STATE OF LOUISIANA VERSUS JAMES SCHAFER

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NUMBER: 12-04-0324 SECTION: II 19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE STATE OF LOUISIANA

*************************************************************************** MOTION TO QUASH *************************************************************************** NOW INTO COURT, through undersigned counsel, comes defendant, JAMES SCHAFER, who respectfully requests that this Honorable Court quash the Felony Bill of Information filed in the captioned matter for the following reasons: 1. On December 10, 2004, a Felony Bill of Information was filed charging the defendant, JAMES SCHAFER, with the felony offense of Operating a Vehicle While Intoxicated: Fourth Offense. 2. To the best knowledge of undersigned counsel, the following is a time line summary of activity in this matter: A. On January 27, 2005, the captioned matter went before the Court for arraignment pursuant to previous assignment. The defendant having failed to appear, a bench warrant was issued therein for the arrest of the defendant. B. On December 8, 2005, the defendant was convicted of Driving While Intoxicated by the County Court at Law No. 5 of Hidalgo County, Texas; Defendant was sentenced to two (2) years of community supervision.

C. On January 9, 2006, the defendant appeared before this Honorable Court the bench warrant was recalled the defendant was found in contempt of court for his failure to appear and was sentenced to serve twenty days in East Baton Rouge Parish Prison. The captioned matter then came before the Court for arraignment, pursuant to previous assignment. The defendant informed the Court of his intent to retain counsel; the Court ordered that arraignment be continued until February 9, 2006. D. On February 9, 2006, the captioned matter went before the Court for arraignment pursuant to previous assignment. The defendant having failed to appear, a bench warrant was issued therein for the arrest of the defendant. E. On February 14, 2006, the bench warrant was recalled, the defendant appearing before the Court. The captioned matter then came before the Court for arraignment, pursuant to previous assignment. The defendant informed the Court of his intent to retain counsel; the Court ordered that arraignment be continued until April 3, 2006. F. On April 3, 2006, the captioned matter went before the Court for arraignment pursuant to previous assignment. The defendant having failed to appear, a bench warrant was issued therein for the arrest of the defendant. 3. On July 20, 2007, as evidenced by the attached criminal records in State of Texas vs James Andrew Johnson Schafer, bearing Number: CR-2573-98-D on the Docket of the 206th Judicial District Court for the County of Hidalgo, State of Louisiana James Schafer was sentenced, upon the revocation of the previously imposed community supervision, to two (2) years imprisonment in the Institutional Division of the Texas Department of Criminal Justice

Defendant, JAMES SCHAFER, respectfully shows that, in accordance with Louisiana Code of Criminal Procedure article 578 (2), a trial in this felony matter must be commenced within two (2) years from the institution of the prosecution. 4. Defendant, JAMES SCHAFER, further respectfully shows that, since the filing of the Felony Bill of Information on December 10, 2004 and the trial date of August 16, 2006, (a period of 18 months) there have been no interruption of the time limits caused by the actions of the defendant. 5. As evidenced herein, a trial was not commenced within one (2) year from the institution of prosecution and, as required by law, the Felony Bill of Information filed in the captioned matter must be quashed and the pending charges dismissed. 6.

WHEREFORE, defendant, JAMES SCHAFER, prays that, upon consideration of this Motion To Quash, this Honorable Court quash the Felony Bill of Information filed against him in the captioned matter and dismiss all pending charges.

RESPECTFULLY SUBMITTED: ROTHKAMM LAW FIRML P.L.C. 256 East Boulevard Baton Rouge, Louisiana 70802 Telephone: (225) 336-0056 BY: ____________________________________ C. JAMES ROTHKAMM, JR. La. Bar Roll No.: 20350

STATE OF LOUISIANA VERSUS JAMES SCHAFER

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NUMBER: 12-04-0324 SECTION: II 19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE STATE OF LOUISIANA

*************************************************************************** ORDER *************************************************************************** CONSIDERING THE FOREGOING: IT IS ORDERED that the City of Baton Rouge, through the Office of the City Prosecutor, appear and show cause on the ________ day of ________________, 2008, at ________ oclock ___.m. why this Motion To Quash should not be granted and the Misdemeanor Affidavit filed against the defendant, JAMES SCHAFER, should not be quashed and all pending charges dismissed. Baton Rouge, Louisiana, this _____ day of __________________, 2008. __________________________________________ JUDGE, 19TH JUDICIAL DISTRICT COURT

CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing Motion To Quash and Memorandum In Support, together with all attachments has been hand delivered to: Art Boudreaux Lisa Freeman Guidry Office of the City Prosecutor 233 St. Louis Street Baton Rouge, Louisiana 70802 Baton rouge, Louisiana this 16th day of August, 2006. ______________________________ C. James Rothkamm, Jr.

