Opinion
No. KA 10 01367.
December 22, 2010.
APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 85,000, 83,210, 83,211 HONORABLE MARK A. JEASONNE.
Hon. David Weilbaecher, Jr., Attorney General's Office, Baton Rouge, LA, COUNSEL FOR APPELLEE: State of Louisiana.
Mr. Roger White, In Proper Person, Cottonport, LA.
Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
The Defendant, Roger White, Jr., was convicted of two counts of simple burglary, in violation of La.R.S. 14:62. On October 17, 1995, the trial court, at a motion for sentencing under the habitual offender law, found the Defendant to be a second felony offender. The court sentenced the Defendant on December 19, 1995, to serve twenty-four years on each count, to run consecutively, for a total of forty-eight years.
Defendant appealed the sentences and in December 1997, we determined that although the trial court was justified in imposing consecutive sentences, the combined sentences were grossly out of proportion to severity of the crimes. State v. White, 97-700 (La.App. 3 Cir. 12/10/97), 704 So.2d 376. Defendant was resentenced on June 9, 1998, to two terms of fifteen years on each count, to be served consecutively.
On March 12, 2010, Defendant filed a "Motion to Correct an Illegal Multiple Offender Sentence and Adjudication." A hearing was held on April 20, 2010, following which the trial court denied Defendant's motion in open court. At the conclusion of the hearing, the trial court granted Defendant's oral motion for an appeal. Defendant filed a written "Motion for Appeal" on August 23, 2010, which was again granted by the trial court. An appellate record was lodged with this court on November 11, 2010.
On November 17, 2010, we issued a rule to show cause why the appeal in the above-captioned case should not be dismissed as the judgment at issue is not appealable. Defendant responded to our rule to show cause and argued that he should be allowed to appeal the ruling at issue because he did not have the opportunity to appeal the June 9, 1998, resentencing. However, even if Defendant's "Motion to Correct an Illegal Multiple Offender Sentence and Adjudication" was treated as an application for post-conviction relief requesting an out-of-time appeal, the application would be untimely filed. Defendant was resentenced in 1998, and he does not raise an exception to the time limitation as required by La. Code Crim.P. art. 930.8.
We find that the ruling at issue herein is not appealable pursuant to La. Code Crim.P. arts. 912 and 912.1. Therefore, the appeal in the above-captioned case is dismissed. However, Defendant is permitted to file a proper application for supervisory writs, in compliance with Uniform Rules — Courts of Appeal, Rule 4-3, within thirty days from the date of this decision. Defendant 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 construe the motion for appeal as a notice of intent to seek a supervisory writ.