Opinion
No. Cr90-1113.
March 28, 1991.
APPEAL FROM 16TH JUDICIAL DISTRICT COURT, PARISH OF ST. MARTIN, STATE OF LOUISIANA, HONORABLE ROBERT FLEMING, J.
Kim Kidd, St. Martinville, for defendant-appellant.
Bernard E. Boudreaux, Jr., Dist. Atty., New Iberia, for plaintiff-appellee.
Before STOKER, LABORDE and KING, JJ.
On May 2, 1990, defendant, Howard Martin was found guilty by a jury of six persons for the crimes of simple burglary and theft of property in excess of $500.00, violations of La.R.S. 14:62 and La.R.S. 14:67. On June 25, 1990, defendant was sentenced to three (3) years imprisonment at hard labor for these crimes. Approximately one month later on July 26, 1990, the defendant filed his motion for appeal. Because the defendant's appeal is untimely, we dismiss the appeal ex proprio motu.
La.C.Cr.P. Art. 914 provides:
"Art. 914. Method and time of appeal
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." (Emphasis added.)
When a defendant fails to make a motion for appeal within the time provided in Article 914, he loses his right to obtain an appeal by simply filing a motion for appeal in the trial court. Upon expiration of the five day period, the conviction and sentence are final and defendant's only recourse is to seek reinstatement of his right to appeal in the trial court. State v. Counterman, 475 So.2d 336 (La. 1985); State v. Latchie, 499 So.2d 1345 (La.App. 3 Cir. 1986) and State v. Johnson, 576 So.2d 1012, (La.App. 3 Cir., 1991). In addition, defendant's appropriate procedural device after the five day period is an application for post-conviction relief. Id. at 339.
Accordingly, defendant's untimely appeal is dismissed.
APPEAL DISMISSED.