author: BOYER, Judge.

text:
    Kenneth R. LUTZ, Appellant, v. STATE of Florida, Appellee.
    No. HH-114.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1978.
    Michael J. Minerva, Public Defender and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and A. S. Johnston, Asst. Atty. Gen., for appellee.
   BOYER, Judge.

Appellant (hereinafter defendant) appeals a final judgment adjudicating him guilty of two counts of burglary of a dwelling and one count of grand larceny. The relevant facts are as follows:

In response to a complaint lodged with the police, two officers were dispatched to a bridge where, according to the dispatch, two young boys were firing a rifle into the water. When they arrived, about V-k to 2 minutes after the dispatch, the officers saw two young men, who were the only people in the area, walking along the road away from the bridge. The officers stopped the two young men and asked them if they had seen any boys shooting a weapon. The two men said they hadn’t seen any boys shooting a weapon and identified themselves as Stephen Weatherby and Kenneth R. Lutz, defendant herein. One of the officers informed defendant and Weatherby that he routinely pats down a person when dispatched to a scene in which a weapon is possibly involved. When the officer approached defendant to frisk him, defendant said, “Okay, I have got a weapon” and opened his coat showing the officers a .32 automatic pistol. Defendant testified that the officer actually frisked his companion, Weatherby, and then approached defendant who opened his coat exposing the gun. The weapon had been stolen in a burglary a few days earlier. Defendant and Weatherby were arrested and a subsequent investigation led to charges against defendant for the burglary of several St. Augustine residences.

We find no error in the trial court’s denial of defendant’s motion to dismiss the charges against him based on the grounds that the evidence demonstrated insufficient probable cause for the police officers to frisk or threaten to frisk defendant for a weapon.

The evidence indicates sufficient probable cause for the officers to stop defendant and Weatherby and question them concerning the incident since the officers arrived only IV2 to 2 minutes after the dispatch and the defendant and Weatherby were the only people in the area. Furthermore, the stop of defendant and Weatherby was performed in the pursuit of a proper investigative function.

We do not need to reach the question of whether or not there was probable cause to frisk 'defendant because by all accounts, defendant was never frisked or searched. He voluntarily opened his coat exposing the concealed firearm to view before the officer frisked him. Therefore probable cause to frisk and consent to search are not viable issues in this case since there was no illegal search, indeed no search at all.

The judgment is affirmed.

McCORD, C. J., and MELVIN, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Dexter BENNER and Lynn Benner, his wife, Appellants, v. Clayton E. ROYCE and Joan G. Royce, his wife, Appellees.
    No. GG-330.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1978.
    Paul M. Harden of Smith, Davenport, Peek & Bloom, Jacksonville, for appellant.
    William P. White, III, Robert C. Nichols, Jacksonville, Hamilton D. Upchurch, St. Augustine, and Delbridge L. Gibbs of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellee.
   BOYER, Judge.

Appellants, who were defendants in the trial court, seek review and reversal of a summary final judgment quieting title to lands in Duval County.

Appellees, who were plaintiffs in the trial court, filed a quiet title action against defendants and others. In their sworn complaint they deraigned title from February 1943 and alleged that a certain deed recorded March 24, 1975 purporting to convey the subject land from the plaintiffs to one Henry D. Williams was a forgery. The defendants claimed title under a deed from Henry D. Williams.

Our examination of the record reveals that the plaintiffs sufficiently complied with the requirements of F.S. 65.061 and that Baltzell v. McKinnon, 57 Fla. 355, 49 So. 546 (1909) and Brickell v. Trammell, 77 Fla. 544, 82 So. 221 (1909), relied on by defendants (appellants) are not here applicable.

In support of summary judgment appel-lees filed an affidavit unequivocally stating that they did not execute the deed under which the defendants claimed title and that it is a forgery. No counter affidavit was filed. We therefore find that the file, as it existed at the time the learned trial judge entered the summary judgment here appealed, did not reflect a genuine issue as to any material fact and that the trial judge therefore did not err in entering summary judgment.

