State of Louisiana v. Michael J. Benjamin

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-229

STATE OF LOUISIANA

VERSUS

MICHAEL J. BENJAMIN

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 118530
HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Jimmie C. Peters, James T. Genovese, and Shannon J. Gremillion,
Judges.

APPEAL DISMISSED. DEFENDANT-APPELLANT
IS PERMITTED TO FILE AN APPLICATION FOR
SUPERVISORY WRITS WITHIN THIRTY DAYS
FROM THE DATE OF THIS DECISION.

Michael Harson
District Attorney - 15th JDC
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Michael J. Benjamin, #357543, Pro Se
River Correctional Center
26362 Hwy. 15
Ferriday, LA 71334

Gremillion, Judge.

On March 16, 2009, Defendant Michael Benjamin was sentenced to eight years

at hard labor as part of an agreement related to his plea of guilty to possession of

cocaine, a violation of La.R.S. 40:967. On the same date, he admitted to being a

second habitual offender pursuant to La.R.S. 15:529.1. At the same hearing, the trial

court vacated his original sentence and resentenced him to eight years at hard labor

without benefit of parole, probation, or suspension of sentence.

Apparently, no appeal was taken, but Defendant began filing pro se motions.

On September 7, 2010, Defendant filed a “Motion to Correct an Illegally/Excessive

[sic] Sentence,” which the court denied without reasons on September 13. On

October 28, Defendant filed a “Motion for Notice of Appeal and Certificate of

Appealability,” but the trial court took no action since he neglected to provide an

order. At some point, Defendant provided the necessary order, and the trial court

signed it on November 8, granting him leave to appeal.

On March 3, 2011, this court issued a rule to show cause why the appeal in this

case should not be dismissed as the judgment at issue is not appealable. On March

18, Defendant replied with a brief that discusses the merits of his claim without

addressing whether the matter is appealable.

As Defendant has failed to address the issue presented to him, the appeal is

hereby dismissed. Defendant-Appellant, Michael J. Benjamin, is hereby permitted

to file a proper application for supervisory writs, in compliance with Uniform

Rules—Courts of Appeal, Rule 4, no later than thirty days from the date of this

decision. Defendant is not required to file a notice of intent to seek writs nor obtain

an order setting return date pursuant to Uniform Rules—Courts of Appeal, Rule 4-3

as we hereby construe the motion for appeal as a timely filed notice of intent to seek

a supervisory writ.

APPEAL DISMISSED. DEFENDANT-APPELLANT IS PERMITTED TO

FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY

DAYS FROM THE DATE OF THIS DECISION.

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