State v. Crandell

11 After reviewing the record in this case, we conclude defendant’s application for certiorari was untimely filed, and we therefore recall the writ as improvidently granted. Because defendant’s writ application was not timely filed, we will not consider defendant’s application.

The facts underlying the instant application are as follows. In 1991, a Bossier Parish jury found defendant guilty of first degree murder. At the conclusion of the sentencing phase of trial, the jury was unable to reach a unanimous verdict, and defendant was therefore sentenced to life imprisonment without benefit of probation, parole or suspension of sentence in accordance with La. C.Cr.P. art. 905.8. The court of appeal affirmed defendant’s conviction and sentence. State v. Crandell, 604 So.2d 123 (La.App. 2 Cir.1992). On August 6, 2004, defendant was granted federal habeas corpus relief.

On September 7, 2004, a Bossier Parish Grand Jury re-indicted defendant for first degree murder, and the State filed a notice of intent to seek the death penalty. In response, defendant filed a motion to quash the State’s notice of intent to seek the death penalty. After a contradictory hearing, the district court denied defendant’s motion on January 3, 2005. Defendant timely applied in the court of appeal for a supervisory writ, and the court of appeal denied defendant’s writ on February 23, 2005. Defendant then applied for a rehearing of the court of appeal’s writ denial. On March 23, 2005, the court of appeal denied the rehearing, stating, “It is the policy of this court not to grant rehearing in cases in which the court has denied a writ application on the merits, pursuant to URCA, Rule 2-18.7, which does not allow for rehearing in such situations.”

Defendant then sought a writ of certio-rari from this court. Defendant’s application was postmarked April 22, 2005, and received April 25, 2005. Supreme Court Rule X, § 5(a) provides:

(a) An application seeking to review a judgment of the court of appeal either after an appeal to that court, or after that court has granted relief on an application for supervisory writs (but not when the court has merely granted an application for purposes of further consideration), or after a denial of an application, shall be made within thirty days of the mailing of the notice of the original judgment of the court of appeal; however, if a timely application for rehearing has been filed in the court of appeal in those instances where a rehearing is allowed, the application shall be made within thirty days of the mailing of the notice of denial of rehearing or the judgment on rehearing. No extension of time therefor will be granted.

(Emphasis added.) A plain reading of this Rule indicates that an application'for review following a court of appeal’s denial of an application shall be filed within thirty days of the mailing of the notice of the action. If a rehearing is allowed to be taken from the action of the court of appeal and a rehearing application was timely filed in the court of appeal, then an application shall be filed within thirty days of the mailing of the notice of the action on rehearing.

In the instant case, the court of appeal denied defendant’s writ application and mailed the notice of judgment on February 23, 2005. Uniform Rule of the Courts of Appeal (“URCA”), Rule 4-9, provides that Rules 2-18.1 through 2-18.7 apply to applications for rehearings related to writ applications. Rule 2-18.7 provides that “[a]n application for rehearing will be considered where the court has: (A) Granted a writ application on the merits; (B) Dismissed an appeal; or (C) Ruled on the merits of an appeal.” The Rules do not provide for a rehearing from a denial of an application for supervisory writs. See Y.F.B. v. R.D.R., 01-0345 (La.4/12/01), 787 So.2d 276; Morris v. Stueben, 01-0137 (La.1/26/01), 781 So.2d 1220. Consequently, the thirty-day period for taking writs to this court provided by Supreme Court Rule X, § 5(a) was not extended by defendant’s application for rehearing in the court of appeal because it was not an instance where a rehearing was allowed.

Defendant’s writ application in this court was filed on April 25, 2005, more than thirty days after the court of appeal’s denial of his application. Although defendant’s application in this court was filed within thirty days of the court of appeal’s denial of rehearing, the application was untimely filed because a rehearing of the court of appeal’s writ denial was not allowed. Accordingly, the delay for seeking review by this court began to run from the mailing of the notice of the court of appeal’s writ denial, not from its denial of rehearing. See id.

For the above reasons, we find defendant’s writ application was untimely filed and recall the writ as improvidently granted. The case is remanded to the district court for further proceedings.

WRIT RECALLED. CASE REMANDED TO DISTRICT COURT FOR FURTHER PROCEEDINGS.

CALOGERO, J., C.J., dissents and assigns reasons.

KIMBALL, J., additionally concurs for reasons assigned by VICTORY, J.

JOHNSON, J., dissents and assigns reasons.

VICTORY, J., additionally concurs with reasons.

KNOLL, J., concurs for reasons assigned by VICTORY, J.

TRAYLOR, J., additionally concurs for reasons assigned by VICTORY, J.

WEIMER, J., dissents & assigns reasons.

. La.C.Cr.P. art. 905.8, which deals with sentencing in capital cases, provides in pertinent part, "If the jury is unable to unanimously agree on a determination, the court shall impose a sentence of life imprisonment without benefit of probation, parole or suspension of sentence.”

. We note the court of appeal’s writ denial was accompanied by an analysis of the merits of defendant’s application; however, the ultimate resolution of the case remains the denial of defendant’s writ application. See Y.F.B. v. R.D.R., 01-0345, p. 1 n. 1 (La.4/12/01), 787 So.2d 276, 276 n. 1.