State of Louisiana v. Kenneth E. Smith

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

05-1355

STATE OF LOUISIANA

VERSUS

KENNETH E. SMITH

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 13977-03 HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE

**********

JAMES T. GENOVESE JUDGE

**********

Court composed of Sylvia R. Cooks, Billy H. Ezell, and James T. Genovese, Judges.

APPEAL DISMISSED; REMANDED WITH INSTRUCTIONS.

Christopher A. Aberle Louisiana Appellate Project Post Office Box 8583 Mandeville, LA 70470-8583 (985) 871-4084 COUNSEL FOR DEFENDANT/APPELLANT: Kenneth E. Smith

John F. DeRosier District Attorney – Fourteenth Judicial District ADA Carla S. Sigler Post Office Box 3206 Lake Charles, LA 70602 (337) 437-3400 COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana GENOVESE, Judge.

On May 4, 2004, Defendant, Kenneth E. Smith (Smith), was convicted of

armed robbery with a firearm in violation of La.R.S. 14:64 and La.R.S. 14:64.3. On

September 3, 2004, Smith was sentenced to serve thirty years at hard labor without

benefit of probation, parole, or suspension of sentence for armed robbery, and to five

years at hard labor without benefit of probation, parole, or suspension of sentence for

armed robbery with a firearm, with the two sentences to run consecutively.

Smith filed a motion for new trial on September 21, 2004, and a hearing on the

motion was held on October 15, 2004. At that hearing, the trial court dismissed part

of the motion based on objections by the State, and Smith was given thirty days to

amend the remainder of the motion to comply with La.Code Crim.P. art. 894. An

amended motion for new trial was filed on November 9, 2004, and eventually denied

on April 6, 2005. The record indicated that on April 18, 2005 Smith filed a motion

to reconsider sentence contending his sentence should be reduced to fifteen years.

The record also indicates that the trial court signed the order denying the motion to

reconsider sentence on April 14, 2005, though the filing date is listed as April 18,

2005. Smith then filed a motion and order for appeal on April 18, 2005, which the

trial court granted.

Under La.Code Crim.P. art. 914, a motion for appeal must be made no later

than thirty days after either the rendition of the judgment from which the appeal is

taken, or the ruling on a motion to reconsider sentence filed pursuant to La.Code

Crim.P. art. 881.1. Smith failed to file his motion for appeal within thirty days

following sentencing, but did file his motion for appeal within thirty days of the

ruling on his motion to reconsider sentence. However, pursuant to La.Code Crim.P.

1 art. 881.1, Smith had thirty days following the imposition of his sentence to file a

motion to reconsider sentence. Smith was sentenced on September 3, 2004. He filed

his motion to reconsider sentence on April 18, 2005, which was beyond said thirty

day time limit. Therefore, according to La.Code Crim.P. art. 888.1, Smith’s motion

to reconsider sentence was untimely filed and that time period cannot be used to

extend the time period allowed for appeal as set forth in La.Code Crim.P. art. 914.

Smith also filed a motion for new trial; however, that motion was filed after

sentencing and was eventually amended to involve only newly discovered evidence.

Pursuant to La.Code Crim.P. art. 853, a motion for new trial based upon newly

discovered evidence may be filed within one year after verdict or judgment of the trial

court. Accordingly, the motion for new trial did not affect the time in which Smith

was required to file a motion for appeal.

As Smith failed to file his motion for appeal within the time period allowed by

La.Code Crim.P. art. 914, his conviction and sentence became final. Once Smith’s

conviction and sentence became final, he could no longer obtain an appeal by simply

filing a motion for appeal. State v. Labiche, 96-433 (La.App. 3 Cir. 7/31/96), 680

So.2d 77. Thus, Smith must first obtain reinstatement of his right to appeal by way

of a properly filed application for post-conviction relief. Id.; State v. Dixon, 00-516

(La.App. 3 Cir. 6/7/00), 768 So.2d 99; State v. Counterman, 475 So.2d 336

(La.1985).

In Dixon, this court stated:

State v. Counterman, 475 So.2d 336 (La.1985) sets forth the procedure which should be followed to obtain the right to file an out-of- time appeal. In Counterman, the defendant was sentenced on February 10, 1983. No appeal was filed within the time period set forth in Article 914. On April 10, 1984, the defendant filed a motion for an out-of-time appeal. The trial court granted the motion without a hearing and without

2 affording the district attorney an opportunity to respond to the motion. The First Circuit Court of Appeal dismissed the appeal “on the basis that the trial court was without authority or jurisdiction to grant an out-of- time appeal on an ex parte motion.” Id. at 338. The defendant filed a motion for out-of-time appeal with the court of appeal, which was denied. The defendant then filed a motion for out-of-time appeal with the supreme court. The supreme court held that the defendant lost his right to obtain an appeal by simply filing a motion for an appeal after the time delays had run--not because the trial court was divested of jurisdiction but “because the conviction and sentence became final when the defendant failed to appeal timely.” Id. (footnote omitted). The supreme court held that the proper procedure for obtaining an out-of- time appeal is by filing an application for post conviction relief pursuant to La.Code Crim.P. arts. 924-930.7. [(footnote omitted).] In so ruling, the supreme court found several advantages to following this procedure. Primarily, the district attorney would be allowed an opportunity to oppose a request, and the defendant would be afforded an evidentiary hearing to prove his allegations. An out-of-time appeal is appropriately granted when the trial court has determined it is warranted “after due consideration of such factors as the length of the delay in defendant’s attempt to exercise the right and the adverse effect upon the state caused by the delay.” Id. at 340. The supreme court ultimately concluded that the defendant’s motion for an out-of-time appeal filed in the trial court should have been treated as an application for post conviction relief and remanded the case to the trial court for consideration as such. Following Counterman, we find that Defendant’s January 18, 2000 motion for appeal should have been treated by the trial court as an application for post conviction relief requesting an out-of-time appeal. We note that La.Code Crim.P. art. 930.8 now provides that the time delays for filing an application for post conviction relief are applicable to requests for out-of-time appeals, unless an exception is made. Therefore, Defendant shall be permitted an opportunity to amend his motion to comply with the requirements of Articles 924-930.8. By doing so, the State will then be given an opportunity to contest the granting of an appeal.

Dixon, 768 So.2d at 101-102.

Smith’s appeal is hereby dismissed and this case is remanded to the trial court

for further proceedings. Smith is to be permitted an opportunity to seek an out-of-

time appeal by way of an application for post conviction relief by amending his

motion to appeal to comply with the requirements of La.Code Crim.P. arts.

924-930.8; and the State is to be given an opportunity to contest the granting of an

3 out-of-time appeal.

APPEAL DISMISSED; REMANDED WITH INSTRUCTIONS.