State v. Creel
| Decision Date | 14 May 1984 |
| Docket Number | No. 83-KA-0904,83-KA-0904 |
| Parties | STATE of Louisiana v. Glenn CREEL. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Robert D. Long, Jr., Asst. Dist. Attys., for plaintiff-appellee.
Broderick Bagert, Richard B. Stricks, New Orleans, for defendant-appellant.
This case presents a question relative to when a criminal trial court's jurisdiction is divested under La.C.Cr.P. art. 916. Because we find that the trial court was never divested of its jurisdiction, we will treat this as an application for supervisory writs which we hereby grant for the sole purpose of addressing the jurisdictional issue contained herein.
The defendant, Glenn Creel, was charged by bill of information with distribution of a controlled dangerous substance in violation of La.R.S. 40:968 on May 2, 1977. He was found guilty of the charged offense on July 7, 1977. Prior to sentencing, defendant filed a motion for a new trial on September 1, 1977, which was denied by the trial court on September 9, 1977. On December 9, 1977, prior to sentencing on the original conviction, the state filed a multiple offender bill against the defendant pursuant to La.R.S. 15:529.1 alleging that the defendant had two prior Louisiana felony convictions and one prior Mississippi felony conviction. On January 13, 1978, the trial court found the defendant guilty as a third offender under La.R.S. 15:529.1 and sentenced him to nine years at hard labor.
On the same day, the defendant filed a motion for an appeal under La.C.Cr.P. art. 914. This motion for an appeal contained an order directing the court reporter to prepare the record and transcript of the proceedings and an order that the defendant present his assignments of error within thirty days. The trial judge signed these orders. We note, however, that nowhere in the record or the trial court minutes is there an order of appeal or the setting of a return date by the trial court as required under La.C.Cr.P. art. 915.
On April 26, 1978, apparently on its own motion "in the best interests of Louisiana and the defendant", the trial court vacated the defendant's conviction and sentence and ordered that the defendant be granted a new trial "to be retried on a [sic] highest priority the State can give this matter."
The case lay dormant until January 20, 1982, 1 when the State filed a motion to make the sentence executory. On March 8, 1982, the defendant filed an objection to the state's motion and also filed a motion to quash the prosecution. Although the defendant's motions contained orders signed the same day by the Honorable Louis P. Trent, judge ad hoc for section "I" of the Criminal District Court, Parish of Orleans, denying the State's motion to make the sentence executory and quashing the bill of information for untimely prosecution, the court minutes reflect that the trial court ruled on March 9, 1982, that it did not have jurisdiction to decide either of the defendant's motions.
We are thus faced with the question of whether the trial court was ever divested of its jurisdiction when the defendant filed his motion for an appeal on January 13, 1978. We find that the trial court was never so divested of its jurisdiction.
At the time of trial, La.C.Cr.P. art. 915 read 2, in pertinent part:
A. When a motion for an appeal is made in conformity with Articles 912 and 914, the court shall order an appeal and set the return date in the order. When a motion for an appeal has been timely filed, the appeal shall not be affected by any fault or omission on the part of the trial court. (Emphasis added.)
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La.C.Cr.P. art. 916 reads, in pertinent part:
The jurisdiction of the trial court is divested and that of the appellate court attaches, upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction over the matter except to: (Emphasis added.)
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The language of La.C.Cr.P. arts. 915 and 916 is clear and unambiguous. In order for the trial court to be divested of its jurisdiction, an order of appeal must be entered. An examination of the record and the trial court minutes reflects that an order of appeal was never entered in this case. Additionally, we note that no notice of any order of appeal was filed with this Court as required under La.C.Cr.P. art. 915.1.
While it is true that the defendant filed a motion for appeal on January 13, 1978, thus...
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95-377 La.App. 3 Cir. 11/8/95, State v. Wright
...jurisdiction over the appeal because the appeal is not properly before this court. Specifically, defendant argues that under State v. Creel, 450 So.2d 651 (La.1984), the absence of a properly issued order of appeal, even if a motion for appeal is timely filed orally or in writing under La.C......
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State v. Counterman
... ... The jurisdiction of the trial court is divested upon the entering of an order of appeal. La.C.Cr.P. Art. 916. When no order of appeal has been entered, there is no divesting of jurisdiction. State v. Creel, 450 So.2d 651 (La.1984) ... 3 Perhaps the Legislature can alleviate the problem of delayed appeals by requiring notification to the defendant on the record at sentencing of the right to appeal and of the time limitation within which the right must be exercised ... 4 When the defendant has an ... ...