John Robert Nicolaus VS The State of Louisiana; and Louisiana Department of Corrections through the Attorney General of the State of Louisiana, et al
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 2004 BJOHN ROBERT NICOLAUS VERSUS THE STATE OF LOUISIANA AND LOUISIANA DEPARTMENT OF CORRECTIONS TEIROUGH THE ATTORNEY GENERAL OF THE STATE OF LOUISIANA, ET AL ludgment Rendered: MAY 3 0 2014 APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA DOCKET NUMBER C567576 HONORABLE WILSON FIELDS, JUDGE x :*:* John Robert Nicolaus Plaintiff/Appellant Angola, Louisiana Pro- Se James D. " Buddy" Caldwell Attorneys for Defendants/ Appellees Attorney General State of Louisiana, and Louisiana Department of Corrections And Terri R. Lacy Assistant Attorney General Baton Rouge, Louisiana BEFORE: PETTIGREW, McDONALD, AND McCLENDON, JJ. M G, s y, .. s. McDONALD, J. This is an appeal of an Angola inmate, John Robert Nicolaus, (hereafter Petitioner), the against Louisiana Department of Corrections ( DOC). For the following reasons, we affirm. The procedural history of this matter has been reviewed several times. The appeal before is us a of judgment rendered July I5, 2013, adopting a Commissioner' s' Recommendation. The Commissioner' s Recommendation stated: The petitioner seeks parole eligibility on his sentence of life without benefit of parole, probation or suspension of sentence for twenty years. The petitioner was initially sentenced to death following a First Degree Murder conviction. He was resentenced to a term of life without benefit of parole, probation or suspension of sentence for a period of 20 State years. vs. Nicolaus 340 So. 2d 296 ( La. 1976). The petitioner seeks to be deemed parole eligible. T] he Parole Board has informed the petitioner that his life sentence must be commuted to a fixed number of years before he is considered parole eligible. This Commissioner notes that parole eligibility may be a condition of a sentence imposed by a sentencing court, but eligibility for parole consideration by the Parole Board is determined by other statutory provisions which must be considered by this Court. R.S. 15: 574. 4( B) prohibits parole consideration for lifers until a commutation of sentence to a fixed term of years is granted by the executive branch. sentence and La. 1993) There is no conflict between the petitioner' s R. S. 15: 574. 4( B). see also State v. Bosworth v Whitley 627 So. 2d 629 Thomas 972 So 2d 323 ( La. 2008). The petitioner' s argument raising ex post facto issues, lenity and statutory intent do not entitle him Yo the relief he seeks. As noted above, prior case law has addressed the issues raised in this matter. While it does appear that the petitioner' s sentence does allow for parole eligibility, his eligibility for parole consideration is restricted by other applicable statutory provisions. It is the recommendation of this Commissioner that the petitioner' s request for declaratory relief, injunctive relief and the plea of unconstitutionality must be denied and this matter be dismissed without prejudice, at the petitioner' s cost. The office of Commissioner of the 19' h JDC was created by La. R. S. 13: 711 to hear and recommend disposition of criminal and civil proceedings arising out of the incazceration of state prisoners. The commissioner' s written findings and recommendations are submitted to a district court judge, who may accept, reject, or modify them. La. R. S. 13: 713( C)( 5). 2 The judgment appealed provided: This matter came on far final adjudication by this Court. After a careful de novo consideration of the record herein, the law applicable, together with any transversal timely filed and the Court adopting as reasons, the Commissioner' s Report filed herein, IT IS ORDERED, ADJUDGED AND DECREED, that the matter of request for declaratory relief, injunctive relief and the plea of unconstitutionality is denied and be dismissed without prejudice and all costs in this matter are to be paid by the petitioner personally or on his behalf through the Department of Corrections by the authority of and in accordance with R. S. 15: 874( 3) & ( 4). READ, RENDERED AND SIGNED, this 15 day of July, 2013 at Baton Rouge, Louisiana. S/ WILSON FIELDS JUDGE, SECTION " 25" NINETEENTH JUDICIAL DISTICT COURT DOC, through the Office of the Attarney General, argues that the sentence that is the subject of the petitioner' s appeal was rendered in 1976, and further review is prescribed. Petitioner argues that the Commissioner' s Recommendation is factually and legally incorrect, and a hearing should be convened for oral argument. After careful review of the record, law, and evidence, we find no error in the judgment appealed. However, we amend it to provide that the matter is dismissed with prejudice. Accordingly, the judgment, as amended, is affirmed. This memorandum opinion is issued in compliance with Uniform Rules Courts of Appeal, Rule 2- 16. 1. B. Costs are assessed to John Robert Nicolaus. AMENDED, AND AS AMENDED, AFFIRMED. 3 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 2004 JOHN ROBERT NICOLAUS VERSUS THE STATE OF LOUISIANA AND LOUISIANA DEPARTMENT OF CORRECTIONS THROUGH THE ATTORNEY GENERAL OF THE STATE OF LOUISIANA, ET AL McCLENDON, 7., disgenting in part. Because the trial court did not dismiss this matter with prejudice, nor was the issue raised by the parties on appeal, the majority errs in amending the judgment to order dismissal with prejudice. Due to the majority' s action, the appellant has been disadvantaged because he exercised his right to appeal. Therefore, I respectfully dissent in part. 1
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
