author: PER CURIAM. BOYER, Judge,

text:
    James R. HALL, Appellant, v. STATE of Florida, Appellee.
    No. JJ-66.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1978.
    Michael J. Minerva, Public Defender and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and George R. Georgieff, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Hall appeals a conviction for attempted burglary of a residence, alleging that a statement made by the prosecutor in closing argument constituted a comment on his constitutional right to silence. We agree and reverse.

Appellant presented no evidence or testimony at his trial. His counsel, however, subjected the state witnesses to cross-examination which revealed some discrepancies between the various accounts of the offense. Subsequently, in closing argument, the prosecutor walked over to appellant, pointed at him, and made the following comment:

“Oh, Mr. Stokes [appellant’s counsel], he’s putting the spotlight on Lucille — asking questions about whether or not she had ever sold a beer to a minor before. It has nothing whatsoever to do with this case— not at all. But, you know, that’s a favorite defense tactic, because this man is sitting over here quietly. Mr. Stokes gets on to Lucille, and gets on to Dennis, and gets on to the other witnesses. You know why? Because he doesn’t want you to look at his defendant during the course of this trial. He wants to take the spotlight off of this defendant, James Hall. But let me remind you that James Hall is the one on trial today. No one else.”

Appellant’s counsel objected and moved for a mistrial. The trial court, after listening to a tape recording of the statement and hearing argument outside of the jury’s presence, concluded that the word “quietly” had been used only to describe appellant’s demeanor during the closing argument, and did not refer to his silence during the testimony.

On this record, we cannot agree that the statement was anything but a comment on appellant’s failure to present testimony on his own behalf. The comment by its very terms contrasts the state’s presentation of a case with appellant’s failure to make such a presentation. Furthermore, it appears obvious to us that the word “quietly” refers to appellant’s silence during the cross-examination portion of the testimony rather than during the closing argument.

The Supreme Court of Florida has recently reiterated that an improper comment on a defendant’s exercise of his right to remain silent, if properly preserved for appeal through objection, constitutes reversible error. Clark v. State, 363 So.2d 331 (Fla.1978), opinion filed July 28, 1978. We therefore reverse the judgment and remand the case for a new trial.

REVERSED and REMANDED.

MILLS and BOOTH, JJ., concur.

BOYER, Acting C. J., dissents.

BOYER, Judge,

dissents.

I respectfully dissent. In my view there has been no comment on the defendant’s right to remain silent. I would consider the quoted statement by the prosecutor in the same manner as did the learned trial judge and would affirm.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert Lee MULLALY, Appellant, v. STATE of Florida, Appellee.
    No. LL-72.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1978.
    Robert Lee Mullaly, in pro. per.
   PER CURIAM.

Mullaly seeks review of the summary denial of his motion to vacate, set aside or correct sentence filed pursuant to Rule 3.850, Fla.R.Crim.P. As the trial court found, Mullaly’s claims of relief based on ineffective assistance of counsel, improper admission of evidence at trial and omission at trial of favorable evidence were not proper grounds for post-conviction relief herein.

However, Mullaly’s allegations concerning his alleged insanity at the time of trial raised a proper ground, if true, for post-conviction relief. The trial court, although reciting that the records conclusively refute Mullaly’s claim since he was adjudged competent to stand trial on November 13, 1973, failed to attach this portion of the record to its order denying relief. See Rule 3.850(e) Fla.R.Crim.P. The cause is reversed and remanded with instructions to attach the order of November 14, 1973 which conclusively refutes Mullaly’s claim.

BOYER, Acting C. J., and MILLS and BOOTH, JJ., concur.


text:
    James D. HALL, Petitioner, v. Louie L. WAINWRIGHT, Respondent.
    No. LL-300.
    District Court of Appeal of Florida, First District.
    Dec. 1, 1978.
    James D. Hall, in pro per.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

Hall’s petition for writ of habeas corpus, seeking a delayed appeal on the merits of his conviction for murder in the second degree will be denied. Petitioner makes no allegation of facts tending to show that his right to appeal is frustrated by state action. Baggett v. Wainwright, 229 So.2d 239 (Fla.1969). In an abundance of caution the court has required a response from the state, which includes evidentiary material, not contested by petitioner, showing that appellant is entitled to no relief.

