State of Louisiana Versus Michael P. Hidalgo

STATE OF LOUISIANA NO. 19-KA-612
VERSUS
MICHAEL P. HIDALGO FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-1539, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

January 22, 2020

ROBERT A. CHAISSON
JUDGE

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Robert A. Chaisson

APPEAL DISMISSED
RAC
SMC
MEJ

CHAISSON, J.

Defendant, Michael Hidalgo, appeals his conviction for first offense

domestic abuse battery, in violation of La. R.S. 14:35.3. For the reasons that

follow, we dismiss defendant’s appeal for lack of jurisdiction.

Appellate jurisdiction extends only to cases that are triable by a jury. La.

Const. Art. 5, § 10; La. C.Cr.P. art. 912.1. To be eligible for trial by jury in a

misdemeanor case, an accused must be faced with imprisonment for more than six

months and/or a fine of more than one thousand dollars. La. C.Cr.P. art. 779; State

v. Hunter, 15-69 (La. App. 5 Cir. 2/11/15), 168 So.3d 773, 774.

In the present case, after a bench trial on March 18, 2019, the trial judge

found defendant guilty of first offense domestic abuse battery. The penalty

provision for that offense is contained in La. R.S. 14:35.3(C), which provides, in

pertinent part, as follows:

On a first conviction, notwithstanding any other provision of
law to the contrary, the offender shall be fined not less than three
hundred dollars nor more than one thousand dollars and shall be
imprisoned for not less than thirty days nor more than six months. At
least forty-eight hours of the sentence imposed shall be served without
benefit of parole, probation, or suspension of sentence.

Since defendant’s offense is a misdemeanor offense not eligible for trial by

jury1, his conviction in not an appealable judgment. Under La. C.Cr.P. art.

912.1(C)(1), an application for a writ of review is the proper mechanism for

seeking judicial review of a conviction on an offense not triable by a jury. See

State v. Cotton, 14-419 (La. App. 5 Cir. 6/24/14), 145 So.3d 533, 536.

Accordingly, we dismiss the present appeal. We reserve, however,

defendant’s right to file a proper application of supervisory writs, in compliance

with U.R.C.A. Rule 4-1 et seq., within thirty days from the date of this opinion.

1
It is noted that defendant was sentenced to three and one-half months in the Jefferson Parish
Correctional Center, with the first forty-eight hours to be served without benefit of parole, probation, or
suspension of sentence. Defendant was also ordered to pay a fine of five hundred dollars.

19-KA-612 1

Further, we hereby construe defendant’s motion for appeal as a notice of intent to

seek a supervisory writ, so defendant is not required to file a notice of intent nor

obtain an order setting a return date pursuant to U.R.C.A. Rule 4-3.

APPEAL DISMISSED

19-KA-612 2

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JANUARY 22, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KA-612
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
THOMAS J. BUTLER (APPELLEE)

MAILED
RICHARD H. BARKER, IV (APPELLANT)
ATTORNEY AT LAW
228 ST. CHARLES AVENUE
SUITE 501
NEW ORLEANS, LA 70130