State of Louisiana v. Peter Celestine

Opinion

STATE OF LOUISIANA COURT, OF APPEAL, THIRD CIRCUIT

04-1130

STATE OF LOUISIANA

VERSUS

PETER CELESTINE

**********

APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT PARISH OF IBERIA, NO. 95-839 HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

OSWALD A. DECUIR JUDGE

Court composed of Oswald A. Decuir, Glenn B. Gremillion, and Elizabeth A. Pickett, Judges.

DISMISSED.

Walter J. Senette, Jr. Assistant District Attorney St. Mary Parish Courthouse Fifth Floor Franklin, La 70538 (337) 828-4100, Ext. 550 Counsel for Appellee: State of Louisiana

G. Paul Marx Louisiana Appellate Project P. O. Box 82389 Lafayette LA 70598 (337) 237-2537 Counsel for Defendant/Appellant: Peter Celestine Peter Celestine Allen Cor. Center 3751 Lauderdale Woodyard Kinder, LA 70648 DECUIR, Judge.

The Defendant, Peter Celestine, was convicted of simple burglary and

sentenced to twelve years at hard labor. The State subsequently filed a habitual

offender bill under a different docket number and the Defendant was adjudicated a

third-felony offender. On October 26, 1995, the court vacated the Defendant’s

original twelve year sentence and ordered the Defendant to serve seventeen years at

hard labor. The Defendant’s conviction and sentence were affirmed on appeal.1 In

May of 2004, the Defendant submitted an application for post-conviction relief to the

trial court seeking an out-of-time appeal of his multiple offender hearing. By ex parte

order dated May 25, 2004, the judge granted the Defendant an out-of-time appeal of

his multiple offender sentencing hearing held September 13, 1995. The Defendant

is before this court seeking review of his adjudication as a third-felony offender.

FACTS

The Defendant was convicted of simple burglary of an automobile. He was

subsequently adjudicated a third-felony habitual offender.

UNTIMELINESS OF REQUEST FOR OUT-OF-TIME APPEAL

Louisiana Code of Criminal Procedure Article 930.8 provides that applications

for post conviction relief, including requests for out of time appeal, must be filed

within two years from the date the defendant’s conviction and sentence become final,

unless certain specific exceptions apply. This time bar is jurisdictional and “[t]he trial

court has no authority to extend those time limits beyond the delays provided by the

legislature.” State v. Daigle, 593 So.2d 676 (La.App. 3 Cir. 1991).

The supreme court has held that an appellate court can raise this time bar on

its own motion. State ex rel. Glover, 93-2330 (La. 9/5/95), 660 So.2d 1189.

See State v. Celestine, an unpublished appeal bearing docket number 95-1460 1

(La.App. 3 Cir. 12/26/96), writ denied, 97-1787 (La. 1/30/98), 709 So.2d 697. The Defendant’s application for post-conviction relief seeking an out-of-time

appeal was untimely and the Defendant did not allege and prove any of the exceptions

contained in La.Code Crim.P. art. 930.8 applied. Thus, pursuant to La.Code Crim.P.

art. 930.8, the trial court was without authority to entertain the Defendant’s

application. Hence, we find that the out-of-time appeal was improperly granted and

Defendant’s appeal is not properly before us. For this reason, Defendant’s appeal is

CONCLUSION

The Defendant’s appeal is dismissed.