STATE OF LOUISIANA v. DERRICK SMITH (2025)

Defendant, Derrick Smith, filed a Motion to Quash the Reinstitution of Prosecution, which the district court granted. The State appeals, asserting the district court erred in granting the motion to quash after the State entered a nolle prosequi on the day of trial and reinstituted charges the same day. Answering that question in the affirmative, we reverse and remand.

PROCEDURAL HISTORY 1

The original bill of information in this case, 558-767, charged Mr. Smith with one count of Possession of a Firearm or Weapon by Felon in violation of La. R.S. 14:95.1 and one count of Resisting an Officer in violation of La. R.S. 14:108(C). Mr. Smith appeared for arraignment and entered a plea of not guilty. The district court conducted a preliminary hearing and found no probable cause as to the charge of possession of a firearm by a felon. Both parties objected and the district court set trial for November 20, 2023. On October 5, 2023, Mr. Smith filed a Motion for a Bench Trial, which the district court granted on October 23, 2023. The district court held a pretrial conference on November 13, 2023, during which the State and Mr. Smith agreed that no outstanding matters existed, and confirmed their readiness for trial. On November 20, 2023, the morning of trial, the State entered a nolle prosequi over Mr. Smith's objection and filed a new indictment charging him with the same offenses.

On November 30, 2023, the case was transferred to Section “G” from Section “D” to follow the previously-dismissed case. On December 7, 2023, Mr. Smith appeared for arraignment under the new case number (560-027), and entered a plea of not guilty; the district court set trial for January 9, 2024. The district court conducted a bond hearing on December 12, 2023, at which the district court adopted the findings from the previously-dismissed case, stating “At this time, in case number 560-027, ․ , I'm going to adopt ․ the same finding ․ in 558-767, no probable cause for Count 1, 14:95.1 and set the bond for resisting an officer at $500.” On January 5, 2024, Mr. Smith filed a Motion to Quash; and the district court held a hearing on the same day. Following the hearing, the district court granted the motion and ordered the bill of information quashed with prejudice. The State objected. The State filed a Motion for Appeal, which the district court granted.

NOLLE PROSEQUI

The sole issue presented for review is whether the district court erred in granting Mr. Smith's Motion to Quash after the State entered a nolle prosequi on all counts where the State was unprepared for trial on the first trial date because the clerk's office had not provided a complete certified conviction packet.

DISTRICT COURT

Mr. Smith urged the district court to find that his due process and speedy trial rights were violated. However, instead of focusing on prejudice resulting from the State's delay, Mr. Smith maintained that the State abused its authority to dismiss and reinstitute charges to avoid moving for a continuance based on its unpreparedness for trial.

The State asserted at the hearing that the purpose for its dismissal and reinstatement of the charges was the failure of the clerk's office to provide a legally sufficient certified conviction packet prior to the November 20, 2023 trial, and thus was not an abuse of its authority.

The district court did not find the State's argument persuasive, reasoning:

On 11/20/2023 State came in, they entered a nolle pros in the matter. Hold tight, it gets better. They entered a nolle pros and they informed this Court that they already submitted the paperwork to reinstitute the case. In [sic] the same day, on 11/20/2023, an order to ensure that Mr. Smith remains incarcerated, they came in, they nolle prosed that case, and they had the paperwork all ready to reinstitute it on 11/20/2023.

This Court finds that the State after noting to the Court and Defense that they were ready and there was [sic] no outstanding matters on November 13, 2023, utilized their powers to nolle pros the case, to give themselves one more time to get information that they did not have that this Court believed they should have had when they initially instituted prosecution against Mr. Smith. They used their powers, not only to make sure that they give more discovery and the certified pack over, but also to ensure that Mr. Smith remains incarcerated by making sure the day they dismissed the case they were there with papers to reinstitute it. And, to me, that is the pure definition of abusing the power of your office.

Ultimately, the district court granted Mr. Smith's Motion to Quash and ordered his release.

