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S. Christie Smith IV

S. Smith’s Answers

6 total

  • I had a 10,000 wedding set stolen from me, the person was charged and jailed. Will they be required to repay me?

    the person was charged with two felony counts, because they also stole from my daughter.

    S.’s Answer

    If someone is convicted of a crime related to the taking of your property (and the property is not ultimately returned to you in the process), then it is possible that the sentencing judge will require some amount of restitution to be paid back to you by the defendant. This is largely dependent on the manner in which the judge structures the defendant’s sentence, and whether she suspends any part of the execution of the sentence and places the defendant on some type of probation during which, as a condition of release, the defendant is ordered to make repayment.

    There is a process in which the prosecutor may have a special restitution hearing in which the court will be asked to order some type of repayment. The district attorney’s office in your parish will have on staff someone called a “victim’s rights coordinator” whose job it is to assist you with this type of inquiry and to notify you of important court dates relating to this case. You should contact your district attorney’s office and ask to discuss this matter with the victim’s rights coordinator, so that your wishes are documented, and they can liaise with you during the process. The coordinator will also be in the best position to discuss with you the practicalities of your situation and what is reasonable to expect.

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  • Is there a time limit for holding someone in jail while waiting for a court date?

    Some court dates get pushed back. How is it okay to keep people in jail for years waiting for the court?

    S.’s Answer

    Essentially everyone held in jail is entitled to have a reasonable bail set, and by posting that amount, the accused person is permitted to be released from jail, pending his trial. If the accused person is unable to post bail, then he will usually remain in jail until his trial. Additionally, even if he can post bail, there may be a detainer (“release hold”) placed on him if he is on parole or probation for prior charges, or has charges pending against him in a foreign jurisdiction. If that is the case, he will need the assistance of an attorney to resolve those issues in some fashion before he is released.

    Trial “delays” are generally controlled by Louisiana Code of Criminal Procedure Article 701. If the accused has been arrested and remains in jail (for whatever reason), then the state must initiate prosecution within 45 to 120 days of his arrest, depending on the severity of the charge. The prosecution is initiated by the district attorney’s filing a bill of information or indictment.

    The district attorney must then set an arraignment within 30 days thereafter, unless he can show “just cause” to the court why the delay should be longer. “Just cause” is generally described as circumstances beyond the control of the prosecution or the court.

    Once the defendant’s lawyer can certify to the court that she and her client are prepared for trial, they may file what is often called a “speedy trial motion,” asking the court to require the trial to commence within 120 days (150 days, if the defendant is not in jail, and 30 to 60 days, if it is just a misdemeanor).

    If the court grants the speedy trial motion, and the case is not tried within the 120-day delay, then the defendant may ask the court to release him from jail, without bail, pending trial. The court will be obligated to do so, unless the prosecution can show, at a hearing, “just cause” for the delay.

    These delay limitations do not apply unless the defendant has asked for a “speedy trial,” and there may be any number of tactical or strategic reasons why a defendant would choose not to do so. These are practical questions that the defendant should discuss with his attorney.

    The bottom line is that the defendant has a Constitutional right not to be held for an unreasonable period of time, but what is reasonable or unreasonable is a function of the individual circumstances of the case and takes into consideration the factors discussed above.

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  • Is it illegal to video &/or audio record in Louisiana if person said MANY times u did NOT have my permission

    During visitation with my child, a person started yelling at my husband & me. After my husband left to call his/her boss, this person started video & audio recording me with cellphone. I said right away "U do NOT have my permission" & MANY times a...

    S.’s Answer

    Generally speaking, Louisiana has a "single-party consent" rule for recordings, meaning that only one person—usually the one recording—needs to consent for the recording not to be “illegal”, as long as it is made in a place where the recorder had a right to be and the recordee had no “reasonable expectation of privacy” there. Public places are usually fair game for non-commercial recording. But the issue for you may not be whether the action is “legal” or “illegal”, both of which terms really only have meaning in the criminal context. In your case, the better inquiry might be whether the record is admissible as evidence in a civil custody matter. That is a highly technical evidentiary question that only a lawyer could answer once she knew the facts surrounding the recording and the context in which it was sought to be used in court.

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  • Can a LA, Parish Judge, enter a nolle prosequi without motion by the state or is he breeching the seperation of powers doctrine.

