State of Louisiana v. Chad Michael Courvillier

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-1476

VERSUS

CHAD MICHAEL COURVILLIER

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 10-668 HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

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JUDGE J. DAVID PAINTER

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

APPEAL DISMISSED. DEFENDANT/APPELLANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS FROM THE DATE OF THIS DECISION. APPELLATE COUNSEL’S MOTION TO WITHDRAW IS MOOT.

Jennifer Reasoner District Attorney - 16th JDC 300 Iberia Street New Iberia, LA 70560 (337) 369-4420 COUNSEL FOR APPELLEE: State of Louisiana

Annette Roach Louisiana Appellate Project P. O. Box 1747 Lake Charles, LA 70602-1747 (337) 436-2900 COUNSEL FOR APPELLANT: Chad Michael Courvillier Painter, Judge.

The Defendant was charged by bill of information with driving while

intoxicated (DWI), third offense, a violation of La.R.S. 14:98, and careless

operation of a motor vehicle, a violation of La.R.S. 32.58. The Defendant pled

guilty to the charges on April 27, 2010. Sentencing was deferred; he was placed

on five years of supervised probation. Following a revocation hearing held on July

27, 2011, the Defendant’s probation was revoked, and he was sentenced to five

years at labor for DWI, third offense, and thirty days in the parish jail for careless

operation of a motor vehicle, to run concurrently with his DWI sentence.

An appeal in this matter was lodged in this court on November 30, 2011. A

rule to show cause was issued on December 5, 2011, ordering the Defendant to

show cause, on or before December 27, 2011, why the appeal should be not

dismissed as the judgment at issue, probation revocation, is not an appealable

judgment.

A response brief filed on behalf of the Defendant was received in this court

on December 22, 2011. In his brief, the Defendant concedes that a probation

revocation is not an appealable judgment. The Defendant then refers this court to

its recent decision, State v. Scarborough, an unpublished opinion bearing docket

number 11-973 (La.App. 3 Cir. 12/7/11), wherein the defendant pled guilty, was

sentenced to five years at hard labor, suspended, and was placed on five years of

supervised probation. Following his probation revocation, the defendant filed a

motion for appeal which was subsequently construed as a notice of intent to seek a

supervisory writ, and he was permitted to file a supervisory writ within thirty days

from the date of the decision. Likewise, to the extent the Defendant’s appeal seeks

review of his probation revocation in the instant case, he requests that his motion

for an appeal be considered as a notice of his intent to seek writs and he be given

thirty days within which to file a writ of review.

1 Additionally, with regard to appellate review of his sentences, the Defendant

maintains his case is distinguishable from Scarborough in that the imposition of

his sentences was deferred pursuant to La.Code Crim.P. arts. 893 and 894; he was

sentenced for the first time after his probation was revoked. See State v. Johnson,

390 So.2d 895 (La.1980). As such the Defendant asserts that appellate review of

his sentences is proper.

A review of the record reflects that on April 27, 2010, following the

Defendant’s guilty plea to DWI, third offense, and to careless operation of a motor

vehicle, the trial court deferred sentencing in accordance with La.Code Crim.P.

arts. 893 and 894 and placed him on five years of supervised probation.

Following the revocation of his probation on July 27, 2011, the Defendant was

sentenced to five years at hard labor for DWI, third offense, and to thirty days in

the parish jail for careless operation of a motor vehicle, to run concurrently with

his DWI sentence. He was also given credit for time served and for all sanctions.

Considering same, we find that the Defendant’s sentence for DWI, third offense, is

reviewable on appeal. However, the proper mode of review for his sentence for

careless operation of a motor vehicle is supervisory writ application.

The minutes in the record reflect, however, that on August 29, 2011, the

Defendant orally motioned the lower court to appeal his revocation hearing only.

He made no mention of his sentences. Accordingly, we find that the Defendant did

not seek appellate review of his sentences; however, the Defendant is entitled to

supervisory review of his probation revocation. If Defendant seeks to appeal his

sentence for DWI, third offense, he may seek reinstatement of his right to appeal

by filing an application for post-conviction relief requesting an out-of-time appeal.

La.Code Crim.P. art. 930.8.

Further, appellate counsel’s motion to withdraw as counsel of record for the

purpose of the probation revocation writ of review is moot.

2 DECREE

The Defendant’s appeal of his probation revocation is dismissed. The

Defendant’s motion for an appeal, however, is construed as notice of his intent to

seek supervisory review as to the probation revocation, and he is permitted to file

same within thirty days from the date of this decision. Further, appellate counsel’s

motion to withdraw as counsel of record for the purpose of the probation

revocation writ of review is denied as moot.