APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL
DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA,
DIRECTED TO THE HONORABLE E. ADRIAN ADAMS, DIVISION
"G", NUMBER 01-4723
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Robert A. Chaisson
GRANTED FOR A LIMITED PURPOSE; REMANDED
Bobby Terrick, seeks review of the trial court's denial
of his application for post-conviction relief (APCR) as
untimely pursuant to La. C.Cr.P. art. 930.8. Because we find
that relator's APCR is not procedurally barred as
untimely under La. C.Cr.P. art. 930.8, we vacate the trial
court judgment and remand the matter to the trial court.
17, 2002, relator was found guilty of second degree murder in
violation of La. R.S. 14:30.1. This Court affirmed
relator's conviction and sentence on appeal. State v.
Terrick, 03-515 (La.App. 5 Cir. 9/30/03), 857 So.2d
1153, 1155, writ denied, 03-3272 (La. 3/26/04), 871
So.2d 346. Pursuant to Miller v. Alabama, 567 U.S.
460, 132 S.Ct. 2455, 2466, 183 L.Ed.2d 407 (2012) and La.
R.S. 15:574.4(G), relator was resentenced on November 30,
2017, to life imprisonment with the benefit of parole after
25 years. Relator subsequently sought an appeal from that
sentence, and, on appeal, this Court affirmed relator's
resentencing. State v. Terrick, 18-102 (La.App. 5
Cir. 8/29/18), 254 So.3d 1246, 1250, writ denied,
18-0532 (La. 1/14/19), 260 So.3d 1217.
filed the APCR at issue on April 28, 2019, challenging the
constitutionality of the grand jury proceedings against him.
On May 2, 2019, the trial judge denied relator's APCR,
finding that relator's APCR was filed more than two years
after his 2002 conviction and sentence became final and,
thus, was procedurally time barred under La. C.Cr.P. art.
C.Cr.P. art. 930.8 provides, unless certain enumerated
exceptions apply, "No application for postconviction
relief, including applications which seek an out- of-time
appeal, shall be considered if it is filed more than two
years after the judgment of conviction and sentence has
become final under the provisions of Article 914 or
922[.]" Resentencing alone does not restart the
prescriptive period for filing for post-conviction relief.
State v. Frazier, 03-242 (La. 2/6/04), 868 So.2d 9,
9 (per curiam) (citing La. C.Cr.P. art. 930.8). For example,
a non-discretionary and ministerial correction of a sentence
is not a resentencing and is not accompanied by the right to
be present in court, the right to counsel, the right to
appeal, or the reinstatement of the two-year delay from
finality of conviction after the correction. See State v.
Littleton, 43, 609 (La.App. 2 Cir. 5/7/08), 982 So.2d
978, writ denied, 08-1408 (La. 3/27/09), 5 So.3d
the Louisiana Supreme Court has determined that when a
defendant is resentenced under Miller, supra, that
defendant is entitled to appeal that resentencing. State
v. Schane, 17-0582 (La. 4/6/18), 239 So.3d 286,
order clarified on reh'g, 17-0582 (La. 6/1/18),
244 So.3d 433. (See also generally, State v. Rome,
96-991 (La. 7/1/96), 696 So.2d 976, 981, wherein the Court
found that an illegal sentence results in a situation where
"no sentence at all has been imposed[.]") Moreover,
this Court, on an errors patent review, has found that a
defendant resentenced pursuant to Miller is entitled
to a proper advisal of the two-year period within which he
may seek post-conviciton relief. State v. Francis,
17-651 (La.App. 5 Cir. 5/16/18), 247 So.3d 199, 205.
La. C.Cr.P. art. 930.8, the prescriptive period does not
initially begin to run until the judgment of conviction and
sentence have become final under the provisions of La.
C.Cr.P. arts. 914 or 922. Under La. C.Cr.P. art. 922, an
appellate court's judgment becomes final if no
application for rehearing or review by the supreme court is
filed within fourteen days of rendition of the appellate
court's judgment. Thus, we find that relator's
sentence did not become final under La. C.Cr.P. art. 930.8
until 14 days after the rendition of this Court's
judgment in relator's second appeal, State v.
Terrick, supra, in which he sought review of his
November 30, 2017 sentence imposed upon resentencing.
we find that the trial court erred in finding relator's
APCR to be procedurally time-barred under La. C.Cr.P. art.
930.8. We grant this writ for the limited purpose
of remanding the matter to the trial court to consider
relator's timely-filed APCR.