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STATE OF LOUISIANA v. GARY MIRE
See 08-KH-376 Writ Application, p. 14 (emphasis added).1 In ruling on this writ application, this Court found the trial court erred in convening the February 29, 2008 hearing without reasonable notice to defendant or his attorney. Therefore, this Court granted the writ in part to vacate the February 29, 2008 ruling. However, the Court found “[t]his writ is otherwise denied.” See State v. Mire, 08-376 (La.App. 5 Cir. 5/28/08)(unpublished writ). As such, it appears that defendant's request to reinstate the original ruling of February 25, 2008, which granted defendant's “Motion for Relief From Ex Post Facto Application of Registration and Notification Period Pursuant to La.R.S. 15:542,” was denied by this Court.
Based on the foregoing, the February 25, 2008 ruling was not automatically reinstated when this Court vacated the February 29, 2008 ruling. In fact, this Court specifically refused to reinstate the February 25, 2008 ruling. As a result, we find that this assignment of error lacks merit.
Assignment of Error Number Two
Defendant argues that Judge Darensburg ruled on March 2, 2009 that she did not have jurisdiction to take any further action in the case because this Court failed to remand the matter to the trial court. Defendant notes that this ruling was not challenged. Citing LSA-C.C.P. art.2088, defendant contends that once the trial court is divested of jurisdiction it may retain jurisdiction only to do certain things, which does not include transferring a case to another division. As such, defendant concludes that once Judge Darensburg lacked jurisdiction to rule on March 2, 2009, it was legal error to transfer the case to Division “N” after the State filed its motion to set a hearing.
The State responds that defendant mistakenly asserts that Judge Darensburg transferred this matter to Division “N.” The State explains that it filed a motion to set a hearing under case number 01-5885 after Judge Darensburg ruled she lacked jurisdiction. Further, the State argues that on or before August 25, 2008, the 24 th Judicial District Court issued an order that all post-conviction matters should retain the same case number and remain in the same division of court to which the criminal case was allotted. As such, the State suggests that the motion was properly re-docketed under its original case number in the same division to which it was originally allotted.
The State acknowledges that defendant did not object to Judge Darensburg's ruling that she lacked jurisdiction nor did defendant object when the matter was re-docketed in Division “N.” As such, it contends that this issue is not preserved for review. Further, the State recognizes that defendant fails to cite law in support of his contention, except for an article found in the Code of Civil Procedure that is inapplicable to criminal matters.
Judge Darensburg did have jurisdiction in the matter, regardless of whether this Court specifically remanded the matter to the district court. After reviewing this Court's May 28, 2008 disposition, this Court expressed that a hearing which ordered compliance with the new amendments to the registration and notification requirements could not be held without notice to defendant. This Court's disposition logically allowed for a hearing to take place in the district court after giving notice to defendant.
The district court had jurisdiction to act on this matter after the ruling of this Court on defendant's writ application in case number 08-KH-376. The Louisiana Constitution states that except as otherwise authorized, a district court shall have original jurisdiction of all civil and criminal matters. La. Const. art. 5, § 16(A). When defendant filed a writ with this Court in case number 08-KH-376, this Court exercised its supervisory jurisdiction over the matter pursuant to La. Const. art. 5, § 10(A). Thereafter, Judge Darensburg decided she lacked jurisdiction to further act in the matter because this Court failed to remand the matter to her. However, the district court was divested of jurisdiction at the time. Defendant did file a “notice of appeal” on April 1, 2008, and the court signed the notice on April 9, 2008. According to LSA-C.Cr.P. art. 916, the jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as is otherwise provided by law or as provided by Article 916. Id.
However, in case number 08-KH-376, this Court construed the notice to seek an appeal as a notice to seek supervisory review.2 The Code of Criminal Procedure does not provide for the divesting of jurisdiction of the district court when a writ is sought with the appellate court. If the district court was divested of jurisdiction every time someone sought relief through means of a writ with an appellate court, there would be no need for a stay of proceedings in the district court, which is authorized by Uniform Rules -Courts of Appeal, Rule 4-4. If no stay is granted, proceedings in the district court may continue, even despite pending writs. As such, although Judge Darensburg expressed that she lacked jurisdiction because the case was not remanded to her, a remand to the district court was unnecessary when the trial court was not divested of jurisdiction.
