State v. Mathews

677 So. 2d 466, 1996 La. App. LEXIS 888, 1996 WL 196636

• Court: Louisiana Court of Appeal
• Decided: April 24, 1996
• Docket: No. CR95-1118
• Status: Published

Opinion

|iAMY, Judge.

On December 13,1994, defendant, Freddie Mathews was convicted of distribution of a Schedule II controlled dangerous substance, to wit cocaine, in violation of La.R.S. 40:967. On February 3, 1995, defendant was sentenced to serve twenty (20) years at hard labor. Twenty-eight days later, on March 3, 1995, the defendant filed his motion for appeal.

La.Code Crim.P. art. 914 provides:

A. A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court.

B. The motion for an appeal must be made no later than:

(1) Five days after the rendition of the judgment or ruling from which the appeal is taken.

(2) Five days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such a motion be filed.

_jjWhen 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 simply filing a motion for appeal in the trial court. Upon expiration of the five day period, the conviction and sentence are final unless a timely motion to reconsider sentence was filed. We find no such motion to reconsider was filed in the present case; thus, defendant’s only recourse is to seek reinstatement of his right to appeal in the trial court. State v. Counterman, 475 So.2d 336 (La.1985). Defendant’s appropriate procedural device after the five day period is an application for post-conviction relief. Id. at 339.

Accordingly, defendant’s untimely appeal is dismissed.

APPEAL DISMISSED.