APPEAL

On appeal, the State contends the district court erred in granting Mr. Smith's Motion to Quash and in finding that the State's dismissal and reinstitution of the charges was an abuse of its prosecutorial authority. The State contends the clerk's office tendered a legally insufficient conviction packet that would not prove Mr. Smith's prior conviction, an element of the offense in this case. The State asserts it reurged its request to the clerk's office and provided the completed packet to the defense after it was received. The State maintains that its actions were reasonable and did not violate Mr. Smith's rights to due process and fundamental fairness, and that Mr. Smith failed to allege any prejudice as a result. For the reasons discussed below, the State's claim is meritorious.

STANDARD OF REVIEW

In State v. Harris, 2019-0900, p. 5 (La. App. 4 Cir. 7/22/20), 302 So. 3d 1177, 1180-81, this Court set forth the standard of review for a trial court's ruling on a motion to quash.

The standard of review that we apply in reviewing a district court's ruling on a motion to quash varies based on the types of issues presented. When solely legal issues are presented-such as in the present case involving a motion to quash under La. C.Cr.P. art. 535 A(1) for failure to charge an offense punishable under a valid statute we apply a de novo standard of review. State v. Olivia, 13-0496, pp. 2-3 (La.App. 4 Cir. 3/26/14), 137 So.3d 752, 754; State v. Schmolke, 12-0406, p. 4 (La.App. 4 Cir. 1/16/13), 108 So.3d 296, 299; see also State v. Hamdan, 12-1986, p. 6 (La. 3/19/13), 112 So.3d 812, 816 (noting that “[o]n appeal from the trial court's ruling on a motion to quash, the trial court's legal findings are subject to a de novo standard of review”). In contrast, when mixed issues of fact and law are presented such as speedy trial violations and nolle prosequi dismissal reinstitution cases- we apply an abuse of discretion standard. State v. Hall, 2013-0453, pp. 11-12 (La. App. 4 Cir. 10/9/13), 127 So.3d 30, 39 (citing State v. Tran, 2012-1219, p.2 (La. App. 4 Cir. 4/24/13), 115 So. 3d 672, 673, n.3 ) (explaining that “[i]n reviewing rulings on motions to quash where there are mixed questions of fact as well as law, as here, a trial judge's ruling on a motion to quash is discretionary and should not be disturbed absent a clear abuse of discretion”); State v. Love, 00-3347, pp. 9-10 (La. 5/23/03), 847 So.2d 1198, 1206 (“[b]ecause the complementary role of trial courts and appellate courts demands that deference be given to a trial court's discretionary decision).

(emphasis added) (quoting State v. Trepagnier, 14-0808, p. 5, n.3 (La. App. 4 Cir. 11/19/14), 154 So. 3d 670, 673).

ANALYSIS

A motion to quash is the proper procedural mechanism to challenge the State's nolle prosequi and reinstitution of charges through raising a claim of “prosecutorial abuse of its dismissal-reinstitution authority,” which may be raised independently of a constitutional speedy trial violation claim. State v. Hayes, 2010-1538, p. 4 (La. App. 4 Cir. 9/1/11), 75 So. 3d 8, 12.

Louisiana Code of Criminal Procedure article 691 provides, in pertinent part:

The district attorney has the power, in his discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court. The dismissal may be made orally by the district attorney in open court, or by a written statement of the dismissal signed by the district attorney and filed with the clerk of court.

Generally, a nolle prosequi entered by a district attorney prior to the beginning of trial is not a bar to the reinstitution of prosecution.² La. C.Cr.P. art. 693. According to La. C.Cr.P. art. 576, a new prosecution can be filed for the same or lesser offense within six months of the dismissal or within the remaining statutory prescriptive period for the offense charged, whichever is longer, if the State can show its actions were not intended to avoid the time limitation for commencement of trial established by La. C.Cr.P. art. 578.

