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2021 Regular Session
HOUSE BILL NO. 46
BY REPRESENTATIVES JAMES AND JORDAN
Prefiled pursuant to Article III, Section 2(A)(4)(b)(i) of the Constitution of Louisiana.
CRIMINAL/JUSTICE: Provides relative to certain pretrial procedures
1 AN ACT
2To amend and reenact Code of Criminal Procedure Articles 230.1(B), 292, 293, 294(D),
3 701(B), (C), and (D)(1)(introductory paragraph) and (3), and 732 and to enact Code
4 of Criminal Procedure Article 734(D), relative to pretrial procedures; to provide
5 relative to the subpoena of a witness to appear before certain persons; to provide
6 relative to appointment of counsel for certain persons; to provide relative to
7 transcripts of preliminary examination proceedings; to provide relative to an order
8 for preliminary examination before and after indictment; to provide relative to
9 subpoenas; to provide relative to service of subpoenas; to provide relative to pretrial
10 motions for speedy trial; to provide relative to the effect of a defendant's motion for
11 speedy trial on certain duties of the state with regard to discovery; to provide relative
12 to the court's authority to suspend or dismiss a pending speedy trial motion; to
13 provide relative to the time period within which a bill of information or indictment
14 is filed; to provide relative to the time period for setting an arraignment; to provide
15 relative to the defendant's bail obligation under certain circumstances; and to provide
16 for related matters.
17Be it enacted by the Legislature of Louisiana:
18 Section 1. Code of Criminal Procedure Articles 230.1(B), 292, 293, 294(D), 701(B),
19(C), and (D)(1)(introductory paragraph) and (3), and 732 are hereby amended and reenacted
20and Code of Criminal Procedure Article 734(D) is hereby enacted to read as follows:
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1 Art. 230.1. Maximum time for appearance before judge for the purpose of
2 appointment of counsel; court discretion to fix bail at the appearance;
3 extension of time limit for cause; effect of failure of appearance
4 * * *
5 B. At this appearance, if a defendant has the right to have the court appoint
6 counsel to defend him is determined to be indigent pursuant to R.S. 15:175, the court
7 shall assign counsel to the defendant. The court may also, in its discretion,
8 determine or review a prior determination of the amount of bail.
9 * * *
10 Art. 292. Order for preliminary examination before and after indictment
11 A. The court, on request of the state or the defendant, shall immediately
12 order a preliminary examination in felony cases unless the defendant has been
13 indicted by a grand jury.
14 B. After the defendant has been indicted by a grand jury, the court may
15 rescind its order for a preliminary examination unless the defendant has preserved
16 his request for a preliminary examination in writing prior to indictment.
17 C. An order for a preliminary examination in felony cases may be granted
18 by the court at any time, either on its own motion or on request of the state or of the
19 defendant before or after the defendant has been indicted by a grand jury.
20 Art. 293. Time for examination; procurement of counsel
21 When a preliminary examination is ordered, the court shall conduct the
22 examination promptly but shall allow the defendant a reasonable time to procure
23 counsel. no later than two weeks exclusive of weekends and holidays, unless the
24 defendant waives such timelines or just cause for the delay.
25 Art. 294. Examination of witnesses; transcript of testimony
26 * * *
27 D. Upon motion of the state or the defendant, a transcript of the preliminary
28 examination proceedings may be made and shall be promptly provided to the state
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1 or defense counsel. The cost of the transcript preparation under this Paragraph shall
2 be paid by the party making the motion, unless the party is an indigent defendant.
3 * * *
4 Art. 701. Right to a speedy trial
5 * * *
6 B. The time period for filing a bill of information or indictment after arrest
7 shall be as follows:
8 (1)(a) When Except as provided in Subsubparagraph (b) of this
9 Subparagraph, when the defendant is continued in custody subsequent to an arrest,
10 an indictment or information shall be filed within forty-five five days of the arrest
11 if the defendant is being held for a misdemeanor and within sixty days of the arrest
12 if the defendant is being held for a felony.
13 (b) When the defendant is continued in custody subsequent to an arrest for
14 a felony for which punishment may be death or life imprisonment, an indictment
15 shall be filed within one hundred twenty thirty days of the arrest if the defendant is
16 being held for a felony for which the punishment may be death or life imprisonment.
