State of Louisiana Versus Julius Hankton

• Court: Louisiana Court of Appeal
• Decided: June 1, 2020
• Docket: 20-KA-21
• Status: Unknown

Opinion

STATE OF LOUISIANA NO. 20-KA-21

VERSUS FIFTH CIRCUIT

JULIUS HANKTON COURT OF APPEAL

STATE OF LOUISIANA

June 01, 2020

Mary E. Legnon Chief Deputy Clerk

ON APPLICATION FOR REHEARING

Panel composed of Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J. Liljeberg

DENIED

FHW RAC HJL STATE OF LOUISIANA NO. 20-KA-21 VERSUS JULIUS HANKTON FIFTH CIRCUIT

COURT OF APPEAL

ORDER Defendant files an application for rehearing from this Court’s order

dismissing his appeal as untimely. For the following reasons, we deny

defendant’s application.

Defendant’s motion for appeal in the trial court was clearly untimely.

Despite this fact, defendant argues that his appellate rights were reinstated

by the simple filing of a motion for appeal, without further consideration,

contrary to the guidelines set forth in State v. Counterman, 475 So.2d 336,

338 (La. 1985). In support of his application for rehearing, defendant cites

several cases where an appeal was considered, after the defendant filed

either a motion for out-of-time appeal or an application for post-conviction

relief that was considered by the trial court as a motion for out-of-time

appeal. The facts of those cases are distinguishable from this appeal.

The procedural posture of this appeal is more closely aligned with

that in State v. Herron, 06-317 (La. App. 3 Cir. 4/26/06), 930 So.2d 201.

In Herron, the trial court found that it had the discretion to grant an

untimely motion for appeal. The Third Circuit disagreed, finding that

once a defendant’s conviction and sentence became final, he could not

obtain an appeal by simply filing a motion for appeal, and had to obtain

reinstatement of his appellate rights by way of a properly filed application

for post-conviction relief pursuant to State v. Counterman. Id., 930 So.2d at page 202. The Court dismissed the appeal and remanded the case so

that the defendant could file his APCR.

As in Herron, defendant’s appellate rights cannot be reinstated by

the filing of a motion for appeal. Instead, according to Counterman,

defendant must seek re-instatement of his appellate right by way of an

APCR.

For these reasons, defendant’s application for rehearing is denied. SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 06/01/2020 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

20-KA-21 E-NOTIFIED Thomas J. Butler (Appellee) Andrea F. Long (Appellee)

MAILED Bruce G. Whittaker (Appellant) Honorable Paul D. Connick, Jr. (Appellee) Attorney at Law Seth W. Shute (Appellee) Louisiana Appellate Project Douglas E. Rushton (Appellee) 1215 Prytania Street Lynn Schiffman (Appellee) Suite 332 Assistant District Attorneys New Orleans, LA 70130 Twenty-Fourth Judicial District 200 Derbigny Street Gretna, LA 70053