
    STATE of Louisiana v. Karl F. JUPITER.
    No. KA 4394.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 12, 1986.
    Clare Jupiter, Jefferson, Bryan & Gray, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., A. Hammond Scott, Asst. Dist. Atty., New Orleans, for appellee.
    Before BARRY, CIACCIO and LOBRA-NO, JJ.
   CIACCIO, Judge.

Defendant, Karl F. Jupiter, was charged with possession of cocaine. R.S. 40:967. The defendant entered a plea of not guilty. He filed a motion to suppress the evidence and this motion was denied. The defendant thereafter entered a “guilty plea”, pursuant to R.S. 40:983, and reserved his right to appeal the ruling of the trial court on the motion to suppress. See: State v. Crosby, 338 So.2d 584 (La., 1976). The trial court accepted the plea, pursuant to R.S. 40:983, and explained to the defendant, at the sentencing, that as a first offender, no finding of guilt would be made and he would be placed on one-year active probation and fined $500. The court further explained that upon fulfillment of the terms of probation, his record would be cleared. The defendant filed this “appeal" and assigns as error the trial court's denial of his motion to suppress.

On our own motion we find that this Court does not have jurisdiction over this case and accordingly, we dismiss this “appeal”.

We find the recent case of State v. Ruth, controlling. 470 So.2d 167 (La.App., 4th Cir.,1985). In that case, with facts closely aligned to those of the present case, this Court dismissed the defendant’s “appeal” after reasoning as follows:

R.S. 40:983 provides that when a first offender pleads guilty to possession of narcotics or other controlled dangerous substances, and when it appears that the best interests of the public and defendant will be served, ‘the court may, without entering a judgment of guilt and with the consent of such person, defer further proceedings and place him on probation.... ’ The statute also provides that upon defendant’s violation of the terms and conditions of his probation, ‘the court may enter an adjudication of guilt and impose sentence....’
C.Cr.P. Art. 912 A provides that only a final judgment or ruling is appealable. In this case the trial court has made no final ruling. Pursuant to the statute, further proceedings have been deferred and upon fulfillment of the terms and conditions of his probation, defendant shall be discharged and the charges against him shall be dismissed. Defendant is enjoying the benefits of this statute by remaining on inactive probation. He made this choice in lieu of contesting the charge. The record shows that this was thoroughly discussed with him by the trial judge who carefully outlined the array of constitutional rights he was giving up by pleading guilty.
In the event that he violates his probation, and the court should enter an adjudication of guilt and impose sentence, this would constitute a final judgment which under C.Cr.P. Art. 912 A is appeal-able. However, at this time, the court’s disposition of his case under R.S. 40:983 is not final. Accordingly, the appeal is dismissed. State v. Ruth, supra at 168-169.

Likewise, we find that this case does not present us with a final and appealable judgment. Accordingly, for the reasons assigned this appeal is dismissed.

APPEAL DISMISSED.

BARRY, J. dissents with reasons.

BARRY, Judge,

dissenting.

I strongly disagree with the majority and State v. Ruth, 470 So.2d 167 (La.App. 4th Cir.1985) on which they rely.

Karl Jupiter, a first offender, pleaded guilty to possession of cocaine, R.S. 40:967, but reserved his right to appeal the denial of his motion to suppress. La.R.S. 40:983; State v. Crosby, 338 So.2d 584 (La.1976). The trial court accepted the plea and fined Jupiter $500.00 and placed him on one year active probation.

Jupiter’s appeal concerns probable cause for the seizure. The facts clearly show no legal basis for the warrantless search, hence, no basis for the sentence. The net result of the majority’s holding is that Jupiter will discharge a sentence by paying a fine and being deprived of his unrestricted freedom. A probation sentence (and fine) is certainly punishment. See Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124, 87 L.Ed. 1497 (1943).

La.C.Cr.P. Art. 871 defines a sentence as “the penalty imposed by the court on a defendant upon a plea of guilty_” Jupiter’s sentence is “[a] judgment which imposes a sentence,” appealable under La.C. Cr.P. Art. 912.

Jupiter was not advised (unlike Ruth) that he was giving up his right to appeal the denial of his motion to suppress. To the contrary, his plea was predicated on his right to have review of the contested seizure.

C.Cr.P. Art. 912 provides that a final judgment or ruling is appealable. I can’t imagine anything more final than the ruling which denied Jupiter’s motion to suppress. See Korematsu v. United States, supra.

The majority’s logic also effectively insulates the trial judge from any supervisory or appellate constraints.

To hold that Jupiter has no right to appeal the unconstitutional search ruling which precipitated his guilty plea constitutes a due process violation. La. Const. Art. I, § 2.  