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State v. Nelson

Court of Appeals of Louisiana, Fifth Circuit

May 23, 2018

STATE OF LOUISIANA
v.
KEITHEN D. NELSON

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 15-461, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Thomas J. Butler Andrew Decoste

          COUNSEL FOR DEFENDANT/APPELLANT, KEITHEN D. NELSON Bruce G. Whittaker

          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Marion F. Edwards, Judge Pro Tempore

          JUDE G. GRAVOIS JUDGE

         Defendant, Keithen D. Nelson, appeals his conviction of possession of cocaine, in violation of La. R.S. 40:967(C). For the reasons that follow, we affirm defendant's conviction and sentence, but remand the matter for correction of the commitment in accordance with this opinion.

         PROCEDURAL HISTORY

         On January 28, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant, Keithen D. Nelson, with possession of cocaine, in violation of La. R.S. 40:967(C).[1] On March 4, 2015, defendant pled not guilty at his arraignment. On March 5 and 26, 2015, defendant filed omnibus motions, including motions to suppress statements, evidence, and identification. On June 22, 2017, the trial court heard and denied only defendant's motion to suppress evidence.

         On August 14, 2017, defendant withdrew his plea of not guilty and pled guilty as charged to possession of cocaine.[2] In accordance with the plea agreement, defendant was sentenced to two years imprisonment at hard labor; his sentence was ordered to be served concurrently with his sentences in district court case numbers 15-570 and 15-462.[3]

         Nearly one month later, on September 12, 2017, defendant filed a "Motion for Reconsideration of Sentence" under La. C.Cr.P. art. 881.1, advising the trial court that he had intended to enter his plea under State v. Crosby, 338 So.2d 584 (La. 1976). On September 15, 2017, following a hearing, the trial court advised defense counsel that it would grant the motion for reconsideration of sentence. On September 16, 2017, defendant filed a "Motion and Order for Appeal Pursuant to State vs. Crosby, " noting his right to appeal the denial of the motions to suppress evidence, statement, and identification.[4] On September 18, 2017, the trial court issued an "Order Amending Commitment and Sentence, " wherein it granted defendant's motion for reconsideration of sentence and ordered that the sentence and commitment be amended solely to reflect that defendant's right to timely appeal under Crosby be "reserved unto him commencing on the date of this order." Also, on September 18, 2017, defendant's motion for appeal pursuant to Crosby was granted. Defendant's appeal followed.

         FACTS

         As defendant pled guilty, the facts were not fully developed at trial. However, the bill of information alleged that on or about January 9, 2015, defendant violated La. R.S. 40:967(C) by knowingly or intentionally possessing cocaine in Jefferson Parish.

         ANALYSIS

         Defendant seeks this Court's review of the denial of his motion to suppress pursuant to State v. Crosby, supra. The State argues in response that the present appeal is untimely and defendant's assigned error is procedurally barred from review.

         La. C.Cr.P. art. 881.1(A)(1) provides, in pertinent part: "In felony cases, within thirty days following the imposition of sentence ... the defendant may make or file a motion to reconsider sentence." La. C.Cr.P. art. 914(B)(2) provides that a motion for appeal must be made no later than thirty days from a ruling on a motion to reconsider sentence. On the other hand, when a motion to reconsider is not filed, La. C.Cr.P. art. 914(B)(1) provides that the motion for appeal must be made no later than thirty days after the rendition of the judgment or ruling from which an appeal is taken.

         Here, defendant was sentenced on August 14, 2017. He filed a motion for reconsideration of sentence on September 12, 2017, which was within thirty days of the imposition of his sentence. Defendant's motion and order for appeal pursuant to Crosby was filed on September 16, 2017. After defendant's motion to reconsider was ...


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