“The jurisprudence has recognized that the State's dismissal-reinstitution authority may be overborne under the circumstances of any given case by proof either that the defendant's right to a fair trial was violated or that the defendant's constitutional right to a speedy trial was violated.” State v. Brown, 2011-0947, p. 5 (La. App. 4 Cir. 3/7/12), 88 So. 3d 662, 665 (citing State v. King, 2010-2638 (La. 5/6/11), 60 So. 3d 615). “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. arts. 701” and 578, “and a constitutional right guaranteed by the Sixth Amendment to the United States Constitution and Article 1, § 16 of the Louisiana Constitution. State v. Andrews, 2018-0149, 2018-0339, p. 8 (La. App. 4 Cir. 9/12/18) 255 So. 3d 1106, 1113 (citing State v. Sorden, 2009-1419, p. 7 (La. App. 4 Cir. 8/4/10), 45 So. 3d 181, 185).

Mr. Smith's pleading claimed his speedy trial rights were violated; however, he did not aver that the delays prejudiced his defense. Only four months had lapsed since the State filed charges. This weighs against a finding that Mr. Smith's statutory speedy trial rights were violated.

As an illustration, in determining whether a defendant's constitutional right to a speedy trial has been violated, the Supreme Court, in Barker v. Wingo, created a totality of the circumstances test, balancing four factors: (1) length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) the prejudice to the defendant resulting from the delay. 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

The first of the four Barker factors, “the length of the delay, is the ‘triggering mechanism,’ and if the length of the delay is not ‘presumptively prejudicial,’ the court need not inquire into the other three Barker [v. Wingo] factors.” State v. Sanders, 2012-0409, p. 8 (La. App. 4 Cir. 11/14/12) 104 So. 3d 619, 626.

In the instant case, following Mr. Smith's arrest on May 31, 2023, the State filed the initial bill of information charging two counts on July 25, 2023. Approximately four months later, on November 20, 2023, the State nolle prosequied the original bill of information and reinstituted the same charges. Two months later, on January 5, 2024, the district court granted Mr. Smith's Motion to Quash the bill of information. Since only four months elapsed between the filing of the original bill and the reinstitution of the charges, the delay was not presumptively prejudicial. See State v. Sanders, 2012-0409, p. 8, 104 So. 3d at 626 (five-month delay between filing of initial bill and reinstitution not found presumptively prejudicial); State v. Shanklin, 2006-1151, pp. 4-5 (La. App. 4 Cir. 2/14/07), 953 So. 2d 84, 87 (nine-month delay is not presumptively prejudicial). Moreover, the record reflects that Mr. Smith did not file a motion for a speedy trial at any time prior to the filing of the Motion to Quash; as such, the remaining Barker factors do not weigh in Mr. Smith's favor and do not support a finding that the State's action deprived him of the right to a speedy trial.

“In cases where charges are reinstituted within the statutory periods of limitation, in order to merit relief [on a motion to quash] the defendant must make a showing of specific prejudice to his defense.” State v. Quinn, 2013-0726, p. 4 (La. App. 4 Cir. 2/19/14), 136 So. 3d 267, 270, (citing State v. Lee, 2011-0892, p. 2 (La. App. 4 Cir. 1/18/12), 80 So. 3d 1292, 1293). “To prevail under this due process standard, it is not sufficient to show that the state dismissed a prosecution merely because it believed the dismissal was in the state's best interest.” State v. Papizan, 2017-0028, p. 9 (La. App. 1 Cir. 11/2/17), 256 So. 3d 1091, 1098. Instead, “[t]he record must establish that the state dismissed the prosecution ‘for the purpose of’ imposing a significant disadvantage on the defendant, and, as a result, the defendant's right to a fair trial was substantially prejudiced.” Id., 2017-0028, pp. 9-10, 256 So. 3d at 1098.

Further, the defendant must show that the district attorney's abusive exercise of its power actually violated the defendant's constitutional right to a fair trial. Id., 2017-0028, p. 9, 256 So. 3d at 1098.

