LEMMON, Justice.
We granted certiorari primarily to determine the appropriate procedure for applications for out-of-time or delayed appeals.
Defendant was convicted of aggravated rape and aggravated burglary. He was sentenced on February 10, 1983 to consecutive terms of imprisonment at hard labor. At sentencing, the trial judge advised defendant of his right to appeal. Both at trial and at sentencing, defendant was represented by an attorney from the office of the public defender. No appeal was filed
On April 10, 1984, defendant, through a different attorney from the office of the public defender, filed a motion for an out-of-time appeal in the trial court. The motion alleged that "[d]efendant recently informed this office on April 4, 1984, that he now desires to appeal". The trial judge granted the motion two days after filing, without a hearing and without affording the district attorney an opportunity to respond to the motion.
The court of appeal dismissed the appeal on the basis that the trial court was without authority or jurisdiction to grant an out-of-time appeal on an ex parte motion. 461 So.2d 664. Citing State v. Davis, 457 So.2d 848 (La.App. 1st Cir.1984), the intermediate court held that a trial court can only consider a request for an out-of-time appeal that is presented by application for post-conviction relief pursuant to La.C. Cr.P. Art. 924-930.7. The court further noted that the allegations of the motion did not indicate a constitutional deprivation of the right to appeal, but that defendant was not precluded from seeking relief by a proper application in the district court.
After the court of appeal dismissed his appeal, defendant filed a motion for out-of-time appeal in the court of appeal. The court denied the motion. Defendant then filed an application in this court entitled "Motion and Order for Out of Time Appeal".
La.C.Cr.P. Art. 914 provides:
La.C.Cr.P. Art. 915 requires the court to order an appeal when a motion for appeal is made in conformity with Articles 912, 914 and 914.1. However, when a defendant fails to make a motion for appeal within the time provided in Article 914, he loses the right to obtain an appeal by simply filing a motion for appeal in the trial court. This is not because the trial court has been divested of jurisdiction, as was held in State v. Braxton, 428 So.2d 1153 (La.App. 3rd Cir.1983), but because the conviction and sentence became final when the defendant failed to appeal timely.
There is no codal or statutory authority or procedure in Louisiana for applying for an out-of-time or delayed appeal. Compare Fed.R.App.P. 4(b), which provides a thirty-day period (after the ten-day period for appealing) for applying for a delayed appeal if the applicant can show excusable neglect. Fed.R.Crim.P. 32(a)(2) also requires notification to the defendant at sentencing (at least in cases which have gone to trial on a plea of not guilty) of the right to appeal and requires the clerk, upon defendant's request, to file a notice of appeal on defendant's behalf. If the court fails to provide this notice at sentencing, the appellate court may vacate the sentence and remand for resentencing. 3 C. Wright, Federal Practice and Procedure § 528 (2d ed. 1982). In Louisiana, however, there is no codal or statutory requirement for notifying the defendant at sentencing of his right to appeal and of the time limitations within which he must exercise that right.
The central issue, therefore, is whether a defendant who seeks an appeal after the time for appealing has elapsed is relegated to post conviction relief or whether he may file a motion for an out-of-time appeal in either the district court or the court of appeal.
The defendant who has failed to appeal timely should seek reinstatement of his right to appeal in the district court in which the conviction was obtained. State v. Holmes, 440 So.2d 1384 (La.App. 2nd Cir.1983). The district court is clearly in the best position, after notice to the district attorney and after a hearing (if necessary), to determine whether the applicant is entitled to relief. Any contrary holding in State v. Braxton, above, is overruled.
We further conclude that the appropriate procedural vehicle for a defendant to seek the exercise of his right to appeal, after the delay provided in Article 914 has expired, is an application for post conviction relief pursuant to Articles 924-930.7.
The possible disadvantage to this procedure is that La.C.Cr.P. Art. 930.3 purports to limit the grounds for post conviction relief to serious statutory violations (such as failure to institute prosecution within the applicable time limit) and deprivations of constitutional rights.
There is a constitutional right to appeal (or to other review on the record) in criminal cases in Louisiana when the defendant is to be subjected to imprisonment or fine.
Defendant's motion for out-of-time appeal in the trial court in this case should have been treated as an application for post conviction relief. We therefore remand the matter for such proceedings. Because defendant has made subsequent allegations which may affect his request for reinstatement of his right to appeal, he should be allowed to amend his application to include any additional relevant allegations.
For these reasons, defendant's motion for an out-of-time appeal is remanded to the trial court to be considered as an application for post conviction relief, after defendant has been afforded an opportunity to amend the application.
MARCUS, J., concurs.
WATSON, J., concurs with a statement.
WATSON, Justice, concurring.
I concur, but suggest that there is no value in extensive proceedings in the trial court where there has been only a failure to appeal within the statutory delay; this court has routinely ordered out of time appeals in such cases.
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