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] ...