|
|
|
|
RULE 5. PROCEDURES FOR WRITS AND APPEALS IN CERTAIN CASES INVOLVING MINORS APPENDIX A. UNIFORM APPLICATION FOR POST-CONVICTION RELIEF Rule 1-1. Promulgation and Effective Date
of Rules; Amendments 1-1.1. Promulgation and Effective Date The Rules of Court shall be entered in the minutes
of the court. They shall be promulgated by mailing a copy thereof to the clerk
of court of each parish in the respective Court of Appeal Circuits and shall be
published in the manner which the court deems most effective and practicable.
They shall become effective on July 1, 1982. 1-1.2. Amendments Amendments of these Rules shall be promulgated and
published in the same manner, and shall become effective as of the date fixed
therein. Rule
1-2. Title and Scope of Rules These Rules shall govern practice and procedure in
all appeals and in all writ applications to the Louisiana Courts of Appeal, and
shall be known as the 'Uniform Rules of Louisiana Courts of Appeal Rule 1-3.
Scope of Review The scope of review in all cases within the
appellate and supervisory jurisdiction of the Courts of Appeal shall be as
provided by > LSA-Const. Art. 5, § 10(B), and as otherwise provided by law.
The Courts of Appeal will review only issues which were submitted to the trial
court and which are contained in specifications or assignments of error, unless
the interest of justice clearly requires otherwise. Rule 1-4.
Sessions of Court Unless the court orders otherwise, each Court of
Appeal will hold sessions at its legal domicile. Rule 1-5. Panels The court ordinarily will sit in rotating panels,
each composed of 3 Judges, as may be directed by the Chief Judge. In civil
cases, when a judgment or ruling of a trial court is to be modified or reversed
and one judge dissents, the case shall be reargued or resubmitted before a panel
of at least 5 Judges, a majority of whom shall render judgment. When an appeal
is taken from an election case objecting to candidacy or contesting an election,
the case shall be heard by the court as directed by law. When authorized by law,
or when the court deems it necessary to promote justice or expedite the business
of court, the court may sit in panels of more than 3 judges or en banc. Rule
2-1. Preparation of Record
Rule
2-1.1. Number of Copies The clerk of the trial court shall prepare a
certified copy of the original record and one duplicate record for the Court of
Appeal. 2 The certified copy and the duplicate, which may be
typewritten or produced by any acceptable copying or duplicating process, shall
be prepared on white, unglazed, opaque paper of legal size, so as to produce a
clear black image on white paper, with a margin at the top of each page of
2", and side margins of 1". The impression must be on one side of the
paper only, and must be double-spaced, except for matter customarily
single-spaced and indented. Illegible copies and photocopies produced on wet
copiers are not acceptable. All copies must be legible. The duplicate record
shall include all matters contained in the certified copy of the original
record, except matters which are not reproducible. 2-1.3. Cover Inscription The records shall be bound in strong, flexible,
looseleaf covers, 9" X 14 1/2", fastened at the top, so as to open
flat at the top. On the outside of the front cover of each volume,
there shall be inscribed with proper separation of lines and spaces, and in the
following order: (1) the title of the court to which the record is
directed; (2) the docket number of the case in the Court of
Appeal (to be given and entered by the clerks of the Courts of Appeal); (3) the number of the volume of the record; (4) the title of the case (the same title given in
the trial court); (5) the status of the parties; (6) the name of the court and of the parish from
which the case came, the number of the case in the court below, the division of
the court, and the name of the judge who rendered the ruling or judgment to be
reviewed; (7) the names of counsel, with addresses and phone
numbers, and the names of the parties represented; and (8) the date of the filing of the record (to be
entered by the clerks of the Courts of Appeal). 2-1.4. Indexes The record shall contain a chronological index and
an alphabetical index of the contents, which shall specify the volume and page
on which the minutes of the trial court, each paper or filing, and the note of
evidence appear. The chronological index shall be by item, date, and page of all
filings (papers) in the record, and the alphabetical index shall be by item and
page of all filings (papers) in the record. There shall also be a chronological index of the documents and exhibits filed in evidence (showing on whose behalf filed). 2-1.5.
Minute Entries of Trial Court The record shall contain an extract of the
pertinent minute entries of the trial court, and shall show the date of each
entry, the action taken by the trial court, and the trial court judge presiding.
In criminal cases, the extracts from the minute entries shall include, in
chronological order, these items: (1) opening of the court; (2) impaneling of the grand jury by which the
indictment was found (if prosecution by indictment); (3) list of challenges for cause; (4) list of peremptory challenges; (5) list of petit jurors selected; (6) list of evidence; (7) list of witnesses; (8) time when jury retired to deliberate, and time
returned to render verdict; (9) jury's verdict; (10) trial court's judgment, ruling, and sentence; (11) motion and order for appeal; (12) the names of the defendant(s) and all
attorney(s) when present. 2-1.6. Order of Pleadings All motions and pleadings, together with documents
and exhibits attached, and orders of court pertaining thereto, shall be placed
in the record in the order in which they are made or filed, except that answers
to interrogatories (or similar inquiries) shall immediately follow the
interrogatories. The record in criminal cases shall also contain the
indictment (information) and pleas in the order made, returned or filed. 2-1.7. Order of Documents and Other Evidence The record shall include exact copies of all
documentary evidence and other evidence (including depositions filed in
evidence) in the order in which such evidence was filed. If it is necessary that
the original of any evidence be filed, such original must be filed separately
and not attached to the record; however, there must be proper reference in the
record showing such filing. No record of another case (or prior record in the
same titled and numbered case) shall be included in the record, unless such
other record has been introduced in evidence (at trial) in the case on appeal or
on writs, in which event such other record shall accompany the record as an
exhibit. 2-1.8.
Order of Other Items Other items in the record shall be arranged in the
following order: (1) written reasons for judgment, transcribed oral
reasons for judgment, or order (if any); (2) judgment or order (interlocutory and final);
and, in criminal cases, all orders, including the verdict, judgment and
sentence; (3) petition (motion) and order for appeal, and
bond (if any); (4) assignments of error in criminal cases in
numerical order, and the trial judge's per curiams (if any), each of which
should follow the respective assignment of error. (If the evidence necessary to
form a basis for an assignment of error has been transcribed elsewhere in the
record, such as in a full transcript of the proceedings, it may be incorporated
by reference to the appropriate volume and page of the record, so as to avoid
unnecessary duplication in the record). 2-1.9.
Transcript of Testimony The verbatim transcript of oral testimony of the
witnesses in the order in which it is taken shall be included in the record,
preceded by an index setting forth the names of witnesses in the order called by
the respective parties and the volume and pages of their examination on direct,
on cross-examination, on re-direct, on re-cross and in rebuttal. This index
shall also list and identify the exhibits, and offers of proof, and show by whom
presented and the volume and page where offered. The index shall also give the
volume and page of any oral reasons for judgment. The transcript of testimony
shall indicate the party in whose behalf each witness was called (whether on
direct, on cross-examination, or in rebuttal), and by whom examined or
cross-examined. In criminal cases, the record must also contain all
or any portion of the following designated by the defendant, the state, or the
trial judge: preliminary hearing; voir dire examination of prospective jurors;
statements, rulings, orders, and jury instructions by the trial court;
objections, questions, statements and arguments of counsel. All transcripts filed with a Court of Appeal must
comply with the Transcript Format Rules promulgated by the Louisiana Supreme
Court. 2-1.10.