Appellants having failed to demonstrate error the judgment appealed is

AFFIRMED.

McCORD, C. J., and MELVIN, J., concur.


author: SMITH, Acting Chief Judge.

text:
    MERRITT SQUARE CORP., Appellant, v. STATE of Florida, DEP'T OF REVENUE, Appellee.
    No. GG-385.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1978.
    Haywood M. Ball of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen. and Joseph C. Mellichamp, III, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Acting Chief Judge.

Merritt Square appeals from a circuit court judgment holding it liable to pay the tax imposed by Section 203.01, Florida Statutes (1975), on receipts collected from its shopping center tenants for electricity produced by Merritt Square and sold to its tenants. The text of the statute clearly requires payment of the tax:

Every person . . . receiving payment for electricity for light, heat or power . . . shall report semiannually to the Department of Revenue . . . the total amount of gross receipts derived from business done within this state . . . and, at the same time, shall pay into the state treasury the sum of $1.50 upon each $100 of such gross receipts.

The catchline of Section 203.01 is misleadingly labeled “Public service corporations, tax upon gross receipts.” Merritt Square is not a “public service corporation” but is rather a private utility. Department of Revenue v. Merritt Square Corp., 334 So.2d 351 (Fla. 1st DCA 1976). The misleading catchline has appeared repeatedly in Florida Statutes since 1941, and it was referred to by the legislature in the title to Chapter 57-819, Laws of Florida, which amended the statute in a manner not here pertinent. These references to “public service corporations,” though confusing and worthy of corrective legislation, are not part of and do not modify the unambiguous text of the statute. Askew v. MGIC Development Corp. of Florida, 262 So.2d 227 (Fla. 4th DCA 1972); McCulley Ford, Inc. v. Calvin, 308 So.2d 189 (Fla. 1st DCA 1974), cert. denied, 314 So.2d 592 (Fla.1975). We considered Merritt Square’s other point on the appeal and find it unavailing.

AFFIRMED.

ERVIN and BOOTH, JJ., concur.


author: PER CURIAM.

text:
    Bruce Milland WILSON, a/k/a Bruce Millard Wilson, Appellant, v. STATE of Florida, Appellee.
    No. 76-1200.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1978.
    Richard A. Beiley of Bierman, Sonnett, Beiley, Shohat & Osman, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After carefully reviewing the briefs and record on appeal, including the additional issues raised by the substituted attorney for appellant, and hearing oral argument we find appellant has failed to demonstrate any reversible error by abuse of discretion or misapplication of the law by the trial court. Therefore, the judgments and sentences entered January 10, 1978 are

AFFIRMED.

BOARDMAN, C. J., and HOBSON and SCHEB, JJ., concur.


text:
    William BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 77-1104.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1978.
    Jack O. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error; therefore, the judgment appealed is affirmed.

The only point which merits discussion is the propriety of the appellant’s sentence to confinement “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for its imposition as a sentence for any offense. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974).

Remanded for the purpose of striking the language “at hard labor” from the sentencing order; otherwise affirmed. Appellant need not be present for this purpose.

HOBSON, Acting C. J., and RYDER and DANAHY, JJ., concur.


text:
    John Wesley WATTS, Earby Lee Johnson and Henry Ford, Appellants, v. STATE of Florida, Appellee.
    Nos. 77-1192, 77-1193 and 77-1194.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1978.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellants contend that the trial court erred in refusing to allow them to present certain fingerprint evidence to the jury. We agree and reverse.

The State charged appellants with robbery and kidnapping. At trial, David Glenn testified that one evening when he stopped at a convenience store for gasoline, three men, whom he identified as appellants, forced him to take them with him in his truck. They made him drive to a deserted phosphate mine where they pushed him out of the truck, took his wallet, and drove off.

The State produced one other witness who saw appellants with Glenn at the convenience store. Appellants produced three witnesses who said that appellants were with them at the time the kidnapping and robbery occurred.

