#### STATE of Louisiana v. Valerie MANCHESTER.

No. 86-KK-1396.

Supreme Court of Louisiana.

Jan. 12, 1987.

Dissenting Opinion Jan. 14, 1987.

Rehearing Denied Feb. 12, 1987.

*402Calvin Johnson, Evangeline G. Abriel, Terrille Boykin, Supervising Attys., Loyola Law School Clinic, for applicant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Michael McMahon, Gerry Deegan, Asst. Dist. Attys., for respondent.

WATSON, Justice.

Defendant’s writ application1 was granted to consider whether LSA-C.Cr.P. art. 583,2 enacted after *State v.*Montgomery,3 mandates a second trial within one year from a fugitive’s arrest when there has been an escape from jail prior to a new trial being ordered.

FACTS

The murder was committed on February 24, 1975, and Manchester was indicted for first degree murder on March 6, 1975. Tri*403al commenced on September 18, 1975, less than a year after the indictment.

After being indicted and prosecuted for first degree murder with a co-defendant, Clifford McGraw, Valerie Manchester was convicted of second degree murder.4 On November 5, 1976, while her appeal was pending, Manchester escaped from the Louisiana penitentiary at St. Gabriel. Her conviction and sentence were subsequently reversed for trial error and the matter remanded for a new trial on January 29, 1979.5

Defendant remained at large until January 10, 1985.6 Her new trial was fixed for February 10, 1986, and then rescheduled for March 26, 1986. In the interim, on February 21, 1986, her attorney filed a motion to quash the proceedings on the ground that the one year limitation in LSA-C.Cr.P. art. 583 barred her retrial. The trial court denied the motion and the court of appeal refused to review the trial court’s action on the basis of *State v. Montgomery.*

LAW AND CONCLUSION

*State v. Montgomery*held that an escape interrupted the limitation period for prosecution of an offense and started a new period of limitation. See *State v. Howard,*325 So.2d 812 (La., 1976). *Montgomery*relied on the language in LSA-C.Cr.P. art. 582 which provides for a second trial within one year or within the period established by Article 578,7 whichever is longer. Subsequent to that decision, LSA-C.Cr.P. art. 583 mandated a new trial within one year after an inability to prosecute, as defined in LSA-C.Cr.P. art. 579, terminates.

LSA-C.Cr.P. art. 579, subd. A(l) refers to a defendant who intends to avoid “detection, apprehension, or prosecution;” that is, one who is avoiding arrest and prosecution. Section (2) applies to a defendant who is insane or beyond the court’s jurisdiction. Section (3) relates to a defendant who fails to appear at a proceeding, after actual notice. There is no evidence here of notice to Manchester. Manchester escaped from prison after conviction, while serving a presumptively valid sentence. Her situation cannot be equated with that of a defendant fleeing prosecution. As an escaped convict, she was not attempting to avoid prosecution within the meaning of Article 579. Since the interruption was not caused by Manchester’s insanity or absence from the jurisdiction and she was not attempting to avoid detection, apprehension, or prosecution, LSA-C.Cr.P. art. 583 does not apply. Manchester’s absence comes under Article 579, subd. A(2): the interruption occurred because her presence for trial could not be obtained.8

The capture of Manchester and her return to the jurisdiction, where a new trial was ordered after her escape, amounted to a re-institution of prosecution. Under *404these circumstances, this second prosecution must be within the general rules established in LSA-C.Cr.P. arts. 582 and 578, which allow two years.

For the foregoing reasons, the judgment of the trial court refusing to quash the prosecution is affirmed and the matter is remanded for further proceedings.

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

DENNIS, J., concurs for the reasons assigned by LEMMON, J.

CALOGERO, J., dissents and assigns reasons.

1

. *State v. Manchester,*493 So.2d 1208 (La., 1986).

2

. LSA-C.Cr.P. art. 583 provides:

> "The period of limitation established by Article 582 shall be interrupted by any of the causes stated in Article 579. Where such interruption occurs, the state must commence the new trial within one year from the date the cause of interruption no longer exists.”

LSA-C.Cr.P. art. 582 states:

> "When a defendant obtains a new trial or there is a mistrial, the state must commence the second trial within one year from the date the new trial is granted, or the mistrial is ordered, or within the period established by Article 578, whichever is longer.”

LSA-C.Cr.P. art. 579 says:

> "A. The period of limitation established by Article 578 shall be interrupted if:

> "(1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or

> "(2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or

> "(3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.

> “B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists."

3

. 257 La. 461, 242 So.2d 818 (1970).

4

. Manchester’s conviction of second degree murder operates as an implied acquittal on the charge of first degree murder, *Hudson v. Louisiana,*450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981); *Burks v. United States,*437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); and, *United States v. Ball,*163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), but, of course, does not bar her retrial for second degree murder. *North Carolina v. Pearce,*395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

5

. *State v. McGraw,*366 So.2d 1278 (La., 1979).

6

. The parties agree on this date, although it does not appear in the record.