17 (c) If the state fails to institute prosecution as provided in this Subparagraph,
18 the court shall order the release of the defendant, unless just cause for the failure is
19 shown after contradictory hearing with the district attorney.
20 (2)(a) When Except as provided in Subsubparagraph (b) of this
21 Subparagraph, when the defendant is not continued in custody subsequent to arrest,
22 an indictment or information shall be filed within ninety thirty days of the arrest if
23 the defendant is booked with a misdemeanor and one hundred fifty days of the arrest
24 if the defendant is booked with a felony.
25 (b) When the defendant is not continued in custody subsequent to arrest for
26 a felony for which punishment may be death or life imprisonment, an indictment
27 shall be filed within sixty days of the arrest.
28 (b)(c) Failure to institute prosecution as provided in Subparagraph (1) of this
29 Paragraph shall result in release of the defendant if, after contradictory hearing with
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1 the district attorney, just cause for the failure is not shown. If just cause is shown,
2 the court shall reconsider bail for the defendant. Failure to institute prosecution as
3 provided in this Subparagraph shall result in the release of the bail obligation of the
4 defendant if, after contradictory hearing with the district attorney, just cause for the
5 delay is not shown.
6 C.(1) Upon When the defendant is in custody upon the filing of a bill of
7 information or indictment, the district attorney shall set the matter for arraignment
8 within thirty seven days, exclusive of holidays, unless just cause for a longer delay
9 is shown. If no just cause for the delay is shown, the defendant shall be released.
10 (2) When the defendant is not in custody upon the filing of a bill of
11 information or indictment, the district attorney shall set the matter for arraignment
12 within thirty days, exclusive of holidays, unless just cause for a longer delay is
13 shown. If no just cause for the delay is shown, the defendant shall be relieved of his
14 bail obligation.
15 D.(1) A motion by the defendant for a speedy trial, in order to be valid, must
16 be accompanied by an affidavit by defendant's counsel certifying that the defendant
17 and his counsel are prepared to proceed to trial within the delays set forth in this
18 Article. A defendant's motion for speedy trial does not relieve the state of its duty
19 to provide the defendant with any evidence constitutionally required to be disclosed
20 pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, nor does it
21 relieve the state of its duty to provide previously requested discovery pursuant to
22 Code of Criminal Procedure Article 716 et seq. Except as provided in Subparagraph
23 (3) of this Paragraph, after the filing of a motion for a speedy trial by the defendant
24 and his counsel, the time period for commencement of trial shall be as follows:
25 * * *
26 (3) After a motion for a speedy trial has been filed by the defendant, if the
27 defendant files any subsequent motion which requires a contradictory hearing, except
28 for motions relating to the state's duty to provide the defendant with any evidence
29 constitutionally required to be disclosed pursuant to Brady v. Maryland, 373 U.S. 83
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1 (1963) and its progeny, motions relating to previously invoked rights to discovery
2 pursuant to Code of Criminal Procedure Article 716 et seq., motions in limine
3 regarding the presentation of evidence at trial, motions for jury instructions, and
4 other motions that do not necessitate a delay in the commencement of the trial
5 beyond the dates set forth in Paragraph D of this Article, the court may suspend, in
6 accordance with Article 580, or dismiss upon a finding of bad faith the pending
7 speedy trial motion. In addition, the period of time within which the trial is required
8 to commence, as set forth by Article 578, may be suspended, in accordance with
9 Article 580, from the time that the subsequent motion is filed by the defendant until
10 the court rules upon such motion.
11 * * *
12 Art. 732. Subpoena duces tecum
13 A subpoena may order a person to produce at the trial or hearing, including
14 a preliminary examination, books, papers, documents, or any other tangible things
15 in his possession or under his control, if a reasonably accurate description thereof is
16 given; but the court shall vacate or modify the subpoena if it is unreasonable or
17 oppressive. A subpoena may be issued at the request of defense counsel or the state
18 at any point after a defendant has been initially arrested for a charge, even if the state
19 has not yet instituted prosecution by filing a bill of information or indictment and if
20 the defendant is subsequently released.
21 * * *
22 Art. 734. Service of subpoena by sheriff; investigators
23 * * *
24 D. Upon motion of an arrested person, the court shall appoint a person over
25 the age of majority, who is not a party and who is residing within the state whom the
26 court deems qualified to perform the duties required, to make service of process in
27 the same manner as is required of sheriffs. Service of process made in this manner
28 shall be proved as any other fact in the case.