Prior to trial, the court granted the State’s motion to suppress the use of fingerprint evidence by appellants who wished to introduce it as circumstantial evidence to support the defense of alibi. The fingerprints which the police lifted from the truck did not match those of Glenn or any of the appellants. In granting the motion to suppress, the trial court erroneously concluded that such evidence was irrelevant.

As this court held in Corley v. State, 335 So.2d 849 (Fla.2d DCA 1976), such evidence was clearly admissible for the jury to consider in deciding whether someone other than appellants committed the robbery and kidnapping. Moreover, on this record, we cannot say the error was harmless to appellants.

We reverse and remand the case for a new trial.

GRIMES, Acting C. J., and RYDER and DANAHY, JJ., concur.


text:
    Robert DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1462.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1978.
    Jack 0. Johnson, Public Defender, Paul C. Helm, Asst. Public Defender, Deborah L. Oates, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court but we agree with appellant that the phrase “at hard labor” in his sentence is improper. Brooks v. State, 349 So.2d 794 (Fla. 2d DCA 1977). Therefore we remand the case for correction of sentence, and appellant need not be present at that time.

GRIMES, Acting C. J., and SCHEB and OTT, JJ., concur.


text:
    James A. WILLIAMS, Sr., Appellant, v. STATE of Florida, Appellee.
    No. EE-480.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1978.
    Michael J. Minerva, Public Defender and Margaret Good, Asst. Public Defender and T. W. Weeks, III, Lakeland and James A. Williams, Sr., in pro. per., for appellant.
    Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   BOYER, Judge.

Appellant seeks reversal of a final judgment adjudicating him guilty of second degree murder.

The assistant public defender representing appellant has filed an “Anders” brief alleging inability to assert in good faith any arguable point of reversible error. The state has filed a similar brief. Appellant; in proper person, has filed a supplemental brief presenting three points for our consideration. We have carefully considered that brief in the light of the record on appeal and find no error.

Appellant having failed to demonstrate error the judgment and sentence appealed are

AFFIRMED.

McCORD, C. J., and MELVIN, J., concur.


text:
    Bobby Ray FELCH, Appellant, v. STATE of Florida, Appellee.
    Nos. GG-187, GG-207.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1978.
    Michael J. Minerva, Public Defender and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Charles W. Musgrove and Patti Englander, Asst. Attys. Gen., for appellee.
   BOYER, Judge.

Appellant seeks reversal of a judgment of guilt and resulting sentence entered after a plea of nolo contendere to four counts of an information. Appellant contends that the trial court erred in accepting his pleas as to counts two and four when it became apparent that a possible defense to those counts existed. The record reveals that both defendant and his counsel expressly acknowledged that they had discussed possible defenses. The trial judge made a sufficient inquiry into the factual basis of the plea. The record is sufficient to demonstrate waiver of any possible defenses. The record also reveals that the defendant was aware of the possible defense now urged as a basis for reversal. The holdings of State v. Kendrick, 336 So.2d 353 (Fla.1976) and State v. Lyles, 316 So.2d 277 (Fla.1975) are inapplicable to the facts of this case to which we find apropos the rationale of our sister court of the Third District in Mathis v. State, 348 So.2d 1221 (Fla. 3rd DCA 1977).

AFFIRMED.

McCORD, C. J. and MELVIN, J., concur.


author: ANSTEAD, Judge.

text:
    Don D. CLAYTON and Adele McGrath, Appellants, v. CITY OF CAPE CANAVERAL, Florida, and Willard Winnett, Appellees.
    No. 76-641.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1978.
    Rehearing Denied March 16, 1978.

      Kenneth A. Studstill of Studstill & Kutsche, P.A., Titusville, for appellants.
    James Theriac, III and Richard F. Scott of Wolfe, Kirschenbaum, Caruso & Mosley, P.A., Cocoa Beach, for appellees.
   ON REHEARING

ANSTEAD, Judge.

In our opinion of August 23, 1977, we held that the appellee, City of Cape Canaveral, a municipal corporation, was immune from liability for a malicious prosecution action brought by the appellant, Don D. Clayton. That opinion is hereby withdrawn.

