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State v. Fitch3/1/2000
Application for rehearing may be filed within the delay allowed by art. 922, La. C.Cr.P.
The defendant, Gene Fitch, Sr., was charged by bill of information with driving while intoxicated (DWI), third offense. After his motion to quash a prior guilty plea was denied, the defendant pled guilty pursuant to State v. Crosby, 338 So. 2d 584 (La. 1976). He was sentenced to three years of imprisonment, the first six months of which was to be served without benefit of probation, parole or suspension of sentence. The remaining two and a half years were suspended, and the defendant was placed on three years supervised probation. The defendant now appeals. We affirm.
FACTS
On October 20, 1997, Louisiana State Trooper S. D. Wallace observed the defendant's vehicle cross the fog line twice while traveling in the outside lane of travel on U.S. 165. The defendant then changed lanes to the inside lane of travel. Trooper Wallace saw the defendant's vehicle cross the double yellow center lines twice. At this point, the trooper pulled the defendant over.
During the stop, Trooper Wallace observed that the defendant's speech was slurred and his eyes were bloodshot; also, he was unsteady on his feet and he smelled of alcohol. The defendant was asked to perform a number of field sobriety tests, which he either failed or was unable to complete. The defendant was then arrested. He refused to submit to an Intoxilyzer 5000 test.
The defendant was charged by bill of information with DWI, third offense, in violation of La. R.S. 14:98.
The bill of information alleged two predicate offenses:
(1) a 1990 DWI conviction, docket no. 75305 in the City of West Monroe Court; and (2) a 1991 DWI conviction, docket no. 91-M0050 in the Fourth Judicial District Court.
Thereafter, the defendant filed a motion to quash in which he asserted that his 1991 conviction for DWI could not be used as a predicate offense because that guilty plea was taken in a mass Boykin hearing which, he alleged, resulted in an insufficient explanation of his constitutional rights. The transcript showed that the persons pleading guilty replied as a group that they were aware that they were giving up their rights to trial, to remain silent, and to confront witnesses; however, it did not list the defendant's responses individually.
In a written opinion, the trial court denied the motion to quash, finding that the defendant had not cited any authority to support his proposition that the record must show that the defendant answered separately. The court found that the record established the 1991 plea was entered knowingly and voluntarily.
On July 26, 1999, the defendant entered a Crosby guilty plea to DWI, third offense, reserving his right to seek review of the denial of the motion to quash. He was sentenced to three years of imprisonment at hard labor, six months of which to be served without benefit of probation, parole or suspension of sentence. The remaining two and a half years were suspended, and the defendant was placed on supervised probation for three years.
MOTION TO QUASH
The defendant asserts that the trial court erred in denying the motion to quash his 1991 DWI conviction. He argues that his rights were not sufficiently explained to him individually as his guilty plea was entered in a mass proceeding. He further alleges that the transcript does not demonstrate that he waived his Boykin rights because the transcript does not identify him by name.
1991 Boykin transcript
The transcript of the 1991 guilty plea indicates that the defendant was one of five persons entering guilty pleas
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