29 Section 2. This Act shall become effective on January 1, 2022.
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DIGEST
The digest printed below was prepared by House Legislative Services. It constitutes no part
of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute
part of the law or proof or indicia of legislative intent. [R.S. 1:13(B) and 24:177(E)]
HB 46 Engrossed 2021 Regular Session James
Abstract: Provides relative to certain pretrial procedures including appointment of counsel
for certain persons, motions to obtain transcripts of preliminary examination
proceedings, orders for preliminary examination, and service of subpoenas by
sheriffs; and provides relative to the time period within which a bill of information
or indictment is filed, the time period for setting an arraignment, the release or
reconsideration of the defendant's bail obligation under certain circumstances, and
other procedures relative to the right to a speedy trial.
Present law authorizes the attorney general or district attorney to determine who shall be
present during the examination.
Proposed law adds defense counsel to those eligible to determine who shall be present during
the examination.
Present law (C.Cr.P. Art. 230.1) provides that at the appearance before the court for the
purpose of appointment of counsel, if a defendant has the right to have the court appoint
counsel to defend him, the court shall assign counsel to the defendant. The court may also,
in its discretion, determine or review a prior determination of the amount of bail.
Proposed law changes the condition for which the court is required to assign counsel from
being based on whether the defendant has the right to being based on whether the defendant
is determined to be indigent.
Present law (C.Cr.P. Art. 292) provides that after the defendant has been indicted by a grand
jury, the court may rescind its order for a preliminary examination.
Proposed law retains present law but provides that a defendant can preserve his request for
a preliminary examination in writing prior to indictment.
Present law (C.Cr.P. Art. 293) provides that when a preliminary examination is ordered, the
court is required to conduct the examination promptly but shall allow the defendant a
reasonable time to procure counsel.
Proposed law requires the court to conduct the preliminary examination promptly within two
weeks exclusive of weekends and holidays, unless the defendant waives such timelines or
just cause for the delay.
Present law (C.Cr.P. Art. 294) provides that upon motion of the state or the defendant, a
transcript of the preliminary examination proceedings may be made. The cost of the
transcript preparation shall be paid by the party making the motion, unless the party is an
indigent defendant.
Proposed law retains present law and requires that a copy of the preliminary examination
proceedings be promptly provided to the state or defense counsel upon written motion.
Present law (C.Cr.P. Art. 701) provides that the time period for filing a bill of information
or indictment after arrest is as follows:
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(1)When the defendant is continued in custody subsequent to an arrest, an indictment
or bill of information shall be filed within 45 days of the arrest if the defendant is
being held for a misdemeanor and within 60 days of the arrest if the defendant is
being held for a felony.
(2)When the defendant is continued in custody subsequent to an arrest, an indictment
shall be filed within 120 days of the arrest if the defendant is being held for a felony
for which the punishment may be death or life imprisonment.
(3)When the defendant is not continued in custody subsequent to arrest, an indictment
or information shall be filed within 90 days of the arrest if the defendant is booked
with a misdemeanor and 150 days of the arrest if the defendant is booked with a
felony.
Proposed law amends present law as follows:
(1)When the defendant is continued in custody subsequent to an arrest, decreases the
time period within which an indictment or information shall be filed to within five
days of the arrest regardless of whether the defendant is being held for a
misdemeanor or for a felony.
(2)When the defendant is continued in custody subsequent to an arrest for a felony for
which the punishment may be death or life imprisonment, decreases the time period
within which an indictment shall be filed from within 120 days of arrest to within 30
days of the arrest.
(3)When the defendant is not continued in custody subsequent to arrest, decreases the
time period within which an indictment or information shall be filed to within 14
days of the arrest regardless of whether the defendant is booked with a misdemeanor
or felony.
(4)Adds that when the defendant is not continued in custody subsequent to arrest for a
felony for which punishment may be death or life imprisonment, an indictment shall
be filed within 60 days of the arrest.
Present law provides that when the defendant is continued in custody subsequent to arrest,
failure to institute prosecution as provided in present law shall result in release of the
defendant if, after contradictory hearing with the district attorney, just cause for the failure
is not shown. If just cause is shown, present law requires the court to reconsider bail for the
defendant.
