Opinion
No. 2000-KP-1787
March 9, 2001.
IN RE: Barr, Steve Michael; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. B, Nos. 248887, 250247, 255823, 255824; to the Court of Appeal, Third Circuit, No. KW 00 00293
ON WRIT OF CERTIORARI TO THE THIRD CIRCUIT COURT OF APPEAL.
Granted with order. See per curiam.
CDT
PFC
CDK
BJJ
JPV
JTK
LEMMON, J., concurs, but would not base the decision, even in part, on State v. Hornung, 620 So.2d 816 (La 1993), in which I dissented.
Granted for the sole purpose of transferring the application to the Third Circuit Court of Appeal for consideration as an appeal. To the extent that La.R.S. 14:40.2 (B)(1) provides for a penalty in excess of six months in jail, it defines an offense triable by a jury. La. Const. art. I, § 17; La.C.Cr.P. art. 779 (A). Moreover, to the extent that the defendant faced a total sentencing exposure exceeding six months imprisonment following the consolidation of the four bills of information for trial, the defendant became entitled to a jury trial as to all of the charged misdemeanor offenses. State v. Hornung, 620 So.2d 816, 817 (La. 1993). The defendant's remedy upon conviction and sentence was therefore by appeal and not by supervisory review. La. Const. art. V, § 10 (A)( 3); La.C.Cr.P. art. 912.1 (B); State v. Swan, 544 So.2d 1204, 1206, n. 3 (La.App. 1st Cir. 1989)
LEMMON, J., concurs, but would not base the decision, even in part, on State v. Hornung, 620 So.2d 816, (La. 1973), in which I dissented.