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State v. Allah

Court of Appeals of Louisiana, Fourth Circuit

April 12, 2017

STATE OF LOUISIANA
v.
CONSTANT ALLAH

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 504-761, SECTION "H" HONORABLE CAMILLE BURAS, JUDGE.

          LEON A. CANNIZZARO, JR. DISTRICT ATTORNEY, ORLEANS PARISH J. TAYLOR GRAY ASSISTANT DISTRICT ATTORNEY, Counsel for State of Louisiana.

          DANATUS N. KING DANATUS KING & ASSOCIATES, Counsel for Defendant/Appellant.

          Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Sandra Cabrina Jenkins.

          JAMES F. MCKAY III CHIEF JUDGE.

         The 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.

         STATEMENT OF THE FACTS

         The 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.

         After 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.

         After 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.

         DISCUSSION

         The 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. [1] "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.

         The 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.

         La. 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 apply:
(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. 14:2(B)[2].
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 ...

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