Summary
In State v. Newton, 548 So.2d 91 (La.App. 5th Cir. 1989) this court dismissed his untimely appeal and remanded the case to allow the defendant to seek reinstatement of his right to appeal. The defendant filed an application for postconviction relief requesting the trial court to reinstate his right to appeal, which was granted.
Summary of this case from State v. NewtonOpinion
No. 89-KA-150.
July 31, 1989.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE WALTER E. KOLLIN, J.
John M. Mamoulides, Dist. Atty., Dorothy Pendergast, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
Bruce G. Whittaker, IDB Staff Appellate Counsel, Gretna, for defendant-appellant.
Before BOWES, DUFRESNE and WICKER, JJ.
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, 534 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.