In State v. Hayes, this Court held that a “prosecutor's evident, flagrant, objectionable, and ill-motived ‘flaunting’ is not in itself specific prejudice to the defense at a forthcoming trial.” 2010-1538, p. 15, 75 So. 3d at 9-10. “In order to sustain a motion to quash, the resulting specific prejudice to his right to a fair trial must be shown by the defendant.” Id. The inability to produce witnesses or the denial of a request for a continuance based upon the absence of a witness may show prejudice. Hayes, 2010-1538, p. 14, 75 So. 3d at 16-17.

In State v. King, the State dismissed and reinstituted the original case when the district court refused to grant the State a continuance because it was having trouble procuring financial records from a bank. 2010-2638, pp. 7-8, 60 So. 3d at 619-20. The defendant filed a motion to quash, arguing that the State undermined the district court's authority, which the district court granted and the appellate court affirmed. Id., 2010-2638, pp. 3-4, 60 So. 3d at 617. However, the Supreme Court found no evidence that the State sought a tactical advantage over the defense, noting that the bank had failed to comply with the State's discovery request, and questioned whether the trial court has exercised “sound discretion” by denying a continuance in such circumstances. Id., 2010-2638, pp. 6-7, 60 So. 3d at 619. The Court held that without evidence of a speedy trial violation or a showing of “prejudice to his defense of the case arising out of the delay occasioned by the state's dismissal and immediate reinstitution of the prosecution to force a second continuance of trial,” the district court erred in granting the defendant's motion to quash. Id., 2010-2638, p. 8, 60 So. 3d at 620.

In State v. Batiste, the State dismissed and reinstituted the charges without seeking a continuance when the victim did not appear for trial. 2005-1571, p. 8 (La. 10/17/06), 939 So. 2d 1245, 1251. The Supreme Court held that the district court erred in granting the defendant's motion to quash when the defendant had not alleged that his defense was disadvantaged by the delay, such as claiming any lost witnesses or evidence. Id.

Conversely, the Louisiana Supreme Court found that “the state's exercise of its statutory right under La.C.Cr.P. arts. 691 and 61 to dismiss and reinstitute charges against defendant upset this ‘balance of forces’ to such a degree that it violates defendant's right to due process and fundamental fairness.” State v. Reimonenq, 2019-0367, pp. 7-8 (La. 10/22/19), 286 So. 3d 412, 417. In Reimonenq, “[t]he state abused its authority to dismiss and reinstitute charges against defendant in order to give itself a continuance and reverse the trial court's ruling excluding its expert witness.” 2019-0367, p. 8, 286 So. 3d at 417.

In the instant case, the State filed the original bill of information on July 25, 2023, and dismissed the bill on November 20, 2023, four months later. Thus, the State was not attempting to avoid the time limitations to commence trial.³ The State contends that deriving any type of benefit from dismissing and reinstituting charges does not necessarily constitute an abuse of authority. The State maintains “the authority was exercised for a legitimate reason, and [defendant] failed to allege even a shred of actual prejudice (whether intended or unintended by the State) in the motion to quash.” Thus, the State avers, the district court erred in granting Mr. Smith's Motion to Quash.

The prejudice Mr. Smith identifies in his Motion to Quash is the prosecution's tactical advantage in avoiding trial without a continuance. Mr. Smith contends that he would have prevailed at trial because the prosecution was unprepared.⁴ But, this Court in Hayes rejected a similar argument.

[The defendant] makes no claim to a specific prejudice to his defense at any forthcoming trial. The prejudice he identifies in his motion is the self-evident inequity of one party's ability to avoid trial without the authorization of the court. The implication is that the defense would have prevailed at trial because the prosecution was unprepared, and it would not prevail if the prosecution was prepared with its witnesses and its evidence. The further implication is that an unprepared defendant is sometimes forced to trial by the court and is convicted on that account. But in neither of these situations is there a specific prejudice to this defendant at his upcoming trial.

