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State v. Russell

Court of Appeal of Louisiana, Fifth Circuit

January 28, 2015

STATE OF LOUISIANA
v.
TONY A. RUSSELL

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 11-4200, DIVISION " D" . HONORABLE ROBERT M. MURPHY, JUDGE PRESIDING.

PAUL D. CONNICK, JR., DISTRICT ATTORNEY, TERRY M. BOUDREAUX, ASSISTANT DISTRICT ATTORNEY, TWENTY-FOURTH JUDICIAL DISTRICT, PARISH OF JEFFERSON, Gretna, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

POWELL W. MILLER, ATTORNEY AT LAW, Louisiana Appellate Project, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

TONY RUSSELL, In Proper Person, Kinder, Louisiana, DEFENDANT/APPELLANT.

Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J. Liljeberg.

OPINION

FREDERICKA HOMBERG WICKER, Judge.

[14-841 La.App. 5 Cir. 2] Defendant, Tony Russell, appeals his convictions and sentences after pleading guilty to one count of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1, and one count of possession of a firearm while in possession of a controlled dangerous substance, to wit: cocaine, in violation of La. R.S. 14:95E. For the reasons that follow, we find that the trial court did not have jurisdiction to grant Mr. Russell's request for an out-of-time appeal. Accordingly, Mr. Russell's appeal is dismissed.

Page 918

FACTUAL AND PROCEDURAL HISTORY

On August 23, 2011, the Jefferson Parish District Attorney filed a bill of information charging Mr. Russell with one count of possession of a firearm by a convicted felon, in violation of La. R.S. 14:95.1, and one count of possession of a firearm while in possession of a controlled dangerous substance, to wit: cocaine, in violation of La. R.S. 14:95E.[1] Mr. Russell pled not guilty to the charged offenses at his arraignment on September 27, 2011.

[14-841 La.App. 5 Cir. 3] On June 21, 2012, Mr. Russell withdrew his plea of not guilty and pled guilty to both counts. The trial court sentenced Mr. Russell to fifteen years imprisonment at hard labor, to be served without benefit of probation and parole.[2] The trial court ordered that Mr. Russell's sentences run concurrently. Mr. Russell did not seek an appeal of his convictions or sentences.

On March 20, 2014, Mr. Russell filed a Uniform Application for Post-Conviction Relief, which was later denied by the trial court. Mr. Russell subsequently filed a writ application with this Court seeking supervisory review of the trial court's judgment denying his Application for Post-Conviction Relief.[3] On July 23, 2014, this Court denied Mr. Russell's writ application, finding no error in the trial court's prior judgment.[4]

On August 25, 2014, Mr. Russell filed a motion for out-of-time appeal, which was granted by the trial court on September 11, 2014. In granting defendant's motion, the trial court stated that it would " construe petitioner's pleading as" an application for post-conviction relief, thus, concluding that ...


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