thirty days of the date of the sheriff's service of the order of dismissal. If the trial court denies a timely motion to set aside the dismissal, the clerk of court shall give notice of the order of denial pursuant to Article 1913(A) and shall file a certificate pursuant to Article 1913(D).

As a threshold matter, the most relevant procedural problem presented in this case involves the lack of service on the parties of the motion and order of dismissal for abandonment signed by the duty judge on November 6, 2015. La. C.C.P. art. 561A(3)

specifically requires that the "[s]heriff shall serve the order in the manner provided in Article 1314, and shall execute a return pursuant to Article 1292." Technically, the time period to file a motion to set aside the November 6, 2015 order did not begin to run because the order was never served by the sheriff. The statute sets forth a thirty-day period in which to file a motion to set aside the dismissal. The Citigroup Defendants filed the motion to restore the case to the docket within eighteen days, on November 24, 2015. The filing of the motion was clearly within the time period prescribed in La. C.C.P. art. 561A(4).

Delacruz v. Anadarko Petroleum Corp, 2014-0433, p. 7 (La.App. 4 Cir. 12/3/14), 157 So.3d 790, 794, addressed the issue of timeliness of a motion to set aside an order of dismissal for abandonment. In Delacruz , the plaintiffs moved to set aside an order of dismissal for abandonment sixteen days after the notice was mailed. Id. at 792. The trial court set the motion for a contradictory hearing and after a hearing denied the plaintiffs' motion to set aside as untimely, finding the plaintiffs should have filed a motion for new trial within seven days of the mailing of the notice of abandonment. 2014-0433, pp. 3-4, 157 So.3d at 793. This Court disagreed, finding that the plaintiff had thirty days from the date of sheriff's service of the dismissal to file a motion to set aside. 2014-0433, p. 5, 157 So.3d at 793 (citing La. C.C.P. art. 561A(4) ). Like in Delacruz, the trial court, in this case, denied the motion to set aside on procedural grounds, finding the motion to set aside was untimely. However, unlike in Delacruz, the notice of judgment was never served on the parties by the sheriff. Thus, the delays did not begin to run. Therefore, when the trial court denied the motion on December 1, 2015, it erred in its interpretation and application of the law because the motion was not untimely pursuant to La. C. C.P. art. 561A(4).

Conclusion

For the foregoing reasons, the December 1, 2015 order denying the motion to set aside the order of dismissal for abandonment is vacated and the case remanded for further proceedings.

JUDGMENT VACATED AND REMANDED

      The record does not reflect service was requested nor effectuated on the parties.

      We pretermit the merits of the case as to whether the underlying suit was abandoned as the trial court denied the motion to set aside on procedural grounds.


author: PICKETT, Judge.

text:
    STATE IN the INTEREST OF G.P.
    JWK 18-675
    Court of Appeal of Louisiana, Third Circuit.
    September 20, 2018
    Jennifer Van Metre, Office of Juvenile Justice, 7919 Independence Blvd., Baton Rouge, LA 70896, (225) 922-3072, COUNSEL FOR STATE-APPLICANT: Office Of Juvenile Justice
    Court composed of Elizabeth A. Pickett, Billy H. Ezell, and Candyce G. Perret, Judges.
   PICKETT, Judge.

The State of Louisiana, Department of Public Safety and Corrections, through the Office of Juvenile Justice (OJJ), has filed a writ application in this matter contesting the district court's order that the juvenile, G.P., be held in secure custody pending a review hearing scheduled for September 25, 2018. OJJ's writ application fails to discuss the procedural history in this matter.

District Court Judge Martha O'Neal filed a per curiam with this court. She noted that on January 26, 2018, G.P., who was thirteen years old at the time, entered an admission and was adjudicated delinquent of eleven felonies, which included four counts of simple burglary, violations of La.R.S. 14:62 ; four counts of simple criminal damage to property, violations of La.R.S. 14:56 ; and three counts of simple arson, violations of La.R.S. 14:52. G.P. was then placed in juvenile detention:

[i]n an unsecured facility or in other placement with other family members until his 18th birthday subject to modification by the Court. The Court further explained to the juvenile that in the event he should decide to leave the unsecured facility, then he would be transferred to a secure facility.

