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State ex rel. T.B.

Court of Appeals of Louisiana, Fourth Circuit

December 13, 2017

STATE OF LOUISIANA IN THE INTEREST OF T.B.

         APPEAL FROM JUVENILE COURT ORLEANS PARISH NO. 2017-136-01-DQ-C, SECTION "C" Honorable Candice Bates Anderson, Judge

          Leon Cannizzaro, District Attorney Donna Andrieu, Chief of Appeals J. Taylor Gray, Assistant District Attorney DISTRICT ATTORNEY'S OFFICE ORLEANS PARISH COUNSEL FOR STATE OF LOUISIANA/APPELLANT.

          Katherine M. Franks LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLEE.

          Court composed of Judge Paula A. Brown, Judge Tiffany G. Chase, Judge Marion F. Edwards, Pro Tempore.

          Tiffany G. Chase Judge.

         Appellant, State of Louisiana ("State"), appeals the judgment of the juvenile court granting Appellee's ("T.B.") motion to dismiss. After consideration of the record before this court and the applicable law, we dismiss the appeal. Further, pursuant to Uniform Rules, Courts of Appeal, Rules 5-1 and 5-2, the initials of the minor shall be used in all opinions to ensure confidentiality of the minor.

         Facts and Procedural History

         A warrant was issued for T.B.'s arrest on January 15, 2016 for unauthorized entry of an inhabited dwelling which allegedly took place on July 3, 2015. At the time the warrant was issued, T.B. had been incarcerated since December 23, 2015 on an unrelated charge. T.B. was arrested and booked on the warrant on March 15, 2016. On May 15, 2017, the State filed a petition charging T.B. with one count of home invasion, pursuant to La. R.S. 14:62.8, stemming from the alleged events that took place on July 3, 2015. On July 14, 2017, T.B. filed a motion to dismiss the petition, maintaining that the State's petition was untimely. T.B.'s motion was presented to the court on July 17, 2017. No written response to T.B.'s motion was filed by the State.[1]

         At the hearing, the trial court found that the State failed to timely move forward with the prosecution of the case. The court noted the State's obligation to timely prosecute this matter, yet failed to do so. After the court granted the motion to dismiss, the State noted its intent to seek supervisory writs in open court. Later that same day, the State filed a notice of intent to file a supervisory writ and was given a return date of August 17, 2017. On August 16, 2017, the State filed a motion for appeal and designation of record with a return date of September 23, 2017.

         The State lists the following assignments of error on appeal: (1) the juvenile court erred in granting T.B.'s motion to dismiss because prosecution was instituted timely and (2) the juvenile court erred in granting the motion to dismiss because the State commenced the adjudication hearing within ninety days (90) after the appearance to answer the petition. T.B. answers the appeal, but only addresses the timeliness of the appeal to this Court.

         Discussion

         T.B. contends that the State's appeal is untimely as the motion for appeal was required to be filed no more than fifteen days (15) after the rendition of the judgment. He seeks dismissal of the State's appeal.

         Consistent with the statutory scheme of expediency in juvenile cases, the Louisiana Children's Code provides that appeals shall be taken within fifteen days from the mailing of notice of judgment. La. Ch.Code art. 332. At the hearing on July 17, 2017, the trial court issued a judgment dismissing the petition. The State contemporaneously filed a notice of intent to seek a supervisory writ and was given a return date of August 17, 2017. Thereafter, a motion for appeal and designation of record was filed by the State on August 16, 2017. As a threshold matter, we note that the trial court's granting of a motion to dismiss is a final judgment; and, as such, an appeal, not a writ, is the proper procedural vehicle to seek review.

         In State ex rel. C.P., our Supreme Court stated that "the courts of appeal have consistently held that an appeal not timely filed in juvenile matters shall be dismissed." [2] The State filed a Motion for Appeal on August 16, 2017, twenty-nine days (29) after the judgment granting the dismissal. La. Ch.C. art. 332(A) provides, in pertinent part, "Except as otherwise provided within a particular Title of this Code, appeals shall be taken within fifteen days from the mailing of notice of the judgment." Although the State filed a notice of intent to seek a supervisory writ on July 17, 2017, it was not the proper procedure for contesting the judgment of July 17, 2017. A similar jurisdictional issue was presented to this Court, and we likewise found no merit to the fact that the State had timely filed a notice of intent from the rendition of a final judgment. "That the State erred initially in seeking relief pursuant to a writ application rather than an appeal does not serve to extend the mandated time period for filing a motion to appeal a judgment."[3] ...


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