State of Louisiana v. Wilbert Leger, Jr. AKA Wilbert Leger

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

17-1178

STATE OF LOUISIANA

VERSUS

WILBERT LEGER, JR.
A/K/A WILBERT LEGER

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 84409
HONORABLE JOHN DAMIAN TRAHAN, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Billy H. Ezell,
Judges.

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

Keith A. Stutes
District Attorney - 15th JDC
500 NE Court Circle, 3rd Floor
Crowley, LA 70526
(337) 788-8831

Kim Reginald Hayes, A.D.A.
Burleigh G. Doga, A.D.A.
Scott J. Privat, A.D.A.
Jack Nickel, A.D.A.
P.O. Drawer 288
Crowley, LA 70527-0369
(337) 785-2760
COUNSEL FOR APPELLEE:
State of Louisiana

Jeffrey Matus
15th Judicial Public Defenders Office
516 SE Court Circle
Crowley, LA 70526
(337) 889-5661
COUNSEL FOR APPELLANT:
Wilbert Leger, Jr.

Cooks, Judge.

On October 12, 2015, the State charged Defendant, Wilbert Leger, Jr., with

committing one count of second degree battery, in violation of La.R.S. 14:34.1, on

July 31, 2015.

On May 1, 2017, Defendant entered into an agreement with the State and

entered a no contest plea pursuant to North Carolina v. Alford, 400 U.S. 25, 31, 91

S.Ct. 160, 164 (1970). In exchange for the plea, the district court sentenced

Defendant in accordance with his plea bargain. Therefore, the district court placed

Defendant on two years of active supervised probation with the following special

conditions: pay a $500.00 fine, $420.50 in court costs, a $350.00 indigent

defender fee, and restitution to be determined following a hearing. As part of the

plea agreement, the trial court’s imposition of two years at hard labor was deferred

pending successful completion of Defendant’s probation in accordance with

La.Code Crim.P. art. 893. On November 14, 2017, the district court conducted

Defendant’s restitution hearing. Following presentation of the evidence, the trial

court ordered restitution in the amount of $3,165.00 to the medical providers.

On November 15, 2017, the defense filed a “Notice of Intent to Apply for

Supervisory Writ” of the restitution order with the trial court. In response, the trial

court set a December 14, 2017, return date. Thereafter, on November 30, 2017, the

defense filed a motion to reconsider sentence, which asserted the ordered

restitution was inappropriate in the instant case as the sentencing court directed

Defendant to pay the victim’s medical providers instead of the victim and as

medical providers were not intended to be restitution recipients within the meaning

of the criminal restitution articles. The pleading also informed the trial court the

defense no longer intended to pursue supervisory review.

On November 30, 2017, the district court denied the motion to reconsider

sentencing without conducting a hearing on the matter. On the same date, the

defense filed a “Motion for Order of Appeal and Designation of the Record” with

the trial court. In its pleading, the defense explained it intended to seek review of

the restitution imposed for the same grounds set forth in the motion to reconsider

sentence. Also on November 30, 2017, the district court granted the right to appeal

and entered the appeal order.

On December 27, 2017, this court received and lodged the appeal record in

the instant case. As a result, this court, on January 10, 2018, issued a rule to show

cause why the matter should not be dismissed as non-appealable.

On January 19, 2018, the defense filed a response with this court asserting

that, as the matter involved review of Defendant’s sentence, it was appealable.

The defense contends appellate jurisdiction over this matter is conveyed by

La.Const. art. V, § 10, which grants appellate jurisdiction over all criminal cases

triable by jury. Defendant pled no contest to second degree battery, in violation of

La.R.S. 14:34.1. Since the offense is a relative felony, it is triable by jury pursuant

to La.Code Crim.P. art. 782, and this court has appellate jurisdiction over sentences

imposed for the offense. Furthermore, La.Code Crim.P. art. 912 provides for the

appeal of judgments imposing sentence. The defense urges that, because

restitution is part of sentencing, the decisions regarding restitution are appealable.

Louisiana Constitution Article V, § 10 establishes jurisdiction for courts of

appeal:

Section 10. (A) Jurisdiction. Except as otherwise provided by
this constitution, a court of appeal has appellate jurisdiction of (1) . . .
(3) all criminal cases triable by a jury, except as provided in Section 5,
Paragraph (D)(2) of this Article [instances of a law being declared

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unconstitutional and where the death penalty has been imposed]. It
has supervisory jurisdiction over cases which arise within its circuit.

