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State v. Frisella2/23/2004
REVERSED AND REMANDED
Defendant, Kirk A. Frisella, appeals his conviction of driving while intoxicated, third offense, a violation of LSA-R.S. 14:98(D)(1). Defendant pled guilty to the charge pursuant to State v. Crosby, and assigns as error the trial court's denial of this Motion to Quash in which he challenged the constitutionality of his guilty plea on the predicate offense. For the reasons stated more fully herein, we reverse the ruling of the trial court and remand the case for further proceedings.
FACTS AND PROCEDURAL HISTORY
On December 12, 2002, the Jefferson Parish District Attorney's Office filed a bill of information charging defendant, Kirk A. Frisella, with driving while intoxicated, third offense, in violation of LSA-R.S. 14:98(D). On January 16, 2003, defendant was arraigned on the charge and entered a plea of not guilty. Thereafter, defendant filed various pre-trial motions including a Motion to Quash and a Motion to Suppress. On February 2, 2003, after requesting and being denied a continuance, defendant withdrew his Motion to Suppress. Thereafter, on March 18, 2003, defendant's Motion to Quash was heard and denied.
That same day, defendant withdrew his plea of not guilty and entered a plea of guilty to the charges pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). Thereafter, defendant was sentenced to two years of imprisonment at hard labor with the first thirty days of his sentence served without benefit of probation, parole or suspension of sentence and ordered to pay a fine as set out on the conditions of probation form signed by him and his attorney. The remainder of defendant's sentence was suspended and defendant was ordered to undergo an evaluation to determine the nature and extent of his substance abuse disorder. The trial court also ordered defendant to enter an in-patient substance abuse program for not less than four weeks and not more than six weeks and ordered that, upon completion of the program, defendant serve the remainder of his sentence in home incarceration. Defendant subsequently filed a timely motion for appeal.
ASSIGNMENT OF ERROR
Is it permissible under the Constitution of the State and the Statutes to sustain a conviction of a person who is not advised by the Trial Court of his Constitutional right to an attorney and of his Right to Have an Attorney Present without charge, if he cannot afford one[?]
DISCUSSION
A guilty plea normally waives all non-jurisdictional defects in the proceedings leading up to the guilty plea, and precludes review of such defects either by appeal or post-conviction relief. State v. Raines, 00-1942 (La. App. 5 Cir. 5/30/01), 788 So.2d 630, 632. However, a defendant may be allowed appellate review if at the time he enters a guilty plea, he expressly reserves his right to appeal a specific adverse ruling in the case. State v. Crosby, supra; State v. King, 99-1348 (La. App. 5 Cir. 5/17/00), writ denied, 00-1824 (La. 6/29/01), 794 So.2d 822.
In the instant case, defendant failed to specify which pre-trial ruling he desired to reserve for appeal as part of his guilty plea entered pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). However, the record reflects the only pretrial ruling in the instant case was on defendant's Motion to Quash. Accordingly, we find that defendant preserved his right to appeal the trial court's ruling on the Motion to Quash.
On appeal defendant argues that the trial court erred in refusing to grant his Motion to Quash the Bill of Information. Defendant contends that his predicate guilty plea was constitutionally infirm because the trial court failed to assess his understanding of hi
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