FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 504-761,
SECTION "H" HONORABLE CAMILLE BURAS, JUDGE.
A. CANNIZZARO, JR. DISTRICT ATTORNEY, ORLEANS PARISH J.
TAYLOR GRAY ASSISTANT DISTRICT ATTORNEY, Counsel for State of
DANATUS N. KING DANATUS KING & ASSOCIATES, Counsel for
composed of Chief Judge James F. McKay III, Judge Terri F.
Love, Judge Sandra Cabrina Jenkins.
F. MCKAY III CHIEF JUDGE.
defendant, Constant Allah, appeals the trial court's
February 26, 2016 judgment, denying his motion for
expungement. For the reasons that follow, we convert the
defendant's appeal to an application for supervisory
writ, grant the writ, and remand for further proceedings.
OF THE FACTS
defendant was charged with one count of second degree
kidnapping and two counts of carnal knowledge of a juvenile
in a bill of information filed on March 31, 2011. He pled not
guilty to all counts at his arraignment on April 11, 2011. On
April 10, 2012, the State amended the bill of information to
charge the defendant with three counts of second degree
battery. On the same date, the defendant pled guilty to all
three counts pursuant to North Carolina v. Alford,
400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). After
waiving delays, the trial court sentenced the defendant to
serve three years at hard labor on each count, the sentences
to be served concurrently. The sentence was suspended and
deferred under article 893, and the defendant was placed on
active probation for three years for each count. The trial
court also imposed a fine and fees.
paying all fines and completing his probation, the defendant
filed a motion to set aside his conviction and dismiss the
prosecution. The defendant also filed a motion for
expungement, which the State opposed.
hearing the matter, the trial court rendered judgment on
February 26, 2016, denying the defendant's motion for
expungement. The defendant filed a timely motion for appeal
on March 8, 2016, and the trial court set a return date of
March 24, 2016.
sole issue in this criminal appeal is whether the trial court
erred in denying the defendant's motion for expungement,
which is not an appealable judgment.  "However, this
Court's custom is to convert an improperly filed criminal
appeal to a writ." State v. Waddell, 12-0111,
p. 1 (La.App. 4 Cir. 10/24/12), 102 So.3d 1025, 1027
(citations omitted). Accordingly, the defendant's appeal
is converted to a writ.
defendant argues that the trial court erred when it denied
his motion for expungement because he entered his plea
pursuant to La. C.Cr. P. art. 893 and Alford, supra.
The State opposed the motion for expungement on the basis
that second degree battery is designated a crime of violence.
C.Cr.P. art. 978, which governs the expungement of
convictions, provides in pertinent part:
A. Except as provided in Paragraph B of this Article, a
person may file a motion to expunge his record of arrest and
conviction of a felony offense if either of the following
(1) The conviction was set aside and the prosecution was
dismissed pursuant to Article 893(E).
(2) More than ten years have elapsed since the person
completed any sentence, deferred adjudication, or period of
probation or parole based on the felony conviction, and the
person has not been convicted of any other criminal offense
during the ten-year period, and has no criminal charge
pending against him. The motion filed pursuant to this
Subparagraph shall include a certification obtained from the
district attorney which verifies that, to his knowledge, the
applicant has no convictions during the ten-year period and
no pending charges under a bill of information or indictment.
B. No expungement shall be granted nor shall a person be
permitted to file a motion to expunge the record of arrest
and conviction of a felony offense if the person was
convicted of the commission or attempted commission of any of
the following offenses:
(1) A crime of violence as defined by or enumerated in R.S.
C. The motion to expunge a record of arrest and conviction of
a felony offense shall be served pursuant to the provisions
of Article 979.
D. Expungement of a record of arrest and conviction of a
felony offense shall occur only once with respect to any