2010-1538, pp. 11-12, 75 So. 3d at 15-16 (emphasis added).

The district court in the present matter did not specifically declare that Mr. Smith was prejudiced; however, the district court noted that the State “ensure[d] that Mr. Smith remained incarcerated.” The Hayes court also “reject[ed] the argument that [a defendant's] continued pretrial detention is prejudicing his defense” when none of his speedy trial rights have yet been implicated.”⁵ 2010-1538, pp. 12-13, 75 So. 3d at 16. As in Hayes, Mr. Smith failed to show specific prejudice to his defense resulting from the prosecution's use of its dismissal-reinstitution authority; and the district court's recognition in its ruling that Mr. Smith endured continued pretrial incarceration is insufficient to warrant the quashal of his charges when he has not shown a speedy trial violation. Moreover, we do not find that the State's behavior rises to the level of tactical manipulation found in Reimonenq. Accordingly, we find the district court erred by granting Mr. Smith's Motion to Quash.⁶

DECREE

For the above-mentioned reasons, we find the district court erred by granting Mr. Smith's Motion to Quash. The judgment of the district court is reversed, and the matter is remanded for further proceedings.

REVERSED AND REMANDED

I respectfully concur in the majority's decision to reverse the district court's grant of the motion to quash. The record and controlling jurisprudence support the conclusion that Defendant, Derrick Smith, failed to demonstrate either specific prejudice to his defense or a violation of his statutory or constitutional right to a speedy trial. However, I write separately to underscore a point noted by the majority: “[A]n appropriate and effective remedy in a matter wherein the State has arguably flaunted its authority to dismiss and reinstitute charges based on an unpreparedness to go to trial and/or comply with discovery deadlines, would be the institution of contempt proceedings rather than quashing the charges, which would result in a windfall for the defendant.” State v. Smith, 24-0092 (La. App. 4 Cir. _/_/16), slip op. at 11 n. 6.

This observation is critical. It rightly highlights that when prosecutorial conduct disrupts the orderly administration of justice and subverts judicial authority, the proper remedy lies not in shielding the defendant from prosecution, but in holding the State accountable through contempt or other appropriate action. The issue at stake is not merely procedural fairness, but the preservation of the court's constitutional role as the guardian of due process and the integrity of the adversarial system.

While the State holds broad discretion to dismiss and reinstitute charges under La. C.Cr.P. arts. 61, 691, and 576, that discretion is not without limits. As the Louisiana Supreme Court noted in State v. Love, 00-3347, p. 14 (La. 5/23/03), 847 So.2d 1198, 1209, this power may not be used to “flaunt[ ] [the prosecutor's] authority” or undermine the district court's control over its docket. Judicial discretion and dignity remain protected by codal provisions such as La. C.Cr.P. arts. 2 and 17, which empower the court to ensure that proceedings are fair, orderly, and expeditious.

Justice Lemmon warned against exactly this type of prosecutorial action in his dissent in State v. Stephens, 00-2472 (La. 3/16/01), 782 So.2d 562 (Lemmon, J., dissenting). There, he noted that when a prosecutor is denied a continuance, his options are to proceed to trial or seek supervisory review, not to unilaterally dismiss and reinstitute charges in order to sidestep the court's authority. To do so, he wrote, “is not a valid choice.” Id., 00-2472, p. 1, 782 So.2d at 566. Such conduct amounts to the prosecutor “granting himself a continuance” and displacing the role of the judge.¹ Id.

In the case sub judice, the record shows that the State declared trial readiness at the pretrial conference, only to nolle prosequi the charges on the morning of trial due to an incomplete certified conviction packet, which is an element essential to proving the felon-in-possession charge. The State neither alerted the court to the deficiency nor requested a continuance. Instead, it immediately reinstituted the same charges the very same day, ensuring Defendant's continued incarceration while bypassing judicial oversight.