(B) Scope of Review. Except as limited to questions of law by
this constitution, or as provided by law in the review of administrative
agency determinations, appellate jurisdiction of a court of appeal
extends to law and facts. . . . In criminal cases its appellate
jurisdiction extends only to questions of law.

(C) Other Criminal Matters. In all criminal cases not provided
for in Paragraph (D)(2) or Paragraph (E) of Section 5 or Paragraph
(A)(3) of this Section, a defendant has a right of appeal or review, as
provided by law.

Only final judgments are appealable. La.Code Crim.P. art. 912(A). Also, under

La.Code Crim.P. art. 912(C)(1), defendants have the right to appeal judgments

imposing sentences: “The judgments or rulings from which the defendant may

appeal include, but are not limited to: (1) A judgment which imposes sentence . . . .”

The fourth circuit has held that deferred sentences cannot be appealed

because they are not final; as such, they could be reviewed via writ application:

Code of Criminal Procedure Article 912(A) provides that only a
final judgment or ruling is appealable. In the instant case, no final
ruling as to defendant’s guilt has been made. Pursuant to La.R.S.
40:983, further proceedings have been deferred and upon fulfillment
of the terms and conditions of her probation, defendant shall be
discharged and the charges against her shall be dismissed. Ex Proprio
Motu we deny jurisdiction over this appeal, State v. Ruth, 470 So.2d
167 (La.App. 4th Cir.1985) and shall treat this matter as an
application for supervisory writs.

State v. Stevens, 497 So.2d 12, 13 (La.App. 4 Cir. 1986), see also, State v. Watkins,

526 So.2d 357, 359 (La.App. 4 Cir. 1988) (citing Stevens).

The supreme court has affirmed the ruling denying the fourth circuit’s

finding deferred sentences are not appealable; however, the supreme court

remanded the matter for consideration as a writ application:

Defendant, Karl F. Jupiter, was charged with possession of
cocaine. R.S. 40:967. The defendant entered a plea of not guilty. He
filed a motion to suppress the evidence and this motion was denied.
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The defendant thereafter entered a “guilty plea”, pursuant to R.S.
40:983, and reserved his right to appeal the ruling of the trial court on
the motion to suppress. See: State v. Crosby, 338 So.2d 584 (La.,
1976). The trial court accepted the plea, pursuant to R.S. 40:983, and
explained to the defendant, at the sentencing, that as a first offender,
no finding of guilt would be made and he would be placed on one-
year active probation and fined $500. The court further explained that
upon fulfillment of the terms of probation, his record would be
cleared. The defendant filed this “appeal” and assigns as error the
trial court’s denial of his motion to suppress.

On our own motion we find that this Court does not have
jurisdiction over this case and accordingly, we dismiss this “appeal”.

We find the recent case of State v. Ruth, controlling. 470 So.2d
167 (La.App.[] 4th Cir.[] 1985). In that case, with facts closely
aligned to those of the present case, this Court dismissed the
defendant’s “appeal” after reasoning as follows:

R.S. 40:983 provides that when a first offender
pleads guilty to possession of narcotics or other
controlled dangerous substances, and when it appears
that the best interests of the public and defendant will be
served, ‘the court may, without entering a judgment of
guilt and with the consent of such person, defer further
proceedings and place him on probation. . . .’ The statute
also provides that upon defendant’s violation of the terms
and conditions of his probation, ‘the court may enter an
adjudication of guilt and impose sentence. . . .’

C.Cr.P. Art. 912 A provides that only a final
judgment or ruling is appealable. In this case the trial
court has made no final ruling. Pursuant to the statute,
further proceedings have been deferred and upon
fulfillment of the terms and conditions of his probation,
defendant shall be discharged and the charges against
him shall be dismissed. Defendant is enjoying the
benefits of this statute by remaining on inactive
probation. He made this choice in lieu of contesting the
charge. The record shows that this was thoroughly
discussed with him by the trial judge who carefully
outlined the array of constitutional rights he was giving
up by pleading guilty.

