Opinion
23-KH-111
03-28-2023
DASILVA FERREIRA, JHON W. v. STATE OF LOUISIANA IN RE JHON W. DASILVA
APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE FRANK A. BRINDISI, DIVISION "E", NUMBER 20-333
Panel composed of Judges Robert A. Chaisson, John J. Molaison, Jr., and Cornelius E. Regan
WRIT GRANTED IN PART; WRIT NOT CONSIDERED IN PART; MATTER REMANDED
In this writ application, relator seeks review of the district court's January 17, 2023 ruling that found him guilty of contempt of court and sentenced him to six months at hard labor to run consecutively with the sentence he is currently serving.
We note that relator filed a notice of appeal and titled the document filed in this Court as "Appellant's Brief." However, in his prayer for relief, relator requests that this Court grant his writ. La. C.Cr.P. art. 912.1(B)(1) provides, in part, that a defendant may appeal to the court of appeal from a judgment in a criminal case triable by a jury. La. C.Cr.P. art. 912.1(C)(1) provides, "In all other cases not otherwise provided by law, the defendant has the right of judicial review by application to the court of appeal for a writ of review." In light of these provisions, we construe relator's notice of appeal as a notice of intent to file a writ application.
In his request for review, relator lists the following two errors: 1) The trial court erred in finding him guilty of contempt of court for failing to answer questions and invoking his right to remain silent and his right against selfincrimination; and 2) The trial court erred in imposing a hard labor sentence for contempt of court.
As an exhibit to his writ application, relator attached the minute entry from January 17, 2023, which reflects that he was found guilty of contempt of court for refusal to answer questions. Relator failed to provide this Court with any other documents indicating the specific circumstances surrounding the finding of contempt. La. C.Cr.P. art. 912.1(C)(1) provides that a defendant's writ application "shall be accompanied by a complete record of all evidence upon which the judgment is based unless the defendant intelligently waives the right to cause all or any portion of the record to accompany the application." In light of this deficiency, we cannot determine whether the contempt finding was appropriate. See also Rule 4-5 of the Uniform Rules-Courts of Appeal, which sets forth the items that should be contained in a writ application.
The January 17, 2023 minute entry further reflects that relator was sentenced to six months at hard labor to run consecutively to the sentence he is currently serving. The penalties for contempt are set forth in La. C.Cr.P. art. 25, which provides, in part, as follows:
B. Except as otherwise provided in this Article, a court may punish a person adjudged guilty of contempt of court in connection with a criminal proceeding by a fine of not more than five hundred dollars, or by imprisonment for not more than six months, or both.
The minute entry reflects that the trial court imposed relator's sentence at hard labor, which is not authorized by the penalty provision for contempt. Accordingly, with regard to his sentence, we grant relator's writ, vacate his sixmonth sentence at hard labor, and remand the matter for resentencing. With regard to his request for review of the contempt adjudication, we do not consider that portion of his writ application due to the deficiencies in his writ application previously noted. We recognize that upon resentencing, relator may file a writ application in compliance with La. C.Cr.P. art. 912.1(C)(1) and Rule 4-5 of the Uniform Rules-Courts of Appeal, seeking review of his contempt adjudication and sentence.
Gretna, Louisiana, this 28th day of March, 2023.
RAC
JJM
CER