7

. LSA-C.Cr.P. art. 578 provides:

> "Except as otherwise provided in this Chapter, no trial shall be commenced:

> "(1) In capital cases after three years from the date of institution of the prosecution;

> "(2) In other felony cases after two years from the date of institution of the prosecution; and

> “(3) In misdemeanor cases after one year from the date of institution of the prosecution.”

> “The offense charged shall determine the applicable limitation.”

8

. Under federal law, an escaped prisoner is a fugitive from justice, and statutes of limitation are tolled while an escapee remains at large. 18 U.S.C.S. § 751(a); 18 U.S.C.S. § 3290; *United States v. Bailey,*444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980).

LEMMON, Justice,

concurring.

The purpose of the enactment of La.C. Cr.P. Art. 583 was to insure that the state had an adequate amount of time to commence prosecution if an “interruption should occur *during*the prescriptive period established by Article 582”. (emphasis added). See Reporter’s Notes, Louisiana State Law Institute Advisory Committee meeting, November, 1971. Therefore, Article 583 may reasonably be limited to those cases in which the interruption occurs *after*the new trial has been obtained by the defendant. In the present case, the purpose of Article 583 would not be served by interpreting the article in favor of a defendant who created the confusion responsible for the delay by escaping from prison while her conviction is on appeal and *before*a new trial was obtained.1

Prescriptive criminal statutes should be strictly construed in favor of the state. There was no unreasonable delay here. Defendant was tried within six months of her indictment. Her escape shortly after her conviction created a state of confusion at a time when prescription was not running (because the conviction had not yet been reversed). Because the interruption did not occur *during*Article 582’s prescriptive period, Article 583 is inapplicable, and the period for which prescription began to run anew when the interruption ceased should be fixed by reference to Article 579, subd. B at two years.

1

. This Court certainly would not have ruled on defendant’s appeal if informed that she was at large. Further, the district attorney represents that the new trial was set as soon as his office learned that she had been recaptured, the cause of the delay being that she was returned upon recapture to the state penitentiary (not the local parish prison) from which she escaped.

CALOGERO, Justice,

dissenting.

The materials from the Louisiana Law Institute, sponsors of La.C.Cr.P. art. 583, make clear that one purpose of the article was to cure a hiatus created by our previous decision in *State v. Montgomery,*257 La. 461, 242 So.2d 818 (1970), when an escape has occurred after the time limits in La.C.Cr.P. art. 578 have run. *See,*Reporter’s Notes, Louisiana State Law Institute Advisory Committee meeting, November, 1971. The Law Institute materials also indicate that another purpose of Art. 583 was to change the “harsh” result in *Montgomery,*which held that an interruption of the time limitation for instituting prosecution after a new trial has been ordered starts a new general three-year prescription under Art. 578 running, if the interruption has occurred within that prescriptive period. As set forth in the Reporter’s Notes for November, 1971, p. 10, the Law Institute’s solution to both problems was to provide that "... interruption of the special time limitation where a new trial is granted *always*results in the beginning of a new owe-year period for bringing the defendant to trial.” [emphasis in the original].

Art. 583 therefore reflects the determination of the Law Institute and the legislature that one year is adequate time for commencement of the new trial, regardless of the nature of the charge. It is a settled rule of statutory construction that *"...*where two statutes deal with the same subject matter, they should be harmonized if possible, but ... if there is a conflict the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.” *State ex rel. Bickman v. Dees,*367 So.2d 283, 291 *405-409(La.1978). Once the defendant has been tried and convicted, the time limits in Art. 578 have served their purpose. If the defendant then escapes from custody, the state clearly may not retry him on the original charge *until*he has obtained an order granting him a new trial.1 In that case, Arts. 582 and 583 give the state one year, or one year from the date any cause of interruption under Art. 579 ceases to exist, in which to retry the defendant, and one year only.

For purposes of Arts. 582 and 583, there is no rational reason to distinguish between those defendants who escape after conviction but before a new trial has been granted, and those defendants who have escaped after a new trial has been ordered. The majority opinion continues to follow the rationale of *State v. Montgomery, supra,*despite the plain wording of Art. 583, and despite the clearly expressed intent of its sponsors. I therefore respectfully dissent.

1

. The concurring opinion in this case declares that "[t]his Court certainly would not have ruled on defendant’s appeal if informed that she was at large." Just the contrary would seem to be the case. In *State*v. *Falcone,*383 So.2d 1243 (La.1980), we noted that the new Code of Criminal Procedure, effective January 1, 1967, contained no provision comparable to former R.S. 15:548, which did provide for the dismissal of an appeal in the event the defendant flees from justice. In fact, the Reporter's Comment to La. C.Cr.P. art. 919 observes that the former provision was omitted from the Code 'because it [was] unfair to the defendant.” In *Falcone,*we therefore rejected the state’s suggestion to dismiss the appeal on grounds that the defendants had "skipped bail,” and considered the appeal on the merits. *Falcone*also noted that the Court had reached the same conclusion in *State v. Lampkin,*253 La. 337, 218 So.2d 289 (1969), two years after adoption of the new Code of Criminal Procedure. If this issue had been raised in defendant’s appeal, *State v. McGraw and Manchester,*366 So.2d 1278 (La.1979), we would likely have decided it the same way.