State v. Glantz

BARHAM, Justice

(dissenting).

One of these two defendants entered a plea of guilty to attempted sale of narcotics, and the other pleaded guilty to sale of narcotics. Each was sentenced to serve a term of five years at hard labor, the execution of the sentences to be suspended during good behavior under active probation supervision. The sentences were imposed on July 31, 1968. On August 13 the State filed a rule to show cause why the trial court should not recall the sentences imposed, alleging that they were invalid as contrary to R.S. 40:981(3), which says in part that the sentence imposed under that provision shall be “ * * * without benefit of parole, probation or suspension of sentence * * * ”. On September 16 the trial court denied that rule, and the State reserved a bill of exception, giving notice by oral motion of intention to apply for writs and for appeal to the Supreme Court. The appeal was filed, and the defendants have filed a motion to dismiss, urging this is not an appealable case. The State opposes, praying alternatively that this court issue a writ of certiorari if it finds the State has no right of appeal.

The offense with which these defendants were charged is one for which imprisonment at hard labor may be imposed; accordingly under Article 7, Section 10(5),1 of the Louisiana Constitution of 1921 the defendants had a right of .appeal from their convictions and sentences, and the State had a right of appeal to correct the allegedly illegal sentences.2 However, neither appealed timely (within 15 days from rendition of judgment),3 and there*891fore both have lost their right of appeal from the judgments and sentences of July-13. Suspended sentences are final judgments of sentence for the purpose of appeal.4

The motion for appeal, although filed ■October 18, 1968, is apparently directed ■at the July 31 judgments of sentences since the motion states that the State was aggrieved by those judgments. The State is bound by its pleadings, and an appeal from the July 31 judgments is therefore the appeal pending before us. It is obvious on the face of the written motion for appeal that it must be dismissed as being untimely, having been filed far beyond the expiration of the 15-day period. C.Cr.P. Art. 914. The State has been divested of the right to appeal that case by its own delay, and the case which ended in judgments of sentences on July 31, 1968, is no longer an “appealable case”. C.Cr.P. Art. 882 (1). Since the judgments on that date by which the State claims it was aggrieved were appealable and the State failed to exercise its right of appeal, it cannot now apply to this court for review of those judgments even under our supervisory jurisdiction. C.Cr.P. Art. 882(2).

Neither the State nor a defendant can keep a final judgment of sentence in suspension, after the delay for appeal has passed, by motions to set aside the sentence. The delay for appeal from the July 31 judgments has expired, and now no appeal lies from those judgments, which are the ones appealed from.

For the foregoing reasons this appeal should be dismissed, and I therefore respectfully dissent.

. Article 7, Section 10(5), reads: “The following eases only shall be appealable to the Supreme Court:

“(5) Criminal eases in which the penalty of death or imprisonment at hard labor may be imposed, or in which a fine exceeding three hundred dollars or imprisonment exceeding six months has been actually imposed.”

. Code of Criminal Procedure Article 882 provides:

“An illegal sentence may be corrected at any time by the court that imposed the sentence.

“A sentence may be reviewed as to its legality on the application of the defendant or of the state:

“ (1) In an appealable case by appeal; or

“(2) In an unappealable ease by writs of certiorari and prohibition.

“Nothing in this article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus.”

.Code of Criminal Procedure Article 914 provides in part: * * * The motion [for appeal] must be made no later than fifteen days after the rendition of the judgment or ruling from which the appeal is taken. * * * ”

. C.Cr.P. Arts. 893, 871, and 912; and State v. Bruno, 253 La. 669, 219 So.2d 490 decided this day.