Opinion
No. 10-394.
June 2, 2010. NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. CR 125743 THOMAS FREDERICK, COMMISSIONER.
Hon. Michael Harson, Lafayette Parish District Attorney, Lafayette, LA, COUNSEL FOR APPELLEE: State of Louisiana.
Terence Sias, in proper person, Lafayette, LA.
Court composed of JOHN D. SAUNDERS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
On December 16, 2009, the State filed a bill of information charging the Defendant, Terrance Sias, with possession of cocaine with intent to distribute, a violation of La.R.S. 40:967, and receiving proceeds derived from a violation of the Controlled Dangerous Substance Law, a violation of La.R.S. 40:1041.
The Defendant was arraigned on February 2, 2010 and entered a plea of not guilty.
On October 7, 2009, the Defendant filed in the trial court a "Motion to Dismiss" seeking dismissal of the prosecution. On October 13, 2009, the trial court denied the motion as "Moot. Writ granted 6/1/09." The Defendant sought a writ of review by this court and this court held as follows:
WRIT DENIED : If Defendant desires that this court review the trial court's October 13, 2009, ruling, there is nothing upon which this court may grant relief. The October 13, 2009, ruling denied Defendant's "Motion to Dismiss," filed under lower court Report Number 09-78290, as moot, referring to the June 1, 2009, "Writ of Habeas Corpus" wherein Defendant was released from custody because charges were not filed. In the current case, information received from the Lafayette Parish Clerk of Court's Office indicates that the bill of information containing the current charges was not filed until December 16, 2009, under lower court docket number 125743.
If Defendant desires this court to order the trial court to grant him an appeal of the October 13, 2009, ruling, the trial court has addressed the matter and granted an appeal. Therefore, Defendant's writ application is moot.
State v. Sias, an unpublished writ bearing docket number 10-75 (La. App. 3 Cir. 3/29/10).
The Defendant filed in the trial court a "Motion for Appeal" requesting an appeal be granted in order for him to seek review of his "Motion to Dismiss." The trial court granted the appeal on January 20, 2010.
This court received the appeal record in this matter, and lodged it under docket number 10-394 on March 31, 2010. On April 1, 2010, this court issued a rule to show cause why this appeal should not be dismissed as premature as the judgment at issue was not an appealable judgment in accordance with La. Code Crim.P. art. 912.1.
On May 21, 2010, the Defendant filed a response asserting his case could be disposed of promptly as the results from the crime lab negate his alleged guilt.
Louisiana Code of Criminal Procedure Article 912 provides in pertinent part:
A. Only a final judgment or ruling is appealable.
. . . .
C. The judgments or rulings from which the defendant may appeal include, but are not limited to:
(1) A judgment which imposes sentence;
(2) A ruling upon a motion by the state declaring the present insanity of the defendant;
Louisiana Code of Criminal Procedure Article 912.1 provides in pertinent part:
B. (1) The defendant may appeal to the court of appeal from a judgment in a criminal case triable by jury, except as provided in Paragraph A or Subparagraph (2) of this Paragraph.
The Defendant has not been convicted and sentenced. Additionally, the appeal does not involve a ruling regarding the Defendant's sanity. Thus, he is not entitled to an appeal.
Therefore, the appeal in the above-captioned case is hereby dismissed.