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State of Louisiana Versus Randy Allen Fink
STATE OF LOUISIANA NO. 20-KA-115
VERSUS FIFTH CIRCUIT
RANDY ALLEN FINK COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 18-5357, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
March 20, 2020
ROBERT A. CHAISSON JUDGE
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Robert A. Chaisson
APPEAL DISMISSED RAC SMC JGG
CHAISSON, J.
Defendant, Randy Fink, appeals three misdemeanor convictions. For the reasons that follow, we dismiss defendant’s appeal for lack of jurisdiction.
On October 9, 2018, the Jefferson Parish District Attorney filed a bill of information charging defendant with three misdemeanors: domestic abuse battery (La. R.S. 14:35.3), simple battery (La. R.S. 14:35), and violation of a protective order (La. R.S. 14:79). On October 17, 2019, following a bench trial, defendant was found guilty as charged. On October 24, 2019, the trial court imposed a sentence of six months in parish prison on each count to run concurrently, suspended all but forty-eight hours of the sentence, and placed defendant on active probation for two years. Defendant thereafter filed a motion for appeal, which was granted by the trial court on November 27, 2019.
Appellate jurisdiction extends only to cases that are triable by a jury. La. Const. Art. 5, § 10; La. C.Cr.P. art. 912.1. To be eligible for trial by jury in a misdemeanor case, an accused must be faced with imprisonment for more than six months and/or a fine of more than one thousand dollars. La. C.Cr.P. art. 779; State v. Hunter, 15-69 (La. App. 5 Cir. 2/11/15), 168 So.3d 773, 774. When the State charges a defendant with two or more misdemeanors in a single bill of information or indictment, La. C.Cr.P. art. 493.1 limits the maximum aggregate penalty that may be imposed for all of the misdemeanors to six months imprisonment or a fine of one thousand dollars, or both. As such, when two or more misdemeanors are joined in a single bill of information, the case is not triable by a jury. State v. Chess, 00-164 (La. App. 5 Cir. 6/27/00), 762 So.2d 1286, 1287-88.
In the present case, defendant was charged by a single bill of information with three misdemeanors: domestic abuse battery, simple battery, and violation of 20-KA-115 1 a protective order.1 Because these three misdemeanors were joined in a single bill of information, the maximum aggregate penalty was limited to six months imprisonment or a fine of one thousand dollars, or both. Thus, the case was not triable by a jury and is not appealable. Under La. C.Cr.P. art. 912.1(C)(1), an application for a writ of review is the proper mechanism for seeking judicial review of a conviction on an offense not triable by a jury.
Accordingly, we dismiss the present appeal. We reserve, however, defendant’s right to file a proper application for supervisory writs, in compliance with U.R.C.A. Rule 4-1 et seq., within thirty days from the date of this opinion. Further, we hereby construe defendant’s motion for appeal as a notice of intent to seek a supervisory writ, so defendant is not required to file a notice of intent nor obtain an order setting a return date pursuant to U.R.C.A. Rule 4-3.
APPEAL DISMISSED
1 The penalty provisions for these misdemeanor offenses, as set forth in La. R.S. 14:35.3, La. R.S. 14:35, and La. R.S. 14:79, provide for the possibility of imprisonment for not more than six months.
20-KA-115 2 SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MARCH 20, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
20-KA-115 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE) THOMAS J. BUTLER (APPELLEE) KATHERINE M. FRANKS (APPELLANT)