STATE v. BURTON,343 So.2d 1068(La. 1977)
STATE OF LOUISIANA v. KENNETH D. BURTON.
Supreme Court of Louisiana.
IN RE: KENNETH D. BURTON APPLYING FOR WRITS OF CERTIORARI, MANDAMUS AND PROHIBITION.
[1] Not considered. Not timely filed.
[2] TATE, J., dissents.
The application was filed here within the delay fixed by the trial court's order of March 17. I can find no reasonable authority for the majority's apparent construction that the trial court was without jurisdiction to grant this extension because the delay fixed by the original order of February 24 had expired on March 7. No ruling definitively fixing the rights of the parties being involved, the trial court had as much jurisdiction to grant the new delay as it possessed to grant the original. Although there is an adequate remedy by appeal in the event of conviction, this important threshold issue affecting many other prosecutions should preferably be determined at this time.
[3] DIXON, J., concurs in the majority construction of our rules.
The application is late because the time for filing writs was extended by the trial court after the expiration of the delay for filing previously fixed. However, our rules and jurisprudence are silent, in a case like this one, on the question whether the defendant might give a new motion of intent to apply, after the first delay has expired, and obtain a new return date in which he might timely file writs on the same matter.