State of Louisiana v. Fred Lee Fairley, III

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA06-1349

STATE OF LOUISIANA

VERSUS

FRED LEE FAIRLEY, III

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 277,785
HONORABLE DONALD THADDEUS JOHNSON

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J. DAVID PAINTER
JUDGE

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Court composed of Oswald A. Decuir, Marc T. Amy, and J. David Painter, Judges.

APPEAL DISMISSED AND REMANDED W ITH
INSTRUCTIONS.

Hon. James C. Downs
District Attorney
701 Murray Street
Alexandria, LA 71301
(318) 473-6650
COUNSEL FOR APPELLEE:
State of Louisiana

G. Paul Marx
Attorney at Law
P.O. Box 82389
Lafayette, LA 70598-2389
(337) 237-2537
COUNSEL FOR APPELLANT:
Fred Lee Fairley, III

Painter, Judge.

On October 23, 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, Defendant, Fred Lee Fairley, III, filed a brief with this court arguing that

this court should not punish Defendant for counsel’s failure to timely appeal. He

argues the appeal should be treated as an application for post-conviction relief and that

judicial efficiency is not served by a dismissal of the appeal. 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.

After waiving trial by jury, the trial judge found Defendant guilty of armed

robbery, in violation of La.R.S. 14:64. The district court, on October 10, 2005,

sentenced Defendant to serve eighteen years with the Louisiana Department of

Corrections. Defendant filed a motion for appeal on August 17, 2006, which the

district court granted.

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. A motion to reconsider sentence was not filed. 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. 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).

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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 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 101-102.

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

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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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