DRAKE, J.
The defendant, Michael L. Miller, was charged by bill of information with one count of attempted second degree murder of Robert Peters, a violation of Louisiana Revised Statutes 14:27 and 14:30.1 (count one),
The following facts are derived from this court's prior decision: Due to the Crosby plea, there was no trial, and therefore, no testimony concerning the facts. However, during the plea colloquy, defense counsel stipulated that the defendant was aware of the basis for the amended charge, which, based on the amended bill of information, occurred between August 24, 2011 and August 25, 2011. Procedurally, however, on September 29, 2011, the State filed a bill of information charging Michael L. Miller with one count of attempted second degree murder of Robert Peters, and one count of a convicted felon possessing a firearm or carrying a concealed weapon. On October 10, 2011, the defendant was arraigned, and entered a not guilty plea to each charge. After three continuances by the defendant, and a subsequent attachment and bond forfeiture, the defendant, along with defense counsel, appeared for trial on September 10, 2012. After a motion by the defense, the matter was continued, and the defendant was given notice of a new trial date of November 12, 2012. On November 12, 2012, neither the defendant nor defense counsel appeared for trial. After additional continuances were granted, another bond forfeiture and attachment were ordered, and the defendant did not return to the district court until February 3, 2014, for a hearing on his motion to quash. The district court denied the motion, and the defendant subsequently entered his Crosby guilty plea to the amended charge on count one. In its reasoning for denying the defendant's motion to quash, the district court stated:
As previously noted, the defendant appealed the ruling of the district court, arguing that the State failed to demonstrate that it used "due diligence" to secure the defendant's presence for trial within the time limits set by La. C.Cr.P. art. 578 "where it was apparent from the record that the District Attorney's Office was aware that [the defendant] was incarcerated and was known by two different names." See Miller, 2015 WL 996365 at *2. Exhibits introduced at the first hearing on the motion to quash demonstrated that on earlier charges, the defendant also used the name "Michael Williams," but was prosecuted in this case as "Michael L. Miller." The defendant argued that the District Attorney's Office "was aware of both names and chose to prosecute [the defendant] in this case under the name of Michael Miller after having him incarcerated in two other cases under Michael Williams AKA Michael Miller and then failed to have him brought to court." Miller, 2015 WL 996365 at *2. This court found the original appeal record to be incomplete in that there was no evidence of when the defendant was arrested on unrelated charges that resulted in his incarceration or when he was released from incarceration. We also noted the lack of any steps the defendant or his counsel took to inform the State of his whereabouts, or if the State learned of the defendant's whereabouts through other means. We further noted that specific findings of fact were not made as to demonstrate when, and from whom, the State received actual notice of the defendant's alias and whereabouts. We remanded the matter to the district court for a reopened hearing on the motion to quash and reserved to the defendant the right to timely appeal the ruling of the district court, should it deny the motion on remand. See Miller, 2015 WL 996365, at *5.
A reopened hearing on the motion to quash was held on September 8, 2015. The defendant argued that the State received actual notice of his alias on April 17, 2008, when he pled guilty under docket number 07-CR2-96100 under the name, "Michael Williams" and under docket number 07-CR10-96895 under the name, "Michael Miller" at the same time. The defendant was placed on probation pursuant to both pleas, and a probation revocation hearing was held on August 31, 2009. The defendant's probation was not revoked, but he was remanded to a treatment center. He argued that the bill of information in connection with the instant offense was filed on September 29, 2011, "some two years after [the defendant's] Don Francois Treatment Center sentence was passed." However, the exhibits introduced by the defendant do not list the date that the defendant was released from the program. According to the defendant, four days after the bill of information was filed in the instant case, or on October 3, 2011, his probation was revoked under docket numbers 07-CR2-96100 and 07-CR10-96895, and he was sentenced to imprisonment for a term of five years. The defendant claimed that the Department of Corrections "was aware" of both of his aliases, and he remained with the Department until October 10, 2011, when he was arraigned for the instant offense. The defendant concluded that the State was aware of his alias on April 17, 2008, when he pled guilty under two different names on the same day and at the same time; was "reminded" of the alias on August 1, 2009; and should have been aware of the alias when it filed the instant charges on September 29, 2011.
The defendant further argued that the State knew where he was after the bill of information was filed, as evidenced by a writ of habeas corpus signed by the district attorney on November 14, 2011, and directed to the warden of Richland Parish Detention Center in Rayville, Louisiana, to produce the defendant for court on January 9, 2012. According to the defendant, the State "was aware that the defendant could have been in jail" in Rayville on February 2, 2012, pursuant to a return on subpoena issued to the defendant to appear on February 29, 2012, which was returned as "unable to locate" and in the comments section, stated, "in jail — DOC Rayville?" The defendant also introduced into evidence a copy of a July 16, 2012 attachment issued to the defendant's home address, which he argued was wrongfully issued because the defendant was in the custody of the Department of Corrections at that time. The defendant introduced into evidence a writ of habeas corpus filed on October 23, 2012, by the State, which he argued indicated that the State "knew exactly where the defendant was or had reason to believe that he was in Richland Detention Center." The defendant introduced a pro se "Motion for Dismissal of Charges" that was filed on March 8, 2013, and argued that the defendant listed "Richland Detention Center" as his address. According to the defendant, even though there was no proof of service and despite that fact that he was in Richland Parish Detention Center and had no way of voluntarily coming into court, he was attached on April 1, 2013. The last two exhibits introduced by the defendant were a September 11, 2013 writ of habeas corpus directed to the warden at Jackson Parish Correctional Center to produce the defendant for court on September 3, 2013, signed by the district attorney on August 7, 2013; and an October 8, 2013 writ of habeas corpus directed to the warden at Richland Parish Detention Center to produce the defendant for court on September 18, 2013.