The appellants, Don D. Clayton and Adele McGrath, filed an action for malicious prosecution and other related causes of action against the appellees, City of Cape Canaveral and its chief of police, Willard Winnett, resulting from a series of arrests and prosecutions of Clayton and McGrath in 1965. Those prosecutions were finally terminated in favor of the appellants by a circuit court judgment of August 6, 1969. At the trial of this case a directed verdict was granted in favor of the appellees on all counts. On review, we find adequate grounds exist to affirm the judgment entered on the directed verdict in favor of appellees except for the malicious prosecution action of Clayton against the City of Cape Canaveral.

Clayton owned property which was rented to McGrath who in turn operated a “bottle club” business thereon. The “bottle club” permitted the consumption of alcoholic beverages after the operating hours of bars and cocktail lounges. City officials opposed the operation of the club and caused Clayton and McGrath to be arrested numerous times for the alleged violation of a city zoning ordinance. There was evidence that the zoning ordinance in question did not apply to the Clayton property and that the city officials knew this before having Clayton and McGrath repeatedly arrested and charged. Eventually, Clayton and McGrath secured a circuit court judgment enjoining the city from prosecuting them under the ordinance. That judgment held in part:

. The City of Cape Canaveral, Florida, its officials, agents and servants have harassed the petitioner herein by arresting the petitioner numerous times for a violation of ordinance number 81-64 aforesaid at 118 Jackson Avenue in the said city of Cape Canaveral, Florida. .

Winnett was not the chief of police at the time of the arrests. We believe the evidence outlined above was sufficient to establish a prima facie case of malicious prosecution against the municipality precluding a directed verdict. However, the appellee claims that at the time of the acts involved herein it was immune from an action for malicious prosecution.

In support of its position the municipality relies on Calbeck v. Town of South Pasadena, 128 So.2d 138 (Fla. 2d DCA 1961) and Middleton v. City of Fort Walton Beach, 113 So.2d 431 (Fla. 1st DCA 1959) which held that municipalities were immune from liability for malicious prosecution. However, the Florida Supreme Court has subsequently ruled that the holdings in those cases were contrary to the Supreme Court’s ruling in Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957). In City of Miami v. Simpson, 172 So.2d 435 (Fla.1965) the Supreme Court rejected the Cal-beck and Middleton decisions noting that neither had been brought to the Supreme Court for review. In Simpson, the Supreme Court clarified the holding in Hargrove and at pages 436 and 437 stated:

[I]t [Hargrove] was a definitive re-evaluation of the precedents on the subject of municipal immunity from tort liability. The nature of the wrong was not our primary concern. Rather, the thrust of the challenge was to eliminate the illogical and sometimes nebulous distinctions between so-called governmental and proprietary functions in solving problems in municipal tort liability. We disposed of the problem there by substantially eliminating the governmental-proprietary dichotomy and by leveling liability on the doctrine of respondeat superior. True, Hargrove did not involve an intentional wrong. However, it constructed municipal liability on the broad foundation of respondeat superior. With the governmental-proprietary distinction eliminated — preserving immunity only in the exercise of legislative, quasi-legislative, judicial and quasi-judicial functions — we see no reason to restrict the respondeat superior concept to negligent torts. We, therefore, hold that the District Court properly applied the Hargrove concept in sustaining municipal liability for intentional torts committed by employees acting within the scope of their employment.

Calbeck and Middleton erroneously interpreted Hargrove as extending municipal tort liability to negligent torts alone. The Supreme Court in Simpson made it clear that liability was being extended to both negligent and intentional torts, under the doctrine of respondeat superior.

The Calbeck and Middleton opinions also relied on an express exception contained in the Hargrove opinion which preserved municipal immunity in cases similar to Elrod v. City of Daytona Beach, 132 Fla. 24, 180 So. 378 (1938). In Elrod a municipality was held immune from liability for the attempted enforcement of an unconstitutional ordinance. However, the basis for immunity appears to be the fact that the passage of the ordinance was a legislative function. Although the Calbeck opinion construed the' Elrod decision to hold that enforcement of an ordinance was a quasi-judicial function, that conclusion was effectively overruled by Simpson and is directly contrary to the Supreme Court’s holding in Modlin v. City of Miami Beach, 201 So.2d 70, 73 (Fla.1967):

However, since enforcement is typically the task of the executive, it can hardly be viewed as falling within the area of municipal tort immunity reserved by the Hargrove caveat, i. e., judicial, quasi-judicial, legislative, and quasi-legislative functions.

