State of Louisiana v. Mark Anthony Delafosse

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA06-798

STATE OF LOUISIANA

VERSUS

MARK ANTHONY DELAFOSSE

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 3443-97
HONORABLE WILFORD D. CARTER

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Marc T. Amy, and Glenn B.
Gremillion, Judges.

APPEAL DISMISSED AND REMANDED WITH INSTRUCTIONS.

Hon. John Foster DeRosier
District Attorney
P.O. Box 3206
Lake Charles, LA 70602
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Thomas L. Lorenzi
Lorenzi, Sanchez & Palay
P.O. Box 3305
Lake Charles, LA 70602
(337) 436-8401
COUNSEL FOR APPELLANT:
Mark Anthony Delafosse

Thibodeaux, C.J.

On July 13, 2006, 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, defense counsel filed a brief with this court, admitting, under his obligation

of candor to the tribunal, that Defendant’s appeal was not timely perfected as far more

than thirty days have lapsed since the ruling on Defendant’s Motion to Reconsider

Sentence. Defense counsel further concedes that Defendant’s appeal is procedurally

barred and subject to dismissal in accordance with the provisions of La.Code Crim.P.

art. 914.

Defendant, Mark Anthony Delafossse, was originally charged with first degree

murder, in violation of La.R.S. 14:30. However on February 17, 1998, Defendant

pled guilty to manslaughter, in violation of La.R.S. 14:31, and armed robbery, in

violation of La.R.S. 14:64. On June 5, 1998, the trial court sentenced Defendant to

forty years at hard labor for the manslaughter conviction and forty years at hard labor

without benefit of probation, parole, and suspension of sentence for the armed

robbery conviction. The district court ordered the sentences to run consecutively to

each other but concurrently with another sentence Defendant was serving as a result

of a probation violation. Also, the trial court gave Defendant credit for time served.

Defendant filed a Motion to Reconsider Sentence on July 6, 1998, and the district

court denied the motion after conducting a hearing on October 26, 1998. Defendant

did not file a motion for appeal.

On November 2, 2000, Defendant filed an application seeking post-conviction

relief with the district court, and the trial court denied relief on Defendant’s

application. In 2003, Defendant submitted supplements to his application for post-

conviction relief. The district court granted relief on the supplemented application,

vacated Defendant’s guilty plea and sentence, and ordered Defendant to be tried for

first degree murder. As a result, the State sought supervisory review of the trial

court’s ruling. Finding that the “supplemental” applications for post-conviction relief

had been untimely filed, this court reversed the district court’s ruling and reinstated

Defendant’s original convictions and sentences. State v. Delafosse, an unpublished

opinion bearing docket number 04-763 (La.App. 3 Cir. 8/27/04), writ denied,

04-2392 (La. 2/4/05), 893 So.2d 84.

Defendant next filed a notice of his intent to appeal with the trial court on

February 16, 2006. In response, the district court granted “appealability” and gave

Defendant until April 19, 2006 to lodge his record with this court. Defendant then

lodged his appeal record with this court within the time set out by the appeal order.

Because Defendant attempted to file his appeal in proper person, this court remanded

the matter to the district court for an evidentiary hearing either to determine that

Defendant was entitled to counsel for his appeal or so Defendant could waive his

right to counsel once he was informed of the dangers and disadvantages of self-

representation. State v. Delafosse, an unpublished order bearing docket number 06-

559 (La.App. 3 Cir. 4/24/06).

As ordered, the trial court conducted the hearing and appointed Defendant

appellate counsel. Defendant then re-lodged his appeal with this court, and this court

ordered Defendant to show cause why his appeal should not be dismissed as being

untimely perfected. State v. Delafosse, an unpublished order bearing docket number

06-798 (La.App. 3 Cir. 7/13/06). As ordered, Defendant filed a brief with this court

on July 12, 2006.

“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

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Crim.P. art. 881.1.” State v. King, 05-1543 (La.App. 3 Cir. 3/8/06), 924 So.2d 1282.

Because Defendant filed his motion for appeal on February 16, 2006, which was well

beyond the time provided by La.Code Crim.P. art. 914, his conviction and sentence

had already become final prior to his motion for appeal. “When a defendant fails to

make a motion for appeal within the time provided in Article 914, he loses his right

to obtain an appeal by simply filing a motion for appeal in the trial court.” State v.

Labiche, 96-433 (La.App. 3 Cir. 7/31/96), 680 So.2d 77. In such a situation, a

defendant can appeal only after he properly files an application for post-conviction

relief seeking reinstatement of his right to appeal, and the trial court grants an out-of-

time appeal as post-conviction relief. King, 924 So.2d 1282 (citing Labiche, 680

So.2d 77; 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)).

Accordingly, Defendant’s appeal is hereby dismissed, and the 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. As Defendant’s time for seeking post-conviction relief has also

lapsed, Defendant’s application for post-conviction relief must both allege and prove

that his application fits within an exception to the two-year time limit set out in

La.Code Crim.P. art. 930.8. 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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