Opinion
No. 2021-KP-00064
01-12-2022
STATE of Louisiana v. Kevin ALEXANDER, Jr.
Application for reconsideration not considered. See Louisiana Supreme Court Rule IX, § 6.
Crichton, J., would grant and assigns reasons.
Genovese, J., would grant and assigns reasons.
Griffin, J., would grant for the reasons assigned by Justice Crichton and Justice Genovese.
CRICHTON, J., would grant rehearing and assigns reasons:
As I have previously stated, while Supreme Court Rule IX, § 6 prohibits reconsideration of a prior writ denial, an exception to this rule must exist in order to further the interest of justice in certain extraordinary circumstances where good cause is shown. See Boutte v. Boutte , 20-985 (La. 2/9/21), 309 So.3d 731 (Crichton, J., would grant rehearing and assigning reasons), citing State v. Hauser , 20-429 (La. 10/6/20), 302 So.3d 514 (mem) (Crichton, J., would grant reconsideration and assigning reasons), citing Harris v. Am. Home Assurance Co ., 2018-589 (La. 8/31/18), 251 So. 3d 397, 398 (Crichton, J., would grant reconsideration); Marable v. Empire Truck Sales of La. , LLC , 2017-1469 (La. 11/17/17), 230 So.3d 212 (Crichton, J., would grant reconsideration); and State v. Franklin , 2019-1454 (La. 1/14/20), 286 So. 3d 1039 (mem) (Crichton, J., additionally concurring with grant of reconsideration). In my view, defendant in this matter presented meritorious arguments concerning the application of La. C.Cr.P. art. 930.8(A)(2) in light of this Court's ruling in State v. Harris , 18-1012 (La. 7/9/20), ––– So.3d ––––, available at 2020 WL 3867207. For good cause shown, I would grant applicant's request for rehearing.
La. C.Cr.P. art. 930.8(A)(2) provides:
A. No application for post conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922, unless any of the following apply:
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(2) The claim asserted in the petition is based upon a final ruling of an appellate court establishing a theretofore unknown interpretation of constitutional law and petitioner establishes that this interpretation is retroactively applicable to his case, and the petition is filed within one year of the finality of such ruling.
GENOVESE, J., would grant and assigns the following reasons:
Supreme Court Rule IX, Sec. 6; states that "[a]n application for rehearing will not be considered when the court has merely granted or denied an application for a writ of certiorari or a remedial or other supervisory writ...." In this case, defendant's original writ was denied 4-3, with three justices voting to grant and docket the writ. I was one of the three justices voting to grant and docket the writ. It was obviously a close case.
Consequently, defendant filed an application for rehearing, which was "not considered," citing Supreme Court Rule IX, Sec. 6 (hereinabove referred to), again 4-3, with the three justices who voted to grant and docket the original writ, voting to grant defendant's application for rehearing.
The problem I have implementing this supreme court rule, and not considering this application for rehearing, is the fact that not all applications for rehearing after a writ denial are "not considered." Some have been granted, and there lies the inconsistency. Either the rule must be amended, or else all applications for rehearing must not be considered. There must be consistency. I find this 4-3 writ and rehearing denial warrants a grant and docket. If the rule has been broken once before (and it has on more than one occasion), it can be broken again—until it is fixed via consistent as opposed to arbitrary application.