State of Louisiana Versus Jerome Hyde

STATE OF LOUISIANA NO. 24-KH-633

VERSUS FIFTH CIRCUIT

JEROME HYDE COURT OF APPEAL

STATE OF LOUISIANA

January 16, 2025

Linda Wiseman First Deputy Clerk

IN RE JEROME HYDE

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE RAYMOND S. STEIB, JR., DIVISION "A", NUMBER 20-5022

Panel composed of Judges Fredericka Homberg Wicker, Scott U. Schlegel, and Timothy S. Marcel

WRIT DENIED

Relator-defendant, Jerome Hyde, filed an application for writ of review of the trial court’s denial of his motion for an out of time appeal. For the following reasons, we deny the writ.

Facts and Procedural History

On November 21, 2023, defendant was convicted in a judge trial of resisting an officer, a misdemeanor, in violation of La. R.S. 14:108. He was sentenced on January 9, 2024.

On September 9, 2024, defendant filed a Motion for Out of Time Appeal. The trial court denied the motion on September 21, 2024. On October 9, 2024, Mr. Hyde filed a Motion for Reconsideration of Denial of Motion for Out of Time Appeal. The trial court denied this motion on October 22, 2024. 24-KH-633

Law and Analysis

Defendant asserts that the trial court erred in denying his out of time appeal because his attorney’s failure to perfect a timely appeal constitutes ineffective assistance of counsel, which is a denial of defendant’s constitutional right of due process.

Resisting an officer is a misdemeanor offense that is not triable before a jury. La. R.S. 14:108; La. C.Cr. P. art. 779. And there is no right of appeal for a misdemeanor offense not triable by jury. State v. Cepriano, 22-77 (La. App. 5 Cir. 3/30/22), 337 So.3d 999, 1001; State v. Bourg, 16-313 (La. App. 5 Cir. 6/29/16), 196 So.3d 737, 740. A defendant may only obtain a review of his conviction and sentence by filing an application for a supervisory writ. Id. See also State v. Trepagnier, 07-749 (La. App. 5 Cir. 3/11/08), 982 So.2d 185, 188, writ denied, 08-784 (La. 10/24/08), 992 So.2d 1033 (“The proper procedure for seeking review of a misdemeanor conviction is an application for writ of review directed to this Court to exercise its supervisory jurisdiction.”)

In order to obtain review of a misdemeanor conviction by an application for a supervisory writ, a defendant is required to file a notice of his intention to apply for a supervisory writ in the trial court and seek a return date from the trial court, pursuant to Uniform Rules – Courts of Appeal, Rule 4-2, which provides:

The party, or counsel of record, intending to apply to the Court of Appeal for a writ shall give to the opposing parties or the opposing counsel of record, notice of such intention. The party, simultaneously, shall give notice to the judge whose ruling is at issue, by requesting a return date to be set by the judge within the time period provided for in Rule 4-3.

Further, a defendant must file his writ application within 30 days of the ruling at issue, pursuant to Uniform Rules – Courts of Appeal, Rule 4-3, which states:

The judge who has been given notice of intention as provided by Rule 4-2 shall immediately set a reasonable return date within which the application shall be filed in the Court of Appeal. The return date in civil cases shall not exceed 30 days from the date of notice of the judgment, as provided in La. C.C.P. art. 1914. In criminal cases, unless the judge orders

the ruling to be reduced to writing, the return date shall not exceed 30 days from the date of the ruling at issue. When the judge orders the ruling to be reduced to writing in criminal cases, the return date shall not exceed 30 days from the date the ruling is signed. In all cases, the judge shall set an explicit return date; a Court of Appeal shall not infer a return date from the record.

Upon proper showing, the trial court or the Court of Appeal may extend the time for filing the application upon the filing of a motion for an extension of the return date by the applicant, filed within the original or an extended return date period. An application not filed in the Court of Appeal within the time so fixed or extended shall not be considered, in the absence of a showing that the delay in filing was not due to the applicant's fault. The application for writs shall contain documentation of the return date and any extensions thereof; any application that does not contain this documentation may not be considered by the Court of Appeal.

Pursuant to these rules, a notice of intention to apply for a supervisory writ must be filed in the trial court within a period of 30 days from the ruling at issue in order for an application for a supervisory writ in a criminal case to be timely (except when the judge orders that the ruling be reduced to writing, in which case the return date shall not exceed 30 days from the date the ruling is signed). Cepriano, 337 So. 3d at 1002; Bourg, 196 So.3d at 740. In Cepriano and Bourg, this Court declined to consider writ applications in misdemeanor appeals that were not filed within 30 days of the sentencing.

In the instant case, defendant failed to seek supervisory review within 30 days of his sentencing on January 9, 2024. In accordance with Uniform Rules – Courts of Appeal, Rule 4-3, and the jurisprudence of this Court, defendant’s application for writ of review is untimely.

Conclusion

For these reasons, the application for writ of review is denied.

Gretna, Louisiana, this 16th day of January, 2025.

SUS FHW TSM

SUSAN M. CHEHARDY CURTIS B. PURSELL CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL 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 DISPOSITION CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE DISPOSITION IN THE FOREGOING MATTER HAS BEEN TRANSMITTED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 4-6 THIS DAY 01/16/2025 TO THE TRIAL JUDGE, THE TRIAL COURT CLERK OF COURT, AND AT LEAST ONE OF THE COUNSEL OF RECORD FOR EACH PARTY, AND TO EACH PARTY NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-KH-633 E-NOTIFIED 24th Judicial District Court (Clerk) Hon. Raymond S. Steib, Jr. (DISTRICT JUDGE) Graham L. Bosworth (Relator) Thomas J. Butler (Respondent)

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