State v. Hunter

Louisiana Court of Appeal

State v. Hunter

168 So. 3d 773, 2015 La. App. LEXIS 266, 2015 WL 630186

CourtLouisiana Court of Appeal

DecidedFebruary 11, 2015

DocketNo. 15-KA-69

StatusPublished

Cited by2 cases

This text of 168 So. 3d 773 (State v. Hunter) 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. Hunter, 168 So. 3d 773, 2015 La. App. LEXIS 266, 2015 WL 630186 (La. Ct. App. 2015).

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Opinion

SUSAN M. CHEHARDY, Chief Judge.

12Pefendant, Kyron J. Hunter a/k/a Khara Amun Bey, appeals his conviction and sentence for first offense possession of marijuana. Because defendant seeks review of his misdemeanor conviction for a crime not triable by jury, we dismiss this appeal for lack of jurisdiction.

La. Const. Art. V, § 10 states that the appellate jurisdiction of the courts of appeal extends to “all criminal cases triable by a jury [except capital cases]” and its supervisory jurisdiction exists “over cases which arise within its circuit [not otherwise provided by law].” See also La. C.Cr.P. art. 912.1(B)(1); La. C.Cr.P. art. 912.1(C)(1). To be eligible for trial by jury, an accused must be faced with imprisonment for more than six months and/or a fine of more than $1,000.00. La. C.Cr.P. art. 779(B).

Here, after a bench trial on November 17, 2014, the trial judge found defendant guilty of first offense possession of marijuana, a violation of La. R.S. 40:966(C). According to La. R.S. 40:966(E)(1), “on a first conviction for violation of Subsection C of this Section with regard to marijuana, ... the offender shall be fined not more than five hundred dollars, imprisoned in the parish jail for not more |athan six months, or both.” State v. Jefferson, 08-2204 (La.12/01/09), 26 So.3d 112, 114. Thus, defendant’s offense is a misdemean- or offense not eligible for trial by jury and his conviction is, therefore, not an appeal-able judgment.

Under La. C.Cr.P. art. 912.1(C)(1), an application for a writ of review is the proper mechanism for seeking judicial review of a conviction on an offense not triable by jury. See also La. Const. Art. V, § 10. By en banc resolution dated May 23, 2014, the Judges of this Court decided, barring an exceptional situation,¹ to refuse [775]*775to convert matters not subject to this Court’s appellate jurisdiction to applications for writs of review.

Accordingly, we dismiss the present appeal. State v. Donaldson, 13-703 (La.App. 5 Cir. 11/19/13), 130 So.3d 394, 395; State v. Flowers, 11-376 (La.App. 5 Cir. 12/13/11), 81 So.3d 910. We reserve, however, defendant’s right to file a proper application for supervisory writs, in compliance with U.R.C.A. Rule 4-3, within thirty days from the date of this decision. Further, we hereby construe the motion for appeal as a notice of intent to seek a supervisory writ so defendant is not required to file a notice of intent nor obtain an order setting a return date pursuant to U.R.C.A. Rule 4-3.

APPEAL DISMISSED

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SUSAN M. CHEHARDY, Chief Judge.

12Pefendant, Kyron J. Hunter a/k/a Khara Amun Bey, appeals his conviction and sentence for first offense possession of marijuana. Because defendant seeks review of his misdemeanor conviction for a crime not triable by jury, we dismiss this appeal for lack of jurisdiction.

La. Const. Art. V, § 10 states that the appellate jurisdiction of the courts of appeal extends to “all criminal cases triable by a jury [except capital cases]” and its supervisory jurisdiction exists “over cases which arise within its circuit [not otherwise provided by law].” See also La. C.Cr.P. art. 912.1(B)(1); La. C.Cr.P. art. 912.1(C)(1). To be eligible for trial by jury, an accused must be faced with imprisonment for more than six months and/or a fine of more than $1,000.00. La. C.Cr.P. art. 779(B).

Here, after a bench trial on November 17, 2014, the trial judge found defendant guilty of first offense possession of marijuana, a violation of La. R.S. 40:966(C). According to La. R.S. 40:966(E)(1), “on a first conviction for violation of Subsection C of this Section with regard to marijuana, ... the offender shall be fined not more than five hundred dollars, imprisoned in the parish jail for not more |athan six months, or both.” State v. Jefferson, 08-2204 (La.12/01/09), 26 So.3d 112, 114. Thus, defendant’s offense is a misdemean- or offense not eligible for trial by jury and his conviction is, therefore, not an appeal-able judgment.

Under La. C.Cr.P. art. 912.1(C)(1), an application for a writ of review is the proper mechanism for seeking judicial review of a conviction on an offense not triable by jury. See also La. Const. Art. V, § 10. By en banc resolution dated May 23, 2014, the Judges of this Court decided, barring an exceptional situation,¹ to refuse [775]*775to convert matters not subject to this Court’s appellate jurisdiction to applications for writs of review.

Accordingly, we dismiss the present appeal. State v. Donaldson, 13-703 (La.App. 5 Cir. 11/19/13), 130 So.3d 394, 395; State v. Flowers, 11-376 (La.App. 5 Cir. 12/13/11), 81 So.3d 910. We reserve, however, defendant’s right to file a proper application for supervisory writs, in compliance with U.R.C.A. Rule 4-3, within thirty days from the date of this decision. Further, we hereby construe the motion for appeal as a notice of intent to seek a supervisory writ so defendant is not required to file a notice of intent nor obtain an order setting a return date pursuant to U.R.C.A. Rule 4-3.

APPEAL DISMISSED

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Bluebook (online)

168 So. 3d 773, 2015 La. App. LEXIS 266, 2015 WL 630186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hunter-lactapp-2015.

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