In response, the State pointed out that the last time the defendant and defense counsel appeared for trial was on September 10, 2012, and the matter was continued on the defendant's motion until November 12, 2012. On that date, neither the defendant nor his counsel appeared. The State argued that prior to the expiration of its time limitation to bring the defendant to trial, the defendant filed a pro se "Motion to Dismiss" that was denied on March 18, 2013. Thus, the State argued that it had until March 18, 2014, to bring the defendant to trial, and was well within its time limitation on February 3, 2014, when the defendant entered his guilty plea. See La. C.Cr.P. art. 580.
At the conclusion of argument by the parties, the district court denied the motion to quash without reasons.
In his sole assignment of error, the defendant argues that the district court erred in denying the motion to quash. Specifically, the defendant contends that the State did not use due diligence to bring him to trial and that his pro se "Motion to Dismiss" was not a preliminary plea that would have interrupted the time limitations. According to the defendant, the State did not offer any evidence to refute that it was either aware of or should have been aware of his dual identity or that it failed to take steps to ensure that he was present for trial.
A motion to quash is the proper vehicle to assert that the time limitations for the commencement of trial have expired. La. C.Cr.P. art. 532(7). Upon expiration of the time limitations provided in Louisiana Code of Criminal Procedure article 578(A) for commencement of trial, the court shall, on motion of the defendant, dismiss the indictment, and there shall be no further prosecution against the defendant for that criminal conduct. The right of dismissal is waived unless the motion to quash is made prior to trial. See La. C.Cr.P. art. 581. When a district court denies a motion to quash, factual and credibility determinations should not be reversed in the absence of a clear abuse of discretion. See State v. Odom, 2002-2698 (La. App. 1 Cir. 6/27/03), 861 So.2d 187, 191, writ denied, 2003-2142 (La. 10/17/03), 855 So.2d 765. However, a district court's legal findings are subject to a de novo standard of review. See State v. Smith, 99-0606, 99-2015, 99-2019, 99-2094 (La. 7/6/00), 766 So.2d 501, 504.
Louisiana Code of Criminal Procedure article 578(A)(2) provides that trial of non-capital felonies must be held within two years from the date of the institution of prosecution. "Institution of prosecution" includes the finding of an indictment, or, as in this case, the filing of a bill of information, or affidavit, which is designed to serve as the basis of a trial. La. C.Cr.P. art. 934(7); State v. Cotton, 2001-1781 (La. App. 1 Cir. 5/10/02), 818 So.2d 968, 971, writ denied, 2002-1476 (La. 12/13/02), 831 So.2d 982. As amended by 2013 La. Acts. No. 6, §1, La. C.Cr.P. art. 579 provides, in pertinent part:
Ordinarily, to satisfy its burden in establishing that an interruption or suspension of the prescriptive period has occurred, the State is required to "exercise due diligence in discovering the whereabouts of the defendant as well as in taking appropriate steps to secure his presence for trial once it has found him." State v. Chadbourne, 98-1998 (La. 1/8/99), 728 So.2d 832, 832 (per curiam). However, the Louisiana Supreme Court in State v. Romar, 2007-2140 (La. 7/1/08), 985 So.2d 722, 726 (per curiam), firmly held that La. C.Cr.P. art. 579(A)(3) "does not impose on the state the affirmative duty to search for a defendant who has failed to appear for trial after receiving actual notice."
In Romar, the defendant was charged in December of 1997 with operating a motor vehicle while intoxicated, third offense, in violation of Louisiana Revised Statute 14:98. In January of 1998, the defendant was arraigned and pled not guilty, and was given a trial date of March 16, 1998. The defendant appeared prior to that date, but requested a continuance, and trial was reset for April 20, 1998. On that date, the defendant failed to appear, and on motion of the defense, the court reset trial for June 15, 1998. When the defendant failed to appear on that date, the district court ordered his surety bond forfeited, his personal surety bond revoked, and issued an attachment for his arrest. The defendant did not reappear in court until October 6, 2006, following his arrest on another charge of operating a motor vehicle while intoxicated. On October 9, 2006, the defendant entered a plea of guilty to the attachment, but when he appeared in court for trial on the 1997 charge, he filed a motion to quash on grounds that the time limits for bringing the case to trial had expired.
As noted above, the Louisiana Supreme Court held that La. C.Cr.P. art. 579(A)(3) "does not impose on the state the affirmative duty to search for a defendant who has failed to appear for trial after receiving actual notice." See Romar, 985 So. 2d at 726. The Court went on to state that:
Romar, 985 So. 2d at 726.