We feel the Supreme Court, in excepting the Elrod decision from the Hargrove ruling, was merely retaining immunity for municipalities in suits predicated on the passage and enforcement of unconstitutional ordinances. Such is not the case at hand.

This court outlined the current status of municipal tort liability in the case of Gordon v. City of West Palm Beach, 321 So.2d 78 (Fla. 4th DCA 1975); cert. denied 349 So.2d 160 (Fla.1977):

Thus we conclude that the current status of municipal tort liability is this:
1) as to those municipal activities which fall in the category of proprietary functions a municipality has the same tort liability as a private corporation;
2) as to those activities which fall in the category of governmental functions “. . .a municipality is liable in tort, under the doctrine of respondent superi- or, only when such tort is committed against one with whom the agent or employee is in privity, or with whom he is dealing or is otherwise in contact in a direct transaction or confrontation.” City of Tampa v. Davis, Fla.App.1969, 226 So.2d 450;
3) as to those activities which fall in the category of judicial, quasi judicial, legislative, and quasi legislative functions, a municipality remains immune. Hargrove v. Town of Cocoa Beach, supra; Modlin v. City of Miami Beach, supra.

The appellee municipality contends that the actions of the municipality complained of here are quasi-judicial in character and fall in category 3 of the Gordon decision. That position is directly contrary to the decision in Modlin, supra.

The acts complained of here occurred in the performance of a governmental function and were committed against one with whom the municipal officials had direct contact. Looking at the categories set out in Gordon, supra, it would appear that this case falls under category 2. In Hargrove and Simpson municipalities were made liable for intentional torts under the doctrine of respondeat superior. Malicious prosecution is an intentional tort for which a municipality may be liable. Since there may be municipal liability for malicious prosecution and there was sufficient evidence presented by the appellant Clayton to establish a prima facie case, we hereby reverse the judgment in favor of the municipality against Clayton on the malicious prosecution action for a new trial. In all other respects the judgment of the trial court is affirmed.

We would be remiss if we did not comment in this opinion on the importance to the appellate process of the roles of the lawyers in accurately and completely briefing the issues involved. The original opinion in this case was largely predicated on two decisions cited to the court by one of the parties. Not cited to the court was a later decision which in effect overruled the two cases relied on. This court must shoulder the ultimate responsibility for not discovering the later case. However, in our adversary system great reliance is placed on the responsibility of counsel to be certain that cases cited have not been overruled. The importance of this principle is recognized in Canon 7 of the Code of Professional Responsibility which states:

EC 7-23. The complexity of law often makes it difficult for a tribunal to be fully informed unless the pertinent law is presented by the lawyers in the cause. A tribunal that is fully informed on the applicable law is better able to make a fair and accurate determination of the matter before it. The adversary system contemplates that each lawyer will present and argue the existing law in the light most favorable to his client. Where a lawyer knows of legal authority in the controlling jurisdiction directly adverse to the position of his client, he should inform the tribunal of its existence unless his adversary has done so; but, having made such disclosure, he may challenge its soundness in whole or in part.

While we recognize that lawyers, as judges, may have heavy workloads, we must all be mindful that not only the parties but the public at large is greatly affected by appellate decisions.

AFFIRMED IN PART AND REVERSED IN PART WITH DIRECTIONS FOR A NEW TRIAL.

DOWNEY, J., and FOGLE, HARRY W., Associate Judge, concur.

      . The present case arose prior to the enactment of Section 768.28, Florida Statutes, concerning the waiver of sovereign immunity in tort cases.


author: KEHOE, Judge.

text:
    Douglas STEVENS and Charlotte Stevens, Appellants, v. JEFFERSON NATIONAL BANK OF MIAMI BEACH, Appellee.
    No. 77-1106.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 6, 1978.

