Opinion
No. 96-KP-1658
February 7, 1997
IN RE: State of Louisiana; — Plaintiff(s); Applying for Supervisory and/or Remedial Writ; Parish of Orleans Criminal District Court Div. "D" Number 199-207; to the Court of Appeal, Fourth Circuit, Number 96KW-1201
Writ granted. See per curiam.
JPV
WFM
HTL
CDK
CDT
CALOGERO, C.J. dissents and assigns reasons.
JOHNSON, J. dissents and assigns reasons.
KNOLL, J. not on panel.
In July, 1967, an Orleans Parish jury found Relator guilty of murder in violation of La.R.S. 14:30. No direct appeal to this Court was taken. Relator did, however, seek relief in both state and federal courts.
On October 1, 1991, relator filed his first application for post conviction relief with the trial court. On April 7, 1993, the Honorable Frank Marullo denied relator's application and relator failed to challenge this ruling. On October 26, 1993, relator filed his second application for post conviction relief with the trial court. On March 15, 1996, the trial court heard arguments by the State and by relator concerning whether relator's second application for post conviction relief should be granted.
On April 22, 1996, Judge Marullo denied relator's second application for post conviction relief as untimely. However, Judge Marullo reconsidered and granted relator's first application for post conviction relief. The State objected and sought writs from the Fourth Circuit Court of Appeal. The court of appeal granted the State's application for the sole purpose of transferring the writ to this Court pursuant to La. Const. 1974, Art. 5, Sec. 5(E).
We grant the state's application and reverse the ruling of the trial court. While the trial court correctly denied relator's October 1993 application for post conviction relief as untimely, the trial court erred in reversing itself on its earlier denial of relator's October 1, 1991 application for post conviction relief after relator failed to seek supervisory review.
REVERSED. APPLICATION FILED OCTOBER 1, 1991 IS DISMISSED.
I would deny the writ application and remand for entry of an order of appeal and setting of a return date for relator's out-of-time appeal returnable to the Court of Appeal, Fourth Circuit. See La. Const. art. V, § 5(E).