Numbering of Pages The pages in the record shall be consecutively
numbered. If the record contains more than a total of 250 pages, it shall be
bound in separate volumes, each containing not more than 250 pages. To the
extent practicable, the extract of minute entries, motions and pleadings,
documents, written reasons for judgment, judgments, and appeal pleadings and
orders (also bonds, if any), shall be included in the first volume of the
record, with the transcript of testimony and other evidence in subsequent
volumes. The pages of the duplicate record shall be numbered to correspond with
those of the certified copy of the original record. 2-1.11. Items to be Omitted Subpoenas, notices, and returns may be omitted from
the record, unless they are at issue. Such items may be supplied upon timely
application to this court by any party, upon showing their materiality. 2-1.12. Bulky Exhibits Bulky or cumbersome documents, exhibits, and other
physical or corporeal evidence should not be filed with the record, unless
otherwise ordered by the court. They may be included in specially marked
envelopes, or other containers, with a list and identification of the enclosed
items attached thereto, with proper reference noted on the record. Offers of
proof (or proffers) should be included in separate specially marked envelopes,
properly identified. The duplicate record need not reproduce such items, but
reference thereto should be made. 2-1.13. Separate Records Separate records shall be prepared of each case
even though consolidated with another case for trial. Each of such records shall
be enclosed in a separate cover, with proper references indicating the
consolidation thereof. The transcript of testimony in the consolidated cases may
be included in only one of the records. Documentary evidence applicable to only
one of the consolidated cases shall be enclosed in the appropriate record. 2-1.14. Use of Another Record Any record lodged in this court may, with leave of
court, be used, without necessity of duplication, in any other case on appeal or
on writ. 2-1.15. Certificate of Clerk The certified copy of the original record and the
duplicate record shall each bear the certificate of the clerk of the trial court
as to the completeness and authenticity thereof. The notice of appeal from the
trial court shall also certify the amount of court costs. 2-1.16. Responsibility of Clerk It is the responsibility of the clerk of the trial
court from which a case is appealed, or to which writs are directed, to prepare
the record for a Court of Appeal. To assist in its preparation, the clerk of the
trial court may require of its court reporter a legible copy of the transcript
of testimony, and of the appellant (or party seeking review by this court)
legible copies of all pleadings, depositions, and other papers to be included in
the record. 2-1.17. Designated Record Notwithstanding the foregoing requirements, the parties may designate, in writing, portions of the record to constitute the record in a Court of Appeal.
Rule 2-2. Notice Of Appeal; Filing of Record 2-2.1. Notice of Appeal Within seven (7) days of the granting of an order of appeal, the clerk of the trial court shall mail to the appellate court the notice of appeal required by the Code of Civil Procedure or the Code of Criminal Procedure. 2-2.2. Additional Notice Requirements in Election Cases; Responsibility of Appellant and Clerk of Trial Court In any action objecting to candidacy or contesting
an election, governed by the provisions of Title 18 of the Revised Statutes, the
following notices to the appellate court shall be given by either or both the
appellant and the clerk of court as provided below: (1) Within 24 hours after signing of judgment, a
party who is aggrieved by the judgment and who both obtains an order of appeal
and provides the necessary bond, as required by the provisions of Title 18,
shall give notice of the order of appeal to the clerk of the Court of Appeal by
telephone and/or facsimile transmission; and (2) Within 24 hours after an order of appeal has
been obtained and a bond given, as required by the provisions of Title 18, the
clerk of the trial court shall give notice of the order of appeal to the clerk
of the Court of Appeal by telephone and/or facsimile transmission. (3) The telephonic or facsimile transmission
required above shall be immediately followed by the mailing of that notice to
the clerk of the court of appeal.
2-2.3. Filing of Record In all cases appealed or in which a writ is
granted, a certified copy of the original record and one duplicate record shall
be filed timely in the office of the clerk of the Court of Appeal by the clerk
of the trial court on or before the date fixed for the return of the appeal or
of the writ, or such extension thereof as may be granted in accordance with law. Rule
2-3. Criminal Appeals from Courts of Limited Jurisdiction Wherein Testimony was
Electronically Recorded In all cases appealed to a Court of Appeal from a
judgment rendered in a criminal case by a parish, city, or municipal court,
where the testimony of witnesses was electronically recorded, such electronic
recording shall, before filing of the appeal, be transcribed, and a certified
copy of the original transcription and one duplicate shall be prepared and filed
in accordance with Rules 2-1 and 2-2. Rule 2-4. Fees The clerks of the Courts of Appeal shall charge the fees prescribed by law. Rule 2-5. Docketing of Cases; Notification 2-5.1. Docketing Cases shall be docketed by the clerk in the order
in which they are filed, under the same title used in the trial court. 2-5.2.
Notification Upon the filing of the record and the docketing of
the case, the clerk shall forthwith notify counsel of record, and each party not
represented by counsel, in writing, of the date of the filing and docketing. Rule
2-6. Withdrawals of Records A record may be withdrawn from the office of the
clerk of a Court of Appeal by counsel of record upon giving receipt therefore to
the clerk. The record shall be returned within such reasonable period of time as
may be fixed by the clerk at the time of withdrawal. A party not represented by
counsel is not permitted to withdraw a record, but may make arrangements with
the clerk to review the record at reasonable times in the clerk's office, or in
the office of the clerk of the trial court. Records are subject to recall by the
court at any time. Rule
2-7. Motions, Pleadings, Instructions to Clerk, Agreements of Parties 2-7.1. Motions in Open Court Motions which may be made in open court shall be
made at the beginning of the daily session, before the first case is called for
argument or submission. 2-7.2.
Requirements of Other Motions All other motions or pleadings (e.g., peremptory
exceptions and answers to appeals) filed originally in a Court of Appeal shall
be typewritten and double-spaced on white paper of legal size, with proper
margins, and shall bear the number and title of the case in the appellate court,
the nature of the motion or pleading, the name of counsel filing the motion or
pleading, and the name of the party on whose behalf it is filed. Unless the
motion or pleading bears a certificate showing that a legible copy thereof has
been delivered or mailed to opposing counsel of record, and to each opposing
party not represented by counsel, and showing the date of service thereof, it
shall not be filed or docketed. All motions filed in a Court of Appeal shall
include a proposed order. 2-7.3. Filing Unless made in open court, an original and 4 copies
of each motion or pleading shall be filed, numbered, and docketed in the clerk's
office for the clerk to present to the court for consideration. Unless
previously filed, numbered, and docketed, such motion or pleading will not be
considered by the court. 2-7.4.
Summary Dismissal The court may summarily dismiss untimely or
improperly filed motions and pleadings. 2-7.5. Instructions and Agreements Instructions to the clerk, or agreements between
the parties or their counsel, of which the court is expected to take cognizance,
shall be in writing, signed by the parties or counsel, and filed in the clerk's
office. Rule
2-8. Motion to Dismiss or Remand, Pre-docketing Dismissals; Abandonment 2-8.1. Motion to Dismiss or Remand Motions to dismiss or to remand appeals shall
comply with the provisions of Rule 2-7. Such motions shall be submitted to the
court by the clerk without oral argument within 10 days following the date of
filing; provided, however, the court may, in its discretion, fix any such motion
for oral argument, or refer the motion to the argument on the merits. The mover
to dismiss or to remand may file a brief with the motion, and the opponent may
file an opposition brief within 7 days of the filing of the motion. 2-8.2. Service of Motion A copy of a motion to dismiss or to remand an
appeal, together with a copy of the accompanying brief, if any, shall be
delivered or mailed to opposing counsel of record, and to each opposing party
not represented by counsel. 2-8.3. Joint Motion Any appeal may be summarily dismissed or remanded
by order of the court where there has been a joint motion filed by all
interested parties or their counsel of record, which shall set forth the reason
for such action and which shall be supported by appropriate affidavits that the
facts alleged are true and correct. 2-8.4. Ex Parte Motion Where there has been no timely answer to the
appeal, or other formal action to amend or modify the judgment appealed, the
appellant may, by ex parte motion, have the appeal dismissed, with leave of
court. 2-8.5. Pre-docketing Dismissals In cases where the parties desire to dismiss or to
remand an appeal in which jurisdiction of the appellate court has attached, but
in which the record on appeal has not yet been lodged and docketed, the court
may nevertheless consider a joint motion to such effect, provided the parties
submit their motion signed by all counsel of record, together with, in the case
of a motion to dismiss the appeal, the statement of counsel that all costs
incurred in the trial court have been paid, or that counsel will be responsible
for the payment of same. The motion shall be accompanied by a certificate from
the clerk of the trial court indicating that the motion to dismiss or to remand
has been signed by all counsel of record and by each party not represented by
counsel. It shall show that the appeal bond, if required, has been filed or, in
the case of a pauper suit, indicate the lack of necessity for an appeal bond. 2-8.6.