      Lapidus & Hollander and Howard J. Hollander, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellants, defendants below, bring this interlocutory appeal from an order dated April 28, 1977, entered by the trial court denying their motion to dismiss appellee’s, plaintiff below, complaint. We have concluded that the trial court erred by denying appellants’ motion to dismiss in regard to Count III of appellee’s complaint.

Appellee filed a complaint seeking to foreclose a mortgage on certain real property in Dade County owned by appellants. Among other things, it was alleged that appellants executed a mortgage on June 19, 1973, with appellee and that there remained due approximately $650 on the mortgage. It was further alleged that, subsequently, appellants executed a promissory note in favor of appellee in the amount of $2000 which was covered by a mortgage provision relating to future advances. Also, in Count III of the complaint, it was alleged that a corporation, Charwend, Inc., owned and controlled by appellants executed and delivered a promissory note to appellee for the amount of $15,869.26, and that in conjunction with this note appellants, individually, executed a guarantee of the note. Appellee then alleged that the guarantee of appellants was secured by the mortgage which was sought to be foreclosed.

In response to appellee’s complaint, particularly in reference to Count III, appellants filed a motion to dismiss. The basis of the motion was that the mortgage did not extend the lien on the premises to cover the guarantee and the Charwend, Inc., note, and that none of the instruments relating to such guarantee authorized a lien on the premises. From the trial court’s order denying their motion to dismiss, appellants bring this appeal.

Our review of this matter leads us to the opinion that the trial court should have granted appellants’ motion to dismiss in regart to Count III of appellee’s complaint. We believe that there were insufficient allegations in this Count to state a cause of action for the relief sought. See Downing v. First National Bank of Lake City, 81 So.2d 486 (Fla.1955); Newman v. Greene, 92 Fla. 684, 109 So. 582 (Fla.1926); and 9 Thompson on Real Property § 4749 (J. S. Grimes ed. 1958). Therefore, the order appealed is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: MARCUS, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Rawlin E. WILLIAMS.
    No. 59577.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Dissenting Opinion Feb. 3, 1978.
    Jeff Bratton, Covington, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Woodrow W. Erwin, Dist. Atty., Julian J. Rodrigue, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Rawlin E. Williams was indicted by the grand jury for negligent homicide in violation of La.R.S. 14:32. Defendant waived his right to a trial by jury and elected to be tried by the court. After a bench trial, he was found guilty as charged and was sentenced to serve three years at hard labor. On appeal, defendant relies on one assignment of error for reversal of his conviction and sentence.

Defendant contends the trial judge erred in denying his motion in arrest of judgment on the ground that “the verdict is . so defective that it will not form the basis of a valid judgment.” La.Code Crim.P. art. 859(5). Specifically, defendant argues that there was no evidence presented from which the trial judge could have concluded that defendant was guilty of criminal negligence, an essential element of the crime of negligent homicide, due to the fact that the trial judge improperly assessed the evidence by applying the incorrect legal standard that driving while intoxicated constitutes criminal negligence.

The facts are not in dispute. On the night of May 27, 1975, defendant was driving his truck within the proper lane of travel in a northwesterly direction on Louisiana Highway 41 in St. Tammany Parish. At the same time, Michael Duane Roberts, the deceased, was riding his bicycle in a southeasterly direction on the same highway. Roberts was improperly riding in his left-hand lane of travel (the same lane properly used by defendant) and had no lights on his bicycle. Defendant was momentarily blinded by the lights of an oncoming vehicle, and, immediately after the oncoming car passed defendant, defendant’s truck collided headon with the bicycle, resulting in the death of Roberts. Several eyewitnesses testified but none gave any indication that defendant was speeding, swerving, or operating his vehicle negligently in any manner.

