STATE OF LOUISIANA VERSUS FRANK J. ROBERTS
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA NO. 02-KA-538 COURT OF APFEAg Hern ciKculT VERSUS FIFTH CIRCUIT COURT OF APPEAL FRANK J. ROBERTS , STATE OF LOUISIANA ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 01-3516, DIVISION "P," HONORABLE MELVIN C. ZENO, JUDGE PRESIDING November 26, 2002 SUSAN M. CHEHARDY JUDGE Panel composed of Judges James L. Cannella, Susan M. Chehardy, and Walter J. Rothschild. MARTIN E. REGAN, JR. KRIS A. MOE 2125 St. Charles Avenue New Orleans, Louisiana 70130 Counsel for Defendant-Appellant, Frank J. Roberts PAUL D. CONNICK, JR. District Attorney, 24th Judicial District Parish of Jefferson, State of Louisiana TERRY M. BOUDREAUX ALISON M. WALLIS (Appellate Counsel) Assistant District Attorneys Courthouse Annex Gretna, Louisiana 70063 Counsel for Plaintiff-Appellee, the State of Louisiana APPEAL DISMISSED; CASE REMANDED. Defendant, Frank Roberts, along with several co-defendants, was charged on July 3, 2001 in a bill of information with two counts of theft over $1,000, in violation of La.R.S. 14:67, and one count of simple burglary of an inhabited dwelling, in violation of La.R.S. 14:62.2. The bill of information was subsequently amended to reduce the charge of simple burglary to possession of stolen property valued over $500, in violation of La.R.S. 14:69(A). Pursuant to a plea agreement, defendant pleaded guilty to all three charges on October 15, 2001. On the same date he was sentenced to ten years on each of the three charges, to run concurrently. The sentence was suspended and he was placed on five years of active probation. Thereafter, defendant filed a motion to withdraw his guilty pleas, claiming his attorney had a conflict of interest in representing multiple co-defendants and that his plea was based on a threat by the State that his fiancée would not receive probation if he did not plead guilty. His motion was denied after a hearing. On the same day, defendant's probation was revoked for violating the conditions of his probation. -2- Defendant appeals the denial of his motion to withdraw his guilty pleas. We cannot consider the appeal, however, because it is untimely. Defendant filed his motion to withdraw his guilty pleas on October 22, 2001, seven days after he entered the pleas. A hearing on the motion was held on March 13, 2002, after which the trial court denied defendant's motion. Defendant objected to the trial court's ruling, but did not make an oral motion to appeal. Defendant did not file a written motion for appeal until March 21, 2002, more than five days after the ruling from which he appeals. La.C.Cr.P. art. 914 requires that a motion for appeal be made within five days from the ruling from which the appeal is taken. Defendant's motion for appeal was filed one day late. In State v. Counterman, 475 So.2d 336, 338 (La. 1985), the Louisiana Supreme Court held that a defendant who fails to make a motion for appeal within the five-day time period provided in La.C.Cr.P. art. 914 loses the right to obtain an appeal by simply filing a motion for appeal. The court explained that after the time for appealing has elapsed, the conviction and sentence become final and are no longer subject to review under ordinary appellate process, unless the defendant obtains the reinstatement of his right to appeal. kl. The proper procedural vehicle for a defendant seeking the exercise of his right to appeal after the time for appeal has expired is an application for postconviction relief pursuant to La.C.Cr.P. arts. 924-930. State v. Brooks, 01-1316 (La. App. 5 Cir. 4/10/02), 817 So.2d 222, 223. Further, the issues defendant raises in his appeal are issues more properly raised in an application for post-conviction relief. Defendant not only complains of the trial court's denial of his motion to withdraw his guilty pleas, which was -3- filed after defendant was sentenced, but also defendant asserts a new ground for the withdrawal of his guilty pleas for the first time in this appeal. * The jurisprudence is clear that a trial court retains authority to permit the withdrawal of a constitutionally infirm guilty plea even after sentencing, despite the language of La.C.Cr.P. art. 559.2 State v. Lewis, 421 So.2d 224, 225-226 (La. 1982). However, a request to withdraw a guilty plea after sentencing is in the nature of post-conviction relief. State ex rel. Chauvin v. State, 99-2456 (La. App. 1 Cir. 1/28/00), 814 So.2d 1, 2, citing State v. Lewis, supra at 226. In the present case, the trial court recognized that defendant's motion to withdraw his guilty pleas was a matter more properly raised in an application for post-conviction relief. The trial court even stated the matter was not properly before the court in its present state of a motion. Nonetheless, the trial court denied the motion, stating: I do not find that there is evidence set forth before this Court which would support it setting aside or withdrawing the guilty plea in this matter. I hear the argument of Counsel and the Court was present and conducted the plea colloquy in this matter and finds that there were no procedural defects concerning the entering of the plea that satisfies the Court on the information presented to us today that I should let him withdraw that guilty plea. Because the appeal is untimely and the issues raised by defendant should be addressed first on application for post-conviction relief, we dismiss this appeal and remand the case to allow defendant the opportunity to seek reinstatement of his 1Defendant asserts two grounds for the withdrawal of his guilty pleas. He first argues that he was not advised of his right to separate representation as required by La.C.Cr.P. art. 517. He contends the failure to be advised of this right rendered his plea involuntary. Second, defendant asserts his plea was involuntary because he was coerced into pleading guilty because the State threatened that his fiancée, who was a co-defendant, would receive jail time if he did not plead guilty. This second basis is being raised for the first time on appeal. 2La.C.Cr.P. art. 559(A) provides: "The court may permit a plea of guilty to be withdrawn at any time before sentence." -4- appeal rights and address the newly-raised issues by application for postconviction relief. APPEAL DISMISSED; CASE REMANDED. -5- EDWARD A. DUFRESNE, JR CHIEF JUDGE PETER J. FITZGERALD, JR. aurt of Appeal SOL GOTHARD JAMES L. CANNELLA THOMAS F. DALEY MARION F. EDWARDS SUSAN M. CHEHARDY CLARENCE E. McMANUS WALTER J. ROTHSCHILD CLERK OF COURT GENEVIEVE L. VERRETTE CHIEF DEPUTY CLERK FIFTH CIRCUIT STATE OF LOUISIANA GLYN RAE WAGUESPACK FIRST DEPUTY CLERK 101 DERBIGNY STREET (70053) JERROLD B. PETERSON DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 JUDGES (504) 376-1400 (504) 376-1498 FAX CERTIFICATE I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN MAILED OR DELIVERED THIS DAY NOVEMBER 26, 2002 TO ALL COUNSEL OF RECORD AND TO ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: PET U.S. Postal Service RA U.S. Postal Service CERTIFIED MAIL RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) Retu (Endorser Assistant District Attorney Fifth Floor - Annex Bldg. New Gretna Courthouse Gretna, Louisiana 70053 Mr. Martin E. Regan, Jr. Attorney at Law 2125 St. Charles Avenue (EndoR$' New Orleans, LA 70130 Restrict (Endorsemem o --, Restrictes (Endorsement Required) Total Postage & Fees Total Postage & Fees $ Sent To (
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