State of Louisiana v. David Barnes, Jr.

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

07-977

STATE OF LOUISIANA

VERSUS

DAVID BARNES, JR.

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APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 05-1389 HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

SYLVIA R. COOKS JUDGE

Court composed of Sylvia R. Cooks, Glenn B. Gremillion, and Elizabeth A. Pickett, Judges.

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

Angelique Narcisse District Attorney’s Office 300 Iberia Street, Suite 200 New Iberia, Louisiana 70560 (337) 369-4420 Counsel for: State of Louisiana

David Barnes, Jr. 3618 Broken Arrow Road New Iberia, LA 70560 Pro Se Defendant/Appellant: David Barnes, Jr. Cooks, Judge.

On February 6, 2006, the Defendant, David Barnes, Jr., entered a plea of guilty

to the offense of failure to register as a sex offender. He was sentenced to serve five

years at hard labor, suspended, and was placed on three years of supervised probation.

On March 29, 2006, the Defendant’s probation was revoked for failure to register as

a sex offender, and he was ordered to serve five years at hard labor, with credit for

time served. At the conclusion of the probation revocation hearing, the trial court

informed the Defendant that he had two years from the date the judgment became final

to seek post-conviction relief.

On August 10, 2006, the Defendant filed a pro se application for post-

conviction relief in the trial court, contesting his revocation and requesting a hearing

on the application. On September 27, 2006, a hearing was held and the motion was

denied. On October 25, 2006, the Defendant filed a pro se motion to appeal the denial

of his application for post-conviction relief. The motion was dismissed by the trial

court due to the fact that the Defendant was represented by an attorney and that the

pleadings were not signed or filed by said attorney.

On April 16, 2007, the Defendant filed a pro se application in this court,

seeking review of the trial court’s denial of his application for post-conviction relief.

The writ was subsequently denied because the application was deficient. State v.

Barnes, an unpublished opinion bearing docket number 07-467 (La.App. 3 Cir.

5/3/07). Rather than correcting the deficiencies in his writ application, the Defendant

filed a Motion to Appeal Post Conviction Relief in the trial court on May 17, 2007,

and the instant appeal was granted.

In State ex rel. Clavelle v. State, 02-1244 (La. 12/12/03), 861 So.2d 186, the

court explained, “[n]o appeal lies from an order revoking probation [citations

omitted], and while supervisory review provides a direct means for contesting the trial

1 court’s action, we have recognized that post-conviction proceedings may also afford

an avenue of relief. [citation omitted].” In the instant case, the trial court informed

the Defendant that he could seek post-conviction relief within two years from the date

the judgment became final. Thus, pursuant to Clavelle, 861 So.2d 187, the Defendant

could seek review of his probation revocation via post-conviction proceedings.

Because an application for supervisory writs is the correct procedural

mechanism for review of a denial of an application for post-conviction relief, this

court issued a rule to show cause on August 10, 2007, why the appeal should not be

dismissed. The Defendant failed to submit a response to the rule to show cause.

Therefore, the appeal in this case is hereby dismissed.

The Defendant, however, is 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. The Defendant is not required to

file a notice of intent to seek writs nor 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 notice of intent to seek a supervisory writ.

APPEAL DISMISSED. THE DEFENDANT IS PERMITTED TO FILE AN

APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS

FROM THE DATE OF THIS DECISION.