“the state’s appeal is not properly before the court. Although La. Code Crim. P. art. 912 1 La. R.S. 14:95(B
How later courts described this case
- “the state’s appeal is not properly before the court. Although La. Code Crim. P. art. 912 1 La. R.S. 14:95(B
Written by the judges who cited it.
The opinion
STATE OF LOUISIANA * NO. 2019-KA-0971
VERSUS *
COURT OF APPEAL
RASHAD W. ESTEM *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 538-914, SECTION “J”
Honorable Darryl A. Derbigny, Judge
******
Judge Roland L. Belsome
******
(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge
Paula A. Brown)
Brown, J., Concurs in the Result
Leon Cannizzaro
District Attorney
Donna Andrieu
Assistant District Attorney
DISTRICT ATTORNEY'S OFFICE
ORLEANS PARISH
619 S. White Street
New Orleans, LA 70119
COUNSEL FOR STATE OF LOUISIANA/ APPELLANT
Alexis Chernow
ORLEANS PUBLIC DEFENDERS
2601 Tulane Avenue
Suite 700
New Orleans, LA 70119
COUNSEL FOR DEFENDANT/APPELLEE
APPEAL TRANSFERRED TO THE APPELLATE DIVISION OF
CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS
MARCH 11, 2020
Procedural History
On December 12, 2017, the state filed a bill of information charging
defendant with the misdemeanor counts of illegal carrying of weapons and
possession of marijuana. As reflected in the docketmaster and the State’s brief, a
several pretrial motions and continuances followed. Then, on April 24, 2019, the
court granted defendant’s motion to quash, immediately following which the State
noticed its intent to appeal. The substance of the State’s appeal is that the district
court erred when it granted the motion to quash.
Discussion
Whatever the merits of the State’s argument, this Court lacks appellate
jurisdiction over the case.
The Louisiana Constitution sets out jurisdiction to the appellate courts in
pertinent part as follows:
Except as otherwise provided by this constitution, a court of
appeal has appellate jurisdiction of . . . (3) all criminal cases triable by
a jury . . . . It has supervisory jurisdiction over cases which arise
within it’s circuit.
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La. Const. art. V, § 10(A).
La. C.Cr.P. art 779 provides:
A. A defendant charged with a misdemeanor in which the punishment,
as set forth in the statute defining the offense, may be a fine in excess
of one thousand dollars or imprisonment for more than six months
shall be tried by a jury of six jurors, all of whom must concur to
render a verdict.
B. The defendant charged with any other misdemeanor shall be tried
by the court without a jury.
Both charges in this case are not triable by jury.1 Thus, this Court lacks
appellate jurisdiction, which is vested in the Appellate Division of the Criminal
District Court. See La. Const. art. V, §10 (1974); La. C.Cr.P. art. 779; La. C.Cr.P.
art. 912.1; see also R.S. LSA-R.S. 13:1337(A) (“. . . . In all cases tried before the
judges of the criminal district court in which an appeal does not lie to the supreme
court [or court of appeal], an appeal shall lie on questions of law and fact to two or
more of the judges of the criminal district court, as prescribed by said court.”);
State v. Morel, 95-0926, pp. 1-2 (La. App. 4 Cir. 5/1/96), 673 So.2d 1291, 1292
(“Having determined that appellant’s felony convictions are no longer before this
court, we are compelled to remand his appeal of his misdemeanor convictions, as
there is no direct appeal of misdemeanor convictions to the courts of Appeal.
Appellant must seek appeal of his misdemeanor conviction to the Appellate
Division of the Criminal District Court for the Parish of Orleans pursuant to La.
R.S. 13:1337.”); State v. Drury 506 So.2d 772, 773 (La. App. 1 Cir. 1987) (“the
state’s appeal is not properly before the court. Although La. Code Crim. P. art. 912
1
La. R.S. 14:95(B) provides that the maximum penalty for illegal carrying of weapons is a fine
of not more than $500 or imprisonment for not more than six months, or both. La. R.S.
40:966(C)(2)(a) provides that the maximum penalty for misdemeanor possession of marijuana
(first offense) is fifteen days in parish jail, or a fine of $300, or both.
2
provides, in pertinent part, that the state may appeal an adverse ruling on a motion
to quash, the appellate jurisdiction of the Courts of Appeal is constitutionally
limited by La. Const. Art. V, § 10(A) which provides, inter alia, as follows . . .
‘Except as otherwise provided by this constitution, a court of appeal has appellate
jurisdiction of (3) all criminal cases triable by a jury, except [when the death
penalty has actually been imposed]’”)
This Court was recently presented with an almost identical situation in State
v. Earl, 2018-0976 (La. App. 4 Cir. 12/5/18), 259 So.3d 1105, and dismissed the
State’s appeal granting the defense motion to quash a misdemeanor count without
prejudice and transferred the matter to the Appellate Division of the Criminal
District Court for the Parish of Orleans.
For these reasons, this appeal is transferred to the Appellate Division of
Criminal District Court for the Parish of Orleans.
APPEAL TRANSFERRED TO THE APPELLATE DIVISION OF
CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS
3