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State v. Garland

Court of Appeals of Louisiana, Fifth Circuit

April 3, 2019

STATE OF LOUISIANA
v.
ROY A. GARLAND

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 11-2249, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D. Connick, Jr. Terry M. Boudreaux Andrea F. Long

          COUNSEL FOR DEFENDANT/APPELLANT, ROY A. GARLAND Gwendolyn K. Brown

          Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and John J. Molaison, Jr.

          JOHN J. MOLAISON, JR. JUDGE.

         Defendant, Roy Garland, has appealed his conviction and judgment on one count of manslaughter and one count of possession of a firearm by a convicted felon following a guilty plea to both charges on June 23, 2014. We dismiss defendant's appeal upon finding that the motion for appeal was untimely filed.

         Louisiana Code of Criminal Procedure Article 914, provides:

A. A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court.
B. The motion for an appeal must be made no later than:
(1) Thirty days after the rendition of the judgment or ruling from which the appeal is taken.
(2) Thirty days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such a motion be filed.

         When a defendant fails to make a motion for appeal within the time provided in Article 914, he loses his right to obtain an appeal. State v. Martin, 12-74 (La.App. 5 Cir. 9/25/12), 101 So.3d 1004, 1005 (citing State v. Gray, 04-1272 (La.App. 5 Cir. 4/26/05), 902 So.2d 1060, 1061). Upon expiration of the thirty-day period, the conviction and sentence are final. State v. Frank, 05-0232 (La.App. 3 Cir. 3/09/05), 898 So.2d 614, 615. Here, defendant failed to file a motion for appeal by July 23, 2014-thirty days from the date of his convictions and sentences. Thus, defendant's only recourse was to seek reinstatement of his right to appeal in the trial court. State v. Counterman, 475 So.2d 336 (La. 1985). The appropriate procedural vehicle for a defendant to seek the exercise of his right to appeal, after the delay provided in La. C.Cr.P. art. 914 has expired, is a timely-filed application for post-conviction relief. Gray, 902 So.2d at 1061 (citation omitted).

         However, La. C.Cr.P. art. 930.8 provides that an application for post-conviction relief, including a request for out-of-time appeal, must be filed within two years from the date a defendant's conviction and sentence become final, which in this case would have been on or before July 23, 2016. Here, defendant failed to file such an APCR, thus, his convictions and sentences became final on July 23, 2016. See State v. Lewis, 17-663 (La.App. 5 Cir. 4/11/18), 244 So.3d 845, 847 (citing State v. Williams, 16-32 (La.App. 5 Cir. 8/24/16), 199 So.3d 1205, 1209). Thus, this Court lacks jurisdiction to review any alleged errors now raised on appeal regarding defendant's underlying convictions and sentences imposed on June 23, 2014. See Lewis, supra.

         Jurisdiction regarding defendant's alleged "re-sentencing" ...


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