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State v. Millette

Court of Appeal of Louisiana, Fifth Circuit

October 29, 2014

STATE OF LOUISIANA
v.
ROBERT CHARLES MILLETTE

Editorial Note:

This Decision is not final until expiration of the fourteen day rehearing period.

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 12-5536, DIVISION " F" . HONORABLE MICHAEL P. MENTZ, JUDGE PRESIDING.

PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Twenty-Fourth Judicial District, TERRY M. BOUDREAUX, THOMAS J. BUTLER, SHWANNAH MCCARTHY, ASSISTANT DISTRICT ATTORNEYS, Gretna, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

ROBERT M. LOUQUE, JR., ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Robert A. Chaisson, Robert M. Murphy and Stephen J. Windhorst.

OPINION

STEPHEN J. WINDHORST, J.

[14-76 La.App. 5 Cir. 2] The State has appealed the trial court's granting of defendant's motion to quash defendant's first predicate conviction in the bill of information charging defendant with third offense DWI, La. R.S. 14:98(A) (D). We dismiss this appeal for lack of jurisdiction.

Under La. C.Cr.P. art. 912(A), " [O]nly a final judgment or ruling is appealable." A final judgment is one which puts an end to the proceedings. State v. Quinones, 94-436 (La.App. 5 Cir. 11/29/94), 646 So.2d 1216, 1217. Article 912(B)(1) further provides that the State may appeal " [a] motion to quash an indictment or any count thereof." However, when read and interpreted in reference to subsection A, a ruling on a motion to quash must be a final judgment that puts an end to the proceedings in order to be appealable. State v. Arceneaux, 13-953 (La.App. 5 Cir. 4/23/14), 140 So.3d 304, (unpublished).

[14-76 La.App. 5 Cir. 3] In this case, we find that the trial court's quashing of one of the predicates does not put an end to the proceedings and, instead simply reduces the grade of the offense from a third offense DWI to a second offense DWI by eliminating the use of that particular conviction. Thus, it is not a final, appealable judgment, and therefore the State's proper avenue to seek review is by an application for writ of review. Arceneaux, supra. See State v. Myles, 04-677 (La.App. 5 Cir. 1/25/05), 894 So.2d 515.

Accordingly, we dismiss the present appeal. We reserve to the State the right to file a proper application for supervisory writs, in compliance with U.R.C.A. Rule 4-3, within fifteen days from the date of this decision. Further, we construe the motion

Page 866

for appeal as a notice of intent to seek a supervisory writ so the State is not required to file a notice of intent nor obtain an order setting a return date pursuant to U.R.C.A. Rule 4-3. State v. Donaldson, 13-703 (La.App. 5 Cir. 11/19/13), 130 So.3d 394.

APPEAL DISMISSED


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