The per curiam indicates a review hearing was held on April 3, 2018, and G.P. was ordered back into his mother's home after his failure to make good choices at Boy's Village. On May 7, 2018, OJJ requested the matter be reviewed because G.P.'s mother refused to comply with the conditions of G.P.'s probation. At a review hearing held on May 15, 2018, OJJ requested, and the court ordered, that G.P. wear an ankle bracelet until a review hearing fixed for October 16, 2018. On May 23, 2018, it was reported that G.P. removed the ankle bracelet, took his mother's car, and absconded. During a foot chase with police, G.P. broke into several homes and was eventually apprehended by DeRidder City Police. Thereafter, G.P.'s parents would not allow him to return home. G.P. returned to court on May 25, 2018, for continued custody and probation revocation hearings. His probation was revoked, and he was ordered in unsecure placement. On June 12, 2018, a new petition for adjudication was filed in district court docket number JC-2018-28. The judge received notice via email from G.P.'s probation officer on July 6, 2018, that G.P. fled from a group home in Baton Rouge. On July 9, 2018, the judge received information that G.P. was apprehended and en route to Lake Charles for re-placement, and G.P. was charged with an offense in East Baton Rouge Parish. The judge received a report on August 1, 2018, that the East Baton Rouge Parish charge had been dismissed, but G.P. was scheduled for court in Calcasieu Parish on August 17, 2018. The judge was informed on August 14, 2018, that G.P. ran away from Harbour House on August 12, 2018, and had been apprehended. The judge noted G.P. had been off his medication from July 5 through August 14, 2018. OJJ had made an appointment for G.P. on August 16, 2018, to get reauthorization and to refill his medication. On August 14, 2018, the judge ordered G.P. placed in secure custody. The judge provides the following reasons for her order:

1. Rebecca Harmon, his probation officer, informed the Court that he had a very important doctor's appointment that he had to be present for in 2 days to be able to get back on his medication;
2. The juvenile while in court discussed that he did not intend to comply with any facility that he could leave and threatened again to run away;
3. His mother stated that it takes approximately 30 days for the juvenile to be maintained on his medication for them to be effective and have the necessary overall effect desired.

The probation revocation review, as well as the adjudication hearing in an unrelated lower court docket number, is set for September 25, 2018.

OJJ filed a notice of intent to seek review of and request for a stay of the trial court's order of secure confinement on August 21, 2018. The trial court set a return date of September 13, 2018, and denied the request for stay. OJJ's writ was filed with this court on August 31, 2018. OJJ requests expedited consideration by this court or that a stay be issued. For the following reasons, we deny the stay, grant the request for expedited consideration, and deny OJJ's application for supervisory writs.

ASSIGNMENT OF ERROR

OJJ contends the trial court erred in ordering it to place G.P. in a specific type of placement thereby circumventing the agency's exclusive authority to determine the placement of a youth in its custody without regard for the agency's resources or appropriate examinations, tests, or evaluations that must be conducted prior to such a determination.

DISCUSSION

OJJ relies on La.Ch.Code art. 908(A) and La.R.S. 15:901(D) to support its argument that it has sole authority over treatment, placement, and care of youth in its custody. OJJ argues that a court is prohibited from dictating the use of resources allocated to OJJ. Thus, any order that circumvents this authority should be rendered void.

Both La.Ch.Code art. 102, which sets forth the purpose and construction of the Children's Code, and La.Ch.Code art. 801, which addresses the purpose of the delinquency provisions, state that in those instances when a juvenile is removed from the control of his parents, "the court shall secure for him care as nearly as possible equivalent to that which the parents should have given him."

Louisiana Children's Code Article 897 addresses disposition after adjudication of a felony-grade delinquent act and states, in part:

C. Except as provided for in Article 897.1, the court may commit the child to the custody of a private or public institution or agency. When commitment is to be made to a private institution or agency, the court shall:
(1) Select one that has been licensed under state law, if licensure is required by law for such an institution or agency.
(2) Whenever practicable, select an agency or institution of the same religious faith as the child or his parents.
D. Except as provided in Article 897.1, the court may commit the child to the custody of the Department of Public Safety and Corrections, with or without a recommendation that the child be placed in alternative care facilities through the department's client placement process, or be referred to appropriate placement resources in the state available through other public or private agencies.