Further, La. Const. art. 5, § 16(A) grants a district court, not a specific judge or division, original jurisdiction of all criminal matters. Also, cases within the district court can be transferred between divisions. District Court Rules - Rule 14.3 provides for the transfer of allotted cases in a district court:
Any case that has been allotted may be transferred from one division to another division for good cause, or by written consent of all parties, including the state, the defense and the court. Consent transfers must be by written order signed by both the transferring judge and the receiving judge.
District Court Rules - Appendix 11 provides that for the 24 th Judicial
District Court, cases on any of the criminal dockets may be transferred as often as necessary for the proper expedition of the business of the Court from one division of court to another. Therefore, the jurisdiction of this criminal case was granted to the 24 th Judicial District Court, not Judge Darensburg or Judge Liljeberg.
Further, the State filed its motion for hearing on March 30, 2009. The motion contained the case number 01-5885, but noted the Division was “C.” At some point, the “C” was scratched through and “N” was handwritten on the motion. As such, although an Order of Transfer does appear in the record from Judge Darensburg, Division “N” should have been the division noted on the State's motion from the beginning because that was the division associated with case number 01-5885. Thus, the State filed its motion seeking review from Judge Liljeberg's ruling.
Based on the foregoing, we find that the assignment of error lacks merit, and defendant is not granted relief regarding this procedural argument.
Assignment of Error Number Three
Defendant explains that he originally filed his motion for relief in Division “N” under case number 01-5885, which was the same case number in which he was convicted, put on probation, and ordered to comply with the sex offender registration requirements. However, he contends that Judge Liljeberg dismissed his motion after finding he did not have jurisdiction to entertain the motion because defendant's probation had expired and, therefore, the case was closed. He notes that this ruling was not challenged. Defendant explains that he was advised to file the motion again as a new matter. Defendant did this, and the matter was allotted to Division “C.” Defendant argues that if Judge Liljeberg did not have jurisdiction to rule on December 20, 2007, when his original motion for relief was filed, Judge Liljeberg lacked jurisdiction to rule on the State's motion for hearing filed on March 30, 2009. Again, defendant cites LSA-C.C.P art.2088 in support of his argument. He concludes Judge Liljeberg did not have jurisdiction to grant the State's motion on April 8, 2009. He also raises the issue of Judge Liljeberg's comment that his ruling was in case number 08-337.
The State acknowledges that defendant cites no legal support other than the article from the Louisiana Code of Civil Procedure, which is inapplicable to criminal matters. The State also contends defendant failed to object and this issue is not preserved for appeal. Further, the State notes that the 24 th Judicial District Court has ordered that all post-conviction matters retain the same case number and remain in the same division of court to which the criminal case was allotted, which in this case was Division “N.”
In case number 08-KH-376, this Court disapproved of having a hearing in which defendant was ordered to comply with new requirements of registration and notification without proper notice of the hearing. Since this Court's May 28, 2008 ruling in case number 08-KH-376, there has been another hearing on the matter, but this time with notice to defendant, which allowed for his presence at the hearing. Judge Liljeberg presided over that hearing and eventually ruled against defendant, ordering compliance with the new amendments.
Defendant originally filed his motion for relief with Judge Liljeberg in case number 01-5885. On December 20, 2007, Judge Liljeberg dismissed the motion after finding he lacked jurisdiction because defendant's period of probation had expired. The motion for a hearing ruled on by Judge Liljeberg on April 8, 2009, was filed by the State. Although the original motion for relief was filed by defendant and the motion for hearing was filed by the State, the key issue of both motions was whether the new amendments to the registration and notification requirements for sex offenders applied to defendant. Judge Darensburg originally found defendant did not have to comply, then vacated that ruling and said he did. This Court vacated that ruling, which was made at a hearing without notice being given to defendant. Thereafter, another hearing was held and Judge Liljeberg ruled defendant had to comply with the new amendments to the requirements.
