State v. Newton

548 So. 2d 91, 1989 La. App. LEXIS 1469, 1989 WL 85456

Opinion

DUFRESNE, Judge.

Dennis A. Newton, A/K/A Denny Brown, was charged with the second degree murder of Robert J. Miller and was found guilty as charged on December 13, 1988. After waiving delays, Newton was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence. Neither the trial transcript nor the minute entries for the trial reflect an oral motion for appeal on behalf of the defendant. A written motion for appeal was filed on December 22, 1988.

The appeal is untimely. C.Cr.P. art. 914 states:

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.

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 for post-conviction relief. See State v. Counterman, supra. See also State v. Davis, 584 So.2d 521 (La.App. 5th Cir.1988).

Accordingly, the appeal is dismissed and the case is remanded to allow the defendant to seek reinstatement of his right to appeal.

APPEAL DISMISSED, CASE REMANDED.