Louisiana Children's Code Article 903, addressing judgments of disposition, states, in part:

C. The order of commitment may require the department to take physical custody of a child adjudicated a delinquent, committed to its custody pursuant to Article 897(D)..., and recommended by the court or the department for assignment to a secure program or facility, within fourteen days from the date of the court's signing of the judgment of disposition when the child is in or is going to be placed in the physical custody of a parish juvenile facility. If a court modifies a judgment of disposition, in accordance with Chapter 17, and gives the department custody of the adjudicated delinquent, the provisions of this Article and R.S. 15:901 apply.

Louisiana Children's Code Article 908(A) provides: "Notwithstanding any other provisions of law to the contrary, the Department of Public Safety and Corrections, office of juvenile justice, shall have sole authority over the placement, care, treatment, or any other considerations deemed necessary from the resources that are available for children judicially committed to the department."

Louisiana Revised Statutes 15:901, which addresses juvenile institutions, provides, in pertinent part:

C. The order of commitment may require the department to take physical custody of a child adjudicated a delinquent, committed to its custody pursuant to Article 897(D)... of the Children's Code, and recommended by the court or the department for assignment to a secure program or facility, within fourteen days from the date of the court's signing of the judgment of disposition when the child is in or is going to be placed in the physical custody of a parish juvenile facility. If a court modifies a judgment of disposition, in accordance with Chapter 17 of Title VIII of the Children's Code, and gives the department custody of the adjudicated delinquent, the provisions of this Section and Article 903 of the Children's Code apply.
D. (1) Upon commitment to the Department of Public Safety and Corrections, the department shall have sole custody of the child and, except as provided for in Children's Code Article 897.1, shall determine the child's placement, care, and treatment, and the expenditures to be made therefor, through appropriate examinations, tests, or evaluations conducted under the supervision of the department....
....
G. (1) Community placement services shall have authority and responsibilities for children adjudicated delinquent or in need of supervision, including but not limited to the following:
(a) To assess or arrange for the assessment of the needs of each child.
(b) To provide or arrange for the provision of comprehensive diagnosis and evaluation services as the needs of each child warrant.
(c) To develop comprehensive service plans for each child.
(d) With respect to children committed to the custody of the Department of Public Safety and Corrections pursuant to the provisions of Articles 672, 792.53, 897, 899, and 1509 of the Children's Code, the secretary of the department shall develop rules and regulations to govern the assignment of such children to specific facilities and institutions operated by the department directly or through contractual arrangements.
(e) To place children in the setting most appropriate to their needs, including any nonresidential, community-based residential, and institutional programs operated by the Department of Public Safety and Corrections, as well as programs operated by other public or private agencies with which the department enters into contractual or purchase of services arrangements.
(f) To periodically monitor and review the progress of each child, and modify the child's service plan as warranted, through a multidisciplinary panel.
(2) The following rules shall be followed with regard to client placement functions:
(a) No program or unit shall be required to provide services to a client if the provision of such services would place the program in violation of any state or federal statute or court order.
(b) The secretary of the department may overrule a decision of the client placement unit upon appeal by any program or unit on grounds that such placement would be inconsistent with the child's needs. For all cases which are appealed to the secretary, a notation shall be made in the child's file indicating the grounds for such appeal, the decision made by the secretary, and the secretary's reasons for upholding or failing to uphold the original placement decision.
(c) No public or private agency operating under contractual or purchase of service arrangements with the department shall be required to provide services to a child if the provision of such services is contradictory to the terms of the contractual or purchase of service arrangement or is in conflict with the policies of the agency or the decisions of its governing authority.

Louisiana Revised Statutes 36:408 sets forth the purpose and functions of the Department of Public Safety and Corrections (DPSC) as follows:

H. (1) The office of juvenile justice shall, in accordance with law, have responsibility for the care, custody, security, and treatment of children adjudicated delinquent and children of families adjudicated in need of services committed to the custody of or placed under the supervision of the office of juvenile justice or of youth services pursuant to the Children's Code except as otherwise provided by law.
(2) The office shall provide:
(a) Evaluation and diagnostic services for children adjudicated delinquent and children of families adjudicated in need of services.
(b) Community placement services for children adjudicated delinquent and children of families adjudicated in need of services and disposed to the custody of youth services or the office of juvenile justice.
(c) Alternative services in lieu of out-of-home placement for children adjudicated delinquent and children of families adjudicated in need of services and disposed to the custody or supervision of youth services or the office of juvenile justice and for their families.
(d) Treatment services in secure custody facilities for children adjudicated delinquent disposed to the custody of youth services or the office of juvenile justice and who, as determined by the office of juvenile justice require this restrictive level of care and custody.