STATE OF LOUISIANA VERSUS

NUMBER: 12-04-0324 SECTION: II 19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE

JAMES SCHAFER

STATE OF LOUISIANA

*************************************************************************** MEMORANDUM IN SUPPORT OF MOTION TO QUASH *************************************************************************** MAY IT PLEASE THE COURT: This matter comes before this Honorable Court on defendant, JAMES SCHAFERs Motion to Quash the Misdemeanor Affidavit filed by the city of Baton Rouge, through the Office of the city Prosecutor, on the grounds that this matter was not brought to Trial within One (1) year from the date of institution of prosecution as required by Louisiana Code of Criminal Procedure Article 578 (3). PROCEDURAL HISTORY
On February 23, 2005, a bill of information charging defendant, JAMES SCHAFER with DWI First Offense, a misdemeanor, was filed in the captioned matter. In the ordinary course of events, the City of Baton Rouge, through the Office of the City Prosecutor would have had until February 23, 2006, in order to bring this matter to trial.

La. C.Cr.P. Art. 578.

However, the trial of the Defendant has not commenced and is currently scheduled for August 16, 2006 which will be approximately 18 months subsequent to the institution of prosecution.. What has occurred since the filing of the Bill of Information is the following:

A. On February 28, 2005, the captioned matter was scheduled for Arraignment. The defendant appeared through undersigned counsel, plead Not Guilty and a Trial date of August 3, 2005 was scheduled. B. On August 3, 2005, the defendant and undersigned counsel appeared in Court for Trial. However, witnesses for the City

were not present and the Court granted a City Motion To continue. This matter was re-scheduled for Trial on December 21, 2005. C. On December 21, 2005, the defendant and undersigned counsel appeared for Trial. After lengthy discussions regarding a possible plea bargain failed to resolve this matter and the parties prepared to proceed to Trial, the Court (Division: C) recused itself. D. On or about January 5, 2006, undersigned counsel was advised that the captioned matter had been re-allotted to Division B and a trial date of August 16, 2006 had been scheduled.

APPLICABLE LAW Louisiana Code of Criminal Procedure Article 382 Article 382 - Methods of instituting criminal prosecutions A. A prosecution for an offense punishable by death, or for an offense punishable by life imprisonment, shall be instituted by indictment by a grand jury. Other criminal prosecutions in a district court shall be instituted by indictment or by information. B. (1) A prosecution for violation of an ordinance and other criminal prosecutions in a parish court shall be instituted by affidavit or information charging any offense. (2) A prosecution for violation of an ordinance and other criminal prosecutions in a city court shall be instituted by affidavit or information charging any offense supported by an affidavit. (emphasis added) (3) Criminal prosecutions in a juvenile court or family court shall be instituted by affidavit, information, or indictment.

Louisiana Code of Criminal Procedure Article 578

Article 578 - General rule Except as otherwise provided in this Chapter, no trial shall be commenced: (1) (1) In capital cases after three years from the date of institution of the prosecution; (2) (2) In other felony cases after two years from the date of institution of the prosecution; and (3) (3) In misdemeanor cases after one year from the date of institution of the prosecution. (emphasis added) The offense charged shall determine the applicable limitation. In this case, the prosecution of JAMES SCHAFER was instituted when on February 23, 2005, a Misdemeanor Affidavit was filed by the City Prosecutor. As evidenced by the Court record, the defendant has not taken any action would would interrupt or suspend the running of this one (1) year time limitation from the date of institution of prosecution to the time of trial. Simply phrased, the captioned matter has not been brought to trial within the prescribed one (1) year period. A motion to quash is the proper procedural vehicle for challenging an untimely commencement of trial. La.C.Cr.P. arts. 581 (La. 1982). Once a motion to
and

532(7); State v. Walgamotte, 415 So.2d 205

quash has been filed for untimely prosecution the state is under

a heavy burden to show a legal cause for the delay.

State v. Nations, 420 So.2d 967

(La.1982); Walgamotte, supra; State v. Guidry, 395 So.2d 764 (La.1981); State v. DeVito, 391 So.2d 813 (La.1980)
(On Rehearing);

State v. Driever, 347 So.2d 1132 (La.1977). In this La.C.Cr.P. art. 579
for the

case, the defendant argues with merit that there is no basis under state to claim an interruption in the period of limitation.

La.C.Cr.P. art. 579

provides the statutory bases for relieving the state, under certain

circumstances, of the necessity of bringing a defendant to trial within the time limitations expressed in

La.C.Cr.P. art. 578. La.C.Cr.P. art. 579 provides:

The period of limitation established by

Article 578 shall be interrupted if:

The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or

The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state. The periods of limitation established by Article 578
shall commence to run anew from the date the cause of interruption no longer exists.

CONCLUSION As more than one year elapsed between the time prosecution for this misdemeanor was instituted and the time defendant is scheduled for trial and because there is no legal excuse for the delay in trial under La.C.Cr.P. art. 579, the motion to quash should be
granted.

RESPECTFULLY SUBMITTED: ROTHKAMM LAW FIRML P.L.C. 256 East Boulevard Baton Rouge, Louisiana 70802 Telephone: (225) 336-0056 BY: ____________________________________ C. JAMES ROTHKAMM, JR. La. Bar Roll No.: 20350