440 So. 2d 1384 | La. Ct. App. | 1983
STATE of Louisiana
v.
Columbus Lee HOLMES.
Court of Appeal of Louisiana, Second Circuit.
David G. Haynes, West Monroe, for defendant.
William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Carl Parkerson, Dist. Atty., Nancy Gilliland, Asst. Dist. Atty., Monroe, for plaintiff.
Before HALL, JASPER E. JONES and NORRIS, JJ.
WRIT GRANTED AND MADE PEREMPTORY.
It is the ruling of this court that a motion for an appeal, whether timely or untimely, shall initially be filed in the district court in which the conviction is obtained. La.C. Cr.P. Art. 914; State v. Simmons, 390 So. 2d 504. We decline to follow State v. Braxton, 428 So. 2d 1153. The trial court is ordered to consider petitioner's filings as a motion for an out of time appeal. The trial court is further ordered to make a determination as required by State v. Simmons, supra, to determine if the applicant is entitled to an out of time appeal. If it is established that the defendant did not make a knowledgeable waiver of his right of appeal the district court is ordered to enter an order of appeal.