Abandonment of Appeal If an appellant does not file a brief within the
time prescribed by Rule 2-12.7 or any extension thereof granted by the court as
provided by Rule 2-12.8, a notice shall be mailed by the clerk to counsel for
the appellant, or to the appellant if not represented, that the appeal shall be
dismissed 30 days thereafter unless a brief is filed in the meantime. If an
appellant does not file a brief within 30 days after such notice is mailed, the
appeal shall be dismissed as abandoned. Provided, however, that irrespective of
the time limit provided in Rule 2-12.7 for the appellee to file a brief, the
appellee's brief shall be filed within 20 days from the due date shown on the
notice of abandonment. 2-8.7.
Suspension of Briefing Delays A party may by written motion request that the
Court of Appeal suspend briefing delays until such time as a ruling is made by
the appellate court on any pending motion to dismiss or remand. If the court
grants the request for suspension of the briefing delays and later denies the
motion to dismiss or remand, the court shall set new briefing delays. Rule
2-9. Substitution of Parties The rules and procedures for substitution of
parties provided by > LSA-C.C.P. Arts. 801-> 807 shall regulate the
substitution of parties. Rule
2-10. Withdrawal of Counsel 2-10.1. Withdrawal No counsel may withdraw without leave of the
appellate court once the trial court is divested of jurisdiction. 2-10.2.
Motion and Order Withdrawal shall be upon motion and order of the
appellate court. Rule
2-11. Assignment on Calendar 2-11.1. Assignment as Docketed Unless otherwise provided by law, or the court
orders otherwise, the clerk shall assign cases for hearing on the calendar in
the order in which they are docketed. 2-11.2.
Special Assignment A special assignment may be given by the court in
any case where the state or any subdivision thereof is a party, or in any matter
impressed with the public interest, or in any case where the interest of justice
clearly requires an immediate or special hearing. 2-11.3.
Summary Disposition Cases may be assigned for summary disposition with
or without oral argument when the court so orders. 2-11.4.
Request for Oral Argument Appeals in all cases shall be submitted for
decision without oral argument, unless a written request for permission to argue
orally is filed in the clerk's office by a party within fourteen (14) days after
the filing of the record in the court, and permission is granted. Ordinarily
timely requests for oral argument will be granted, except in cases assigned for
summary disposition. When permission for oral argument has been granted to one
party, the right to oral argument extends to all parties, unless the right to
argue orally has been forfeited. A request for oral argument in letter form by
one of the parties is acceptable. 2-11.5.
Cases Carried Over A case assigned for oral argument that is not
reached or in which the argument is not completed on the assigned day, shall go
over to the next argument day, unless the court reassigns the case for a
particular day. 2-11.6. Continuance No case fixed for argument or submission on the
calendar may be continued, except in extraordinary situations which the court
deems to justify a continuance. 2-11.7.
Submission Without Oral Argument Any case docketed in this court may be submitted at
any time for decision without oral argument, on joint motion of all parties or
counsel of record. 2-11.8.
Court's Authority to Hear Argument The court shall retain its authority to order oral
argument in any case. 2-11.9.
Calendar Of Assignments The clerk shall post the calendar of assignments
for hearing and mail it to all counsel of record, and to any party not
represented by counsel, not less than 30 days prior to the date fixed for the
hearing of a case on the calendar, provided, however, that the 30 day notice
herein required shall not be applicable where there will be no oral argument.
The clerk shall note on the calendar the dates and hours of sessions of court. Rule 2-12. Briefs 2-12.1. Filing Each party shall file an original and 7 copies of
the brief in every case. All parties must file briefs in every criminal appeal. 2-12.2.
Preparation of Briefs Briefs may be printed (or lithographed),
typewritten, or produced by any copying or duplicating process which produces a
clear black image on white paper. Illegible copies and photocopies produced on
wet copiers are not acceptable. Briefs may be typewritten or otherwise
acceptably produced on either letter or legal-size, white, unglazed, opaque
paper, with a margin of 1" on each side, using only one side of each page.
Briefs may be backed with a flexible or plastic manuscript cover, such as the
customary "Blue back". The text of briefs shall be double-spaced
except for matters which are customarily single-spaced. The pages in the
briefs shall be numbered consecutively. The requirements listed above shall apply to briefs
submitted in appeals and in briefs or supportive memoranda submitted in
connection with motions, applications for supervisory writs, applications for
rehearing and shall be subject to the following requirements and limitations: 1. Original briefs on 8 1/2" X 14" paper
shall not exceed twenty-eight pages; reply briefs on such paper shall not exceed
thirteen pages. Original briefs on 8 1/2" X 11" paper shall not exceed
thirty-eight pages; reply briefs on such paper shall not exceed eighteen pages.
These limitations do not include pages containing the cover, jurisdictional
statement, syllabus, specification or assignment of errors, and issues presented
for review. 2. The size type in all briefs will be (a) Roman
or Times New Roman 14 point or larger computer font, normal spacing; or (b) no
more than 10 characters per inch typewriter print. A margin of at
least one inch at the top and bottom of each page shall be maintained.
Footnotes may be single-spaced but shall not be used to circumvent the spirit of
the rule. 3. A motion for leave to file a brief in excess of
the page limitation of this rule must be filed at least ten days in advance of
the due date of the brief. Such a motion will be granted only for extraordinary
and compelling reasons. 2-12.3.
Cover Inscription Briefs shall state on the cover or on the title
page the following: (a) the title of the court to which it is directed; (b) the docket number of the case in the court; (c) the title of the case as it appears on the
docket of the court; (d) the name or title of the court and the parish
from which the case came; (e) the name of the judge who rendered the judgment
or ruling complained of; (f) a statement as to whether the case comes before
the court on appeal or in response to a writ. (g) a statement identifying the party on whose
behalf the brief is filed and the party's status before the court; (h) the nature of the brief, whether original, in
reply, or supplemental; (i) the name of counsel, with address and telephone
number, by whom the brief is filed, and a designation of the parties
represented, and a designation of 'appeal counsel'; (j) the designation of whether the case is a civil,
criminal, juvenile, or special proceeding (state particular type of proceeding). 2-12.4.
Appellant's Brief The brief of the appellant or relator shall set
forth the jurisdiction of the court, a concise statement of the case, the action
of the trial court thereon, a specification or assignment of alleged errors
relied upon, the issues presented for review, an argument confined strictly to
the issues of the case, free from unnecessary repetition, giving accurate
citations of the pages of the record and the authorities cited, and a short
conclusion stating the precise relief sought. A copy of the judgment, order, or ruling complained
of, and a copy of either the trial court's written reasons for judgment,
transcribed oral reasons for judgment, or minute entry of the reasons, if given,
shall be appended to the brief of the complaining litigant on appeal. If reasons
for judgment were not given, the brief shall so declare. Citation of Louisiana cases shall be in conformity
with Section VIII of the Louisiana Supreme Court General Administrative Rules.
