State of Louisiana v. Timothy Bernard, Sr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

16-660

STATE OF LOUISIANA

VERSUS

TIMOTHY BERNARD, SR.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR156199
HONORABLE RONALD D. COX, JUDGE PRO TEMPORE

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MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Billy H. Ezell, Judges.

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

Michael R. Guidry
City Prosecutor
105 East Convent Street
Lafayette, LA 70501
(337) 291-5578
COUNSEL FOR APPELLEE:
State of Louisiana

Timothy Bernard, Sr.
Pro Se
220 Ena Street
Lafayette, LA 70501

AMY, Judge.
In June 15, 2015 proceedings in the City Court of Lafayette, Defendant-

Appellant, Timothy Bernard, Sr., entered a plea of not guilty to criminal mischief,

a violation of City Ordinance 62-32(7), in docket number 15-901; battery on a

police officer, a violation of City Ordinance 62-67.1, in docket number 15-902;

and resisting an officer, a violation of City Ordinance 62-66, in docket number 15-

903.

On November 25, 2015, the city court judge found Defendant-Appellant

guilty of battery on a police officer in docket number 15-902 and resisting an

officer in docket number 15-903. The criminal mischief charge in docket number

15-901 was dismissed.

For the battery on a police officer conviction, the city court judge ordered

Defendant-Appellant to pay a fine and courts costs of $210.00 or, in default of

payment, serve twenty-one (21) days in the Lafayette Parish Correctional Center.

Additionally, he was sentenced to thirty (30) days in the parish jail, suspended, and

he was placed on unsupervised probation for a term of six (6) months. For the

resisting an officer charge, the city court judge ordered Defendant-Appellant to pay

a fine and costs in the amount of $260.00 or, in default of payment, serve twenty-

six (26) days in the Lafayette Parish Correctional Center; the court suspended these

fines and costs. Additionally, the city court judge sentenced Defendant-Appellant

to fifteen days (15) days in the parish jail and, if eligible, permitted the jail term to

be served through home incarceration with electronic monitoring. The trial court

further imposed certain conditions on that term of home incarceration.

On December 11, 2015, Defendant-Appellant filed a “MOTION FOR

APPEALS” with the Lafayette Parish City Court. The court denied Defendant-

Appellant’s motion for appeal on December 15, 2015, “reserving all rights to the

defendant to refile this appeal with the 15th Judicial District Court, Lafayette

Parish, which is the Court of proper appellate jurisdiction.”

Subsequently, Defendant-Appellant filed a “MOTION FOR APPEALS”

with the Fifteenth Judicial District Court. On April 15, 2016, Defendant-Appellant

filed a “BRIEF” with the district court “IN SUPPORT OF DISMISSING THESE

CHARGES ON GROUNDS OF TECHNICALITIES.” On April 22, 2016,

attorneys for the City of Lafayette filed a “MEMORANDUM IN OPPOSITION

TO DEFENDANT’S APPEAL” with the district court. Thereafter, and by ruling

dated April 25, 2016, the district court explained that, after review of the entire

record, it found that “the decision of the City Court should not be disturbed and

that the Appeal and/or Request for Judicial Review should be dismissed with

prejudice.”

From the ruling of the Fifteenth Judicial District Court, Defendant-Appellant

filed a motion for appeal to this court. An order of appeal was granted on June 13,

2016. On August 12, 2016, this court lodged the appeal record for this case. On

August 22, 2016, this court issued a rule to show cause why this case should not be

dismissed, as the judgment at issue is not an appealable judgment. See La.Code

Crim.P. art. 912.1. No response was received by Defendant-Appellant.

On October 19, 2016, this court issued an opinion dismissing the appeal and

allowing Defendant-Appellant time to file an application for supervisory writs. On

October 26, 2016, this court was informed by Defendant-Appellant that the rule to

show cause was inadvertently sent to Defendant-Appellant’s previous address

instead of his current address provided to the clerk’s office by Defendant-

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Appellant. The order states a signing date of June 13, 2015; however, a review of

the record indicates the year should have been 2016.

On November 3, 2016, this court issued an order recalling the opinion issued

on October 19, 2016. This court further ordered that Defendant-Appellant show

cause by November 23, 2016, why the appeal should not be dismissed, as the

judgment at issue is not an appealable judgment. La.Code Crim.P. art. 912.1. On

November 28, 2016, Defendant-Appellant filed a “BRIEF” in response to the rule

to show cause asking that this court “[a]ccept[] this brief to show that these charges

are appealable and violate[] the Fourth Amendment of the United States

Constitution.” The brief addresses the merits of the appeal.

The convictions are non-appealable to this court. See La.R.S. 13:1896(B).

Therefore, we hereby dismiss Defendant-Appellant’s appeal. However,

Defendant-Appellant is hereby permitted to file a proper application for

supervisory writs, in compliance with Uniform Rules—Courts of Appeal, Rule 4-1,

no later than fifteen days from the date of this decision. The Defendant is not

required to file a notice of intent to seek writs nor obtain an order setting a 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

FIFTEEN DAYS FROM THE DATE OF THIS DECISION.

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