The petition is DENIED.

SMITH, Acting C. J., and ERVIN and BOOTH, JJ., concur.


text:
    Belinda RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. II-377.
    District Court of Appeal of Florida, First District.
    Dec. 5, 1978.
    Michael J. Minerva, Public Defender, and Kathleen Dekker, Special Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

Russell’s conviction as a principal in the first degree to robbery with a weapon is affirmed. However, the provision in her sentence that she be imprisoned “at hard labor” is not authorized by law, and being merely surplusage, this provision is hereby stricken. Massey v. State, 351 So.2d 376 (Fla. 1st DCA 1977). As amended, the sentence is AFFIRMED.

BOYER, Acting C. J., and MILLS and BOOTH, JJ., concur.


text:
    Freddie SIMS, Appellant, v. STATE of Florida, Appellee.
    No. KK-45.
    District Court of Appeal of Florida, First District.
    Dec. 5, 1978.
    Michael J. Minerva, Public Defender, and Kathleen Dekker, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Appellant has failed to demonstrate that the trial court abused his discretion in revoking appellant’s probation. The order of revocation of probation is accordingly affirmed. However, the provision in appellant’s sentence that he be confined “at hard labor” is not authorized by law, is surplus-age and as such is hereby stricken. Massey v. State, 351 So.2d 376 (Fla. 1st DCA 1977). As amended, the sentence is affirmed.

BOYER, Acting C. J., and MILLS and BOOTH, JJ., concur.


text:
    Robert Lee SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. KK-105.
    District Court of Appeal of Florida, First District.
    Dec. 5, 1978.
    Elwin R. Thrasher, Jr., of Dye & Thrasher, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Simmons pleaded guilty to six counts of armed robbery and one count of attempted murder in the first degree. His court-appointed attorney and the prosecutor negotiated the pleas upon an agreement that the prosecutor would recommend concurrent sentences. After ascertaining the factual basis for the pleas, questioning Simmons closely concerning his understanding of the recommended concurrent sentences, advising him that the sentences could be for life, the court accepted Simmons’ pleas, received and considered a presentence investigation report, and sentenced Simmons to six concurrent life terms and one consecutive ten-year term for attempted murder. Simmons later filed a motion to vacate the sentences, Fla.R.Cr.P. 3.850, alleging that the pleas were unlawfully induced and not made voluntarily, that the plea agreement, according to his counsel, was for lesser sentences, and that Simmons was denied effective assistance of counsel. The trial court reviewed the record of the proceedings, changed the consecutive sentence for attempted murder to a concurrent sentence, and otherwise found that the records conclusively show that Simmons is entitled to no relief. On Simmons’ appeal, we found that the court’s order lacked attached copies “of that portion of the files and records which conclusively [show] that the prisoner is entitled to no relief . . . .” Fla.R.Cr.P. 3.850. We therefore ordered the record supplemented, and have examined the transcripts of the plea and sentencing proceedings. Those transcripts show that the pleas were freely and voluntarily made, with understanding of the consequences. The plea bargain was stated in the record.

Simmons’ claim that he was deprived of an appeal by the default of his court-appointed private counsel was not cognizable by the trial court on a Rule 3.850 motion.

AFFIRMED.

SMITH, Acting C. J., ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Robert TRAVIS, Appellant, v. STATE of Florida, Appellee.
    No. KK-359.
    District Court of Appeal of Florida, First District.
    Dec. 5, 1978.
    Michael J. Minerva, Public Defender, and Charles J. Kahn, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Travis pleaded nolo contendere to a charge of escape, reserving his right to appeal and to urge that the trial court erroneously denied his motion for discharge under the speedy trial rule, Fla.R.Crim.P. 3.191(b)(1). We hold the motion for discharge should have been granted and, accordingly, we reverse Travis’ conviction.

