
    STATE of Louisiana, Plaintiff-Appellant, v. Johnnie R. HILL, Defendant-Appellee.
    No. 7433.
    Court of Appeal of Louisiana, Third Circuit.
    April 9, 1980.
    
      Leonard Knapp and Wayne Prey, Lake Charles, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellant.
    Frank T. Salter, Jr. and Stephen' R. Streete, Lake Charles, for defendant-appel-lee.
    Before CULPEPPER, DOMENGEAUX, and FORET, JJ.
   DOMENGEAUX, Judge.

The State of Louisiana filed a rule to show cause in order to have the defendant-appellee, Johnnie R. Hill, declared an habitual offender under the provisions of La.R.S. 32:1471 et seq. The trial court granted the defendant’s motion for a directed verdict and the state brings this appeal. We affirm.

The facts reveal that on February 26, 1979, the State of Louisiana, through the District Attorney’s office for the Fourteenth Judicial District, Parish of Calcasieu, filed a petition to have Johnnie R. Hill declared an habitual offender as defined by La.R.S. 32:1472.

At the hearing, the State declared that it was ready to proceed with the trial. Counsel for defendant waived the presence of the defendant at the hearing. When the State sought to call the defendant to testify they became aware that the defendant was not present in court. The State moved for a continuance on the basis that the testimony of the defendant was crucial to their case. Defense counsel timely objected to the continuance and the motion was withdrawn by the State.

The State then asked for the issuance of an instanter subpoena for the defendant. A Deputy Sheriff attempted to serve the subpoena on the defendant at the defendant’s home but was informed that the defendant was not home.

The State then attempted to dismiss its petition, but was advised by the court that the dismissal would .be with prejudice.

The State then offered, into evidence, a certified copy of what purported to be the defendant’s driving record, and rested its case.

The defendant then moved for a directed verdict. The trial court held that the State failed to satisfy its burden of proof. In granting the defendant’s motion the trial judge stated:

“At this time, the Court will grant the defendant’s motion for directed verdict. I don’t think there has been a showing . not a scintilla of evidence in the record that the defendant named in this rule and the defendant at the bar is one and the same person as the person shown on the certified copy of the abstract of the driving record that has been received in evidence. This is a civil proceeding which requires proof merely by a preponderance of the evidence; but, I find no evidence whatsoever that the person who is the defendant in this proceeding is the same person who is named and shown in the certified copy of the abstract of the driving record.”

The State argues on appeal that the trial court erred in its finding of a lack of proof of identity sufficient to adjudicate the defendant an habitual offender. Relying on State v. Wilson, 354 So.2d 1077 (La.App. 2nd Cir. 1978), the State urges that in the absence of a showing by the defendant charged with being an habitual offender, under the motor vehicle law, that he is not the same person named in the abstract of a conviction record, the court is empowered to find the person of the same name as in the abstract to be the habitual offender.,

While the State’s interpretation of State v. Wilson, supra, may be proper in some circumstances, the facts of our present case are clearly distinguishable. In that case, our Supreme Court found that due process was met when the trial court adjudicated as an habitual offender, a person of the same address as the last address of the person shown in the abstract of convictions.

In our case, the address where the defendant, Johnnie R. Hill, was served did not match the addresses shown on the abstract of convictions. One Johnnie R. Hill was apparently convicted of operating a vehicle while his driver’s license was under suspension on January 18, 1976. This Johnnie R. Hill resided at 1406 Acadian Drive, Apartment 10, in Houma, Louisiana. The next ticket in chronological order was issued on February 10, 1976, to one Johnnie R. Hill who resided at Route 1, Box 1013A, Lake Charles, Louisiana, for driving while his driving privileges were suspended. These two tickets were issued less than one month apart, yet the addresses of the person receiving the ticket are different. The third ticket was issued on November 9, 1978, to Johnnie R. Hill who resided at Route 1, Box 1013A, Lake Charles, Louisiana, for driving while intoxicated. The instanter subpoena was issued to Johnnie R. Hill who resided at 409 Mackey Street, Lake Charles, Louisiana. This was the third address presented to the court for a person named Johnnie R. Hill.

Proceedings under the habitual offender statutes are civil rather than criminal. State v. Williams, 332 So.2d 432 (La.1976). In all civil matters, the burden of proof is upon the plaintiff to prove his case by a preponderance of the evidence. Meyer v. State of Louisiana, 312 So.2d 289 (La.1975); Thibodeaux v. St. Joseph Hospital, 276 So.2d 703 (La.App. 1st Cir. 1973).

By the use of a subpoena, the appellant could have insured that the defendant was the same person as the one shown in the abstract. The State failed to do so and accordingly was unable to bear its burden of proof. We agree with the trial judge that the evidence was insufficient to prove that the defendant in the trial proceedings is the same person named and shown in the certified copy of the abstract of the driving record.