This pattern of professing readiness, possessing incomplete discovery, failing to disclose expert witnesses, and using dismissal to avoid the risk of an adverse trial outcome raises legitimate concerns about the integrity of the prosecutorial process. While these actions may not satisfy the threshold for quashing the prosecution with prejudice under current law or the facts of this case, they warrant further scrutiny.

In State v. King, 10-2638, p. 6 (La. 5/6/11), 60 So.3d 615, 619, and State v. Reimonenq, 19-0367, pp. 7-8 (La. 10/22/19), 286 So.3d 412, 417, the Louisiana Supreme Court emphasized the need for balance between prosecutorial discretion and the judiciary's authority to manage its docket. The Court in Reimonenq recognized that nolle prosequi-and-reinstitution may, when used strategically, amount to an abuse of power that violates due process and undermines judicial independence. Id., 19-0367, pp. 7-8, 286 So.3d at 417.² The conduct in the present case bears troubling similarities.

As courts have noted, including in State v. Frith, 194 La. 508, 518, 194 So. 1, 4 (1940); State v. Firshing, 624 So.2d 921, 923 (La. App. 4th Cir. 1993); and Love, 00-3347, 847 So.2d at 1214-16 (Weimer, J., concurring in part; dissenting in part), the ability of a prosecutor to avoid the ordinary continuance process and circumvent court control through unilateral dismissal and reinstitution is not what our system of justice contemplates. The Code of Criminal Procedure must be read as a whole, harmonizing the authority of the prosecutor with the inherent powers of the judiciary under Articles 17 and 707.

Justice Weimer in Reimonenq, 19-0367, 286 So.3d at 419 (Weimer, J., concurring), noted that Professor Thorp aptly observed in Nolle-and-Reinstitution: Opening the Door to Regulation of Charging Powers, 71 N.Y.U. Ann. Surv. Am. L. 429, 431 (2016), the prosecutor's authority shifts once charges are filed from inquisitorial discretion to adversarial action. At that point, the prosecutor becomes a party within the judicial process and is bound by the same procedural rules and ethical restraints as any other litigant. Id. Reinstituting charges to evade judicial control or avoid evidentiary shortfalls cannot be condoned.³

La. C.Cr.P. art. 17 authorizes courts to take the necessary measures to ensure orderly proceedings and respect for judicial authority.⁴ Unilateral actions by the State that effectively nullify court orders or undermine scheduled trials may fall within the ambit of indirect contempt. Accordingly, the prosecutor's conduct raises questions about contempt,⁵ professional responsibility,⁶ and the proper boundaries of prosecutorial power. It is essential that the separation of powers and the integrity of judicial processes be upheld and respected.

I concur for the reasons assigned by Judge Lobrano.

FOOTNOTES

2.   There are two exceptions listed in La. C.Cr.P. art. 693 that bar prosecution if a nolle prosequi is entered: (1) without the defendant's consent after the first witness is sworn at the trial on the merits; or (2) after a city court conviction has been appealed to the district court for a trial de novo. Neither exception applies in this case.

3.   Pursuant to Louisiana law, no trial shall commence in non-capital, felony cases if two years have passed from the date of institution or prosecution. La. C.Cr.P. art. 578.

4.   Mr. Smith stated in his Motion to Quash, “[i]f trial had proceeded on November 20, 2023, the State of Louisiana would not have entered a Certified Conviction Packet into evidence [and] would not have been able to elicit testimony and evidence necessary to prove their case.”

5.   The Hayes court reasoned, “[t]hat alone suggests that Mr. Hayes’ pretrial incarceration has not been oppressively lengthy to cause prejudice to his defense which would result in dismissal with prejudice.” 2010-1538, p. 16, 75 So. 3d at 13.

6.   We note that an appropriate and effective remedy in a matter wherein the State has arguably flaunted its authority to dismiss and reinstitute charges based on an unpreparedness to go to trial and/or comply with discovery deadlines, would be the institution of contempt proceedings rather than quashing the charges, which would result in a windfall for the defendant.

