City of Baton Rouge v. Malik 404 So. 2d 883

CALOGERO, Justice.*

Defendant Michael Malik was charged by affidavits filed on June 6, 1979, with driving while his license was under revocation, a violation of R.S. 32:415, and with driving while intoxicated, a violation of Baton Rouge City Ordinance, Title 11:140. Defendant entered guilty pleas to both charges. On each charge, defendant received a sentence of sixty days in jail and a fine of two hundred dollars plus court costs. In default of payment of the fine, the trial judge sentenced defendant to serve an additional thirty days in jail. The sentences for both convictions were to run concurrently. Defendant appealed both convictions to the Nineteenth Judicial District Court for the Parish of East Baton Rouge, which affirmed.

Defendant applied to this Court for writs of certiorari on the basis of two assignments of error. We granted defendant’s application on assignment of error No. 2 concerning the prosecution in City Court on driving under revocation. We did not grant defendant’s application regarding his prosecution for DWI and therefore that matter is not before us. Following our grant to review his assignment of error No. 2, defendant requested a review of his DWI sentence which he contends is illegal. We granted this review also and consolidated the matters for consideration by this Court. 392 So.2d 694.

As to defendant’s assignment of error No. 2, we note that defendant had no right of appeal to the district court from the city court on the charge of driving under revocation. Revised Statutes 13:1896(B) provides that review or appeal of a judgment in any criminal case tried under a state statute in a city court is as set forth in C.Cr.P. art. 912.1. That Code of Criminal Procedure article provides for appeals to this Court when a fine exceeding five hundred dollars or imprisonment exceeding six months is actually imposed. The article further provides: “In all other cases not otherwise provided by law, the defendant has the right of judicial review by application for a writ of review to the supreme court.”

Under the facts of this case, defendant did not have a right to appeal to the district court because he was convicted in a city court of violating a state statute. Nor did defendant have a right to appeal to this Court because his sentence was less than six months and his fine less than five hundred dollars. His only remedy was, according to C.Cr.P. art. 912.1, to apply for writs in this Court to review the ruling of the city court. The Nineteenth Judicial District Court should have dismissed defendant’s appeal concerning his driving under revocation conviction for lack of jurisdiction to hear the appeal.

Nevertheless, rather than remand the case to the district court to dismiss the appeal for lack of jurisdiction, with the possibility of defendant thereafter again seeking writs here, we shall consider the issue under our general supervisory jurisdiction. La.Const. art. V, § 5(A). Defend*885ant complains that his prosecution in city court by a city prosecutor for violation of a state statute contravenes our holding in State v. Short, 345 So.2d 37 (La.1977). Our disposition of this matter turns in part upon the fact that defendant entered a guilty plea and did not object to the prosecution.

Defendant’s guilty plea waived all but jurisdictional defects in the proceedings. State v. Crosby, 338 So.2d 584 (La. 1976); State v. Torres, 281 So.2d 451 (La. 1973). We therefore must review the jurisdiction of the city court. Jurisdiction focuses upon the right of a court to hear cases. Municipal courts have criminal jurisdiction over offenses which are committed within their territorial jurisdiction and which are not punishable by imprisonment at hard labor. R.S. 13:1894. This case involves an offense committed within the territorial limits of the City of Baton Rouge and the offense is not punishable by imprisonment at hard labor. R.S. 32:415.

In Short, supra, we overturned the DWI conviction of that defendant under a state DWI statute not imposing imprisonment at hard labor because the prosecution took place in a municipal court with the city prosecutor as the prosecuting attorney. In our view, the Louisiana Constitution of 1974, art. 5, § 26(B), directs that, although prosecution for state offenses not punishable by imprisonment at hard labor is proper in municipal court, that prosecution must be by the district attorney or his designated assistant and not by a city prosecutor. See also State ex rel. Guste v. Foote, 345 So.2d 502 (La.1977). Short, however, had objected to the prosecution by the city prosecutor and challenged the constitutionality of the statute permitting that procedure, thus preserving the issue for our review. This case at bar is distinguishable from Short. Not only did this defendant not object, he entered a guilty plea. While defendant did file a motion in arrest of judgment (C.Cr.P. art. 860) in the city court, that motion was directed only to the DWI conviction and did not include any objection to the conviction for driving while under revocation.

It is true that in this case the bill of information or affidavit was signed by an assistant city prosecutor for the City of Baton Rouge. However, prosecution in municipal court may be initiated by the filing of an affidavit. R.S. 13:1895. This affidavit may be signed by one other than a prosecutor. It is the handling of the prosecution which must be by a district attorney or his assistant. State v. Short, supra; La. Const, art. 5, § 26(B). Therefore the fact that the bill of information or affidavit was signed by an assistant city attorney seems to be of no moment. Because defendant entered a guilty plea, there was no prosecution by the City Prosecutor in the sense discussed in Short. Consequently defendant’s conviction for driving while his license was under revocation must stand.