In State in Interest of T.A. , 00-2560, p. 6 (La. 12/7/01), 801 So.2d 351, 354, the supreme court stated:

The legislature thereby made clear that a court may compel the Department of Corrections to expend its resources for the care and treatment of a juvenile offender only when it commits the offender to the custody of the Department. Even then, the court may not designate which resources the Department must employ for the juvenile's benefit.

The supreme court went on to find the juvenile court could not mandate treatment by placement in a specific program, stating:

Although the juvenile court has the authority to place respondent in a non-state facility for care and treatment as a condition of probation under La.Ch.C. art. 897(B)(2)(d), the court had no authority without the assent of the Department to place respondent in an Impact Program funded by the Department and at the Department's expense.

Id. at 355. We find T.A. is distinguishable from the case before us in that it involved the conditions of probation, rather than the conditions of custody.

In State in Interest of S.T. , 97-216 (La.App. 1 Cir. 9/19/97), 699 So.2d 1128, writ denied , 97-2627 (La. 2/13/98), 706 So.2d 992, the lower court ordered the juvenile be placed in a non-secure treatment facility to receive psychiatric treatment for sexual trauma and sexual compulsion. The court further ordered that he receive psychological counseling, social skills training, educational training, and vocational training. The court also recommended that he be placed in the Residential Treatment Facility, a group home associated with River Oaks Hospital. DPSC appealed, arguing the court had no authority to order placement in a particular facility or for a particular type of treatment. The first circuit addressed the issues, stating:

If the court determines the child will be committed to the custody of the Department of Public Safety and Corrections, the Department has the authority to determine where the child should be placed and the type of treatment, and the court may not order the Department to provide a particular type of treatment or placement. See State in Interest of J.A. , 532 So.2d 943 (La.App. 5 Cir.1988). See also State in Interest of Sapia , 397 So.2d 469 (La.1981) ; State in Interest of J.M. , 490 So.2d 444 (La.App. 5 Cir.1986).
Accordingly, the portion of the disposition which ordered the Department to provide psychiatric treatment for sexual trauma and sexual compulsion is improper, and the judgment of disposition is set aside. The proceedings are remanded to the trial court for a disposition hearing in accordance with the views expressed herein.

Id. at 1129.

In State in Interest of V.N. , 97-1190 (La.App. 5 Cir. 4/15/98), 712 So.2d 954, the juvenile court ordered, at a review hearing, that the minor have more educational time and spend more time working on math. In its ruling, the fifth circuit stated:

[T]he legislature set up a system of juvenile correction and rehabilitation in which, both courts exercising juvenile jurisdiction, and the state departments responsible for the custody of these juveniles, serve specific roles. Put succinctly, the role of the juvenile court judge is to oversee the general plan for the correction and rehabilitation of the child, while the role of the state is to provide the details for the implementation of that plan.
We recognize that the concerns of both the state and the juvenile court, with respect to the efforts to rehabilitate the children of this state who are at risk, are consistent. The problems lies [sic] in different views on how the limited resources available to help these children should be allocated. It is clear that the state has only limited resources to provide needed services to the juveniles in its custody. It is also clear that the legislature set up a system whereby the state, not the juvenile court, should be the ultimate authority on how these resources should be allocated. However, the juvenile court retains jurisdiction to review the disposition and the power to change that disposition when warranted. It also retains jurisdiction to review grievances pursuant to C.Ch. art. 912. Further, under the provisions of R.S. 15:901 E, the juvenile court can make recommendations to the state. Under section F of that statute the court can insist that the state formulate an individualized plan for the child, and meet certain minimum requirements consistent with R.S. 15:901.
However, the court cannot arbitrarily make the specific decisions on services needed by the child as it did in the instant matter. In the matter before this Court, the juvenile court rendered a disposition judgment committing the juvenile to the custody of the state. In a modification of that disposition, the court assessed and set specific educational goals for the child, and ordered the state to provide the necessary services to achieve the goal. We find this to be a violation of the court's authority. Accordingly, the judgment of the juvenile court ordering the state to provide additional educational time every evening for V.N. is vacated.