1.   In Love, 00-3347, 847 So.2d at 1214 (Weimer, J., concurring in part; dissenting in part), Justice Weimer quoted Justice Lemmon's dissent in Stephens, 00-2472, 782 So.2d at 566, n. 1:If the defendant had sought and been denied a continuance, his only two choices would have been seeking supervisory review of the denial or going to trial. He could not have flaunted the trial judge's decision or taken over the judge's control of his docket, as the prosecutor did.Continuing, Justice Weimer wrote:There is no question the District Attorney has the authority to dismiss indictments. LSA-C.Cr.P. arts. 61 and 691. There is no question the District Attorney has the authority to reinstitute indictments. LSA-C.Cr.P. arts. 61 and 576. Although the District Attorney has the authority to dismiss and reindict, this authority is not without countervailing statutory limitations based on the authority of the trial court. The authority of the District Attorney does not negate the authority of the trial court. LSA-C.Cr.P. art. 17. See also LSA-C.Cr.P. art. 2.As stated in the amicus of the Louisiana Association of Criminal Defense Lawyers, while judges do not control a decision to prosecute, judges do control their dockets in such a way as to ensure “simplicity in procedure, fairness in administration, and ․ elimination of unjustifiable delay” as required by LSA-C.Cr.P. art. 2 as well as “to require that criminal proceedings shall be conducted ․ in an orderly and expeditious manner and to so control the proceedings that justice is done,” as required by LSA C.Cr.P. art. 17. Judges set trials. LSA-C.Cr.P. art. 702. Once trials are set, LSA-C.Cr.P. art. 707 et seq. governs continuances and applies to both the State and the defendant. Louisiana Code of Criminal Procedure article 691 was never intended to empower a District Attorney who fully intended to prosecute charges to avoid or delay a trial without complying with LSA-C.Cr.P. art. 707 et seq. In short, the courts ensure the “due process” guaranteed by the United States and Louisiana Constitutions.․ Such a requirement should not be considered a limitation on the authority of the District Attorney, but rather a limitation on a potentially abusive practice. This equilibrium between the statutory authority of the court and the District Attorney was recognized in State v. Frith, 194 La. 508, 518, 194 So. 1, 4 (1940).In Frith, this court analyzed the relationship between LSA-C.Cr.P. art. 61 which gives the District Attorney the right to choose who and when to prosecute, and LSA-C. Cr.P. art. 702, which empowers the trial court to set trial dates on motion of the District Attorney or defendant. The court stated:If Article 17 [now Article 61] of the Code stood alone, the district attorney would have entire control over the criminal docket and could arbitrarily and without reasonable cause postpone the trial of any case to suit his own whim or pleasure. But that article must be read in connection with Article 314 [now Article 702], which declares that “it shall always be within the discretion of the court, upon the motion either of the district attorney or of the defendant, ․ to assign a special day for the trial of any case.”State v. Frith, 194 La. at 518, 194 So. at 4.See also State v. Firshing, 624 So.2d [921,] 923 [(La. App. 4th Cir. 1993)], wherein the court quoted the trial judge:[T]his practice of nolle prossing to get the State to grant it's [sic] own continuance has to stop․ [I]t's an inequity in the law that maybe should be faced in the light of a broader perspective․ [T]his type of activity in the court system is on it's [sic] face, [violative] of due process․ [T]he State should [not] occupy the role of a Judge, and ․ [that's] what's happening in these cases now․ [T]he State should not be able to give itself, on it's [sic] own motion, it's [sic] continuance.Love, 00-3347, 847 So.2d at 1215-16.

