No. 14-KA-359 Precedential Processed

State v. Smith

Louisiana Court of Appeal, First Circuit · Filed October 29, 2014 · 164 So. 3d 902

Cited by

State v. Decay 266 So. 3d 578 La. Ct. App. 1st Cir. 2019
State v. Bell 259 So. 3d 497 La. Ct. App. 1st Cir. 2018
State v. Smith 258 So. 3d 973 La. Ct. App. 1st Cir. 2018

Authorities cited

Identified automatically; this list may not be exhaustive.

State v. Smith 710 So. 2d 1187
State v. Lee 99 So. 3d 721
State v. Hutchinson 764 So. 2d 1139
State v. Benoit 446 So. 2d 921
Thomas v. W. & W. CLARKLIFT, INC. 448 So. 2d 113
State v. Schwartz 102 So. 3d 991
State v. Tate 33 So. 3d 292

Opinion text

ROBERT A. CHAISSON, Judge. | ¡.Defendant, Phillip Smith, appeals the denial of his motion to correct an illegal sentence. For the reasons that follow, we dismiss this appeal, but grant defendant thirty days from the date of this opinion within which to file a writ application to this Court seeking review of the denial of his motion to correct an illegal sentence under this Court’s supervisory jurisdiction. PROCEDURAL HISTORY Following a jury trial, defendant was convicted of second degree murder and was thereafter sentenced to the mandatory term of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. LSA-R.S. 14:30.1. On April 15, 1998, this Court affirmed defendant’s conviction and sentence. See State v. Smith, 97-1075 (La.App. 5 Cir. 04/15/98) , 710 So.2d 1187 . On April 1, 2013, defendant filed a “Motion and Order to Correct Illegal Sentence Pursuant to La.C.Cr.P. Article 882 and Request for Resentencing.” In his motion, defendant alleged that his mandatory life sentence was illegal, in light |sof the United States Supreme Court case of Miller v. Alabama, - U.S. -, 132 S.Ct. 2455 , 183 L.Ed.2d 407 (2012), because he was a juvenile at the time of the offense. On June 4, 2013, the trial court signed an order for defendant to appear in court on August 8, 2013, for “consideration of re-sentencing.” After several continuances, the court considered and denied defendant’s motion to correct an illegal sentence on January 16, 2014, concluding that “[bjased upon the Supreme Court’s ruling the defendant is not entitled to the relief he is seeking ...” Defendant now appeals the trial court’s denial of his motion to correct an illegal sentence. LAW AND ANALYSIS A ruling denying a motion to correct an illegal sentence is not reviewable by this Court under its appellate jurisdiction. LSA-C.Cr.P. art. 912; State v. Lee, 11- *903 1128 (La.App. 5 Cir. 7/31/12), 99 So.3d 721, 723 ; State v. Hutchinson, 99-0034, 99-0035 (La.App. 4 Cir. 5/17/00) , 764 So.2d 1139, 1140-41 ; State v. Benoit, 446 So.2d 921, 922-23 (La.App. 1 Cir.1984), writ denied, 448 So.2d 113 (La.1984). The appropriate avenue of review thereof is by way of a supervisory writ application. 1 See State v. Schwartz, 12-183 (La.App. 5 Cir. 10/16/12) , 102 So.3d 991, 993 . Accordingly, we hereby dismiss this appeal. However, we grant defendant thirty days from the date of this opinion within which to file a writ application to this Court seeking review of the denial of his motion to correct an illegal sentence under this Court’s supervisory jurisdiction. APPEAL DISMISSED. . In the past, this Court has converted improperly filed appeals into applications for supervisory writs. See State v. Tate, 09-619 (La.App. 5 Cir. 2/9/10) , 33 So.3d 292 . However, on May 23, 2014, this Court, at an en banc meeting, adopted a policy to discontinue converting jurisdictionally defective appeals into writ applications.