State v. Brinson

Louisiana Court of Appeal

State v. Brinson

602 So. 2d 305, 1992 La. App. LEXIS 2064, 1992 WL 148265

CourtLouisiana Court of Appeal

DecidedJune 29, 1992

DocketNo. CR 92-257

StatusPublished

This text of 602 So. 2d 305 (State v. Brinson) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Brinson, 602 So. 2d 305, 1992 La. App. LEXIS 2064, 1992 WL 148265 (La. Ct. App. 1992).

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Opinion

STOKER, Judge.

On May 31, 1991, defendant, Curling J. Brinson, Jr., pled guilty to the charges of possession of marijuana with intent to distribute and possession of cocaine, violations of La. R.S. 40:966(A)(1) and La. R.S. 40:967(A)(1) respectively. On August 27, 1991, the defendant was sentenced to five (5) years at hard labor with the Department of Corrections plus a fine of one thousand dollars ($1,000.00) and costs. Three and one-half (3½) years of his sentence was suspended and relator was placed on three (3) years probation. Seventeen (17) days later on September 13, counsel for defendant, Speedy O. Long, made an oral motion for appeal. A written motion for appeal confirming the oral motion was filed on October 10, 1991. As the defendant’s appeal is untimely, we dismiss the appeal ex proprio motu.

La.C.Cr.P. art. 914 provides:

“Art. 914. Method and time of appeal A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion must be made no later than five days after the rendition of the judgment or ruling from which the appeal is taken. The motion shall be entered in the minutes of the court.” (Emphasis added.)

When a defendant fails to make a motion for appeal within the time provided in Article 914, he loses his right to obtain an appeal by then filing a motion for appeal in the trial court. Upon expiration of the five day period for appeal, the conviction and sentence are final and defendant’s only recourse is to seek reinstatement of his right to appeal by post-conviction proceeding in the trial court. State v. Counterman, 475 So.2d 336 (La.1985); State v. Latchie, 499 So.2d 1345 (La.App. 3 Cir.1986).

For these reasons, defendant s untimely appeal is dismissed ex proprio motu by this Court.

APPEAL DISMISSED.

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STOKER, Judge.

On May 31, 1991, defendant, Curling J. Brinson, Jr., pled guilty to the charges of possession of marijuana with intent to distribute and possession of cocaine, violations of La. R.S. 40:966(A)(1) and La. R.S. 40:967(A)(1) respectively. On August 27, 1991, the defendant was sentenced to five (5) years at hard labor with the Department of Corrections plus a fine of one thousand dollars ($1,000.00) and costs. Three and one-half (3½) years of his sentence was suspended and relator was placed on three (3) years probation. Seventeen (17) days later on September 13, counsel for defendant, Speedy O. Long, made an oral motion for appeal. A written motion for appeal confirming the oral motion was filed on October 10, 1991. As the defendant’s appeal is untimely, we dismiss the appeal ex proprio motu.

La.C.Cr.P. art. 914 provides:

“Art. 914. Method and time of appeal A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion must be made no later than five days after the rendition of the judgment or ruling from which the appeal is taken. The motion shall be entered in the minutes of the court.” (Emphasis added.)

When a defendant fails to make a motion for appeal within the time provided in Article 914, he loses his right to obtain an appeal by then filing a motion for appeal in the trial court. Upon expiration of the five day period for appeal, the conviction and sentence are final and defendant’s only recourse is to seek reinstatement of his right to appeal by post-conviction proceeding in the trial court. State v. Counterman, 475 So.2d 336 (La.1985); State v. Latchie, 499 So.2d 1345 (La.App. 3 Cir.1986).

For these reasons, defendant s untimely appeal is dismissed ex proprio motu by this Court.

APPEAL DISMISSED.

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Bluebook (online)

602 So. 2d 305, 1992 La. App. LEXIS 2064, 1992 WL 148265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-brinson-lactapp-1992.

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