State of Louisiana v. William Jason McGee

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-812

STATE OF LOUISIANA

VERSUS

WILLIAM JASON MCGEE

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APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF LASALLE, NO. 18-1615
HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE

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GUY E. BRADBERRY
JUDGE

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Court composed of Ledricka J. Thierry, Guy E. Bradberry, and Wilbur L. Stiles,
Judges.

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

J. Reed Walters
District Attorney
1683 N. Second Street
Jena, LA 71342
COUNSEL FOR:
State of Louisiana

William Jason McGee, 6526
Dorm - G
499 Old Columbia Rd.
Harrisonburg, LA 71340
COUNSEL FOR:
William Jason McGee

BRADBERRY, Judge.

On August 23, 2019, Defendant, William Jason McGee, pled guilty to two

counts of Distribution of Methamphetamine, violations of La.R.S. 40:967 A(1),

and was sentenced to ten years at hard labor on each count. The sentences were

ordered to be served consecutively to each other but concurrently with time being

served on a revocation. Defendant did not ask for a reconsideration of his sentence

nor did he appeal. Therefore, his conviction and sentence became final in

September 2019. La.Code Crim.P. art. 914.

Defendant filed a “Motion to Amend or Modify Sentence Pursuant to LA.

C.Cr.P. Art. 822 & LA. 15:308” on September 15, 2022. On September 27, 2022,

the State filed a motion to dismiss Defendant’s motion based on it being filed after

the delays for Defendant-Appellant to seek post-conviction relief had expired. On

September 28, 2022, the trial court dismissed Defendant’s motion.

On October 10, 2022, Defendant filed a notice of appeal with the trial court

seeking an appeal of the trial court’s dismissal of his motion to amend. The trial

court granted the appeal on the same date.

On December 16, 2022, this court lodged the appeal record. On January 4,

2023, 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. See La.Code Crim.P. art.

930.6(A).

On January 23, 2023, Defendant timely filed his response to the rule to show

cause wherein he admits he “did not ask for reconsideration of his sentence, did not

file an appeal within 30 days, nor did he file a post conviction relief within two

years of his conviction becoming final.” However, Defendant argues that the trial

court should not have dismissed his arguments because he can prove an exception

to the time limitation under La.Code Crim.P. art. 930.8(A)(1).

It is the content of the pleading, not its caption, that determines its nature.

State ex rel. Daley v. State, 97-2612 (La. 11/7/97), 703 So.2d 32. Based on the

arguments raised, we find Defendant’s motion is more properly construed as an

application for post-conviction relief and is subject to La.Code Crim.P. art.

930.6(A), which states: “The petitioner may invoke the supervisory jurisdiction of

the court of appeal if the trial court dismisses the application or otherwise denies

relief on an application for post conviction relief. No appeal lies from a judgment

dismissing an application or otherwise denying relief.”

Further, La.Code Crim.P. art. 912(C)(1) provides the right of judicial review

by application to the court of appeal for a writ of review when a judgment is not

appealable. As Defendant is seeking review of the trial court’s September 28,

2022 ruling denying his “Motion to Amend or Modify Sentence Pursuant to LA.

C.Cr.P. Art. 822 & LA. 15:308,” the proper manner for review of this ruling is a

supervisory writ. La.Code Crim.P. arts. 912.1(C)(1) and 930.6(A).

Accordingly, we hereby dismiss Defendant’s appeal. Defendant 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 or

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 IS PERMITTED TO FILE AN
APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS
FROM THE DATE OF THIS DECISION.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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