STATE OF LOUISIANA VERSUS PHILLIP SMITH

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STATE OF LOUISIANA NO. 14-KA-359 VERSUS FIFTH CIRCUIT PHILLIP SMITH COURT OF APPEAL STATE OF LOUISIANA ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 95-5434, DIVISION "J" HONORABLE NANCY A. MILLER, JUDGE PRESIDING OCTOBER 29,2014 COURT OF APPEAL FIFTH CIECUIT FILED r I hj;;.~.kjl·Jt:::K"" C ROBERT A. CHAISSON JUDGE OCT 292014 CLERK Cheryl Quirk La n drl o u Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Robert M. Murphy PAUL D. CONNICK, JR. DISTRICT ATTORNEY Twenty-Fourth Judicial District Parish of Jefferson TERRY M. BOUDREAUX ASSISTANT DISTRICT ATTORNEY 200 Derbigny Street Gretna, Louisiana 70053 COUNSEL FOR PLAINTIFF/APPELLEE BERTHA M. HILLMAN ATTORNEY AT LAW Louisiana Appellate Project 410 St. Philip Street Thibodaux, Louisiana 70301 COUNSEL FOR DEFENDANT/APPELLANT APPEAL DISMISSED Defendant, Phillip Smith, appeals the denial of his motion to correct an illegal sentence. For the reasons that follow, we dismiss this appeal, but grant defendant thirty days from the date of this opinion within which to file a writ application to this Court seeking review of the denial of his motion to correct an illegal sentence under this Court's supervisory jurisdiction. PROCEDURAL HISTORY Following a jury trial, defendant was convicted of second degree murder and was thereafter sentenced to the mandatory term of life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. LSA-R.S. 14:30.1. On April 15, 1998, this Court affirmed defendant's conviction and sentence. See State v. Smith, 97-1075 (La. App. 5 Cir. 04/15/98), 710 So.2d 1187. On April 1, 2013, defendant filed a "Motion and Order to Correct Illegal Sentence Pursuant to La. C.Cr.P. Article 882 and Request for Resentencing." In his motion, defendant alleged that his mandatory life sentence was illegal, in light -2­ of the United States Supreme Court case of Miller v. Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because he was a juvenile at the time of the offense. On June 4, 2013, the trial court signed an order for defendant to appear in court on August 8, 2013, for "consideration ofre-sentencing." After several continuances, the court considered and denied defendant's motion to correct an illegal sentence on January 16,2014, concluding that "[b]ased upon the Supreme Court's ruling the defendant is not entitled to the relief he is seeking ..." Defendant now appeals the trial court's denial of his motion to correct an illegal sentence. LAW AND ANALYSIS A ruling denying a motion to correct an illegal sentence is not reviewable by this Court under its appellate jurisdiction. LSA-C.Cr.P. art. 912; State v. Lee, 11­ 1128 (La. App. 5 Cir. 7/31/12), 99 So.3d 721,723; State v. Hutchinson, 99-0034, 99-0035 (La. App. 4 Cir. 5/17/00), 764 So.2d 1139, 1140-41; State v. Benoit, 446 So.2d 921,922-23 (La. App. 1 Cir. 1984), writ denied, 448 So.2d 113 (La. 1984). The appropriate avenue of review thereof is by way of a supervisory writ application.' See State v. Schwartz, 12-183 (La. App. 5 Cir. 10/16/12), 102 So.3d 991, 993. Accordingly, we hereby dismiss this appeal. However, we grant defendant thirty days from the date of this opinion within which to file a writ application to this Court seeking review of the denial of his motion to correct an illegal sentence under this Court's supervisory jurisdiction. APPEAL DISMISSED 1 In the past, this Court has converted improperly filed appeals into applications for supervisory writs. See State v. Tate, 09-619 (La. App. 5 Cir. 2/9/10), 33 So.3d 292. However, on May 23,2014, this Court, at an en bane meeting, adopted a policy to discontinue converting jurisdictionally defective appeals into writ applications. -3­ SUSAN M. CHEHARDY CHERYL Q. LANDRIEU CHIEF JUDGE CLERK OF COURT MARY E. LEGNON FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON ROBERT M. MURPHY STEPHEN J. WINDHORST HANS J. ULJEBERG JUDGES CHIEF DEPUTY CLERK SUSAN BUCHHOLZ FIRST DEPUTY CLERK FIFTH CIRCUIT 101 DERBIGNY STREET (70053) MEUSSA C. LEDET DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400 (504) 376-1498 FAX www.fifthcircuit.org NOTI,!:E OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELNERED IN ACCORDANCE WITH Uniform Rules - Court of Appeal, Rule 2-20 THIS DAY OCTOBER 29.2014 TO THE TRIAL JUDGE, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW: ~ ~~ CLERK OF COURT 14-KA-359 E-NOTIFIED TERRY M. BOUDREAUX MAILED BERTHA M. HILLMAN ATTORNEY AT LAW LOUISIANA APPELLATE PROJECT 410 ST. PHILIP STREET THIBODAUX, LA 70301 HON. PAUL D. CONNICK, JR. DISTRICT ATTORNEY TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053

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