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STATE OF LOUISIANA NO. 02-KA-907
FIFTH CIRCUIT VERSUS COURT OF APPEAL
GRACE ARMANT STATE OF LOUISIANA
ON APPEAL FROM
THE TWENTY-NINTH JUDICIAL DISTRICT COURT,
PARISH OF ST. CHARLES, STATE OF LOUISIANA,
NO. 66348 AND 66349, DIVISION "D,"
HONORABLE KIRK R. GRANIER, JUDGE PRESIDING.

January 28, 2003
SUSAN M. CHEHARDY
JUDGE

Panel composed of Judges James L. Cannella,
Susan M. Chehardy and Clarence E. McManus.

ANDERSON COUNCIL 4948 Chef Menteur Highway, Suite 712 New Orleans, Louisiana 70126 COUNSEL FOR DEFENDANT-APPELLANT, GRACE ARMANT
HARRY J. MOREL District Attorney, 29 Judicial District Parish of St. Charles, State of Louisiana
J. WILLIAM STARR Assistant District Attorney
P.O. Box 680 Hahnville, Louisiana 70057 COUNSEL FOR PLAINTIFF-APPELLEE, THE STATE OF LOUISIANA
REMANDED.
Grace Armant appeals her convictions of disturbing the peace and resisting an officer. We find the evidence is sufficient, but there is a patent error affecting a substantial right of the defendant. We pretermit consideration of other assignments and remand for an evidentiary hearing.
On November 7, 2001 the St. Charles Parish District Attorney charged Grace Armant with two misdemeanors in two separate bills of information. In No. 66348, she was charged with disturbing the peace, a violation of La.R.S. 14:103. In No. 66349 she was charged with resisting an officer, a violation of La.R.S.
14:108. At arraignment she entered a plea of not guilty. On April 8, 2002, the defendant was tried and found guilty as charged on both counts. Immediately after the trial the court sentenced the defendant.
With regard to the conviction of disturbing the peace, the court imposed a sentence of 90 days in the parish prison, suspended, placed the defendant on two years' inactive probation, and imposed a fine of $100, with special conditions of probation. With regard to the conviction of resisting an officer, the trial judge imposed a sentence of six months in the parish prison, suspended, placed the defendant on two years' inactive probation, and imposed a $500 fine, with special conditions of probation. Both fines were suspended, provided the defendant
complied with the special conditions of probation and paid the court costs, which
were made concurrent.
Defense counsel requested that the court note his intention to take supervisory writs. The trial court gave the defendant ten days to apply for a writ. On April 17, 2002, nine days after sentencing, the defendant filed a motion for appeal.
JURISDICTION
Although this case involves misdemeanor convictions, the matter is appealable because it was triable by a jury (see below).' However, this appeal is appears to be untimely because the motion for appeal was filed more than five days after the defendant's sentence.2
The defendant was sentenced on April 8, 2002. Through counsel, the defendant gave oral notice at the sentencing hearing of her intention to file a writ application, without mentioning an appeal. Her written motion for appeal was filed on April 17, 2002 nine days later and, thus, was untimely.
When a defendant fails to move for an appeal within the time allotted by La.C.Cr.P. art. 914, the conviction and sentence become final and the defendant loses the right to obtain an appeal by simply filing a motion for appeal. State v. Counterman, 475 So.2d 336, 338 (La. 1985). The appropriate procedural vehicle for the defendant to seek exercise of her right to appeal after the legal delay has expired is by application for post-conviction relief. La.C.Cr.P. arts. 924-930.7,
Under La.Const. Art. 5, Section 10, the appellate jurisdiction ofthis Court extends to criminal cases that are triable by a jury. See also, La.C.Cr.P. art. 912.1; State v. Robinson, 94

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