Citations of other cases shall be to volume and page of the official reports
(and when possible to the unofficial reports). It is recommended that where
United States Supreme Court cases are cited, all three reports be cited, e.g.,
> Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
When a decision from another state is cited, a copy thereof should be attached
to the brief. The argument on a specification or assignment of
error in a brief shall include a suitable reference by volume and page to the
place in the record which contains the basis for the alleged error. The court
may disregard the argument on that error in the event suitable reference to the
record is not made. All specifications or assignments of error must be
briefed. The court may consider as abandoned any specification or assignment of
error which has not been briefed. The language used in the brief shall be courteous,
free from vile, obscene, obnoxious, or offensive expressions, and free from
insulting, abusive, discourteous, or irrelevant matter or criticism of any
person, class of persons or association of persons, or any court, or judge or
other officer thereof, or of any institution. Any violation of this Rule shall
subject the author, or authors, of the brief to punishment for contempt of
court, and to having such brief returned. 2-12.5.
Appellee's Brief The brief of the appellee shall conform to the
requirements for the appellant's brief as set out in the preceding Rule, except
that a statement of the jurisdiction, the facts and of the issues need not be
included unless the appellee considers the statements of the appellant to be
insufficient or incorrect. It should contain appropriate and concise answers and
arguments and reference to the contentions and arguments of the appellant. 2-12.6. Reply Brief The appellant may file a reply brief, if he has
timely filed an original brief, but it shall be strictly confined to rebuttal of
points urged in the appellee's brief. No further briefs may be filed except by
leave of court. 2-12.7. Time to
File The brief of the appellant shall be filed not later
than 25 calendar days after the filing of the record in the court, and the brief
of the appellee shall be filed not later than 45 calendar days after the filing
of the record in the court. The reply brief, if any, of the appellant shall be
filed not later than 10 calendar days after the appellee's brief is filed. In the case of a timely order of appeal being
obtained by a litigant subsequent to an earlier order of appeal obtained by a
different litigant, the brief on behalf of the litigant whose order of appeal
bears the earlier date shall be due in point of time under the provisions of the
appropriate rule regarding the appellant. The brief on behalf of the litigant
whose order of appeal bears the later date shall be due in point of time under
the provisions of the appropriate rule regarding the appellee. 2-12.8.
Extensions of Time An extension of time within which to file the brief
may be granted by the court for good cause shown on written motion filed with
the clerk of the court on or before the date the brief was due. If an extension
of time is granted to an appellant to file the original brief, time for filing
the appellee's brief is extended for a period of twenty days from the date of
the extended time granted the appellant, without the necessity of a motion or
request by the appellee. To preserve the right to oral argument, an appellee
must file the brief within the extended twenty-day period, whether or not the
appellant's brief is timely filed. An extension of time may not be granted if
such extension will retard the hearing or determination of the case. 2-12.9.
Specially-assigned Cases In cases specially assigned for argument, the
briefs shall be filed as ordered by the court. 2-12.10.
Briefs on Motions or Writ Applications Briefs in support of motions or applications for
writs shall be filed with the motion or writ application. Briefs in opposition
thereto shall be filed prior to decision by the court, or as may be ordered by
the court. 2-12.11.
Amicus Curiae Briefs Amicus curiae briefs may be filed only upon motion
by the applicant and order of the court. The motion shall identify the interest
of the applicant, state that the applicant has read the briefs of the parties,
and state specific reasons why applicant's brief would be helpful to the court
in deciding the cases. An amicus curiae may not request oral argument. 2-12.12.
Untimely Briefs; Sanctions If the brief on behalf of any party is not filed by
the date that the brief is due, the party's right to oral argument shall be
forfeited. The court may also impose other sanctions including, but not limited
to, dismissal of the appeal when the appellant does not file a brief as provided
for in Rule 2-8.6. 2-12.13.
Non-conforming Briefs; Sanctions Briefs not in compliance with these Rules may be
stricken in whole or in part by the court, and the delinquent party or counsel
of record may be ordered to file a new or amended brief. Rule
2-13. Timely Filing of Papers All papers to be filed in a Court of Appeal shall
be filed with the clerk. Filing may be accomplished by delivery or by mail
addressed to the clerk. The filing of such papers shall be deemed timely when
the papers are mailed on or before the due date. If the papers are received by
mail on the first legal day following the expiration of the delay, there shall
be a rebuttable presumption that they were timely filed. In all cases where the
presumption does not apply, the timeliness of the mailing shall be shown only by
an official United States postmark or by official receipt or certificate from
the United States Postal Service made at the time of mailing which indicates the
date thereof. Rule
2-14. Service of Legible Copies; Certificate 2-14.1. Service of Legible Copies Legible copies of all papers filed in a Court of
Appeal by any party shall, at or before the time of filing, be delivered or
mailed by the party to all other parties, or counsel of record. 2-14.2.
Certificate The fact of such service shall be evidenced by a
certificate listing all parties and all counsel, indicating the parties each
represents, and showing how and when such service was accomplished. Rule 2-15.
Oral Argument 2-15.1.
Order of Argument The appellant shall have the right to open and
close the argument. Where there are 2 or more appellants in the same case, the
court will decide when the case is called for argument who shall open and who
shall close the argument, unless the parties agree upon the order of
presentation. 2-15.2. Length
of Time The parties shall be allowed a period of time not
to exceed 40 minutes, divided equally between opposing parties, unless
additional time is allowed by the court for sound reason, or the court deems
additional time is needed for proper presentation of the case. Counsel is not
required to use all of the allotted time. The time for argument may be shortened
in the discretion of the court. When there is a conflict of interests between
appellants or between appellees, the court will decide upon the apportionment of
the time allowed them for argument, unless they agree upon the apportionment. 2-15.3.
Reading From Briefs Argument should not be read from a prepared text.
Counsel shall not be permitted to read from briefs, except matters, such as
quotations, which are customarily read. 2-15.4.
Textual Materials and Exhibits (a) Textual Materials. A book, treatise, or other
textual material not conveniently available to the court, used as authority
during argument by counsel, shall, on request of court, be deposited with the
court until the case is decided. By leave of court, a photocopy of the pertinent
material may be substituted in lieu of the book, the treatise, or other textual
material. (b) Exhibits for Demonstration. All models, maps,
charts, diagrams, or other exhibits used for purposes of illustration,
demonstration, or explanation during oral argument before the court (but not
made a part of the record) and deposited thereafter with the court shall be
removed by the party or counsel responsible for such use and deposit within 30
days after written notice given by the clerk. Failure to remove timely shall
authorize the clerk to destroy the exhibit or make other disposition thereof as
the court may deem proper. 2-16.
Decisions of the Appellate Courts The decision of the appellate
court may be expressed in one of the following forms: a full opinion, a
concise memorandum opinion, or a summary disposition conforming to the
provisions of this rule. All opinions and summary dispositions shall
contain the names of the judges who rendered the opinion or summary disposition. 2-16.1.
Opinions of the Appellate Courts Opinions
of the appellate courts, whether authored or per curiam, shall be formal
opinions or memorandum opinions. A.
A case may be disposed of by formal opinion when at least one of the following
criteria is satisfied. The decision involved:
(1) establishes a new rule of law or alters or modifies an existing rule;
(2) involves a legal issue of continuing public interest;
(3) criticizes or explains existing law;
(4) applies an established rule of law to a factual situation
significantly different from that in published opinions of the courts of this
state;
(5) resolves an apparent conflict of authority; or,
(6) constitutes a significant and non-duplicative contribution to legal
literature because it contains:
(a) an historical review of law;
(b) a review of legislative history; or,
(c) a review of conflicting decisions among the courts or
other jurisdictions. B.
Where the panel unanimously agrees that a case does not quality for disposition
by formal opinion, the case may be disposed of by a concise memorandum opinion.
A memorandum opinion shall succinctly state:
(1) the court from which the appeal comes;
(2) the germane facts, including the ruling of the lower court;
(3) the issues and contentions of the parties when appropriate.
(4) the reasons for the decision;
(5) the judgment of the appellate court; and
(6) a statement that the memorandum opinion is issued in compliance with
URCA Rule 2-16.1.B. 2-16.2.
Summary Disposition A.