Travis was confined in a state correctional institution until his escape on June 5, 1977. On June 8, 1977, Travis was arrested as an escapee. An information charging escape was filed March 28, 1978. Travis filed his motion for discharge June 9, 1978 alleging he had been continuously available for trial since his arrest on June 8, 1977. At the hearing on Travis’ motion, the State argued that since the state attorney had not been aware of Travis’ recapture until shortly before the time the information was filed, the speedy trial period did not commence until the information charging escape was filed. Further, it was stipulated that the crime charged was a felony not involving violence.

Under Fla.R.Crim.P. 3.191(b)(1), a prisoner charged with a nonviolent felony is entitled to be brought to trial within one year. The rule provides “[t]he period of time established by this rule shall commence when the person is taken into custody as a result of the subject conduct or criminal episode, or when the subject charge of crime is filed, whichever is earlier, . . ..” Herein, the speedy trial period commenced June 8, 1977. Travis was recaptured on that date and the arrest report reflects a charge of escape. The State had one year from that date in which to bring Travis to trial. The State presented no evidence tending to show Travis’ nonavailability for trial. Fla.R.Crim.P. 3.191(e). The State’s lack of knowledge concerning Travis’ recapture might have constituted an exceptional circumstance as set forth in Fla.R.Crim.P. 3.191(f). However, there was no order of the court granting an extension of the speedy trial period. Accordingly, an extension of time can not be presumed. Stuart v. State, 360 So.2d 406 (Fla.1978). Since Travis was not brought to trial within one year from the date he was taken into custody as a result of the subject conduct, he was entitled to discharge under the speedy trial rule. Travis’ conviction is reversed with directions that he be discharged from the charge of escape.

BOYER, Acting C. J., and MILLS and BOOTH, JJ., concur.


text:
    Ernest ROBBINS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2264.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 1978.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., HENDRY and BARKDULL, JJ.

       Judge Barkdull participated in the decision in this case but did not hear oral argument.

   PER CURIAM.

Appellant, Ernest Robbins, was informed against and pled guilty to robbery and unlawful display of a firearm. He was sentenced to five years imprisonment on the robbery count and at the termination thereof to three years probation on the charge of unlawful display of a firearm. After completion of his prison sentence and while serving his probationary term for unlawful display of a firearm, he was charged with a violation of probation. Following a hearing, defendant’s probation was revoked and he was sentenced to 15 years for unlawful display of a firearm.

Robbins appeals and argues that the court lacked jurisdiction to impose this 15-year sentence because the original order placing him on probation was a nullity in that the charges of robbery and the unlawful possession of a firearm while engaged in a criminal offense were facets of the same transaction and, therefore, the only sentence which could have been imposed was for the highest offense, i. e. robbery.

This argument has already been considered and disposed of adversely to the defendant. See Johnson v. State, 338 So.2d 556 (Fla.3d DCA 1976).

Affirmed.


text:
    Luis GURIDI, Appellant, v. The STATE of Florida, Appellee.
    No. 77-475.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 1978.
    Bennett H. Brummer, Public Defender, Warren S. Schwartz, Asst. Public Defender, and Andrew Rosén, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.
    Before HENDRY, J., and CHARLES CARROLL (Ret.), and TYSON, ROBERT W., Jr., Associate Judges.
   PER CURIAM.

The defendant was convicted of second degree murder, a felony in the first degree. This conviction is affirmed. Nevertheless, the defendant was sentenced to life imprisonment under Section 775.082(1), Florida Statutes (1975): the penalty for a capital felony which mandates a twenty-five year minimum sentence. The defendant should have been sentenced under Section 775.-082(3)(b), Florida Statutes (1975), which contains the proper sentences for felonies in the first degree. The sentence, here, was improper and contrary to the law. This court directs the trial court to correct the defendant’s sentence in accordance with Sections 775.082(3)(b) and 782.04(2), Florida Statutes (1975), which will effectively delete the twenty-five year mandatory minimum sentence.

