 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Kerwin5/15/2002
AFFIRMED.
The Defendant, Lawrence Kerwin, appeals his conviction by guilty plea of third-offense driving while intoxicated (DWI) in violation of La.R.S. 14:98D. We affirm.
The Defendant was charged with the offense on October 26, 2000 and pled not guilty. He subsequently filed a Motion to Quash the Bill of Information, alleging that both predicate pleas were defective because no proof of his knowing and intelligent waiver of his right to counsel is contained in either record. The motion was denied after a hearing. Thereafter, the Defendant filed a motion to reconsider which was also denied.
The Defendant subsequently withdrew his not guilty plea and entered a guilty plea under State v. Crosby, 338 So.2d 584 (La. 1976), reserving his right to appeal the denial of his motion to quash. He was sentenced to three years at hard labor, suspended with three years of active probation. The Defendant was given several special conditions of probation, including serve six months in parish prison without the benefit of parole, probation or suspension of sentence and to pay a fine of $2,000.
The bill of information alleges that the present offense occurred on September 7, 2000. The exact facts are unknown since this was a guilty plea. The bill of information further alleges that the Defendant was previously convicted of DWI in Second Parish Court for Jefferson Parish on December 11, 1995 under docket number S599056, and on April 21, 1997 under docket number S630507.
On appeal, the Defendant contends that the trial judge erred in denying his Motion to Quash the Bill of Information. He contends that the predicate pleas are defective because he was unrepresented by counsel and the State failed to prove he knowingly and voluntarily waived his right to counsel.
At the original hearing on the motion to quash, the State submitted certified copies of the Defendant's 1995 and 1997 convictions for driving while intoxicated, which consisted of the minute entries, bills of information, waiver of rights forms, and the citations. Those documents reflect that the Defendant was not represented by counsel when he pled guilty to the offenses. At the hearing on the motion to reconsider, the State produced the transcripts of the colloquies of the predicate pleas.
BURDEN OF PROOF
When a defendant challenges the constitutionality of a predicate guilty plea involving the recidivist portion of the DWI statute, the state has the initial burden of proof to show the existence of a guilty plea and that the defendant was represented by counsel when the plea was entered. State v. Carlos, 98-1366 (La. 7/7/99), 738 So.2d 556, 559. See: State v. Boudreaux, 99-1017 (La. App. 5th Cir. 2/16/00), 756 So.2d 505, 508. If the state meets this burden, it shifts to the defendant to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Id. If the defendant carries this burden, it shifts back to the state to prove the constitutionality of the plea. Carlos, 738 So.2d at 559; Boudreaux, 756 So.2d at 508. However, this does not abrogate the longstanding jurisprudence requiring the state to prove that the defendant knowingly and intelligently waived his right to counsel before pleading guilty to a predicate misdemeanor DWI which is used to enhance a subsequent DWI plea. Boudreaux, 756 So.2d at 508.
KNOWING AND VOLUNTARY WAIVER
In State v. Stevison, 97-3122 (La. 10/30/98), 721 So.2d 843, 844, the Louisiana Supreme Court held that a trial judge may accept a guilty plea for a misdemeanor offense from an unrepresented defendant only after the trial judge expressly advises the
Page 1 2 3 4 5 Louisiana DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|