In any case in which the panel unanimously determines no jurisprudential purpose
would be served by a written opinion and that any one or more of the following
dispositive circumstances exist, the decision of the court may be made by
summary disposition. A summary disposition may be utilized when:
(1) the appellate court lacks jurisdiction;
(2) the disposition is clearly controlled by case law
precedent, statute, or rules of court;
(3) the appeal is moot;
(4) the issues involve no more than an application of
well-settled rules to recurring fact situations;
(5) the opinion or findings of fact and conclusions of law of
the trial court or agency adequately explain the decision;
(6) no error of law appears on
the record;
(7) the trial court or agency did not abuse its discretion;
(8) the record does not demonstrate that the decision of the
trier of fact is clearly wrong (manifestly erroneous);
(9) the record demonstrates that the evidence in support of a
criminal jury verdict is not insufficient; or,
(10) the panel otherwise unanimously determines summary
disposition is appropriate in accordance with the law and evidence. B.
The court may dispose of a case by summary disposition with or without oral
argument at any time after the case is docketed in the appellate court.
The disposition may provide for dismissal, affirmance, remand, reversal or any
combination thereof as appropriate to the case. C.
When a summary disposition is issued, it shall contain: (1) a statement describing the nature of the case and the dispositive issues without a discussion of the facts;
(2) a citation to controlling precedent, if any; and
(3) the judgment of the appellate court and a citation to one
or more of the criteria under this rule which supports the judgment, e.g.,
"Affirmed in accordance with Uniform Court of Appeal Rule
2-16.2.A(1)." 2-16.3.
Publication and Citation A.
A formal opinion of a Court of Appeal shall be designated for publication unless
a majority of the panel determines otherwise. B.
A memorandum opinion or a summary disposition of a Court of Appeal shall not be
designated for publication except by unanimous vote of the panel. C.
Opinions and dispositions marked "Not Designated for Publication"
shall not be cited, quoted, or referred to by any counsel, or in any argument,
brief, or other materials presented to any court, except in continuing or
related litigation. Opinions marked "Not Designated for
Publication" shall be filed in the clerk's office as public records. D. The panel shall reconsider its decision not to publish an opinion upon the request of the trial judge or a party, provided that the request and reasons therefore are made in writing within the delays for the rehearing following the rendition of the opinion. 2-16.4.
Copies of Opinions In every case, one copy of the published or
unpublished opinion, when rendered, shall be delivered or mailed to the trial
judge, the clerk of the trial court, all appeal counsel of record, and all
parties not represented by counsel. 2-16.5. Certificate The clerk of this court shall file a certificate in
the record showing the date on which and to whom the copy of opinion was
delivered or mailed. Rule
2-17. Notice Of Judgment 2-17.1. Notice Notice of judgment of a Court of Appeal shall be
delivered personally or mailed by the clerk to all counsel of record, and to all
parties not represented by counsel. 2-17.2. Certificate The clerk shall file a certificate in the record
showing the date on which and the names of all parties or persons to whom the
notice of judgment was delivered or mailed. Rule 2-18.
Rehearing 2-18.1. Application for Rehearing An application for rehearing shall state with
particularity contentions of the applicant and shall contain a concise argument
in support of the application. Except by permission of court, an application for
rehearing shall not exceed 10 pages. An original and 4 copies of the application
for rehearing shall be filed. Oral argument in support of the application will
not be permitted. 2-18.2. Time to File (A) In cases governed by the Code of Criminal
Procedure, an application for rehearing must be filed with the clerk on or
before 14 days after the rendition of the judgment. (B) In cases governed by the Code of Civil
Procedure, an application for rehearing must be filed with the clerk on or
before 14 days after the personal delivery or mailing of the notice of the
judgment and opinion of the court. (C) No extension of time for filing an application
for rehearing shall be granted. 2-18.3. Support
Brief The applicant shall file an original and 4 copies
of a brief in support of the application for rehearing at the time the
application for rehearing is filed. 2-18.4.
Additional Time for Brief If the applicant for rehearing needs additional
time for filing of brief in support of the application, a written request for
additional time, explaining the cause of the need therefore, shall be made in
the application and the court may grant or refuse the requested extension. 2-18.5. Granting of Rehearing When a rehearing is granted, the case shall be
submitted, with or without oral argument, as ordered by the court. 2-18.6.
Repetitive Applications When a case has been decided on rehearing, another
application for a rehearing will not be considered unless the applicant has not
theretofore been granted a rehearing, or unless the court has expressly granted
the right to apply for another rehearing. 2-18.7.
When Rehearing Will Be Considered An application for rehearing will be considered in
cases 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. Rule
2-19. Frivolous Appeal The court may award damages for frivolous appeal in
civil cases as provided by law. Rule
2-20. Notices or Copies by Clerk, Sufficiency of All notices or copies of papers required by these
Rules to be given by the clerk shall be delivered personally or mailed by the
clerk addressed to appeal counsel of record for each party, and to any party not
represented by counsel, to the address shown by the record or to the address
furnished to the clerk. Rule
3-1. Administrative Cases 3-1.1.
Application for Appeal Every application for appeal from a final decision
of any administrative body shall be filed with the appropriate administrative
body in writing as required by law and shall include an assignment of errors,
which shall set out separately and particularly each error asserted and a
designation of the portions of the record desired to be incorporated into the
transcript. Within 5 days after the filing of an application for appeal, any
other party to the appeal may file a designation of additional portions of the
record to be included for a proper review of the questions comprised within the
assignment of errors. The administrative body shall transmit to a Court of
Appeal, as a transcript of the record, only the portions of the record so
designated. Costs for the inclusion of any unnecessary part of the record in any
transcript may be assessed against the party requiring such inclusion. If by
written stipulation filed with the administrative body, all parties agree on the
portions of the record to be included in the transcript, only such portions
shall be included. In all cases the application for appeal, the assignment of
errors and the designation of the record shall be copied into the transcript.
The administrative body shall certify the correctness of the transcript of the
record. Appeals from the Office of Worker's Compensation.
In addition, the record on appeal from the Office of Worker's Compensation shall
include a jurisdictional statement as contemplated by > LSA-R.S. 23:1310.4
and > 23:1310.5(A)(2). 3-1.2. Filing and Return Dates The administrative body shall endorse on every
application for an appeal the date of its filing and shall fix the return date,
which shall not be more than 60 days from the date of filing the application for
appeal. 3-1.3. Application for Supervisory Review (Writs) Every application for supervisory review from any
ruling of an administrative body that is not a final and definitive ruling on
the merits of the case shall be governed by URCA Rule 4. 3-1.4. Stay A stay pending review by the court of appeal of any
ruling or decision of an administrative body, may be granted either by that body
or by the court of appeal only in those matters where the authority is expressly
granted by law or in exercise of supervisory jurisdiction by the court of
appeal. 3-1.5.