Id. at 959. See also State in Interest of C.M. , 14-88 (La.App. 4 Cir. 5/28/14), 141 So.3d 921.

In State in Interest of R.F. , 97-1056 (La.App. 5 Cir. 3/16/99), 733 So.2d 84, the fifth circuit was called on to address a juvenile court's order for specific treatment and services for a child placed in the custody of DPSC following his adjudication of delinquency. In addressing the issue, the court stated:

While the Juvenile Court can not order specific placement or treatment, it certainly can recommend placement and treatment. In addition, the Juvenile Court can review the child's individual plan and determine whether the conditions of the disposition are being met by the plan. The Juvenile Court has the authority to rule that the plan is inadequate and may order the Department to review the plan and resubmit it to the court for additional review.

Id. at 85. The fifth circuit went on to find the juvenile court exceeded its authority to modify the general conditions of its disposition to the extent that it ordered specific training in the form of one extra hour of tutoring per day.

In State in Interest of J.C. , 09-2000, p. 2 (La.App. 1 Cir. 7/15/10), 2010 WL 2802104 (unpublished opinion), the juvenile court committed J.C. to the custody of OJJ for six years, with a recommendation for secure custody. The court ordered the first three years to be served without the benefit of parole, probation, or suspension. The juvenile argued his disposition to secure care equated with punishment "rather than 'education, counseling and stability,' " and the court's restrictions against parole equated to "locking him up with no future opportunities." Id. at 2. In its opinion, the first circuit cited La.Ch.Code art. 903(C) and stated the lower court had the authority to recommend secure placement. However, in addressing the ability of the juvenile court to place restrictions on a child's parole eligibility, the first circuit stated, "once a child has been committed to the custody of the Department, the Department has sole authority over the placement, care, treatment, or any other considerations deemed necessary." Id.

Based on R.F. , 733 So.2d 84, and J.C. , 09-2000, we find the district court had authority to recommend secure confinement for G.P. One could interpret the language in S.T. , 699 So.2d at 1129, "the court may not order the Department to provide a particular type of treatment or placement," as a prohibition on a court ordering placement in a particular type of facility. However, in S.T. , the first circuit did not expressly state when setting aside the disposition that it was doing so because the lower court ordered the juvenile placed in non-secure confinement. The issue of whether a court can order a specific type of placement was addressed by the fifth circuit in State in Interest of J.M. , 96-801 (La.App. 5 Cir. 1/15/97), 687 So.2d 136, writ denied , 97-734 (La. 11/21/97), 703 So.2d 1298.

In J.M. , 687 So.2d 136, the juvenile argued the court could not require DPSC to keep him in a secure setting since the department had the sole authority over placement, care, and treatment of those juveniles placed in its custody. In addressing the issue, the fifth circuit held:

In the present case, the judge ordered that the juvenile be committed to the custody of the Department of Public Safety and Corrections, in a secure environment, until his twenty-first birthday. However, once he committed the juvenile, he did not dictate the actual placement, other than it being a secure environment of the juvenile, nor did he dictate the care or treatment the child was to receive in the department's custody. We find, from the above cited articles, that the court can recommend placement in a secure setting . See also La. R.S. 15:901.
We also note that a modification of disposition can be filed at any time, if it becomes apparent that the child no longer needs a secure environment. La. Ch.C. art. 909 through 911. See also La. R.S. 15:906 A(1) which allows the Department of Public Safety and Corrections to recommend to the committing court the release of the juvenile committed to its care, who, in the opinion of the department, is ready to be returned to his own home, or to a substitute home.
Based on the foregoing discussion, and particularly in light of the fact that a modification of disposition can be filed, we find no error in the trial court's disposition imposing a minimum sentence and further mandating that the juvenile be placed in a secure setting. This assignment of error is without merit.

Id. at 139. The fifth circuit cited La.Ch.Code art. 897(D) and La.Ch.Code art. 903(C) in support of its ruling. We agree with the reasoning of the fifth circuit in J.M.

Based on the foregoing, we find the district court's order mandating G.P. be held in secure confinement is not error.

Accordingly, OJJ's writ application is denied.

STAY DENIED; WRIT DENIED.

      There was no indication what medication G.P. was required to take or for what condition the medication was prescribed.