We now turn our attention to defendant’s contention that the sentence he received for the DWI conviction is illegal.1 That sentence was a fine of two hundred dollars plus court costs and a sentence of sixty days in jail. In default of paying the fine and court costs, the trial judge imposed an additional thirty days in jail. Defendant contends that the aggregate jail sentence, ninety days if he does not pay the fine, exceeds the maximum sentence under City of Baton Rouge Ordinance, Title 11:140, which provides for a maximum sentence of sixty days in the parish jail and is therefore illegal.

Code of Criminal Procedure art. 884 allows a trial judge to impose a sentence of imprisonment in default of payment of a fine and/or court costs.2 In State v. *886Barnes, 365 So.2d 1282 (La.1978), we discussed the imposition of an additional prison sentence which might cause the total of the sentences to exceed the maximum imprisonment allowed by the statute. We said:

“In the case of a nonindigent defendant it is permissible to impose a prison term in default of a fine payment that would result in the defendant serving a longer term than the statutory maximum for the offense.” 365 So.2d at 1183.

See also: State v. Lukefahr, 363 So.2d 661 (La.1978); State v. Williams, 288 So.2d 319 (La.1974).

The record discloses that defendant is not an indigent. Consequently, it is permissible that the prison term imposed in default of payment of the fine, when added to the prison term imposed as part of the sentence, result in a longer term than the statutory maximum for the offense.

Decree

For the foregoing reasons, defendant’s conviction for driving under revocation and his sentence for the DWI conviction are affirmed.

Affirmed.

CHIASSON, J., ad hoc, concurs in part, dissents in part and assigns reasons.

COVINGTON and LEAR, JJ., ad hoc, concur in part, dissent in part for the reasons assigned by CHIASSON, J., ad hoc.

CHIASSON, Justice Ad Hoc,

concurring in part-and dissenting in part.

I concur with the affirmation of the conviction and sentence and disagree with certain findings and holdings by the majority.

Upon finding the district court had no jurisdiction of the appeal and that the Nineteenth Judicial District Court should have dismissed the appeal, this Court should remand the case to the district court for that purpose. This would have effectively put an end to this litigation because the record herein shows that the defendant failed to object to the prosecution by the City Attorney, if in fact this did occur,1 and the defendant would not have been entitled to obtain remedial writs from this Court. See La.C.Cr.P. art. 841 and Supreme Court Rule 10, Sec. 5(10) and the Explanatory Comments.

But, more importantly, I cannot agree with the conclusion which asserts there is no prosecution in cases in which a guilty plea has been entered. Although the affidavit which can initiate a criminal charge can be signed and filed by someone other than a district attorney, the Constitution in this case requires all further prosecution of said charge to be by the district attorney. See La.C.Cr.P. arts. 381 and 385, 1974 La. Const, art. V, Sec. 26(B). There can be no arraignment, acceptance of a written guilty plea or any other action taken except upon motion of the district attorney.

The constitutional provision and the ruling of this Court in the Short case cited by the majority should not be circumvented by-restricting prosecution to mean only the trial of a criminal case.

This holding is also completely unnecessary since the issue need not be determined in this case and is therefore obiter dictum.

For these reasons, I respectfully dissent from such a holding.

ON REHEARING

MARCUS, Justice.

Michael F. Malik was charged by separate affidavits with operating a motor vehicle on a public highway during a period of revocation of his license in violation of La. R.S. 32:4151 and with operating a vehicle *887while intoxicated in violation of Title 11, Sec. 140 (Ord. No. 2550 § 1) of the Baton Rouge City Code.2 The affidavits were filed in the office of the clerk of the city court. After a bench trial, defendant was found guilty of both charges and was sentenced to serve sixty days in jail and to pay a fine of $200 plus court costs or in default thereof thirty days in jail on each conviction. The judge expressly directed that the sentences be served concurrently. Defendant appealed to the district court which affirmed. Upon defendant’s application, we granted a writ of certiorari.

On original hearing, we first addressed defendant’s complaint that he was improperly prosecuted in the city court by a city prosecutor for a violation of a state statute (La.R.S. 32:415). We held that, although prosecution for a state offense not punishable by imprisonment at hard labor is proper in the municipal court, it must be done by the district attorney or his designated assistant and not by the city prosecutor. However, since defendant had not objected and had in fact entered a guilty plea, he waived any objection to being prosecuted in the city court by a city prosecutor for the state offense. We also found no merit to defendant’s contention that the sentence he received for the DWI conviction was illegal. Therefore, we affirmed his convictions and sentences. We granted a rehearing after discovering that defendant did not pled guilty to these charges, as erroneously shown in a minute entry in the record, but rather was found guilty following a trial in the city court.