Applicability of Rules All other Rules of the court and all laws
regulating appeals, not inconsistent with the foregoing, shall be applicable to
appeals from such administrative bodies. Rule
3-2. Delayed Appeals in Criminal Cases [Deleted] Rule 4-1. Application for Writs An application for writs of any kind, and all documents and exhibits in connection therewith, shall be filed in an original and 3 duplicate copies with the clerk of the Court of Appeal, and shall not be considered by the court or any judge of the court unless it is properly filed with the clerk. Application for Post-conviction Relief. The applicant shall use the uniform application for post-conviction relief (see Appendix A). Inexcusable failure of the applicant to comply with this Rule may subject the applicant to dismissal of the application, or to other sanctions of the court. Rule 4-2. Notice of Intention The party, or counsel of record, intending to apply to the Court of Appeal for a writ shall give to the opposing parties or opposing counsel of record, notice of such intention; notice simultaneously shall be given to the judge whose ruling is at issue, by requesting a return date to be set by the judge as provided by Rule 4-3 As amended October 2, 2000 Rule 4-3. Time to File; Extension of Time The judge who has been given notice of intention as provided by Rule 4-2 shall immediately set a reasonable return date within which the application shall be filed in the appellate court. The return date in civil cases shall not exceed 30 days from the date of notice, as provided in La. C.C.P. art. 1914. In criminal cases, unless the judge orders the ruling to be reduced to writing, the return date shall not exceed 30 days from the date of the ruling at issue. When the judge orders the ruling to be reduced to writing in criminal cases, the return date shall not exceed 30 days from the date the ruling is signed. In all cases, the judge shall set an explicit return date; an appellate court will not infer a return date from the record. Upon proper showing, the trial court or the appellate court may extend the time for filing the application upon the filing of a motion for extension of return date by the applicant, filed within the original or an extended return date period. An application not filed in the appellate court within the time so fixed or extended shall not be considered, in the absence of a showing that the delay in filing was not due to the applicant’s fault. The application for writs shall contain documentation of the return date and any extensions thereof; any application that does not contain this documentation may not be considered by the appellate court. Revision Comment In civil cases, Rule 4-3 has been revised to coordinate the date of the beginning of the 30-day period for setting a return date with the date of notice of the ruling at issue, in accordance with the notice rules of La. C.C.P. art. 1914 as amended by Act 545 of 2003. The "ruling at issue" refers to any interlocutory judgment, order, or ruling of the trial court. In the interests of judicial efficiency and fairness to the parties, an appellate court in its discretion may review an interlocutory or final judgment pursuant to its supervisory jurisdiction, even though the judgment also could be reviewed pursuant to an appeal. See Chambers v. LeBlanc, 598 So.2d 337 (La. 1992); Winston v. Martin, 34,195 (La. App. 2 Cir. 7/6/00), 764 So. 2d 368; Smith v. Louisiana Dept. of Public Safety, 90-1029 (La. App. 3 Cir. 10/15/90), 571 So.2d 666; Hamilton Medical Group v. Ochsner Health Plan, 550 So.2d 290 (La. App 3 Cir. 1989). The 30-day period in Rule 4-3 in no way affects an appellate court’s ability to utilize its supervisory jurisdiction in such instances. Amended November 7, 2003 Effective Date: November 10, 2003 Rule 4-4. Stay of Proceedings (A) When an application for writs is sought, further proceedings may be stayed at the trial court's discretion. Any request for a stay of proceedings should be presented first to the trial court. The filing of, or the granting of, a writ application does not stay further proceedings unless the trial court or appellate court expressly orders otherwise. (B) When expedited consideration by an appellate court is requested, including, but not limited to, a request for a stay order, the application shall include on the cover a statement in bold print that such consideration is sought and a statement within the application itself, entitled 'REQUEST FOR EXPEDITED CONSIDERATION', setting forth justification for the request and a specific time within which action by the appellate court is sought by the applicant. The 'REQUEST FOR EXPEDITED CONSIDERATION' shall be included as a separate page and properly noted in the index. The applicant shall notify the appellate court immediately of any change in the status of the case. (C) In all applications requesting a stay order or other priority consideration, the applicant must certify in affidavit form that the trial court and all counsel and unrepresented parties have been notified by telephonic or other equally prompt means of communication that said writ application has been or is about to be filed and that said application has been served forthwith on the trial court and all parties at interest or their counsel, by means equal to the means used to effect filing with the appellate court. (That is, if filing with the appellate court is by overnight mail, the same means shall be employed for service on the trial court and all parties at interest or their counsel. If filing is by hand to the appellate court, service must be made on the trial court and all parties at interest or their counsel by an equally prompt means.) Rule 4-5. Contents of Application The original application for writs shall be signed by the applicant or counsel of record, and shall contain an affidavit verifying the allegations of the application and certifying that a copy has been delivered or mailed to the respondent judge and to opposing counsel, and to any opposing party not represented by counsel. The affidavit shall list all parties and all counsel, indicating the parties each represents. The affidavit also shall list the addresses and telephone numbers (if available) of the respondent judge, opposing counsel and any opposing party not represented by counsel. The original and duplicate shall have the pages of the application and attached documents and exhibits consecutively numbered and shall contain these items: (A) an index of all items contained therein; (B) a concise statement of the grounds on which the jurisdiction of the court is invoked; (C) a concise statement of the case; (D) the issues and questions of law presented for determination by the court; (E) the assignments or specifications of errors and a memorandum in support of the application, in accordance with Rules 2-12.2 and 2-12.10, and a prayer for relief; (F) a copy of the judgment, order, or ruling complained of (if by written judgment, order, or ruling); (G) a copy of the judge's reasons for judgment, order, or ruling (if written); (H) a copy of each pleading on which the judgment, order, or ruling was founded; (I) a copy of pertinent court minutes; and (J) the notice of intent and return date order required by Rules 4-2 and 4-3. (K) A separate page entitled "REQUEST FOR EXPEDITED CONSIDERATION" and indexed as such shall be included if the applicant seeks expedited relief or a stay order as required by Rule (4-4(B) and a corresponding affidavit as required by Rule 4-4(C). Rule 4-5(K) shall be effective January 1, 2003.
Rule 4-6. Notices of Disposition of an Application for Writs (A) The clerk shall mail a copy of the court of appeal's disposition of an application for writs in each particular case to (1) The applicant; (2) The opposing party or parties respondent; (3) The trial judge whose ruling has been complained of; (4) The trial court clerk; and (5) Any interested party who has requested, before disposition, a copy of such disposition. If a party is not represented by a counsel of record, the clerk shall mail a copy of the disposition to the litigant at the address shown in the application or in care of the trial court clerk where no address of the litigant is shown. (B) Where circumstances require prompt notice of the court's disposition of an application for writs, the clerk may give notice of the disposition by telephone or other electronic means followed by the required notice by mail. Rule 4-7. Action on Writ Application In exercise of its supervisory jurisdiction, the court may act peremptorily on the application, if circumstances warrant such action, with or without a response by the opposing party. The court alternatively may order a response by the opposing party and/or a per curiam by the trial court or may assign the case for argument and/or submission on any day that the court shall select. Rule 4-8. Applicability of Rules The Rules of the court pertaining to appeals and not conflicting with Rules specifically pertaining to applications for writs, when applicable and insofar as practicable, shall govern writ applications and the disposition thereof. Rule 4-9. Rehearing Rules 2-18.1 through 2-18.7 apply to requests for rehearings related to writ applications.
RULE
5. PROCEDURES FOR WRITS AND APPEALS IN CERTAIN CASES INVOLVING MINORS Rule
5-1
Cases Designated for Expedited Handling In
recognition of the need for confidentiality and expeditious consideration of
writs and appeals in certain types of cases involving minors, the following
cases shall be afforded preferential treatment and consideration: (a) Cases set forth in LSA-Ch.C. art.337,
including: (1) Title VI. Child in
Need of Care (2) Title VII. Families in
Need of Services (3) Title VIII.
Delinquency (4) Title X. Involuntary
Termination of Parental Rights (5) Title XI. Surrender of
Parental Rights (6) Title XII. Adoption of
Children (7) Title XV, Chapter 7.
