State v. SavageState v. Savage
John M. Mamoulides, Dist. Atty., 24th Judicial Dist., Parish of Jefferson, State of Louisiana, Ann Lambert, Dorothy A. Pendergast, Asst. Dist. Attys., (Louise Kоrns, of Counsel, Office of the Dist. Atty.), for appellee.
OPINION
LAWRENCE A. CHEHARDY, Chief Judge.
On October 29, 1986, following a jury trial, Earl Savage was convicted of aggravated burglary (
Savage alleges in his show-cause brief that he was represented by a court-appointed attorney, who requested leave of the trial court to withdraw as counsel immediately after the rendition of sentence; that the court failed to instruct or advise defendant оf his right to appeal or of the delays for taking an appeal; and that defendant was withоut representation until an attorney of the Indigent Defenders Board was appointed to rеpresent him on January 20, 1987.
Savage asserts an out-of-time appeal should not be dismissed when thе delay in taking the appeal was not the fault of the defendant. He acknowledges the general rule that a request for an out-of-time appeal should be heard by the trial court. State v. Counterman, 475 So. 2d 336 (La. 1985). Hоwever, he argues, this court may use a “short-cut procedure” to accomplish the samе result, relying on State v. Dye, 475 So. 2d 769 (La. 1985).
In State v. Counterman, supra, the Supreme Court granted certiorari specifically to determine the appropriate procedure for applications for out-of-time or delayed appeals. There the court stated that a defendant who fails to make a motion for appeal within the time provided in Article 914 loses the right to obtain an appeal by simply filing a motion for appeal in the trial court, because the conviction and sentence bеcome final when the defendant fails to appeal timely. After the time for appealing has elapsed, the court said, the conviction and sentence are no longer subject to review under the ordinary appellate process, unless the defendant obtains the rеinstatement of his right to appeal:
“The defendant who has failed to appeal timely shоuld seek reinstatement of his right to appeal in the district court in
which the conviction was obtained. * * The district court is clearly in the best position, after notice to the district attorney and аfter a hearing (if necessary), to determine whether the applicant is entitled to relief. * * *” 475 So. 2d at 339.
Thе court further concluded that the appropriate procedural vehicle for a defendant to seek the exercise of his right to appeal, after the delay provided in Article 914 has expired, is by application for post-conviction relief pursuant to
“There are several advantages to this procedure. The district attorney is allowed an oрportunity to oppose the request (or to concur, if appropriate), and the dеfendant is afforded an evidentiary hearing to prove his allegations (if the application and supporting documents allege a claim which would entitle the applicant to reliеf).” 475 So. 2d at 339.
Therefore, concluded the court, the trial court may grant post-conviction relief rеinstating defendant‘s right to appeal after considering such factors as the length of the delаy and the adverse effect upon the state caused by the delay, “in cases such as those in which the defendant was not substantially notified at sentencing of his right to appeal or those in which the defense attorney was at fault in failing to file or perfect a timely appeal.” 475 So. 2d at 340.
The defendant here asserts, however, that the requirement set forth in Counterman may be circumvented, on the authority of State v. Dye, supra, which was decided by the Supremе Court less than a month after Counterman. We disagree, because Dye has no value as precedent. The Supreme Court simply granted а writ without issuing a full opinion, stating only, “Granted.
Appeal reinstated. Case remanded to Court of Appeal.” 475 So. 2d at 769. Defendant is relying on statements by the concurring justices to the effect that they agreed with the short-cut procedure because Dye was so clearly entitled to an out-of-time appeal.
We cannot use those statements as authority to сircumvent the Supreme Court‘s definitive pronouncement in Counterman, supra. Defendant may apply for an out-of-time appeal in the district court by filing an application for post-conviction relief, as set forth in the Counterman decision.
For the foregoing reasons, this appeal is dismissed.
APPEAL DISMISSED.