Affirmed.


text:
    Bracey BAGGETT, Appellant, v. The STATE of Florida, Appellee.
    No. 77-995.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 1978.

      Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The point presented on this appeal urges error upon a contention that the trial court “permitted the prosecutor” to elicit testimony in a criminal prosecution for (1) burglary of a conveyance (a 1967 Chevrolet Van) and (2) grand larceny (miscellaneous items of personal property), where the defendant had invoked his right to remain silent at the time of his arrest. The record shows that two statements were made by the arresting officer, one during the State’s case and the other on rebuttal. The arresting officer first stated that the defendant was read his Miranda rights and then made the statement that he “ . . . hadn’t broken out the window, but that he would wait and make further statements in court.” Neither an objection nor a motion for mistrial was made. Then, on rebuttal, the officer further testified: “He just said that they had done it and they would answer any further questions in court.” Again, there was no objection or motion for mistrial.

We need not reach the question of whether the second part of each statement was the proper subject for a mistrial because of the failure to urge error in the trial court. See the recent consolidated opinion of the Florida Supreme Court in Clark v. State and State v. Bostic, 363 So.2d 331 (Fla.1978).

Affirmed.


text:
    MIAMI NATIONAL BANK, Appellant, v. FIRST INTERNATIONAL REALTY INVESTMENT CORPORATION et al., Appellees.
    Nos. 77-1350, 77-1483.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 1978.

      Helliwell, Melrose & DeWolf and William E. Sadowski, Miami, for appellant.
    McCormick, Bedford & Backmeyer and Edward J. McCormick, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Plaintiff, Miami National Bank, appeals an adverse final summary judgment in favor of C. D. Porch, Jr., a personal guarantor on a promissory note.

In March, 1974 First International Realty Investment Corporation borrowed $50,000 from Miami National Bank and executed a 90-day promissory note which was personally guaranteed by the defendant, C. E. Porch, Jr., and two other individuals. Although the loan commitment was for a one-year period, the transaction was so structured that the promissory note was renewable every 90 days in order that the Bank could review the financial condition of the borrower, First International Realty, and the guarantors. After execution of the first 90-day note in March, additional 90-day renewal notes were subsequently executed and accepted by the Bank in June, September and on December 2. However, prior to the execution and acceptance of the September, 1974 renewal note, defendant Porch notified the Bank both orally and in writing that he was revoking his personal guarantee on the note. Again, on December 7, 1974 upon being contacted by the Bank for an update on his financial status, Porch responded in writing that in the previous June he had notified the Bank of the revocation of his guarantee. Subsequently, First International Realty defaulted on this December 2 note and the Bank filed the instant suit against First International and joined Porch on his March, 1974 guarantee and the other two guarantors. Porch defended on the ground that he had revoked his personal guarantee. The Bank contended to the contrary, or in the alternative that it was not made aware of any such revocation. Following pretrial discovery both parties filed motions for summary judgment and after hearing the trial court entered summary judgment for Porch. We affirm.

The record supports the finding of the trial court as to the fact that Porch communicated the revocation of his personal guarantee to the Bank which subsequently removed his name from the list of personal guarantors. There being no question that Porch was entitled to prevail under the undisputed facts, the summary judgment is affirmed. See e. g. Goodwin v. Shire, 105 So.2d 178 (Fla.3d DCA 1958).

Affirmed.


text:
    ARISTONICO INFANTE, etc., et al., Appellants, v. PREFERRED RISK MUTUAL INSURANCE COMPANY, Appellee.
    No. 77-2005.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 1978.

