STATE v. WEBB (2021)

Writ application denied.

Defendant in this case filed a “Motion for Release pursuant to La.C.Cr.P. art. 701.” Article 701 affords both the state and the defendant a right to a speedy trial. Defendant alleges that more than 60 days had lapsed from his arrest, and no bill of information or indictment had been filed. Thus, defendant sought his release. The trial court denied defendant's motion, and the court of appeal denied defendant's writ.

Article 701 is a “speedy trial” motion often used by defendants when they are arrested, and the time periods set forth in the article are not met. Such is the case here. Article 701 also states that “failure to institute prosecution as provided in Subparagraph (1) of this Paragraph shall result in the release of defendant if, after a contradictory hearing with the district attorney, just cause for the failure is not shown.” La.C.Cr.P. art. 701(B)(2)(6) (emphasis added). The use of “shall” clearly designates this directive as mandatory.

The trial court denied defendant's motion as moot, since the bill of information had been filed prior to the date of the hearing (which was long after the mandatory Article 701 time period). The court of appeal based its ruling on the 32-year-old case of State v. Varmall, 539 So.2d 45 (La.1989), upon which subsequent cases have also relied. However, Varmall is clearly distinguishable in the that the defendant in Varmall was released on the 61st day following his arrest by virtue of an ex parte order of the magistrate, and no Article 701 motion for release was ever filed.

The facts in this case implicate two clear requirements of Article 701: first, the statute says “shall,” and shall is mandatory; second, the state must show just cause at a hearing for its failure to file an indictment or bill of information. Undisputedly, the trial judge in this case failed to have a hearing and failed to require the state to show “just cause” for the delay. Succinctly stated, the trial judge erred in not following the clear requirements of Article 701. Here, the trial judge should have set an immediate hearing on defendant's motion and should have released this defendant unless just cause was shown by the state for its failure to file an indictment or bill of information as required by Article 701. There was no hearing, and there was no just cause proved. Thus, defendant's motion should have been granted.

To allow the trial court to disregard the mandates of Article 701 undermines defendant's constitutional right to a speedy trial and renders Article 701 meaningless. Thus, in order to preserve the solemnity of Article 701, I would grant this writ, reverse the lower courts, and grant the defendant relief as specifically set forth in Article 701.

Weimer, C.J., would grant and docket. Genovese, J., would grant and assigns reasons. Griffin, J., would grant for the reasons assigned by Justice Genovese.