Opinion
12-905
01-30-2013
STATE OF LOUISIANA v. DESHAUN F. THIBODEAUX
Wayne Simonaud District Attorney - 16th JDC COUNSEL FOR APPELLEE: State of Louisiana Edward J. Marquet Louisiana Appellate Project
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 04-228846
HONORABLE LORI A. LANDRY, DISTRICT JUDGE
MARC T. AMY
JUDGE
Court composed of Sylvia R. Cooks, John D. Saunders, and Marc T. Amy, Judges.
APPEAL DISMISSED. APPELLATE COUNSEL'S MOTION TO WITHDRAW IS DENIED AS MOOT. Wayne Simonaud
District Attorney - 16th JDC
COUNSEL FOR APPELLEE:
State of Louisiana
Edward J. Marquet
Louisiana Appellate Project
COUNSEL FOR APPELLANT:
Deshaun F. Thibodeaux
Amy, Judge.
On October 29, 2004, the Defendant, Deshaun F. Thibodeaux, was charged by bill of information with possession of cocaine, 400 grams or more, in violation of La.R.S. 40:967. Pursuant to a plea agreement, on June 29, 2006, the Defendant pled guilty to the amended charge of attempted possession of cocaine over 400 grams and was sentenced to eight years at hard labor, with all but two years suspended, and five years of supervised probation. He was also ordered to pay a fine of $5,000, $750 to the Indigent Defender Board, $500 to the Louisiana State Police for costs of the investigation, $150 to the Sixteenth Judicial District Court Courthouse Security Fund, $50 to the Acadiana Crime Lab Fund, and court costs.
In separate bills of information, the Defendant was also charged with possession of marijuana, in violation of La.R.S.40:966(C), and possession of a firearm while in possession of cocaine and marijuana, in violation of La.R.S. 14:95(E).
The Defendant's probation was subsequently revoked on January 18, 2012, and he was ordered to serve the remaining portion of his sentence that was not served or that was suspended. A pro se motion to reconsider sentence was filed on February 17, 2012, and subsequently denied without a hearing on March 7, 2012.
A pro se notice of appeal was filed on March 26, 2012, seeking review of the denial of the Defendant's motion to reconsider sentence. The Defendant was granted an appeal on April 16, 2012, and August 9, 2012, the matter came before this court with the instant case being the appeal of the Defendant's probation revocation. On December 4, 2012, this court issued a rule to show cause why the appeal of the Defendant's probation revocation should not be dismissed as a nonappealable judgment and/or having been untimely perfected.
A response from the Defendant was received in this court on December 20, 2012, wherein the Defendant concedes that an order revoking probation is not an appealable judgment pursuant to La.Code Crim.P. art. 912.1. As such, the Defendant asks this court to construe his notice of appeal as a notice of his intent to seek review of his probation revocation by supervisory writ and be allowed thirty days within which to file an application. In a separate motion, counsel for the Defendant requests that the Louisiana Appellate Project's appointment be terminated for the purpose of the probation revocation writ of review.
We find that the probation revocation judgment is not an appealable judgment. Additionally, the appeal was not timely perfected. Thus, the Defendant's request to construe his notice of appeal as a notice of his intent to seek review of his probation revocation by supervisory writ is denied. La.Code Crim.P. arts. 912.1 and 914. Accordingly, we hereby dismiss the Defendant's appeal. Defense counsel's motion to terminate the appointment of the Louisiana Appellate Project is denied as moot.