State of Louisiana v. Charles Joseph King

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

KA05-1543

STATE OF LOUISIANA

VERSUS

CHARLES KING
************

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT,
PARISH OF IBERIA, NO. 02-1725

HONORABLE EDWARD M. LEONARD, DISTRICT JUDGE

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BILLY H. EZELL
JUDGE

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Court composed of Billy H. Ezell, J. David Painter, and Glenn B. Gremillion, Judges.

APPEAL DISMISSED AND REMANDED WITH INSTRUCTIONS.

Peggy Sullivan
Louisiana Appellate Project
P.O. Box 2775
Monroe, LA 71210-2775
Telephone: (318) 387-6124
COUNSEL FOR:
Defendant/Appellant -Charles King

Robert Vines
Assistant District Attorney
300 Iberia St., Suite 200
New Iberia, LA 70560
Telephone: (337) 369-4420
COUNSEL FOR:
Plaintiff/Appellee-State of Louisiana

Ezell, Judge.

On December 14, 2005, this court issued a rule to show cause why the appeal

in the above-captioned case should not be dismissed due to its untimely perfection.

In response, Defendant, Charles King, filed a brief with this court arguing that this

court should consider the trial court’s order of appeal as an order granting an out-of-

time appeal. In the alternative, Defendant requested this court to remand the matter

so that Defendant may amend his motion for appeal for compliance with the law

relating to post-conviction relief applications. We hereby order that Defendant’s

motion for appeal be treated as an application for post-conviction relief and remand

the case to the trial court for further proceedings.

On July 18, 2005, the Defendant pled guilty to second degree kidnapping and

aggravated second degree battery. On the same date, in accordance with a plea

agreement, the Defendant was sentenced to serve fifteen years at hard labor on each

count with the sentences to run concurrently. As a part of the plea agreement, the

District Attorney also agreed not to file habitual offender proceedings against the

Defendant.

The record reflects that no motion for reconsideration of sentence was filed on

behalf of the Defendant. On August 26, 2005, the Defendant filed a pro se motion

for appeal. On September 19, 2005, the trial court signed an order appointing the

Louisiana Appellate Project to represent the Defendant on appeal.

Under La.Code Crim.P. art. 914, a motion for appeal must be made no later

than thirty days after either the rendition of the judgment from which the appeal is

taken or the ruling on a motion to reconsider sentence filed pursuant to La.Code

Crim.P. art. 881.1. As the record reflects that no motion for reconsideration of

sentence was filed, the Defendant had to file his motion for appeal within thirty days

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of July 18, 2005, the date on which he was sentenced. The Defendant’s motion for

appeal was filed more than thirty days after the date on which he was sentenced.

Because Defendant failed to file his motion for appeal within the time provided by

La.Code Crim.P. art. 914, his conviction and sentence became final. Once

Defendant’s conviction and sentence became final, he could no longer obtain an

appeal by simply filing a motion for appeal. State v. Labiche, 96-433 (La.App. 3 Cir.

7/31/96), 680 So.2d 77. Thus, Defendant must first obtain reinstatement of his right

to appeal by way of a properly filed application for post-conviction relief. Id.; State

v. Dixon, 00-516 (La.App. 3 Cir. 6/7/00), 768 So.2d 99; State v. Counterman, 475

So.2d 336 (La.1985).

In Dixon, this court stated:

State v. Counterman, 475 So.2d 336 (La.1985) sets forth the
procedure which should be followed to obtain the right to file an
out-of-time appeal. In Counterman, the defendant was sentenced on
February 10, 1983. No appeal was filed within the time period set forth
in Article 914. On April 10, 1984, the defendant filed a motion for an
out-of-time appeal. The trial court granted the motion without a hearing
and without affording the district attorney an opportunity to respond to
the motion. The First Circuit Court of Appeal dismissed the appeal “on
the basis that the trial court was without authority or jurisdiction to grant
an out-of-time appeal on an ex parte motion.” Id. at 338. The defendant
filed a motion for out-of-time appeal with the court of appeal, which was
denied. The defendant then filed a motion for out-of-time appeal with
the supreme court. The supreme court held that the defendant lost his
right to obtain an appeal by simply filing a motion for an appeal after the
time delays had run--not because the trial court was divested of
jurisdiction but “because the conviction and sentence became final when
the defendant failed to appeal timely.” Id. (footnote omitted). The
supreme court held that the proper procedure for obtaining an
out-of-time appeal is by filing an application for post conviction relief
pursuant to La.Code Crim.P. arts. 924-930.7. [footnote omitted.] In so
ruling, the supreme court found several advantages to following this
procedure. Primarily, the district attorney would be allowed an
opportunity to oppose a request, and the defendant would be afforded an
evidentiary hearing to prove his allegations.

An out-of-time appeal is appropriately granted when the trial
court has determined it is warranted “after due consideration of such
factors as the length of the delay in defendant’s attempt to exercise the

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right and the adverse effect upon the state caused by the delay.” Id. at
340. The supreme court ultimately concluded that the defendant's
motion for an out-of-time appeal filed in the trial court should have been
treated as an application for post conviction relief and remanded the
case to the trial court for consideration as such. Following Counterman,
we find that Defendant’s January 18, 2000 motion for appeal should
have been treated by the trial court as an application for post conviction
relief requesting an out-of-time appeal. We note that La.Code Crim.P.
art. 930.8 now provides that the time delays for filing an application for
post conviction relief are applicable to requests for out-of-time appeals,
unless an exception is made. Therefore, Defendant shall be permitted
an opportunity to amend his motion to comply with the requirements of
Articles 924-930.8. By doing so, the State will then be given an
opportunity to contest the granting of an appeal.

Dixon, 768 So.2d at 101-02.

Accordingly, Defendant’s appeal is hereby dismissed and this case is remanded

to the trial court for further proceedings. Defendant is to be permitted an opportunity

to amend his motion for appeal to comply with the requirements of La.Code Crim.P.

arts. 924-930.8, and the State is to be given an opportunity to contest the granting of

an out-of-time appeal.

APPEAL DISMISSED AND REMANDED WITH INSTRUCTIONS.

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