State of Louisiana v. George Morgan, Sr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-1006

STATE OF LOUISIANA

VERSUS

GEORGE MORGAN, SR.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 08-K-2836-B
HONORABLE ELLIS J. DAIGLE, JUDGE

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BILLY H. EZELL
JUDGE

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Court composed of Oswald A. Decuir, Billy H. Ezell, and J. David Painter, Judges.

APPEAL DISMISSED. DEFENDANT IS
PERMITTED TO FILE AN APPLICATION FOR
SUPERVISORY REVIEW WITH THIS COURT
WITHIN THIRTY DAYS OF THE DATE OF THIS
DECISION.

Hon. Earl B. Taylor
District Attorney – 27th JDC
P.O. Drawer 1968
Opelousas, LA 70571
(337) 948-0551
COUNSEL FOR APPELLEE:
State of Louisiana

George Morgan, Sr., Proper Person
P.O. Box 396
Melville, LA 71353-396

Ezell, Judge.

On June 28, 2011, Defendant, George Morgan, Sr., was convicted of

aggravated assault, in violation of La.R.S. 14:37. On the same date, the sentencing

court ordered Defendant to pay $300.00 or serve ninety days in jail, imposed a

ninety-day jail sentence, suspended the ninety-day sentence, and placed Defendant

on one year of unsupervised probation with special conditions.

On July 13, 2011, Defendant filed a pro se motion for appeal, and the district

court granted the appeal. Thereafter, an appeal record was lodged with this court.

In response, this court, on August 17, 2011, issued a rule to show cause ordering

Defendant to file a brief on or before August 25, 2011, why the appeal should not

be dismissed as it is a non-appealable judgment. This court received no response.

Under La.Code Crim.P. arts. 912-912.1, Defendant does not have the right to

appeal a criminal conviction that was not triable by jury. Aggravated assault is a

misdemeanor. La.R.S. 14:2; La.R.S. 14:37. Under La.Code Crim.P. art. 779,

misdemeanors are only triable by jury if the penalty for the offense “may be a fine

in excess of one thousand dollars or imprisonment for more than six months.” The

potential penalties for Defendant’s conviction for aggravated assault under La.R.S.

14:37 included a fine of “not more than one thousand dollars,” or imprisonment

“for not more than six months, or both.” Thus, as Defendant’s conviction and

sentence are not appealable, his appeal is hereby dismissed.

However, under La.Code Crim.P. art. 912.1(C), Defendant “has the right of

judicial review by application to the court of appeal for a writ of review.”

Defendant is permitted to file an 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

supervisory review nor obtain an order setting a return date pursuant to Uniform

Rules―Courts of Appeal, Rule 4-3 as Defendant’s motion and order for appeal are

hereby construed as such.

APPEAL DISMISSED. DEFENDANT IS PERMITTED TO FILE AN

APPLICATION FOR SUPERVISORY REVIEW WITH THIS COURT

WITHIN THIRTY DAYS OF THE DATE OF THIS DECISION.

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