Defendant immediately proceeded three-tenths of a mile down the highway to obtain aid. Upon finding that the accident had previously been reported to the law enforcement officials, defendant returned to the scene of the accident. Defendant voluntarily informed the investigating officer that he had hit the deceased, offered his assistance and stated that he had had a few alcoholic drinks. Defendant also voluntarily submitted to a blood test, which indicated that his blood contained 0.16 grams per one hundred cubic centimeters of blood.

At the close of the state’s evidence, defendant moved for a judgment of acquittal on the ground that no evidence was presented to prove criminal negligence. The trial judge denied the motion.

After closing argument, the trial judge, in finding defendant guilty of negligent homicide, stated that driving while intoxicated “constitutes criminal negligence,” citing City of Shreveport v. Baylock, 236 La. 133, 107 So.2d 419 (1958) as authority.

Subsequently, defendant filed a motion in arrest of judgment, arguing that violation of a state statute did not constitute criminal negligence per se, and, hence, there was no evidence of criminal negligence. In denying defendant’s motion, the trial judge again stated that driving while intoxicated constituted criminal negligence, referring to City of Shreveport v. Baylock, supra, as the basis for his decision.

Defendant urges as a ground for relief that no evidence was presented to prove criminal negligence, an essential element of the crime of negligent homicide, defined as “the killing of a human being by criminal negligence.” La.R.S. 14:32.

In criminal matters, the scope of this court’s appellate jurisdiction extends only to questions of law. La.Const. art. 5, § 5(C). It is well settled that a contention that no evidence was produced to prove an essential element of the crime charged presents a question of law which can be reviewed by this court. State v. Blackstone, 347 So.2d 193 (La.1977); State v. Douglas, 278 So.2d 485 (La.1973). The proper procedural vehicles for preserving the no evidence issue for appellate review are a motion for a judgment of acquittal in a judge trial (La.Code Crim.P. art. 778) and a motion for a new trial in either a judge or jury trial (La.Code Crim.P. art. 851(1)). State v. Blackstone, supra; State v. Reeves, 342 So.2d 605 (La.1977); State v. Butler, 331 So.2d 425 (La.1976).

In the instant case, defendant did raise the no evidence issue by a motion for a judgment of acquittal; however, he did not designate the denial of that motion as an error to be urged on appeal. Hence, it is not before this court for review. La.Code Crim.P. art. 844; State v. Johnpire, 337 So.2d 221 (La.1976); State v. Dawson, 333 So.2d 637 (La.1976); State v. Jackson, 332 So.2d 211 (La.1976).

The only assignment of error defendant urges is the denial of his motion in arrest of judgment which is not a proper procedural vehicle to preserve the no evidence issue. Under normal circumstances, the issue would not be properly before this court for review. However, defendant apparently relied upon this court’s decision in City of Monroe v. High, 254 La. 362, 223 So.2d 834 (1969) in which the motion in arrest of judgment was recognized as a possible means to preserve the no evidence issue under La.Code Crim.P. art. 859(5) on the ground that “the judgment of the trial court ‘is so defective that it cannot form the basis of a valid judgment.’ ” City of Monroe is in conflict with more recent decisions of this court which hold that the motion for a judgment of acquittal and motion for a new trial are the proper procedural vehicles to preserve the no evidence issue on appeal. See State v. Blackstone, supra; State v. Reeves, supra; State v. Butler, supra. We consider that City of Monroe makes an incorrect pronouncement of the law on this point; accordingly, we overrule it insofar as it is inconsistent with the views herein expressed. Nevertheless, in the instant case, we will consider the no evidence issue as properly before this court for review as we do not feel that defendant’s right of review should be prejudiced by defense counsel’s apparent reliance on an incorrect decision of this court.

Defendant’s contention of no evidence of criminal negligence, an essential element of the crime of negligent homicide, is predicated on the trial judge’s application of an improper legal standard, i. e., driving while intoxicated constitutes criminal negligence, to the evidence adduced at trial. The trial judge relied on language in this court’s decision in City of Shreveport v. Baylock, supra, in applying this standard.

La.R.S. 14:12 provides:

Criminal negligence exists when, although neither specific nor general criminal intent is present, there is such disregard of the interest of others that the offender’s conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances.