The Romar court held that, "Louisiana law affords the state the discretion to keep the attachment open as a trip wire against the day when a defendant again comes to the attention of the authorities." Romar, 985 at 727. The court concluded by stating that "[t]he burden under La. C.Cr.P. art. 579(A)(3) thus falls not on the state to show that defendant had placed himself outside of its control to secure his presence at trial but on defendant and his sureties to avoid the consequences of his failure to appear in court after receiving notice, and one of those consequences, since 1984, is the interruption of the time limits placed on trial." Romar, 985 So. 2d at 727; see State v. Evans, 2008-0417 (La. App. 1 Cir. 10/31/08), 998 So.2d 197, 201, writ denied, 2008-2840 (La. 6/19/09), 10 So.3d 732.
In State v. Baptiste, 2008-0054 (La. App. 4 Cir. 10/1/08), 995 So.2d 1242, reversed, 2008-2468 (La. 6/23/10), 38 So.3d 247 (per curiam), on March 19, 2003, the defendant was charged by bill of information with two counts of armed robbery. Thereafter, he failed to appear at a June 17, 2004 pre-trial conference pursuant to actual notice (domiciliary service upon the defendant). On June 19, 2004, the district court issued a warrant for his arrest. On December 30, 2004, the defendant was incarcerated for a probation violation in connection with an unrelated conviction. The State did not receive actual notice of the defendant's whereabouts until March 23, 2007. The district court granted a motion to quash for violation of La. C.Cr.P. art. 578, and the Fourth Circuit affirmed. Those courts found the failure of the defendant to attend the pre-trial conference interrupted the time limits for commencement of trial, but held the interruption ceased as of the time the defendant was incarcerated, rather than as of the time the State received actual notice of his the whereabouts, because the State had "an obligation to do more than cause an arrest warrant to be issued for the defendant." Baptiste, 995 So. 2d at 1248. The Louisiana Supreme Court reversed, holding the lower courts erred in finding the State had a duty under La. C.Cr.P. art. 578 to monitor the status of the outstanding arrest warrant for the defendant, and the State had two years from when it received actual notice of the defendant's whereabouts to prosecute the defendant. Baptiste, 38 So. 3d at 247.
In the instant case, the time limitation for the commencement of trial began to run on September 29, 2011, the date that the bill of information was filed. Thus, the State had until September 29, 2013, to commence trial. This delay was interrupted by the defendant's failure to appear for trial on November 12, 2012, after receiving actual notice, in open court, on September 10, 2012. See La. C.Cr.P. art. 579(A)(3). In the prior appeal opinion, this court remanded the matter for a reopened hearing for the specific purpose of allowing the defendant an opportunity to present evidence to support his claim that the time limitation to bring him to trial was not interrupted and thus, had expired. We specifically noted in our prior opinion that the appeal record was incomplete because it did not contain evidence of (1) when the defendant was arrested on his unrelated charges, (2) when he was released from incarceration, (3) the steps he/his counsel took to notify the State of his whereabouts, (4) whether the State learned of the defendant's whereabouts through other means, or (5) specific findings of fact as to when the State received actual notice of the defendant's alias and whereabouts. Miller, 2015 WL 996365, at *5. At the reopened hearing, the evidence submitted by the defendant did not establish that the State failed to timely bring the defendant to trial. The defendant did not establish the date that he entered or was released from the Don Francois Treatment Center. He also failed to establish the date that he began serving his five-year term of imprisonment and whether he was released early. The defendant also failed to establish the correctional center in which he was housed and whether he remained housed in the same center during the duration of the term of his imprisonment. Thus, the defendant failed to establish that the time limitation was not interrupted by his failure to appear in court after receiving notice. Regardless of the State's knowledge regarding the defendant's alias, the interruption ended, and the La. C.Cr.P. art. 578 time limitation began to run anew when the defendant appeared in court on February 3, 2014. See La. C.Cr.P. art. 579(B) and (C); Romar, 985 So. 2d at 727; Evans, 998 So. 2d at 202. Because the State commenced trial within two years of the defendant reappearing, the district court properly denied the motion to quash.
Moreover, on March 8, 2013, prior to the State's September 29, 2013, deadline to commence trial, the defendant filed a pro se "Motion for Dismissal of Charges." The motion alleged that the evidence contained in the "[d]iscovery [p]ackage" was all circumstantial and there was "absolutely no proof whatsoever" that tied him to the offenses other than a statement by the victim, who the defendant claimed was unreliable, and concluded with a request that the district court take the lack of evidence against the defendant into consideration and dismiss all of the charges filed against him. This preliminary plea gave the State an additional year from the date of the ruling on the motion (March 18, 2013) to bring the defendant to trial. See La. C.Cr.P. art. 580; State v. Brooks, 2002-0792 (La. 2/14/03), 838 So.2d 778, 782 (per curiam). Thus, when the defendant filed his motion to quash in December 2013 and when he appeared on February 3, 2014, the time limitation to bring him to trial had not yet expired.
This assignment of error is without merit.