Protection of Terminally Ill Children (b) Cases
in which there is a modification of an existing custody decree or custody
arrangement, including but not limited to: (1) change of domiciliary
parent (2) change of custodial
time (3) change in or to sole
custody (4) rendition of an
initial custody decree changing custody in fact (c) Cases
involving intercountry adoption of children, as set forth in Title XII-A of the
Children’s Code. Rule 5-2
Confidentiality To ensure
the confidentiality of a minor who is a party to or whose interests are the
subject matter in the proceedings listed in Rule 5-1(a) or (c) above, initials
shall be used in all filings and in opinions rendered by the court of appeal to
protect the minor’s identity. Rule
5-3 Procedures in Cases Designated for Expedited Handling The
following procedures shall apply in cases designated for expedited treatment,
unless a case is given special assignment by the court pursuant to Rule 2-11.2: (a) Once a
return date is set by the trial court, no extension shall be granted by the
trial court or the court of appeal except upon a showing of extraordinary
circumstances. (b)
Appeals and writ applications in such cases shall be assigned by preference to
the next docket or cycle following any required briefing schedule. (c) In
appeals taken in such cases, the brief of the appellant shall be filed not later
than 15 calendar days after the filing of the record, and the brief of the
appellee shall be filed not later than 30 calendar days after the filing of the
record. The reply brief, if any, of the appellant shall be filed not later than
5 calendar days after the appellee’s brief is filed. (d) When
an application for writs is sought in such cases to review the actions of a
trial court, the trial court shall fix a reasonable time within which the
application shall be filed in the appellate court, not to exceed 15 days from
the date of the ruling at issue. Only upon a showing of extraordinary hardship
shall the trial court or an appellate court extend the time for filing the
application; and such an extension, if any, must be sought by the applicant in
writing, within the original or an extended return date period. (e)
Appeals and writs in these cases shall be considered by priority and the court
shall render such opinions expeditiously to allow release on or before the next
regularly scheduled opinion release date following the cycle or docket in which
the case was submitted. (f)
Rehearing applications in compliance with URCA 2-18 shall be decided by
preference by the court. Rule
5-4 Applicability of Rules All other
Rules or laws regulating writs or appeals, not inconsistent with the foregoing,
shall apply.
UNIFORM APPLICATION FOR POST-CONVICTION RELIEF ________________________________________
No. ________________________ NAME OF APPLICANT (to be filled
in by the clerk) ____________________________________________
_______ JUDICIAL DISTRICT PRISON NUMBER ___________________________________________
PARISH OF __________________ PLACE OF CONFINEMENT STATE OF
LOUISIANA VS. _________________________________________________ CUSTODIAN (Warden, Superintendent,
Jailer, or authorized
person having custody of applicant) Please serve CUSTODIAN and
___________________________, DISTRICT ATTORNEY, ________ JUDICIAL DISTRICT,
STATE OF LOUISIANA. INSTRUCTIONS--READ CAREFULLY (1) This application must be
legibly written or typed, signed by the applicant and sworn to before a notary
public or institutional officer authorized to administer an oath. Any false
statement of a material fact may serve as the basis for a criminal prosecution.
All questions must be answered concisely in the proper space on the form.
Additional pages are not permitted except with respect to the facts which you
rely upon to support your claims for relief. No citation of authorities or legal
arguments are necessary. (2) Only one judgment may be
challenged in a single application except that convictions on multiple counts of
a single indictment or information may be challenged in one application. (3) YOU MUST INCLUDE ALL CLAIMS
FOR RELIEF AND ALL FACTS SUPPORTING SUCH CLAIMS IN THE APPLICATION. (4) When the application is
completed, the original must be mailed to the clerk of the district court in the
parish where you were convicted and sentenced. (5) You must attach a copy of the
court order sentencing you to custody. You may obtain a copy of that order from
the clerk of the district court of the parish where you were sentenced or from
the institution where you are confined. If a copy of the court order is not
attached, you must allege what steps were taken in an effort to obtain the
order. (6) Applications which do not
conform to these instructions will be returned with a notation as to the
deficiency. APPLICATION 1. Name and location of court
which entered the judgment of conviction challenged _____________ 2. Date of judgment of conviction
______________________________________________________ 3. Length of sentence
_________________________________________________________________ 4. Nature of offense involved (all
counts) ________________________________________________ 5. What was your plea? (check one) (A) Not guilty ( ) (B) Guilty ( )
(C) Not guilty and not guilty by
reason of insanity ( ) If you entered a guilty plea to
one or more counts and not guilty to other counts, give details:
_________________________________________________________________________________ (D) Name and address of the lawyer
representing you at your plea (if you had no lawyer, please
indicate)__________________________________________________________________________ (E) Was the lawyer appointed ( )
or hired ( )? (check one) 6. Kind of trial: (check one) (A) Jury ( ) (B) Judge only ( ) 7. (A) Name and address of the
lawyer representing you at your trial: _______________________ (B) Was the lawyer appointed ( )
or hired ( )? (check one) 8. Did you testify at the trial?
Yes ( ) No ( ) 9. (A) Give the name and address
of the lawyer who represented you at sentencing for the conviction being
attacked herein.
________________________________________________________________ (B) Was the attorney appointed ( )
or hired ( )? (check one) 10. Did you appeal from the
judgment of conviction? Yes ( ) No ( ) 11. If you did appeal, give the
following information: (A) Citation, docket number, and
date of written opinion by the Appeal Court (if known)
_________________________________________________________________________________ (B) Name and address of lawyer
representing you on appeal: ______________________________ (C) Was the lawyer appointed ( )
or hired ( )? (check one) 12. Other than a direct appeal
from the judgment of conviction and sentence, have you previously filed any
application for post-conviction relief with respect to this judgment in any
state or federal court? Yes ( ) No ( ) 13. If your answer to 12 is 'yes',
give the following information: (A) (1) Name of court
____________________________________________________________ (2) Nature of proceeding
__________________________________________________________ (3) Claims raised
________________________________________________________________ (4) Did you receive an evidentiary
hearing on your application? Yes ( ) No ( ) (5) Was relief granted or denied?
___________________________________________________ (6) Date of disposition
___________________________________________________________ (7) Citation of opinion (if known)
__________________________________________________ (8) Name and address of lawyer
representing you [If none, so state]:
______________________________________________________________________________ (9) Was the lawyer appointed ( )
or hired ( )? (check one) (B) As to any second application
give the same information: (1) Name of court
______________________________________________________________ (2) Nature of proceeding
________________________________________________________ (3) Claims raised
_______________________________________________ _______________ (4) Did you receive an evidentiary
hearing on your application? Yes ( ) No ( ) (5) Was relief granted or denied?
