State v. Moore 309 So. 2d 675

In re: Edwin Moore applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ granted. It is ordered that the motion to recuse be referred to another judge for hearing and disposition in accordance with Articles 674 and 675 of the Louisiana Code of Criminal Procedure. It is further ordered that after the motion to recuse has been acted upon that the court conduct an evidentiary hearing to determine the nature, content and effect of the plea bargain agreement.

BARHAM, J.,

concurs in the partial grant but dissents from the majority’s refusal to grant full relief. Relator bargained with the district attorney to plead to a non-capital offense — 2nd degree murder. The State wrongfully placed relator before the Criminal District Court for acceptance of this bargained plea. The State chose the wrong jurisdiction. The juvenile court was the only court which could receive the plea, convict and sentence a juvenile when he has been charged with a non-capital offense — here 2nd degree murder. When we remanded this case after setting aside the plea in district court, the district attorney could only prosecute the juvenile in juvenile court. There can be no trial for 1st degree murder after the former conviction by plea to 2nd degree murder.' See Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Mullreed v. Kropp, 425 F.2d 1095 (6th Cir. 1970); Rivers v. Lucas, 477 F.2d 199 (6th Cir.). See also the long line of jurisprudence in this state where a trial for a capital offense resulted in conviction *676of lesser offense and this court required new trial for the lesser offense in juvenile court. Relator will be subjected to double jeopardy if tried for 1st degree murder in Criminal District Court.

Moreover, the bargain by the district attorney for the lesser plea is binding on the state and the district attorney must under that plea bargain plead the juvenile in juvenile court as a delinquent who has committed 2nd degree murder. The defendant is bound to plead there also. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); United States v. Graham, 325 F.2d 922 (6th Cir. 1963); Courtney v. State, 341 P.2d 610 (Okl.Cr.1959) ; People v. McMiller, 389 Mich. 425, 208 N.W.2d 451 (1973); Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970).

DIXON, J.,

is of the opinion the motion to recuse must be heard by another judge, but expresses no opinion as to the other complaints.