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State v. Carcamo10/28/2003
ges of address.
In State v. Taylor, 439 So.2d 410 (La. 1983), defendant was arrested and charged with a misdemeanor, driving while intoxicated, second offense. After his arrest, defendant posted bond, listing his address. When service was attempted, defendant had since moved and could not be served at that address. No further attempts were made to serve defendant. The Louisiana Supreme Court held that the State had not met its heavy burden of showing legal cause sufficient to interrupt the time for commencement of trial reasoning that the State's one unsuccessful attempt at service was insufficient. The Supreme Court noted that the one unsuccessful attempt at service did not constitute a due and diligent effort to subpoena the defendant.
Although, as in Gauthe, three unsuccessful attempts at service were made, that case is distinguishable from the instant case, which appears to be more analogous to Taylor. Here, the record does not indicate that defendant was arrested on the charges nor had he provided an address where he could be served. Therefore, it does not appear, as in Gauthe, that he had a duty to inform the court of any changes in address. Also, unlike Gauthe, there is no indication in the record when or the number of times defendant had moved.
Here, after learning defendant had moved to and was residing at a Norcross, Virginia, address, one attempt at service via certified mail was made on April 7, 1999, but was returned for a better address. An examination of a photocopy of the certified mail envelope reveals the absence of a zip code. Despite this apparent error in addressing the envelope, the record does not reflect any other attempts to serve defendant at the Virginia address. As in Taylor, it does not appear that the State's one unsuccessful attempt at service after learning of defendant's possible whereabouts constituted a due and diligent effort to subpoena the defendant.
Based on the above, it appears the State failed to carry its heavy burden to show an interruption of the time limitations in accordance with LSA-C.Cr.P. art. 579(2). Therefore, it appears that the two-year limitation provided in LSA-C.Cr.P. art. 578(2) controls, and that the trial judge was correct in granting defendant's Motion to Quash.
AFFIRMED
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