Proposed law amends present law to remove the requirement that a contradictory hearing be
held prior to ordering the release of the defendant, unless just cause for the failure is shown
after contradictory hearing with the district attorney.
Present law provides that when the defendant is not continued in custody subsequent to
arrest, failure to institute prosecution as provided in present law shall result in the release of
the bail obligation if, after contradictory hearing with the district attorney, just cause for the
delay is not shown.
Proposed law retains present law.
Present law provides that upon filing of a bill of information or indictment, the district
attorney shall set the matter for arraignment within 30 days unless just cause for a longer
delay is shown.
Proposed law amends present law to provide:
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(1)When the defendant is in custody upon the filing of a bill of information or
indictment, the district attorney shall set the matter for arraignment within seven
days, exclusive of holidays, unless just cause for a longer delay is shown. If no just
cause for the delay is shown, the defendant shall be released.
(2)When the defendant is not in custody upon the filing of a bill of information or
indictment, the district attorney shall set the matter for arraignment within 30 days,
exclusive of holidays, unless just cause for a longer delay is shown. If no just cause
for the delay is shown, the defendant shall be relieved of his bail obligation.
Present law provides that after a motion for a speedy trial has been filed by the defendant,
if the defendant files any subsequent motion which requires a contradictory hearing, the
court may suspend or dismiss upon a finding of bad faith the pending speedy trial motion.
Proposed law amends present law to provide that certain preliminary motions which require
a contradictory hearing are not grounds for which the court may suspend or dismiss a
pending speedy trial motion. Such motions include but are not limited to motions relating
to the state's duty to provide the defendant with any evidence constitutionally required to be
disclosed pursuant to Brady v. Maryland, 373 U.S. 83 (1963) and its progeny, motions
relating to previously invoked rights to discovery pursuant to present law, motions in limine
regarding the presentation of evidence at trial, motions for jury instructions, and other
motions do not necessitate a delay in the commencement of the trial beyond the dates set
forth in present law.
Proposed law provides that a defendant's motion for speedy trial does not relieve the state
of its continued burden to comply with the holding in the case Brady v. Maryland, 373 U.S.
83 (1963) and its progeny, nor does it relieve the state of its duty to provide previously
requested discovery pursuant to present law.
Present law (C.Cr.P. Art. 732) provides that a subpoena may order a person to produce at the
trial or hearing, books, papers, documents, or any other tangible things in his possession or
under his control, if a reasonably accurate description is given.
Proposed law provides that the subpoena may also order a person to produce books, papers,
documents, or any other tangible things in his possession or under his control at a
preliminary examination. Further provides that a subpoena may be issued at the request of
defense counsel or the state at any point after a defendant has been initially arrested for a
charge, even if the state has not yet instituted prosecution by filing a bill of information or
indictment and if the defendant is subsequently released.
Present law (C.Cr.P. Art. 734) provides that the sheriff of any parish in which the witness
may be found or of the parish in which the proceeding is pending shall serve the subpoena
and make return thereof without delay.
Proposed law provides that upon motion of an arrested person, the court shall appoint a
person over the age of majority, who is not a party and who is residing within the state
whom the court deems qualified to perform the duties required, to make service of process
in the same manner as is required of sheriffs. Service of process made in this manner shall
be proved as any other fact in the case.
Effective Jan. 1, 2022.
(Amends C.Cr.P. Arts.230.1(B), 292, 293, 294(D), 701(B), (C), and (D)(1)(intro. para.) and
(3), and 732; Adds C.Cr.P. Art. 734(D))
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Summary of Amendments Adopted by House
The Committee Amendments Proposed by House Committee on Administration of
Criminal Justice to the original bill:
1. Make technical changes to citations.
2. With regard to the appearance for purpose of appointing counsel, change the
condition for which the court is required to assign counsel from being based on
whether the defendant has the right to being based on whether the defendant is
determined to be indigent.
3. Add that the preliminary examination shall be conducted no later than two
weeks, exclusive of weekends and holidays, from when the preliminary
examination is ordered, unless the defendant waives such timeline or just cause
for delay.
4. Provides an exception to releasing the defendant when just cause for failure to
institute prosecution is shown after contradictory hearing with the district
attorney.
5. Add an effective date of Jan. 1, 2022.
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