Opinion
KA23-429
08-23-2023
STATE OF LOUISIANA v. KEVIN JAMES ALEXANDER AKA KEVIN J. ALEXANDER AKA JAMES K. ALEXANDER AKA KEVIN ALEXANDER, JR.
Hon. Donald Landry District Attorney COUNSEL FOR APPELLEE: State of Louisiana Annette Roach Louisiana Appellate Project COUNSEL FOR APPELLANT: Kevin James Alexander
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 145,966 HONORABLE DAVID M. SMITH, JUDGE
Hon. Donald Landry
District Attorney
COUNSEL FOR APPELLEE:
State of Louisiana
Annette Roach
Louisiana Appellate Project
COUNSEL FOR APPELLANT:
Kevin James Alexander
Court composed of Elizabeth A. Pickett, Van K. Kyzar, and Candyce G. Perret, Judges.
CANDYCE G. PERRET JUDGE
On May 12, 2017, Defendant, Kevin James Alexander, was convicted by a jury of aggravated flight from an officer, a violation of La.R.S. 14:108.1(C), and aggravated criminal damage to property, a violation of La.R.S. 14:55. On August 28, 2017, Defendant was sentenced to serve twelve years at hard labor for aggravated criminal damage to property and two years at hard labor for aggravated flight from an officer. Both were with credit for time served and were to be served concurrently.
On December 21, 2017, Defendant filed an appeal. This court affirmed both of Defendant's convictions but vacated the sentence for aggravated flight from an officer and remanded it for resentencing finding that the sentence imposed was unclear. State v. Alexander, 17-1166 (La.App. 3 Cir. 9/26/18), 256 So.3d 365, writ denied, 18-1794 (La. 4/5/19), 267 So.3d 1130.
Defendant was resentenced on November 5, 2018. The transcript reflects that Defendant was sentenced to two years hard labor for aggravated flight from an officer to run concurrently with the twelve-year sentence for aggravated criminal damage to property.
On May 8, 2019, Defendant filed an application for post-conviction relief pursuant to La.Code Crim.P. art. 927, along with a memorandum in support of his application. At a hearing held on February 1, 2023, the trial court denied Defendant's application for post-conviction relief.
On February 8, 2023, a motion for appeal and designation of record was filed on behalf of Defendant. On February 16, 2023, an order was signed granting an appeal on behalf of the Defendant and appointing the Louisiana Appellate Project to handle the appeal.
The record was lodged with this court on July 6, 2023, and on July 7, 2023, this court issued a rule to show cause why the appeal in this case should not be dismissed as the judgment at issue is not appealable. Defendant was given until August 2, 2023, to file a brief.
A "Brief on Rule to Show Cause" from Defendant's appointed attorney was received on August 7, 2023. The brief stated in part: "The proper review of the denial of an application for post-conviction relief is by invoking the court's supervisory jurisdiction. Thus, the appeal in the present case was improper." The Defendant's appointed attorney further requested: "[T]hat the court allow Kevin Alexander a period of thirty days from the date of the court's decision in this case to complete and file a timely application for writ of review."
Accordingly, the appeal is dismissed. Defendant may seek supervisory writs within thirty (30) days of the date of this decision. Defendant is not required to file a notice of intent to seek writs nor must he obtain an order from the trial court setting a return date, as is generally required by Uniform Rules-Courts of Appeal, Rule 4-3. We construe the motion for appeal as a timely-filed notice of intent to seek a supervisory writ.
APPEAL DISMISSED. DEFENDANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS FROM THE DATE OF THIS DECISION.