The State sought a new trial which was denied by the district court. In that regard, the trial judge stated:

.In effect, the State is asking for a second opportunity to prove its case. The Court does not believe that the State has shown the existence of either of the peremptory grounds under Article 1972 of the Louisiana Code of Civil Procedure for the granting of a new trial nor has the State shown a good ground for granting a new trial in the discretion of the Court under Article 1973 of the Louisiana Code of Civil Procedure. Accordingly, the motion for a new trial will be denied.

We find no error in the denial of a new trial.

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal, not excluded by law, are taxed to the plaintiff-appellant.

AFFIRMED.

CULPEPPER, J., dissents and assigns written reasons.

CULPEPPER, Judge,

dissenting.

I dissent from the majority opinion for several reasons. First, I agree with State v. Wilson, 354 So.2d 1077 (2d Cir. 1978), construing the Motor Vehicle Habitual Offender Law, R.S. 32:1471-1481. The Court of Appeal, Second Circuit held:

“The law was enacted to provide an expedient procedure at minimum expense and trouble whereby the State would deter habitual offenders from using its highways. Section 1471. Where the defendant who is served with the petition contends that, although of the same name as the person contained in the abstract, he is not the same person who was convicted of any offense shown in the abstract, section 1476 provides alternative methods for the court to determine the issue.1 These methods certainly should not be held exclusive and we hold this section applies to the situation where the defendant contends he is not the same person named in the abstract. In the absence of such a showing or contention by the defendant, the court is empowered to find a person of the same name as in the abstract, who is served as the law requires, to be an habitual offender as was done here. Due process, however minimal, was met. We note that the last address of the person shown in the abstract (Warren Drive, West Monroe) was the same address at which defendant was served by domiciliary service.” (Footnote omitted)

The majority distinguishes State v. Wilson on the basis that there the last address of the person shown in the abstract was the same address at which defendant was served in the habitual offender proceedings, whereas in the present case the addresses shown in the abstract are different from that at which the defendant Hill was served. I think it is apparent from a reading of the above quoted portion of the opinion in State v. Wilson, that the notation that the addresses were the same is not an essential part of the decision. The holding of the court is that where the defendant is properly served and appears on the day of the hearing and an abstract of the prior convictions, as provided by R.S. 32:1473, is filed by the State, the burden is on the defendant to contend and prove that he is not the same person named in the abstract. This appears to be the clear meaning of the provision of R.S. 32:1473 which states: “Such abstract shall be competent evidence that the person named therein was duly convicted by the court wherein such conviction or holding was made by each offense shown by such abstract.”

I am aware of jurisprudence holding that under the Habitual Offender Law (for felony convictions), R.S. 15:529.1, et seq., the State has the burden of proving the identity of the .accused when he denies the allegations of the information or refuses to answer or remains silent. State v. Curtis, 338 So.2d 662 (La.1976). However, that jurisprudence construes a statute which applies to criminal proceedings and contains different provisions from those of the statute involved here. I find no case from our Supreme Court or our Courts of Appeal in conflict with the holding by the Court of Appeal, Second Circuit in State v. Wilson, supra.

Furthermore, even assuming that the abstract did not establish a prima facie case that the defendant was the same person as the one previously convicted, the circumstances of this case show that the defendant waived additional proof of identity. As the majority opinion states, at the beginning of the hearing, counsel for defendant waived the presence of his client. When the State sought to call the defendant under cross-examination, the district attorney became aware for the first time that defendant was not in the courtroom. The State moved for a continuance, which was denied. Then the State asked for an instanter subpoena for the defendant, which was granted. The deputy sheriff who attempted to serve the subpoena testified, at the hearing on application for a rehearing, that when he tried to serve defendant at his home, defendant’s wife told the deputy that defendant’s attorney had advised defendant to leáve the courtroom before the hearing and to go to another building. It is obvious that these circumstances show a deliberate scheme to thwart the proceedings. The court should not allow such a scheme to accomplish a miscarriage of justice in a civil proceedings.

In the ease of State v. Skyeagle, 345 So.2d 189 (3rd Cir. 1977), writs refused by our Supreme Court, the defendant appealed contending the State had not sufficiently identified him as being the same person as in the prior conviction. We noted the record showed that during the proceedings a stipulation was entered for defendant’s benefit that in the two prior convictions he was not represented by counsel. Under the circumstances, we held the stipulation amounted to an admission that the defendant was the same person as named in the prior convictions. The same rationale is applicable here.

Finally, I think the trial judge erred in not granting to the State either a continuance or a new trial. Under the circumstances set out above, which show a deliberate scheme to deceive the district attorney and the court, I think the trial judge abused his discretion in allowing such a deception to succeed.

For the reasons assigned, I respectfully dissent.  