
    STATE of Louisiana v. John H. CARTER.
    No. 81-K-3237.
    Supreme Court of Louisiana.
    Dec. 22, 1981.
   Re: John H. Carter, applying for writs of Certiorari, Prohibition, and Mandamus and a Stay Order, Parish of Vernon, Number 35,776 and 35,777.

Granted. Defendant is ordered released from jail pending trial. C.Cr.P. 701.

DIXON, C. J.,

concurs. The question is not whether relator’s present incarceration is “illegal” (as under the habeas corpus statute) but whether the obvious intent of the legislature is to be enforced — that is, if no bill is filed within 45 days of arrest, the accused is to be released. Civil damages have nothing to do with this matter.

MARCUS, J., dissents from the order.

LEMMON, J.,

dissents. Defendant’s custody since the December 8, 1981 filing of the bill of information is not illegal. Whether defendant was illegally held in custody between October 27, 1981 (45 days after his arrest) and December 8, 1981 is a matter involving the right to civil damages. Further, the preliminary examination held on October 27, 1981 on the same charges constituted just cause for excusing untimely filing of the bill of information.  