Opinion
No. 95 KA 0582.
July 12, 1995.
APPEAL FROM THE DISTRICT COURT, PARISH OF EAST BATON ROUGE, STATE OF LOUISIANA.
Dist. Atty. of Baton Rouge, for plaintiff.
Office of Public Defender, Baton Rouge, for defendant.
Before TANNER, CARTER and FITZSIMMONS, JJ.
MOTION TO WITHDRAW AS ATTORNEY OF RECORD DENIED:
Defendant has two appeals before this Court. One arises from convictions under substantive charges under bill of information number 8-94-506 and is our docket number 95 KA 0581. The other appeal arises from a habitual offender adjudication under bill of information number 11-94-106 and is our docket number 95 KA 0582. In his brief under the first appeal (95 KA 0581), defense counsel argues that the sentence is excessive. That sentence was rendered pursuant to the habitual offender adjudication under bill number 11-94-106, the appeal of which is our number 95 KA 0582 — the same appeal from which defense counsel seeks to withdraw under State v. Benjamin 573 So.2d 528 (La. App. 4th Cir. 1990). Thus, defense counsel does brief what he considers to be a non-frivolous issue in that appeal, although he has done so in a brief corresponding to a different appeal. Additionally, other errors are assigned and argued in appeal number 95 KA 0581. These matters, although instituted by the state under two separate bill of information numbers, are one case. Since defense counsel makes several arguments in the case, Benjamin does not apply.
The habitual offender allegations should be made under the same bill of information number under which the substantive charge was instituted.
Defense counsel has certified that he mailed defendant a copy of his brief and motion to withdraw. Defendant is entitled to some explanation. Therefore, it is
ORDERED that defense counsel, Morgan Trahan Griggs, mail defendant a copy of this Court's action herein and a letter of explanation. Additionally, he shall file a copy of the letter of explanation with this Court under docket number 95 KA 0582 within fifteen days of the date of this order.