State v. Carpenter

Louisiana Court of Appeal

State v. Carpenter

542 So. 2d 638, 1989 La. App. LEXIS 666, 1989 WL 36932

CourtLouisiana Court of Appeal

DecidedApril 12, 1989

DocketNo. 89-KA-90

StatusPublished

This text of 542 So. 2d 638 (State v. Carpenter) 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. Carpenter, 542 So. 2d 638, 1989 La. App. LEXIS 666, 1989 WL 36932 (La. Ct. App. 1989).

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Opinion

GOTHARD, Judge.

Lawrence Carpenter was charged by bill of indictment filed May 19,1988 in the 24th Judicial District Court with the offense of aggravated rape, a violation of LSA-R.S. 14:42.

Following a jury trial conducted during August, Carpenter was found guilty of forcible rape. He was sentenced on October 26, 1988 to serve ten (10) years at hard labor without benefit of parole, probation or suspension of sentence. Carpenter’s counsel, Morris Borenstein, on November 2 filed a “Motion to Withdraw and Appoint Indigent Defender Board for Appeal”, which motion was granted by Judge Can-nella on November 9, but no motion for appeal was filed until November 10.¹

La.C.Cr.P. art. 914 sets out the procedure for taking criminal appeals:

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 supplied.]

As Carpenter’s counsel filed the motion for appeal fifteen days late, the appeal is untimely and this court has no jurisdiction over the matter.

Following the expiration of time limitations for seeking an appeal, the conviction and the sentence imposed become final and are no longer subject to review under the ordinary appellate process, unless the defendant obtains the reinstatement of his right to appeal. See State v. Counterman, 475 So.2d 336 (La.1985). The appropriate procedural vehicle to seek the exercise of the right to appeal after the legal delays have expired is an application to the trial court for post conviction relief. La.C.Cr.P. art. 924 et seq.; State v. Counterman, supra. See also State v. Savage, 514 So.2d 174 (La.App. 5 Cir.1987); State v. Anderson, 537 So.2d 872 (La.App. 5 Cir.1989).

As this court is without jurisdiction because the appeal was not filed timely, the appeal is dismissed.

APPEAL DISMISSED.

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GOTHARD, Judge.

Lawrence Carpenter was charged by bill of indictment filed May 19,1988 in the 24th Judicial District Court with the offense of aggravated rape, a violation of LSA-R.S. 14:42.

Following a jury trial conducted during August, Carpenter was found guilty of forcible rape. He was sentenced on October 26, 1988 to serve ten (10) years at hard labor without benefit of parole, probation or suspension of sentence. Carpenter’s counsel, Morris Borenstein, on November 2 filed a “Motion to Withdraw and Appoint Indigent Defender Board for Appeal”, which motion was granted by Judge Can-nella on November 9, but no motion for appeal was filed until November 10.¹

La.C.Cr.P. art. 914 sets out the procedure for taking criminal appeals:

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 supplied.]

As Carpenter’s counsel filed the motion for appeal fifteen days late, the appeal is untimely and this court has no jurisdiction over the matter.

Following the expiration of time limitations for seeking an appeal, the conviction and the sentence imposed become final and are no longer subject to review under the ordinary appellate process, unless the defendant obtains the reinstatement of his right to appeal. See State v. Counterman, 475 So.2d 336 (La.1985). The appropriate procedural vehicle to seek the exercise of the right to appeal after the legal delays have expired is an application to the trial court for post conviction relief. La.C.Cr.P. art. 924 et seq.; State v. Counterman, supra. See also State v. Savage, 514 So.2d 174 (La.App. 5 Cir.1987); State v. Anderson, 537 So.2d 872 (La.App. 5 Cir.1989).

As this court is without jurisdiction because the appeal was not filed timely, the appeal is dismissed.

APPEAL DISMISSED.

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Bluebook (online)

542 So. 2d 638, 1989 La. App. LEXIS 666, 1989 WL 36932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-carpenter-lactapp-1989.

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