State of Louisiana v. Daniel B. Prince

• Court: Louisiana Court of Appeal
• Decided: June 3, 2015
• Docket: KA-0015-0085
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

15-85

VERSUS

DANIEL B. PRINCE

************

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF ACADIA, NO. 72,189 I and II HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

PER CURIAM

Court composed of Sylvia R. Cooks, Marc T. Amy, and James T. Genovese Judges.

APPEAL DISMISSED.

Annette Roach Louisiana Appellate Project P.O. Box 1747 Lake Charles, LA 70602-1747 (337) 436-2900 ATTORNEY FOR DEFENDANT/APPELLANT: Daniel B. Prince

Roger P. Hamilton, Jr. Assistant District Attorney Fifteenth Judicial District Lafayette Parish, Louisiana P.O. Box 2206 Lafayette, LA 70511 (337) 232-5170 ATTORNEY FOR APPELLEE: State of Louisiana PER CURIAM

On August 12, 2014, this court reversed, vacated, and set aside the trial

court’s ruling granting Daniel B. Prince’s (Defendant) Motion for Out-of-Time

Appeal. See State v. Prince, 14-789 (La.App. 3 Cir. 8/12/14) (unpublished). We

ordered the trial court to conduct the evidentiary hearing previously ordered by this

court in State v. Prince, 13-1349 (La.App. 3 Cir. 2/10/14) (unpublished), in

conformity with State v. Counterman, 475 So.2d 336 (La.1985). Minutes of the

trial court indicate no hearing has been had thus far, and there has been no new

grant of an out-of-time appeal after our ruling dated August 12, 2014 or subsequent

to the lodging of this appeal in January 2015. The court minutes reflect the hearing

ordered by this court was passed over by the trial court on April 23, 2015 with no

date set for hearing.

The vacated trial court ruling is of no force or effect. See, e.g. Astoria

Entertainment, Inc. v. DeBartolo, 07-1519 (La.App. 4 Cir. 6/27/08), 988 So.2d

832, reversed on other grounds, 08-1690 (La. 5/22/09), 12 So.3d 956 and State v.

Cloud, 06-877 (La.App. 3 Cir. 12/31/06), 946 So.2d 265, writ denied, 07-86 (La.

9/21/07), 964 So.2d 331. “The [state] supreme court has held that it is improper to

consider the merits of a defendant’s appeal where an out-of-time appeal is

untimely granted[.]” State v. Davis, 14-478, p. 2 (La.App. 3 Cir. 9/10/14), 159

So.3d 482, 483, quoting State v. Theard, 04-1212, p. 1 (La. 6/17/05), 904 So.2d

681, 681. See also, La.Code Crim. P. art. 930.8(A). Because this court vacated the

out-of-time appeal order and remanded the matter for a hearing, no appeal lies until

the trial court has ruled on the remand. The appeal is dismissed.