      Kuvin, Klingensmith & Lewis and R. Fred Lewis, Coconut Grove, for appellants.
    McCormick, Bedford & Backmeyer, Miami, for appellee.
    Before PEARSON and KEHOE, JJ., and PIERCE, WILLIAM C. (Ret.), Associate Judge.
   PER CURIAM.

Aristonico Infante, etc., et al., appellants and insureds, appeal a final judgment enjoining them from proceeding in arbitration against their insurer under the uninsured motorist provisions of their policies.

On June 8,1975 the appellants, Aristonico Infante and his three children, along with several other individuals, sustained personal injuries as a result of an automobile accident attributed to the negligence of Arace-lia Rodriguez Alba who was insured by Lumbermen’s Mutual Casualty Insurance Company. This policy had liability limits of $10,000/$20,000. The appellee, Preferred Risk Mutual Insurance Company, had issued to Infante multiple liability policies covering several automobiles. When it became obvious that the amount of damages sustained by all claimants would be in excess of the liability limits of the Lumbermen’s policy, the Infantes filed a claim with Preferred Risk under the uninsured motorist provisions of their policies which upon being “stacked” exceeded the liability limits provided by the Lumbermen’s. Preferred Risk refused to honor the claim on the ground that the policies could not be stacked for underinsured coverage. The In-fantes proceeded to negotiate with Lumbermen’s and subsequently executed a settlement and releases in favor of Lumbermen’s and its insured, Aracelia Rodriguez Alba. Thereafter, the Infantes made a demand upon Preferred Risk for arbitration under the uninsured motorist provisions of their policies. Upon learning of the above settlement agreement, Preferred Risk filed the instant suit seeking to enjoin arbitration. The trial court entered a judgment enjoining arbitration upon the following findings:

“1. That there has not been a denial of coverage under the Uninsured Motorist provisions of the policy.
2. That Defendant has not complied with the provisions of the policy and has entered into a settlement with and has executed releases in favor of a person who may be liable for the insured’s injuries in violation of the terms of the policy, including the insurance carrier’s right of subrogation.
3. That the Plaintiff did not join in and was not a part of the settlement negotiations with the third party which resulted in the releases.”

The Infantes appeal therefrom. We reverse.

An automobile liability insurer, which has refused to honor a claim under uninsured motorist benefits prior to an insured’s settlement with a tortfeasor, may not rely upon a settlement thereafter as a basis to deny coverage. In other words where an insurer has denied coverage which actually exists, the insurer has breached the contract and therefore cannot be allowed to rely upon a contractual provision prohibiting the insured from settlement of the claim with a responsible party in order to relieve itself from liability. See Stephens v. State Farm Mutual Automobile Insurance Co., 508 F.2d 1363 (5th Cir. 1975).

There is no question in the case at bar that the Infantes were entitled to uninsured motorist coverage. See Tucker v. Government Employees Insurance Co., 238 So.2d 238 (Fla.1974); Government Employ ees Insurance Co. v. Farmer, 330 So.2d 236 (Fla. 1st DCA 1976); State Farm Mutual Automobile Ins. Co. v. White, 330 So.2d 858 (Fla. 2d DCA 1976).

Having in essence denied uninsured motorist coverage, it cannot rely upon the In-fantes’ settlement with Lumbermen’s to avoid coverage. Cf. Government Employees Insurance Co. v. Whitaker, 218 So.2d 198 (Fla. 1st DCA 1969); Reserve Insurance Company v. Pollock, 270 So.2d 469 (Fla. 3d DCA 1972); and Liberty Mutual Insurance Company v. Flitman, 234 So.2d 390 (Fla. 3d DCA 1970).

Accordingly, the judgment enjoining arbitration is reversed.

Reversed.

      . which includes underinsured motorist protection


text:
    James SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2217.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 1978.
    Gold & Fox and Myron M. Gold, Coral Gables, for appellant.
    Robert L. Shevin, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

The defendant, who is appellant here, was found guilty of grand larceny. On this appeal, reversal is claimed upon the ground that the State had in its possession material which might have given rise to a reasonable doubt concerning appellant’s guilt and that the State failed to furnish this material. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and Beasley v. State, 315 So.2d 540 (Fla.2d DCA 1975).