In the event that he violates his probation, and the
court should enter an adjudication of guilt and impose
sentence, this would constitute a final judgment which
under C.Cr.P. Art. 912 A is appealable. However, at this
time, the court’s disposition of his case under R.S.
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40:983 is not final. Accordingly, the appeal is dismissed.
State v. Ruth, supra at 168-169.

Likewise, we find that this case does not present us with a final
and appealable judgment. Accordingly, for the reasons assigned this
appeal is dismissed.

State v. Jupiter, 488 So.2d 1236, 1236-37 (La.App. 4 Cir.), writ granted to remand

for consideration on the merits as a writ application, 493 So.2d 1208 (La.1986).

This court has found that a deferred conviction and sentence become

appealable if the associated probation is revoked:

On the basis of this information, an affidavit was filed in the
district court by Whalen H. Gibbs, Jr., a probation officer with the
Louisiana Department of Public Safety and Corrections, stating that
defendant had violated her probation. On December 7, 1991, a
revocation hearing was held and the court found that the defendant
had not complied with the probation conditions and that she had in
fact violated her probation. On December 16, 1991, the court
adjudicated the defendant guilty of the crime of possession of heroin
and, under La.R.S. 40:966(C)(1), sentenced defendant to serve ten
years at hard labor with the Louisiana Department of Public Safety
and Corrections, without the benefit of probation or suspension of
sentence. A Motion for Appeal was timely filed, and defendant was
granted an appeal on December 20, 1991. Although a judgment
revoking probation is generally not appealable, State v. Manuel, 349
So.2d 882 (La.1977); State v. Forest, 571 So.2d 893 (La.App. 5
Cir.1990), writ denied[,] 577 So.2d 13 (La.1991), under the provisions
of La.R.S. 40:983, the final adjudication of defendant’s guilt had not
been decided, nor had a sentence been imposed, until the probation
was revoked. Therefore, since the Motion for Appeal was timely
filed, defendant’s conviction and sentence are subject to review under
ordinary appellate process.

State v. Williams, 614 So.2d 246, 248 (La.App. 3 Cir. 1993).

This court notes, however, the first circuit has recently found deferred

sentences to be appealable by the State.

The State filed a motion to reconsider the disposition, which the
juvenile court denied. The State now appeals, arguing that the juvenile
court erred in denying its motion. For the following reasons, we
affirm the adjudication of delinquency and deferred disposition. The

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juvenile’s “Motion to Dismiss Appeal” and “Motion to Strike Factual
Allegations Not in Record” are denied.2
__________________
2
The juvenile argues in his appellate brief and in the motion to
dismiss appeal that this court does not have jurisdiction because the ruling
contested by the State was not final at the time of the State’s motion to
appeal. The juvenile’s deferred disposition was entered pursuant to La.
Child. Code art. 896A. Comment (a) to Article 896A states, in pertinent
part, “The concept of Paragraph A is recognized for convicted adults in
Code of Criminal Procedure Article 893.” Article 893 considers the
suspended sentence to be final and allows for appeal. See La. Code Crim.
P. art. 893A. The Code of Criminal Procedure controls where procedures
are not provided in the Louisiana Children’s Code. See La. Ch. Code arts.
104(1) & 803. Accordingly, we find the appeal of the juvenile’s deferred
disposition to be properly before this court.

State in Interest of D.K., Jr., 17-478, p. 2 (La.App. 1 Cir. 11/1/17), 233 So.3d 102,

103-04 n.2.

There is no information before this court suggesting Defendant’s probation

has been revoked or that the deferred sentence has been imposed. As the payment

of restitution is a condition of probation and as Defendant’s sentence will not

become final unless Defendant has his probation revoked, the matter of restitution

is not appealable at this point. However, Defendant-Appellant is hereby permitted

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

Rules―Courts of Appeal, Rule 4, no later than thirty (30) days from the date of

this decision. As this court construes the motion for appeal to be a timely-filed

notice of intent to seek supervisory review, Defendant-Appellant is not required to

file notice of his intent to seek review in order to conform with Uniform

Rules―Courts of Appeal, Rule 4-2, and Defendant-Appellant is also not required

to obtain any additional return date order in order to comply with Uniform

Rules―Courts of Appeal, Rule 4-3.

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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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