Interestingly, defendant does not seek relief from the ruling of compliance itself. At no time in his brief does defendant address the merits of applying the new amendments to him retroactively. Instead, defendant focuses on the procedurally tangled, “jurisdictional” aspects of the matter, arguing that what still stands is Judge Darensburg's original ruling relieving defendant from compliance with the new law.
Judge Liljeberg originally had jurisdiction to hear the matter, even if defendant's period of probation had expired. LSA-C.Cr.P. art. 898 addresses the satisfaction of probation. Article 898 provides that upon completion of the period of suspension of sentence or probation, the defendant shall have satisfied the sentence imposed. Where part of a sentence is suspended, this provision shall not apply until the unsuspended part has been satisfied. Id.
However, at the time, defendant was still under the obligation to register as a sex offender in case number 01-5885. This was a special condition of probation, as well as a statutory requirement. Defendant's sentence is not ultimately “completed” until his obligations as a sex offender are fulfilled. See State v. Moore, 03-16, p. 7 (La.App. 3 Cir. 5/14/03), 847 So.2d 53, 57-58, writs denied, 03-1480 (La.12/12/03), 860 So.2d 1150 and 04-2931 (La.1/21/05), 893 So.2d 55 (where the Third Circuit recognized that the requirement to register and give notice are triggered by the release of the sex offender into the community, noting that the requirement to register and give notice become essential for the protection of innocents. The Moore court recognized the burden of registration may extend well beyond the period of probation or parole and that continued monitoring by law enforcement officials is deemed of “paramount governmental interest.” The court also expressed that from the statute and legislative purpose, the requirements of registration and notification are an essential part of a convicted sex offender's sentence. He must fulfill these requirements before his sentence can be deemed “complete” and he is released from all supervision).
Further, even if the matter was transferred to Judge Liljeberg by Judge Darensburg, as suggested before, the case was properly transferred and jurisdiction was with the court, not the specific judge. Thus, we find that this assignment of error lacks merit, and defendant is not granted relief based on this procedural argument.
CONCLUSION
For the foregoing reasons, defendant's appeal is converted to a writ application for consideration and relief is denied.
APPEAL CONVERTED TO SUPERVISORY WRIT;
WRIT CONSIDERED; RELIEF DENIED
FOOTNOTES
FN1. According to Rule 2-1.14 of the Uniform Rules - Courts of Appeal, “[a]ny record lodged in this court may, with leave of court, be used, without necessity of duplication, in any other case on appeal or on writ.” This Court has previously considered documents in a writ application filed in this Court in a subsequently filed matter. See State v. Bradley, 02-1130, pp. 4-5 (La.App. 5 Cir. 3/11/03), 844 So.2d 115, 117-18, writ denied, 01-1973 (La.6/14/02), 817 So.2d 1151.. FN1. According to Rule 2-1.14 of the Uniform Rules - Courts of Appeal, “[a]ny record lodged in this court may, with leave of court, be used, without necessity of duplication, in any other case on appeal or on writ.” This Court has previously considered documents in a writ application filed in this Court in a subsequently filed matter. See State v. Bradley, 02-1130, pp. 4-5 (La.App. 5 Cir. 3/11/03), 844 So.2d 115, 117-18, writ denied, 01-1973 (La.6/14/02), 817 So.2d 1151.
FN2. It is noted that on September 18, 2008, an appeal was dismissed by this Court after a motion was filed by defense counsel.. FN2. It is noted that on September 18, 2008, an appeal was dismissed by this Court after a motion was filed by defense counsel.
MARC E. JOHNSON JUDGE
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Docket No: NO. 09-KA-922
Decided: June 29, 2010
Court: Court of Appeal of Louisiana, Fifth Circuit.
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