In City of Shreveport, this court stated: “[Driving while intoxicated] amounts to the mentioned ‘disregard of the interest of others’ and, hence, constitutes criminal negligence — an essential ingredient of the offense of reckless operation of a vehicle denounced by LRS 14:99.” The context in which this statement was made was apparently misinterpreted by the trial judge in the instant case.

The statement was made in a discussion of whether or not a city ordinance concerning reckless driving conflicted with a state statute concerning reckless operation of a vehicle. Section 19-65 of the Code of Shreveport provided that driving while intoxicated constituted reckless driving; La. R.S. 14:99 provided that reckless operation of a vehicle was operation in a criminally negligent manner. In that context, this court found that driving while intoxicated could constitute criminal negligence; and, therefore, the two provisions were not in conflict. The choice of words is perhaps misleading when taken out of context.

La.R.S. 14:32 states in pertinent part:

Negligent homicide is the killing of a human being by criminal negligence.
The violation of a statute or ordinance shall be considered only as presumptive evidence of such negligence. (Emphasis added.)

La.R.S. 14:32 clearly provides that a violation of a statute shall be considered only as presumptive evidence of criminal negligence. Driving with 0.10 per cent or more by weight of alcohol in a person’s blood does not constitute a violation of the statute prohibiting the driving of a vehicle while intoxicated (La.R.S. 14:98); it merely creates a rebuttable presumption thereof. Even assuming that the trial judge found from the evidence that defendant was driving while intoxicated (a violation of La.R.S. 14:98), he incorrectly concluded that driving while intoxicated “constitutes criminal negligence.” Driving while intoxicated does not constitute criminal negligence per se in the crime of negligent homicide; it creates only presumptive evidence of criminal negligence.

Since the trial judge was not in a position to properly assess the evidence due to the application of an incorrect legal standard, we consider that defendant’s conviction must be reversed and the case remanded for a new trial in accordance with the views herein expressed.

DECREE

For the reasons assigned, the conviction and sentence are reversed and set aside; the case is remanded to the district court for a new trial in accordance with the views herein expressed.

SUMMERS, J., dissents.

DIXON, J., concurs, agreeing”with the opinion, except that City of Monroe v. High should not be reversed.

DENNIS, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

The trial judge did not err in denying defendant’s motion in arrest of judgment. The blood test indicated that defendant’s blood contained sufficient alcohol to invoke the presumption that defendant was under the influence of alcohol. See, La.R.S. 32:662(A)(l)(c). There also was testimony that the evening was clear; that other drivers observed the bicycle from some distance; that the defendant took no evasive action and drove off following the accident without determining whether the victim was alive. Therefore, there was “some evidence” that the defendant was operating his vehicle in a criminally negligent manner at the time of the fatal accident. The determination of guilt in criminal cases is vested in the trier of fact and, as long as there is some evidence of the essential ele-merits of the crime charged, this Court has no authority to disturb the verdict. State v. Calvin, 337 So.2d 500 (La.1976).

I respectfully dissent.

      . La.R.S. 32:197A provides: “Every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable . . . .”
      La.R.S. 32:329A provides:
      Every bicycle when in use at nighttime shall be equipped with a lamp on the front which shall emit a white light visible from a distance of at least five hundred feet to the front and with a red reflector on the rear and a reflector on each side facing outward at a right angle to the bicycle frame, all of a type approved by the department which shall be visible from all distances within six hundred feet to one hundred feet to the rear when directly in front of lawful lower beams of headlamps on a motor vehicle. A lamp emitting a red light visible from a distance of five hundred feet to the rear may be used in addition to the red reflector.

      . La.R.S. 32:662A(l)(c) states: “The chemical test or tests as provided for by this Part shall be subject to the following rules . . . : If there was at that time 0.10 per cent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcoholic beverages.” However, subsection C of the statute states: “The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under the influence of alcoholic beverages.” Hence, a 0.16 test result only creates a rebuttable presumption that the person is under the influence of alcohol.

      . See footnote 2.