Opinion
No. 83 KA 0637.
August 2, 1983.
APPEAL FROM CITY COURT, CITY OF DENHAM SPRINGS, PARISH OF LIVINGSTON, STATE OF LOUISIANA, HONORABLE RAYMOND S. BENNETT, J.
Frank L. Koles, III, Asst. Dist. Atty., Livingston, for appellee.
Haydn S. Berey, Livingston, for appellant.
Defendant, Clifford A. Hayden, was charged with first offense operating a vehicle while intoxicated on January 8, 1983, in violation of La.R.S. 14:98. Defendant pled not guilty. After a bench trial, defendant was found guilty as charged and sentenced to pay a fine of $300.00, plus costs, or to serve 30 days in jail. The jail sentence was suspended, conditioned upon defendant's performance of 14 days of public service work, participation in the Substance and Abuse Clinic, and attendance of the Defensive Driving School. Defendant has appealed this conviction and sentence.
A defendant may appeal to the court of appeal from a judgment in a criminal case when it is triable by jury. La. Const. Art. V, § 10(A); and L.S.A.-C.Cr.P. art. 912.1(B). A criminal case is triable by jury when the punishment which may be imposed is a fine in excess of Five hundred dollars or imprisonment for more than six months. L.S.A.-C.Cr.P. art. 779.
In the instant case, the maximum penalty which could have been imposed was a fine of not more than Five hundred dollars and imprisonment for not more than six months. L.S.A.-R.S. 14:98(B). Therefore, the defendant did not have a right to trial by jury. Consequently, he does not have a right of appeal herein. Defendant's proper remedy is by application for a writ of review. L.S.A.-C.Cr.P. art. 912.1(C); Rule 4, Uniform Rules-Courts of Appeal; State v. Ritter, 428 So.2d 964 (La.App. 1st Cir. 1983).
We note that appellant filed a late brief asking that his appeal be considered as a writ. We refuse to do so.
APPEAL DISMISSED. WRIT REFUSED.