    Misdomeanor charge

    S.’s Answer

    "Nolle Prosequi" is an archaic phrase that essentially means to dismiss or abandon a prosecution after it has begun. Whom to prosecute, when to do so, and for what charge are the exclusive province of the prosecuting attorney. Only she can choose to abandon a prosecution, and the nolle prosequi is her choice to make. From a practical perspective, though, a judge can obtain the same result by acquitting the accused, refusing to allow certain evidence (making a conviction impossible) or exercising her control over the procedural aspects of trial to prevent the prosecution from bringing a successful case. In limited circumstances, for defects in the proceedings, the court can order a dismissal or “quash” the indictment. This is not formally nolle prosequi, though for practical purposes it makes little substantive difference—the prosecution is halted, at least temporarily, and the prosecution must “start over” if they wish to do so.
    In practice, especially in traffic/misdemeanor courts, judges might signify their lack of faith in the state’s case after hearing a recitation of what the “facts” likely to be proven at trial would be and thereafter enter a dismissal, though doing so requires the state’s at least tacit (silent) consent. Such a dismissal does not normally bar the state from reinitiating the prosecution. In its purest sense, absent approval of the prosecutor, a so-called nolle prosequi initiated by the court would be a violation of the Separation of Powers Doctrine, but a dismissal by the court may not necessarily be a violation of that doctrine, depending on the circumstances.

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  • When was the last revision of the dwi law in louisiana?

    Also if I was arrested for dwi before that date would I be tried by the laws and penalties of that date or by present day laws and penalties?

    S.’s Answer

    The Louisiana DWI statute (LSA-R.S. 14:98) is a popular subject for legislative revision. It has been amended more than a dozen times in the past ten years, most recently in 2008. The 2008 revisions were extensive and dealt largely with enhancing the penalties and restricting the discretion of the courts in the manner in which sentences are imposed. Both the Louisiana and United States Constitutions prohibit “ex post facto” (after the fact) application of “substantive” changes to the law, meaning that, generally, the law as it existed at the time of the alleged offense is the law used to prosecute and punish the accused. There is robust debate about what constitutes a “substantive” change in the law, however, and you should consult an attorney of your choosing to discuss what rules to which you are subject. DWI, while common, is still a very serious offense and can have many far-reaching effects beyond the immediate sanctions of loss of driving privileges and the “standard” fines and costs associated with the offense.

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  • Canyou plead 894 for shop lifting

    can i plead artical 894 for shoplifting first offence

    S.’s Answer

    Though often referred to in legal short-hand as “pleading under 894,” Louisiana Code of Criminal Procedure article 894 is not technically a “plea”, but rather a sentencing provision. It assumes that the defendant pleaded “guilty” or was convicted after a bench trial. It allows a judge, under certain circumstances, to, among other things, “defer” sentencing and, instead, place the offender on probation with a host of special conditions that must be fulfilled. If the offender complies with those terms, he is eligible to have his conviction “set aside” and the prosecution dismissed as an acquittal.
    Sentencing under this provision is entirely discretionary for the trial judge. She can do so or not, as she sees fit, and the courts’ willingness to use this provision varies from jurisdiction to jurisdiction. Not all crimes are eligible for this treatment. Not all judges will agree to use it, even if the crime is elligible for such treatment.
    Oftentimes, as an inducement for the defendant to plead “guilty” without the state incurring the time and expense of trial, a prosecutor will agree, as part of a “plea bargain”, to recommend that the court defer sentence under the provisions of article 894(B)(1), which, upon completion of probation, would allow the defendant to file an affidavit with the clerk of court stating that he had refrained from further criminal conduct, and the conviction should be set aside and recorded as an acquittal.
    Shoplifting is one type of crime in which sentences are commonly deferred under article 894. You should consult, or even retain, an attorney of your choice to assist you with requesting this treatment. If you cannot afford an attorney or, after careful consideration, believe it is in your best interest to proceed without an attorney, then one of your options might be to meet with the prosecutor before trial and ask her to recommend the 894 deferral in exchange for your pleading “guilty”.
    If you enter into such an agreement, you still must fulfill your end of the bargain—pay the fines and costs, avoid other criminal acts, have no further arrests during the probation, complete the community service, etc, and then you still must submit your affidavit of compliance to the clerk, else the conviction will remain on your record. Even having done all of that, the 894(B)(1) treatment is not an “expungement” of your record, meaning there will still be a record of your arrest, and the conviction, though “set aside”, can still be used against you in the future in some limited circumstances. If the complete absence of a criminal record is your objective, you will need much more technical assistance, and you should consult an attorney, clearly outlining what it is that you are trying to achieve (and why).

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