2.   In his concurring opinion in Reimonenq, Justice Weimer observed:The result reached today confirms that this court will not allow the use of the “nolle prosequi and reinstitution” practice for obtaining an unfair tactical advantage in prosecutions.I write separately because I dissented in the line of cases cited by the majority, State v. Love, 00-3347 (La. 5/23/03), 847 So.2d 1198, State v. Batiste, 05-1571 (La. 10/17/06), 939 So.2d 1245, and State v. King, 10-2638 (La. 5/6/11), 60 So.3d 615, and wish to emphasize that I do not view the position voiced in those dissents as limiting the authority of the district attorney, but rather as curbing a practice not authorized by the Code of Criminal Procedure: the use of “nolle prosequi and reinstitution” as a substitute for the codal provisions for securing a continuance and/or for reversing an adverse trial court ruling through appellate review. As the majority correctly notes, the authority of the district attorney under the Code of Criminal Procedure, specifically La. C.Cr.P. arts. 61 and 691, must be balanced and harmonized with the authority and duty of the trial court to conduct criminal proceedings “with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done.” La. C.Cr.P. art. 17; see also State v. Reimonenq, 19-0367, slip op. at 7 (La. 10/22/19), 286 So.3d 412, 2019 WL 5445065. This conclusion stems from the nature of a code, which is, by definition, a compilation or collection of laws. As such, it must be interpreted and evaluated by taking into account all of its provisions, including, especially, those that touch upon the same subject matter. In this case, while it is clear that La. C.Cr.P. arts. 61 and 691 confer upon the district attorney the authority to dismiss and reinstitute charges, the articles on continuances and the procedure for obtaining them, La. C.Cr.P. art. 707, et seq., and the articles which set forth the inherent power and authority of courts to control their dockets and to insure the fair and impartial administration of justice, La. C.Cr.P. arts. 2 and 17, must also be considered. The district attorney's authority under La. C.Cr.P. art. 61 is but one provision in the Code of Criminal Procedure. We cannot elevate that one provision to the exclusion of all others but must look to the Code as a whole. We must read, and interpret, the law in its entirety.Id., 19-0367, 286 So.3d at 418-19 (Weimer, J., concurring) (emphasis in original).

3.   Justice Weimer further noted:The misuse of the “nolle prosequi and reinstitution” practice during the adversarial stage of a proceeding presents two concerns. First, it presents a fundamental fairness and due process issue when a prosecutor chooses to forego available review of a trial court and simply start anew, an avenue that is not available to a defendant. Nolle-and-Reinstitution, 71 N.Y.U. Ann. Sur. Am. L. at 441. Second, it presents a separation of powers issue, insofar as the “nolle-and-reinstitution” allows a prosecutor to grant him or herself a continuance, which is a “classic judicial power,” and to obtain de facto control over the court's docket. Id. at 447-48.Courts should not allow themselves to become the handmaidens of the district attorney when they have the authority and obligation to insure justice is achieved. To this end, this court cannot ignore the encroachment on the authority of the trial court that occurs when the district attorney terminates litigation which the district attorney perceives is not going in his or her favor. Once a matter is set for trial/enters the adversarial stage, the district attorney's authority under La. C.Cr.P. arts. 61 and 691 must be balanced against the court's authority and obligation “to so control the proceedings that justice is done.” See La. C.Cr.P. art. 17.Reimonenq, 19-0367, 286 So.3d at 419-20 (Weimer, J., concurring) (internal footnotes omitted).

4.   La. C.Cr.P. art. 17 provides:A court possesses inherently all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, including authority to issue such writs and orders as may be necessary or proper in aid of its jurisdiction. It has the duty to require that criminal proceedings shall be conducted with dignity and in an orderly and expeditious manner and to so control the proceedings that justice is done. A court has the power to punish for contempt.

5.   La. C.Cr.P. art. 20 provides that “[a] contempt of court is an act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.”

6.   See Rules 3.2 (failure to make reasonable efforts to expedite litigation), 3.4(c) (knowing disobedience of an obligation under the rules of a tribunal), 3.4(d) (failing to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party), 3.5(d) (engaging in conduct intended to disrupt a tribunal), 4.4(a) (in representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice) of the Rules of Professional Conduct.

Judge Rosemary Ledet

LOBRANO, J., CONCURS WITH REASONS JENKINS, J., CONCURS AND ASSIGNS REASONS