Accordingly, we are faced with the issue which was originally presented, that is, whether the state constitution permits a defendant to be prosecuted in city court by a city prosecutor for violation of a state statute not punishable at hard labor. Although defendant did not object to this error at the time of occurrence as required by La.Code Crim.P. art. 841, article 920 provides that an error “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence” shall be considered on appeal. The pleadings and proceedings include, inter alia, the caption, a statement of time and place of holding the court, the indictment or information with the endorsement, the arraignment, the plea, mention of the impan-elling of the jury, the bill of particulars filed in connection with a short form indictment or information, verdict and judgment of the court. State v. Craddock, 307 So.2d 342 (La.1975). Hence, since the error complained of by defendant is discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence, it is before us for review.

In City of Baton Rouge v. Short, 345 So.2d 37 (La.1977), we held that, although city courts have jurisdiction over cases prosecuted under state law which are not punishable by imprisonment at hard labor, since La.Const. art. 5, § 26(B) vests the district attorney or his designated assistant with the exclusive charge of every criminal prosecution by the state in his district, subject only to certain limited powers of the attorney general provided in La.Const. art. 4, § 8, prosecutions in city courts for state offenses not punishable at hard labor must *888be by the district attorney or his designated assistant and not by a city prosecutor. Since Short was prosecuted in the city court for a state offense not punishable at hard labor by a city prosecutor, we reversed his conviction and sentence.

In the instant case, defendant, like Short, was prosecuted in the city court for a state offense not punishable by hard labor (La.R.S. 32:415) by a city prosecutor. Hence, we must reverse his conviction and sentence for this offense.

While rehearing was granted to consider the above assignment of error, defendant .again raises the legality of the sentence imposed in connection with his DWI conviction. He argues that his indigency makes it impermissible to impose a prison term in default of payment of a fine or court costs that would result in his serving a longer term than the statutory maximum for the offense. The fallacy in his argument is that there is nothing in the record to suggest that he is indigent. Defendant has been represented by retained counsel throughout these proceedings and has never moved for a hearing to determine indigen-cy. Hence, as found on original hearing, we conclude that the sentence imposed was permissible. La.Code Crim.P. art. 884. However, if defendant is an indigent, upon appropriate post-conviction application and hearing, the additional jail term may be avoided. State v. Lukefahr, 363 So.2d 661 (La.1978).

DECREE

For the reasons assigned, defendant’s conviction and sentence for violation of the Baton Rouge City Ordinance are affirmed. However, his conviction and sentence for operating a motor vehicle while his license was revoked in violation of La.R.S. 32:415 are reversed and the case is remanded to the city court for further proceedings consistent with the views expressed herein.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting in part.

I am disinclined to reverse the driving under revocation conviction, after defendant had a completely fair trial, on technical grounds which are totally unrelated to guilt or innocence. Instead, I would hold that defendant waived the non-jurisdictional technical error by failing to object timely.

Although La.Const. Art. V, § 26(B) (1974) vests the district attorney or his designated assistant with exclusive charge of state criminal prosecutions, C.Cr.P. Art. 63 permits the district attorney to “accept the assistance of other counsel in the conduct of a criminal case”. Defendant does not in this case challenge the constitutionality of that codal article, nor has he made any showing that the prosecutor who signed the charging document (in all other respects valid) was not authorized to do so. Thus, this court should treat the failure of defendant to challenge the authority of the charging official to institute prosecution as waived if not properly raised by motion to quash.

C.Cr.P. Art. 531 requires defendant to assert “all pleas or defenses raised before trial” (other than certain enumerated issues not involved here) by motion to quash. C.Cr.P. Art. 535 provides that the failure to raise most defenses assertible by motion to quash are waived if not raised. The exceptions to that rule do not include the issue presented herein. See C.Cr.P. Art. 535 A and B.

Waiver of the right to complain of the alleged defect is the sanction for failure to contest timely the validity on the grounds raised here; that is, the failure of the district attorney (or one designated by him) to sign the charging document (the affidavit charging a violation of R.S. 32:415).

This construction is logical in view of the nature of defendant’s complaint. Defendant was in no way prejudiced by the alleged defect. He was fully and fairly apprised of the nature and cause of the charges against him. Society’s interest in limiting the authority to institute prosecutions under state statutes to the district attorney can adequately be protected by giving defendant the right to challenge the validity of the *889affidavit by proper motion prior to trial. However, once a fair trial has been held and the facts underlying the accusation have been accurately determined by a court exercising jurisdiction over the offense, this court should not assume that the charging instrument was not properly filed. The right to raise the issue presented here should be treated as waived if not raised by timely motion to quash.

Defendant’s conviction for driving under revocation should be affirmed.