Opinion
22-KH-332
08-24-2022
STATE OF LOUISIANA v. ELZEY JEFFREY PERILLOUX IN RE STATE OF LOUISIANA
APPLYING FOR SUPERVISORY WRIT FROM THE FORTIETH JUDICIAL DISTRICT COURT, PARISH OF ST JOHN THE BAPTIST, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE FRANZ L. ZIBILICH, DIVISION "C", NUMBER 18,193
Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and June B. Darensburg
WRIT GRANTED
In this writ application, the State seeks supervisory review of the trial court's ruling that defendant's second Motion for New Trial was timely filed. For the following reasons, this writ application is granted.
Defendant alleged in his second Motion for New Trial that it was based on La. C.Cr.P. art. 851(B)(4) and (5). However, defendant also alleged in his motion that it was based on newly discovered evidence, even though he did not specifically cite La. C.Cr.P. art. 851(B)(3). We find that defendant's allegation of jury misconduct is not new evidence that could be admitted at trial under Article 851(B)(3), and that defendant has not demonstrated the existence of any new evidence which could produce a verdict different from that rendered at trial. See State v. Bibb, 626 So.2d 913, 927 (La.App. 5 Cir. 1993), writ denied, 93-3127 (La. 9/16/94), 642 So.2d 188. Since defendant's allegation of jury misconduct does not fall under Article 851(B)(3), his motion for new trial is untimely because it was not filed and disposed of before sentence. See La. C.Cr.P. art. 853(A).
Although defendant's motion for new trial is untimely, he may have an adequate remedy on appeal. See Bibb, supra.
Accordingly, this writ application is granted.
JBD
SJW
HJL