Opinion
NO. 20-KA-115
03-20-2020
STATE of Louisiana v. Randy Allen FINK
Defendant, Randy Fink, appeals three misdemeanor convictions. For the reasons that follow, we dismiss defendant’s appeal for lack of jurisdiction.
On October 9, 2018, the Jefferson Parish District Attorney filed a bill of information charging defendant with three misdemeanors: domestic abuse battery ( La. R.S. 14:35.3 ), simple battery ( La. R.S. 14:35 ), and violation of a protective order ( La. R.S. 14:79 ). On October 17, 2019, following a bench trial, defendant was found guilty as charged. On October 24, 2019, the trial court imposed a sentence of six months in parish prison on each count to run concurrently, suspended all but forty-eight hours of the sentence, and placed defendant on active probation for two years. Defendant thereafter filed a motion for appeal, which was granted by the trial court on November 27, 2019.
Appellate jurisdiction extends only to cases that are triable by a jury. La. Const. Art. 5, § 10 ; La. C.Cr.P. art. 912.1. To be eligible for trial by jury in a misdemeanor case, an accused must be faced with imprisonment for more than six months and/or a fine of more than one thousand dollars. La. C.Cr.P. art. 779 ; State v. Hunter , 15-69 (La. App. 5 Cir. 2/11/15), 168 So.3d 773, 774. When the State charges a defendant with two or more misdemeanors in a single bill of information or indictment, La. C.Cr.P. art. 493.1 limits the maximum aggregate penalty that may be imposed for all of the misdemeanors to six months imprisonment or a fine of one thousand dollars, or both. As such, when two or more misdemeanors are joined in a single bill of information, the case is not triable by a jury. State v. Chess , 00-164 (La. App. 5 Cir. 6/27/00), 762 So.2d 1286, 1287-88.
In the present case, defendant was charged by a single bill of information with three misdemeanors: domestic abuse battery, simple battery, and violation of a protective order. Because these three misdemeanors were joined in a single bill of information, the maximum aggregate penalty was limited to six months imprisonment or a fine of one thousand dollars, or both. Thus, the case was not triable by a jury and is not appealable. Under La. C.Cr.P. art. 912.1(C)(1), an application for a writ of review is the proper mechanism for seeking judicial review of a conviction on an offense not triable by a jury.
The penalty provisions for these misdemeanor offenses, as set forth in La. R.S. 14:35.3, La. R.S. 14:35, and La. R.S. 14:79, provide for the possibility of imprisonment for not more than six months.
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Accordingly, we dismiss the present appeal. We reserve, however, defendant’s right to file a proper application for supervisory writs, in compliance with U.R.C.A. Rule 4-1 et seq ., within thirty days from the date of this opinion. Further, we hereby construe defendant’s motion for appeal as a notice of intent to seek a supervisory writ, so defendant is not required to file a notice of intent nor obtain an order setting a return date pursuant to U.R.C.A. Rule 4-3.