Opinion

State of Louisiana v. Rashad W. Estem

Court
Louisiana Court of Appeal
Filed
Mar 11, 2020
Status
Published
Author
Judge Roland L. Belsome
On the bench
Judge Edwin A. Lombard; Judge Roland L. Belsome; Judge Paula A. Brown
Cited by
0 cases
Authority
More cited than 36.7%

“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.

1

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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