_________________________________________________ (6) Date of disposition
_________________________________________________________ (7) Citation of opinion (if known)
________________________________________________ (8) Name and address of lawyer
representing you [If none, so state]: ___________________ (9) Was the lawyer appointed ( )
or hired ( )? (check one) (C) Have you filed any other
applications for post-conviction relief with respect to the challenged
conviction? Yes ( ) No ( ) If 'yes', set forth the details
(as above) on separate paper and attach. (D) Did you appeal or seek writs
of review from the denial of any post-conviction application? (1) First application, etc. Yes (
) No ( ) (2) Second application, etc. Yes (
) No ( ) (E) If you did not appeal or seek
writs from the denial of any post-conviction application, explain briefly why
you did not: ____________________________________________________________ (F) Name of the lawyer who
represented you on appeal from the denial of any post-conviction application [If
none, so state]: (1) First application
_______________________________________________________________ (2) Second application
_____________________________________________________________ CLAIMS FOR RELIEF State concisely facts supporting
your claim that you are being held unlawfully. If necessary, you may attach
extra pages stating additional claims and supporting facts. Do not argue points
of law. For your information, the
following is a list of the most frequently raised claims for relief in
post-conviction applications. You may raise any claim which you may have other
than those listed. However, YOU MUST RAISE IN THIS APPLICATION ALL AVAILABLE
CLAIMS RELATING TO THIS CONVICTION. (A) Denial of right of appeal. (B) Conviction obtained by plea of
guilty which was unlawfully induced or not made voluntarily with understanding
of the nature of the charge and the consequences of the plea. (C) Conviction obtained by use of
coerced confession. (D) Conviction obtained by use of
evidence gained pursuant to an unconstitutional search and seizure. (E) Conviction obtained by use of
evidence obtained pursuant to an unlawful arrest. (F) Conviction obtained by a
violation of the privilege against self-incrimination. (G) Conviction obtained by the
unconstitutional failure of the prosecution to disclose to the defendant
evidence favorable to the defendant. (H) Conviction obtained by a
violation of the protection against double jeopardy. (I) Conviction obtained by action
of grand or petit jury which was unconstitutionally selected and impaneled. (J) Denial of effective assistance
of counsel. A REMINDER: YOU MUST SET FORTH ALL
OF YOUR COMPLAINTS ABOUT YOUR CONVICTION IN THIS APPLICATION. YOU MAY BE BARRED
FROM PRESENTING ADDITIONAL CLAIMS AT A LATER DATE. Remember that you must state
the FACTS upon which your complaints about your conviction are based. DO NOT
JUST SET OUT CONCLUSIONS. CLAIM I Claim:
____________________________________________________________________________ (A) Supporting FACTS (tell your
story briefly without citing cases or law):
__________________________________________________________________________________ (B) List names and addresses of
witnesses who could testify in support of your claim. If you cannot do so,
explain why:
____________________________________________________________________ (C) If you failed to raise this
ground in the trial court prior to conviction, on appeal, or in a prior
application, explain why:
_____________________________________________________________ CLAIM II Claim:
_____________________________________________________________________________ (A) Supporting FACTS (tell your
story briefly without citing cases or law):
__________________________________________________________________________________ (B) List names and addresses of
witnesses who could testify in support of your claim. If you cannot do so,
explain why:
____________________________________________________________________ (C) If you failed to raise this
ground in the trial court prior to conviction, on appeal, or in a prior
application, explain why:
____________________________________________________________ CLAIM III Claim:
___________________________________________________________________________ (A) Supporting FACTS (tell your
story briefly without citing cases or law):
_________________________________________________________________________________ (B) List names and addresses of
witnesses who could testify in support of your claim. If you cannot do so,
explain why: ___________________________________________________________________ (C) If you failed to raise this
ground in the trial court prior to conviction, on appeal, or in a prior
application, explain why:
___________________________________________________________ You may attach additional pages
setting forth the required information (above) if additional claims are
asserted. A. Do you have in a state or
federal court any application or appeal now pending as to the judgment
challenged? Yes [ ] No [ ] If 'yes', name the court
________________________________________ B. Do you have any future sentence
to serve after you complete the sentence imposed by the judgment challenged? Yes
[ ] No [ ] (1) If so, give name and location
of court which imposed sentence to be served in the future:
________________________________________________________________________________ (2) Give date and length of
sentence to be served in the future: _____________________________ (3) Have you filed, or do you
contemplate filing, any petition attacking the judgment which imposed the
sentence to be served in the future? Yes [ ] No [ ] C. If a copy of the court order
sentencing you to custody is not attached, explain why. _________ ________________________________________________________________________________ WHEREFORE, applicant prays that
the Court grant applicant relief to which he may be entitled. _______________________________________ Signature of Applicant ________________________ Day/Month/Year AFFIDAVIT STATE OF LOUISIANA PARISH OF ________ _________________________________________,
being first duly sworn says that he has read the (Name of Applicant) foregoing application for
post-conviction relief and swears or affirms that all of the information therein
is true and correct. He further swears or affirms that he is unable to employ
counsel because he has no assets or funds which could be used to hire an
attorney except as listed above. [Delete reference to appointment of counsel if
inapplicable.] __________________________________________ Signature of Applicant SWORN TO AND SUBSCRIBED before me
this ______ day of ________, 20___. ___________________________________________________ Notary Public or other person authorized to administer an oath.
COMMENTS ON RULES Comments on Rule 1-5 The first sentence provides for
the usual 3-judge panel to hear cases. The second sentence adds the
constitutional requirement of 5-judge panels in the case of modification or
reversal, in a civil matter, with one dissent. The use of the word 'resubmitted'
allows for the situation where the case was originally submitted without oral
argument. It has been the practice that if the case was originally argued
orally, it is again argued orally before 5 judges, but if the case was
originally submitted without oral argument, it is submitted to the 5-judge panel
without oral argument. > LSA-Const. Art. 5, § 8(B). In Sarpy v. Sarpy, >
359 So.2d 750 (La.App. 4 Cir. 1978), writ denied, > 360 So.2d 1178 (La.1978),
the court said: 'The purpose of > Section 8(B)
is to require reconsideration by a larger panel 'prior to rendition of judgment'
whenever the original panel proposes to reverse or modify the trial court
judgment, unless the original panel votes unanimously to do so. . . . 'Once the judgment is rendered
reversing the trial court judgment, > Section 8(B) does not require unanimity
of the appellate court on an application to reconsider the unanimous judgment of
reversal.' Criminal cases are excepted from
the 5-judge provision. > LSA-Const. Art. 5, § 8(B). The third sentence takes care of
appeals in election cases. LSA-R.S. 18:1409H. The last sentence is to take care
of any special situations. COMMENTS ON RULE 2-1.17 This Rule is to take care of the
situation where a party in a civil case wishes to designate the record as
provided in > LSA-C.C.P. art. 2128. Pursuant to > C.Cr.P. art. 845
[repealed; see, now, > C.Cr.P. art. 914.1], the appellant in a criminal case
is required to designate the portions of the record on appeal. Other portions
may be designated by the appellee (state) or the trial and appellate courts. COMMENTS ON RULE 2-3 This Rule is to make it clear
that the record is to be transcribed for the appellate court in an appeal where
the testimony was electronically recorded, and that tapes, cassettes, or other
recordings are not to be sent up as the testimony in such cases. This Rule does
not affect those cases wherein the testimony of witnesses has been taken by
stenotype, stenograph, or any other customary or mechanical means. COMMENTS ON RULE 2-4 The statute providing for the
fees is > LSA-R.S. 13:352. COMMENTS ON RULE 2-9 This Rule, providing for the
substitution of parties, is taken from Rule 13 of the S.Ct. Rules. The
references to substitution of parties in the former Rules are contained in the
Rule dealing with Remedial Writs, C.A., R 12, S 7, and in Rule 13 dealing with
Proceedings in Case of Death (which is unnecessarily detailed). The Rule is
intended to make for more uniformity in the appellate courts, as well as in the
trial courts. COMMENTS ON RULE 2-18 This Rule encompasses a detailed
explanation of the requirements of the application for rehearing, and the
rehearing procedure. The application for rehearing, in order to be timely, must
be filed with the clerk of the Court of Appeal on or before 30 calendar days
after the delivery or mailing of the notice of judgment, and no extension of
time will be granted. > LSA-C.C.P. art. 2166. Repeated applications for
rehearing will not be countenanced. COMMENTS ON RULE 2-19 This Rule is based on >
LSA-C.C.P. art. 2164. COMMENTS ON RULE 3-1 The Rule is adapted from the
former Rule dealing with Appeals from Decisions of Civil Service Commission,
etc., with only cosmetic changes, and the elimination of the bond for costs. All
administrative body decisions have been combined into one Rule based on the
source provision, C.A., R 16. COMMENTS ON RULE 3-2 This Rule is to take care of the
situation where the delays for taking an appeal have elapsed through no fault of
the defendant. There is a constitutional right to an appeal in criminal cases,
which right can only be waived by the defendant himself. > LSA-Const., Art.
1, § 19; State v. Simmons, > 390 So.2d 504 (La.1980). COMMENTS ON RULE 4 The Rule applies to all writs,
whether in civil or criminal actions, so the writs are not specifically referred
to as supervisory or remedial, or as writ of certiorari or the like. See >
LSA-C.C.P. art. 2201. COMMENTS ON RULE 5 There is a clear delineation
between pre-conviction challenges to custody and post-conviction relief. The
Rule tracks the S.Ct. Rule with slight changes, e.g., petitioner is referred to
throughout as 'applicant'. See Act 429 of 1980. A form to be used for
applications for post-conviction relief is provided in Appendix A. The form is
adapted from the form used by the Supreme Court. Copies of the form should be
available at the various institutions operated by the Louisiana Department of
Corrections, and also should be available in the offices of the clerks of the
district courts. |
For questions or comments about this web site, contact
Webmaster.
|
Return