STATE OF LOUISIANA v. JONATHAN LOPEZ

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Court of Appeal of Louisiana, Fifth Circuit.

STATE OF LOUISIANA v. JONATHAN M. LOPEZ

NO. 17-KA-507

Decided: March 28, 2018

Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA, Paul D. Connick, Jr., Terry M. Boudreaux, Darren A. Allemand COUNSEL FOR DEFENDANT/APPELLEE, JONATHAN M. LOPEZ, R. Steven Lemoine

EDWARDS, JUDGE PRO TEMPORE, J.

Appellant, the State of Louisiana, appeals a trial court's ruling that granted defendant's motion to quash the bill of information. For the reasons that follow, the State's appeal is dismissed, and we reserve the State's right to file an application for supervisory writs.

STATEMENT OF THE CASE

On March 27, 2017, the Jefferson Parish District Attorney's Office filed a bill of information charging defendant, Jonathan Lopez, with possession of marijuana, third offense, in violation of La. R.S. 40:966(C). Defendant pled not guilty at his arraignment on March 29, 2017. Thereafter, on May 12, 2017, defendant filed a motion to quash the bill of information, arguing that one of his prior convictions could not be used as a predicate conviction for enhancement purposes. The trial court granted defendant's motion following a hearing on May 30, 2017. The State timely sought the instant appeal.

ANALYSIS

Only a final judgment or ruling is appealable. La. C.Cr.P. art. 912(A). A final judgment is one which puts an end to the proceedings. State v. Arceneaux, 13-953 (La. App. 5 Cir. 04/23/14), 140 So.3d 304, 306. A motion to quash an indictment or any count thereof may be appealed by the State. La. C.Cr.P. art. 912 (B)(1). When read and interpreted in reference to subsection A, a ruling on a motion to quash must be a final judgment that puts an end to the proceedings in order to be appealable. Arceneaux, 140 So.3d at 306. The quashing of a predicate offense does not put an end to the proceedings and, instead simply reduces the grade of the offense. State v. Millette, 14-76 (La. App. 5 Cir. 10/29/14), 164 So.3d 865.

In this case, the trial court's quashing of the 2009 predicate only reduced the grade of the offense from a possession of marijuana, third offense to a possession of marijuana, second offense. Therefore, it is not a final, appealable judgment. The State's proper avenue to seek review is by an application for a writ of review under our supervisory jurisdiction. Arceneaux, supra; Millette, supra.

DECREE

Accordingly, we dismiss the present appeal. We reserve to the State the right to file a proper application for supervisory writs, in compliance with U.R.C.A. Rule 4-3, within fifteen days from the date of this decision. Further, we construe the motion for appeal as a notice of intent to seek a supervisory writ so the State is not required to file a notice of intent nor obtain an order setting a return date pursuant to U.R.C.A. Rule 4-3. State v. Donaldson, 13-703 (La. App. 5 Cir. 11/19/13), 130 So.3d 394.

APPEAL DISMISSED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

ROBERT A. CHAISSON

ROBERT M. MURPHY

STEPHEN J. WINDHORST

HANS J. LILJEBERG JUDGES

CHERYL Q. LANDRIEU CLERK OF COURT

MARY E. LEGNON CHIEF DEPUTY CLERK

SUSAN BUCHHOLZ FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

(504) 376-1400 (504) 376-1498 FAX

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MARCH 28, 2018 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

CHERYL Q. LANDRIEU CLERK OF COURT

17-KA-507

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK)

HONORABLE CORNELIUS E. REGAN (DISTRICT JUDGE)

TERRY M. BOUDREAUX (APPELLANT)

R. STEVEN LEMOINE (APPELLEE)

MAILED

HON. PAUL D. CONNICK, JR.

(APPELLANT)

DARREN A. ALLEMAND (APPELLANT)

ASSISTANT DISTRICT ATTORNEYS

TWENTY-FOURTH JUDICIAL DISTRICT

200 DERBIGNY STREET

GRETNA, LA 70053

MARION F. EDWARDS, JUDGE PRO TEMPORE JUDGE