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State v. Hunter

Court of Appeal of Louisiana, Fifth Circuit

February 11, 2015

STATE OF LOUISIANA
v.
KYRON J. HUNTER

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 13-2912, DIVISION " G" . HONORABLE ROBERT A. PITRE, JR., JUDGE PRESIDING.

KYRON J. HUNTER a/k/a, KHARA AMUN BEY, Gretna, Louisiana, IN PROPER PERSON.

PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Twenty-Fourth Judicial District, Parish of Jefferson, TERRY M. BOUDREAUX, ASSISTANT DISTRICT ATTORNEY, Gretna, Louisiana, COUNSEL FOR APPELLEE, STATE OF LOUISIANA.

Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert M. Murphy.

OPINION

Page 774

[15-69 La.App. 5 Cir. 2] SUSAN M. CHEHARDY, J.

Defendant, Kyron J. Hunter a/k/a Khara Amun Bey, appeals his conviction and sentence for first offense possession of marijuana. Because defendant seeks review of his misdemeanor conviction for a crime not triable by jury, we dismiss this appeal for lack of jurisdiction.

La. Const. Art. V, § 10 states that the appellate jurisdiction of the courts of appeal extends to " all criminal cases triable by a jury [except capital cases]" and its supervisory jurisdiction exists " over cases which arise within its circuit [not otherwise provided by law]." See also La. C.Cr.P. art. 912.1(B)(1); La. C.Cr.P. art. 912.1(C)(1). To be eligible for trial by jury, an accused must be faced with imprisonment for more than six months and/or a fine of more than $1,000.00. La. C.Cr.P. art. 779(B).

Here, after a bench trial on November 17, 2014, the trial judge found defendant guilty of first offense possession of marijuana, a violation of La. R.S. 40:966(C). According to La. R.S. 40:966(E)(1), " on a first conviction for violation of Subsection C of this Section with regard to marijuana, ... the offender shall be fined not more than five hundred dollars, imprisoned in the parish jail for not more [15-69 La.App. 5 Cir. 3] than six months, or both." State v. Jefferson, 08-2204 (La. 12/01/09), 26 So.3d 112, 114. Thus, defendant's offense is a misdemeanor offense not eligible for trial by jury and his conviction is, therefore, not an appealable judgment.

Under La. C.Cr.P. art. 912.1(C)(1), an application for a writ of review is the proper mechanism for seeking judicial review of a conviction on an offense not triable by jury. See also La. Const. Art. V, § 10. By en banc resolution dated May 23, 2014, the Judges of this Court decided, barring an exceptional situation,[1] to refuse

Page 775

to convert matters not subject to this Court's appellate jurisdiction to applications for writs of review.

Accordingly, we dismiss the present appeal. State v. Donaldson, 13-703 (La.App. 5 Cir. 11/19/13), 130 So.3d 394, 395; State v. Flowers, 11-376 (La.App. 5 Cir. 12/13/11), 81 So.3d 910. We reserve, however, defendant's right to file a proper application for supervisory writs, in compliance with U.R.C.A. Rule 4-3, within thirty days from the date of this decision. Further, we hereby construe the motion for appeal as a notice of intent to seek a supervisory writ so defendant 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.

APPEAL DISMISSED


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