State v. Jones

128 So. 3d 436, 12 La.App. 5 Cir. 640, 2013 WL 5849473, 2013 La. App. LEXIS 2185
Louisiana Court of Appeal·Decided October 30, 2013·No. Nos. 12-KA-640, 12-KA-641·Published·Cited by 16 cases

Opinion

FREDERICKA HOMBERG WICKER, Judge.

| gDefendant, Donald Jones, seeks a Crosby appeal of his convictions for misdemeanor resisting arrest and felony possession of marijuana, second offense, violations of La. R.S. 14:108 and La. R.S. 40:966, respectively. Defendant argues the trial court erred in failing to grant his motion to suppress. For the following reasons, we find defendant’s assignment of error to be without merit and affirm his convictions. Due to two errors patent however, we remand this matter to the trial court.

PROCEDURAL HISTORY

On January 11, 2012, the Jefferson Parish District Attorney filed a bill of information in case number 12-109, charging defendant with possession of marijuana in violation of La. R.S. 40:966(0 (count one) and with resisting an officer in violation of La. R.S. 14:108. The Jefferson Parish District Attorney filed ^another bill of information on January 26, 2012, in case number 12-422, charging defendant with possession of marijuana, second offense, in violation of La. R.S. 40:966(C). Defendant was arraigned on January 31, 2012, and pled not guilty to possession of marijuana and resisting an officer in case number 12-109. Defendant was arraigned on March 1, 2012 in case number 12-422 and pled not guilty to the second offense possession of marijuana charge. Also on March 1, 2012, the state dismissed count one of the bill of information filed in case number 12-109.

On February 17, 2012, defendant filed, inter alia, a motion to suppress the evidence against him. On March 8, 2012, and March 13, 2012, the trial court held a hearing on defendant’s motion to suppress. At the conclusion of this hearing, the trial court denied defendant’s motion and defendant objected.

Defendant thereafter withdrew his former not guilty pleas and, under State v. Crosby, 338 So.2d 584 (La.1976), pled guilty as charged to resisting an officer in case number 12-109 and possession of marijuana, second offense, in case number 12-422. The transcript reveals that defendant reserved the right to challenge the denial of his motion to suppress. The trial court sentenced defendant to six months in Parish Prison for resisting an officer and [441] to five years imprisonment with the Department of Corrections for possession of marijuana, second offense.

The state then filed a multiple offender bill as to the marijuana possession charge to which defendant had already pled guilty. Defendant waived his rights with regard to this multiple offender bill and pled guilty to it. The trial court subsequently vacated defendant’s original sentence on the possession charge and resen-tenced him to six years imprisonment with the Department of Corrections. This enhanced sentence was imposed without benefit of probation or suspension of sentence, and was ordered to run concurrently with the sentence imposed in case number 12-109 for resisting arrest. The trial court reaffirmed that the plea was|4taken pursuant to Crosby, and then granted defense counsel’s oral motion to appeal.

On March 14, 2012, defense counsel filed a written motion for appeal in case numbers 12-109 and 12-422, which the trial court granted on March 20, 2012. Thereafter, defendant filed a motion to consolidate appeals with this Court. He explained that the two appellate numbers referred to two separate trial court case numbers that were charged under separate bills of information, but arose out of the same set of facts and were consolidated for purposes of the suppression hearing. He added that the matters were resolved by a Crosby plea, reserving his right to appeal the denial of the motion to suppress. Defendant asked that this Court consolidate the matters for appeal in the interest of judicial economy. On September 11, 2012, this Court ordered that the matters in 12-KA-640 and 12-KA-641 be consolidated.

JURISDICTIONAL NOTE

This Court’s appellate jurisdiction extends only to cases that are triable by a jury. State v. Chess, 00-164, p. 1 (La.App. 5 Cir. 6/27/00), 762 So.2d 1286, 1287 (citing La. Const, of 1974, art. 5 § 10; La.C.Cr.P. art. 912.1). Unless the punishment that may be imposed exceeds six months imprisonment, a misdemeanor is not triable by a jury. Chess, 00-164 at 1-2, 762 So.2d at 1287 (citing La. Const, of 1974, art. 1 § 17; La.C.Cr.P. art. 779;1 State v. Robinson, 94-864, pp. 2-3 (La. App. 5 Cir. 3/15/95), 653 So.2d 669, 670).

In the present case, defendant was charged with and pled guilty to resisting an officer in violation of La. R.S. 14:108 in district court case number 12-109 (appeal number 12-KA-640). He was also charged with possession of marijuana in [ ¿violation of La. R.S. 40:966(C) in the same bill of information. However, the possession of marijuana charge was later dismissed. A bill of information was later filed in district court case number 12-422 (appeal number 12-KA-641), charging defendant with second offense possession of marijuana, a felony. La. R.S. 14:108(0 sets forth the penalty for resisting an officer: “Whoever commits the crime of resisting an officer shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.” A violation of La. R.S. 14:108 is a misdemeanor. See State in Interest of S.L., 11-883, p. 2 (La.App. 5 Cir. 4/24/12), 94 So.3d 822, 827 n. 2. On this basis, we find that this misdemeanor was not triable by a jury.2 Accordingly, the proper procedure [442] for seeking review of a misdemeanor conviction is an application for writ of review directed to this Court to exercise its supervisory jurisdiction. See La.C.Cr.P. art. 912.1(C)(1); State v. Trepagnier, 07-749 c/w 07-750, p. 3 (La.App. 5 Cir. 3/11/08), 982 So.2d 185, 188, writ denied, 08-0784 (La.10/24/08), 992 So.2d 1033.

The long standing policy of this Court is to avoid converting matters that are improperly filed as appeals to writ applications. However, this Court will make an exception if the interest of justice would be better served by converting the filing to a writ application. Trepagnier, 07-749 c/w 07-750 at 3-4, 982 So.2d at 188.3

In Trepagnier, the defendant was charged with a felony in one bill of information and with three misdemeanors in a separate bill of information. The defendant waived his right to a jury trial on the felony charge and all charges were | ñtried by the judge. The defendant was found guilty as charged on all counts. The defendant filed a motion for appeal and designation of record in both the felony and misdemeanor cases. On defense counsel’s motion, this Court consolidated the cases on appeal. In its opinion, this Court noted the jurisdictional issue regarding the appeal of the defendant’s misdemeanor convictions. It acknowledged that the proper procedure for seeking review of a misdemeanor conviction is an application for writ of review, however, this Court found that the facts of the misdemeanor and felony convictions were intertwined to the point that the interest of justice would be better served by considering the matters together. Accordingly, this Court converted the defendant’s appeal of his misdemeanor convictions to a writ application.

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State v. Jones, 128 So. 3d 436, 12 La.App. 5 Cir. 640, 2013 WL 5849473, 2013 La. App. LEXIS 2185 (La. Ct. App. 2013).

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