Opinion
15-1067
02-03-2016
STATE OF LOUISIANA v. DAVID SAMUEL SMITH, JR.
HON. DON M. BURKETT DISTRICT ATTORNEY - 11TH JD P. O. BOX 1557 MANY, LA 71449 COUNSEL FOR APPELLEE State of Louisiana CHAD M. IKERD ATTORNEY AT LAW P. O. BOX 2125 Lafayette, LA 70502-2125 COUNSEL FOR APPELLANT: David Samuel Smith, Jr.
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT PARISH OF SABINE, DOCKET NUMBER 68497
HONORABLE STEPHEN B. BEASLEY, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Elizabeth A. Pickett, Shannon J. Gremillion and Phyllis M. Keaty, Judges.
APPEAL DISMISSED. DEFENDANT-APPELLANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS FROM THE DATE OF THIS DECISION.
HON. DON M. BURKETT
DISTRICT ATTORNEY - 11TH JD
P. O. BOX 1557
MANY, LA 71449
COUNSEL FOR APPELLEE
State of Louisiana CHAD M. IKERD
ATTORNEY AT LAW
P. O. BOX 2125
Lafayette, LA 70502-2125
COUNSEL FOR APPELLANT:
David Samuel Smith, Jr.
Pickett, Judge.
On November 12, 2010, Defendant-Appellant, David Samuel Smith, Jr., was charged with aggravated domestic battery, in violation of La.R.S. 14:34 and 46:2131-2151; attempted battery of a police officer, in violation of La.R.S. 14:27 and 14:34.2; and aggravated criminal damage to property, a violation of La.R.S. 14:55. On August 23, 2011, Defendant-Appellant entered a plea of guilty to aggravated domestic battery and aggravated criminal damage to property. The charge of attempted battery of a police officer was dismissed. Defendant-Appellant was sentenced to seven years on each count at hard labor, with credit given for time served. The sentences were to run concurrently to each other.
On March 10, 2015, Defendant-Appellant filed an application for post-conviction relief; the application was denied by the trial court on March 12, 2015. On September 3, 2015, Defendant-Appellant filed a "Motion for Appeal and Designation of Record" with the trial court. The trial court granted Defendant-Appellant's motion on September 14, 2015, with a return date of October 30, 2015.
On November 10, 2015, this court lodged the appeal record. On December 2, 2015, this court issued a rule to show cause why the appeal should not be dismissed, as the judgment at issue is not an appealable judgment. La.Code Crim.P. art. 930.6.
Defendant-Appellant's counsel filed a "BRIEF OF APPELLANT, DAVID SMITH, JR., TO SHOW CAUSE WHY APPEAL SHOULD NOT BE DISMISSED" in response to the rule to show cause on December 17, 2015. Defendant-Appellant's counsel acknowledges that "this Court should dismiss the 'appeal' filed pro se by Mr. Smith, but should nevertheless consider his filing as a notice of intent to file a writ application to review the lower court's ruling. This Court should, therefore, allow Mr. Smith thirty-days from the date of a decision in this case within which to file—in proper person—his supervisory writ application if he so desires."
Accordingly, we hereby dismiss Defendant-Appellant's appeal. David Samuel Smith, Jr., Defendant-Appellant, is hereby permitted to file a proper application for supervisory writs, in compliance with Uniform Rules—Courts of Appeal, Rule 4, no later than thirty days from the date of this decision. The Defendant-Appellant is not required to file a notice of intent to seek writs nor obtain an order setting a return date pursuant to Uniform Rules—Courts of Appeal, Rule 4-3 as we hereby construe the motion for appeal as a timely-filed notice of intent to seek a supervisory writ.