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STATE OF LOUISIANA VERSUS GLENN BROOKS

NO. 01-KA-1316 FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

ON APPEAL FROM THE 291" JUDICIAL DISTRICT COURT PARISH OF ST. CHARLES, STATE OF LOUISIANA NO. 01-0011, DIVISION "D" THE HONORABLE KIRK R. GRANIER, JUDGE PRESIDING APRIL 10, 2002

SOL GOTHARD JUDGE
Panel composed of Judges Sol Gothard, Thomas F. Daley, and Walter J. Rothschild

HARRY J. MOREL, JR. District Attorney KIM McELWEE Assistant District Attorney 29th Judicial District Parish of St. Charles Hahnville, Louisiana Attorneys for Plaintiff/Appellee JANE L. BEEBE
Louisiana Appellate Project P. O. Box 1193

Gretna, Louisiana 70054-1193 Attorney for Defendant/Appellant

APPEAL DISMISSED; CASE REMANDED

Defendant, Glenn Brooks, appeals from his conviction of one count of
possession of a firearm by a convicted felon (LSA-R.S. 14:95.1), and sentence

of 15 years at hard labor without benefit of parole, probation, or suspension of
sentence.

We note that defendant's Motion for Appeal was untimely filed. The
defendant was sentenced on July 17, 2001 and his Motion to Reconsider

Sentence was denied on August 14, 2001. Defendant's trial counsel filed a written Motion for Appeal on September 14, 2001. The motion was granted on September 18, 2001. La. C.Cr.P. art. 914 provides: A. A motion for an appeal may be made orally in open court or by filing a written motion with the clerk. The motion shall be entered in the minutes of the court. B. The motion for an appeal must be made no later than: (1) Five days after the rendition of the judgment or ruling from which the appeal is taken. (2) Five days from the ruling on a motion to reconsider sentence filed pursuant to Article 881.1, should such a motion be filed. In State v. Counterman, 475 So.2d 336, 338 (La.1985), the Louisiana Supreme Court held that a defendant who fails to make a Motion for Appeal

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within the time provided in Article 914 loses the right to obtain an appeal by simply filing a Motion for Appeal. The Counterman court explained that,
after the time for appealing has elapsed, the conviction and sentence become

final and are no longer subject to review under ordinary appellate process, unless the defendant obtains the reinstatement of his right to appeal. Id. The proper procedural vehicle for a defendant to seek the exercise of his right to appeal after the time for appeal has expired is an application for post conviction relief pursuant to La. C.Cr.P. arts. 924-930. Defendant's written Motion for Appeal was filed more than five days
after the trial court ruled on his Motion to Reconsider Sentence, and therefore

is untimely. State 1: Ginn, 98 1184 (La. App. 1 Cir. 6/19/98), 718 So.2d 984.
Because there is nothing in the record to show that defendant obtained a reinstatement of his appeal rights, we dismiss this appeal and remand the case

to allow defendant the opportunity to seek reinstatement of his appeal rights

by application for post conviction relief. State 1: Bowen, 00-175 (La. App. 5 Cir. 7/25/00), 767 So.2d 806.

APPEAL DISMISSED; CASE REMANDED

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