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State v. Chestnut11/29/2005
d be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.
State v. O'Reilly, 00-2864 at p. 12, 785 So.2d at 777, citing Rider v. U.S., 515 U.S. 177, 180, 115 S.Ct. 2031, 2034, 132 L.Ed.2d 136 (1995).
Although the State does not dispute the defendant's citation of the O'Reilly case as on point with these facts, the State points out that the guilty plea at issue was taken prior to the O'Reilly decision, making O'Reilly not applicable.
" ntil a de facto officer's title to the office is attacked directly and held to be invalid, 'the acts of a de facto official are as valid and effectual, when they concern the public or the rights of third parties, as though he were an officer de jure....'" O'Reilly, 00-2864 at 13, 785 So.2d at 777, citing State v. Stripling, 354 So.2d 1297, 1300-1301 (La. 1978).
We agree with the State's analysis. First, at the time the defendant entered the guilty plea in the predicate case, O'Reilly had not yet been decided. Therefore, the O'Reilly case cannot be used to invalidate the plea in the March 28, 2000 conviction.
Second, appointment of pro tempore and ad hoc judges is governed by the Rules of the Supreme Court of Louisiana, Part G, § 5 ("Appointment of Pro Tempore and Ad Hoc Judges to City, Municipal, Traffic, Parish, Juvenile or Family Courts"). The defendant has failed to cite, nor do we find, any ruling that denies the authority of a duly-appointed ad hoc or pro tempore judge to accept a guilty plea.
VALIDITY OF CONSTITUTIONAL RIGHTS ADVISEMENT
The defendant argues that the Waiver of Rights form submitted by the State as proof of the predicate conviction reveals that the form failed to include an advisement of the defendant's "constitutionally guaranteed presumption of innocence and/or the fact that the state carried the burden of proving his guilty beyond a reasonable doubt." The defendant contends the fact that such an advisement is not contained in the form shows that the ad hoc judge neglected to advise the defendant of that right.
In opposition, the State submits that the predicate plea was taken by the court in conformity with the procedural safeguards established in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which Louisiana has codified in La.C.Cr.P. art. 556 and 556.1.
Boykin requires that prior to accepting a guilty plea, the court must advise the defendant of his constitutional rights against self-incrimination, to a trial by jury, and to confront his accusers. Boykin, supra; State v. Dejean, 94-459 (La.App. 5 Cir. 11/28/95), 694 So.2d 284, 286. Boykin does not require the court to inform the defendant that he is presumed innocent until proven guilty.
Hence, any failure of the court in the March 28, 2000 predicate case to advise this defendant of the presumption of innocence does not invalidate his plea for enhancement purposes. The trial court properly denied the defendant's motion to quash.
For the foregoing reasons, the conviction is affirmed.
AFFIRMED
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