Our review of the record convinces us that the limitation upon Brady imposed by the United States Supreme Court in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), applies. In that case, the Supreme Court held that a conviction will not be reversed for violation of the Brady rule unless the omission is of sufficient importance to result in a denial of defendant’s right to a fair trial. It is clear from this record that the proof of the present defendant’s guilt was beyond a reasonable doubt and that the omission claimed could have had no meaningful effect upon the outcome of the trial. Cf. Cravero v. State, 349 So.2d 649 (Fla. 3d DCA 1977). Therefore, we find no error.

Accordingly, the judgment is affirmed.

      . “While expressing the opinion that representatives of the State may not ‘suppress substantial material evidence,’ former Chief Justice Traynor of the California Supreme Court has pointed out that ‘they are under no duty to report sua sponte to the defendant all that they learn about the case and about their witnesses.’ In re Imbler, 60 Cal.2d 554, 569, 35 Cal.Rptr. 293, 301, 387 P.2d 6, 14 (1963). And this Court recently noted that there is ‘no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case.’ Moore v. Illinois, 408 U.S. 786, 795, 92 S.Ct. 2562, 33 L.Ed.2d 706. The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” United States v. Agurs, 427 U.S. at 109-110, 96 S.Ct. at 2400.


text:
    Philip HOUSTON, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 78-258.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

The appellant was found guilty by a jury of robbery and of aggravated battery. He was adjudicated guilty and sentenced to two concurrent three-year terms of imprisonment, followed by two concurrent terms of probation. On this appeal, he argues two points for reversal.

The first point claims fundamental reversible error because it was revealed to the jury that the appellant had exercised his right to remain silent at one point during custodial interrogation although he answered other questions. Without reaching the point of whether error occurred, it is clear that if it did occur, it was not preserved. Appellant asked for and received a curative instruction. There was no motion for mistrial. See the recent consolidated opinion of the Florida Supreme Court in Clark v. State and State v. Bostic, 363 So.2d 331 (Fla.1978).

The second point claims error upon the refusal of the trial judge to instruct the jury that a specific intent is necessary for the crime of robbery as defined by Section 812.13, Florida Statutes (1977). This issue has been determined adversely to the appellant. See Bell v. State, 354 So.2d 1266 (Fla. 3d DCA 1978).

Affirmed.

      . This case is currently pending before the Florida Supreme Court on a Petition for Writ of Certiorari.


text:
    Eddie Samuel IVORY, Appellant, v. The STATE of Florida, et al., Appellee.
    No. 78-813.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 1978.
    Eddie Samuel Ivory, in pro. per.
    Janet Reno, State Atty., and Milton Robbins, Asst. State Atty., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See: Division of Corrections, State Parole and Probation Commission v. Tamargo, 329 So.2d 422 (Fla.2d DCA 1976); Section 944.291, Florida Statutes (1974).


author: DAUKSCH, Judge.

text:
    Jack NAPOLI, Jr., a Deceased minor, by and through his parent and legal guardian, Jack Napoli, Sr., Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, a Foreign Corp. authorized to do business in the State of Florida, Appellee.
    No. 77-889.
    District Court of Appeal of Florida, Fourth District.
    Dec. 6, 1978.
    Rehearing Denied Dec. 20, 1978.
    David R. Howland of Ress, Gomez, Rosenberg, Berke & Howland, P. A., North Miami, for appellant.
    Peggy J. Tribbett of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   DAUKSCH, Judge.

This is an appeal from a final judgment entered after a directed verdict was granted to the insurance company on a question of coverage.

In this action for declaratory relief the question is whether Jack Napoli, Jr. was a “named insured” on a policy which carried death benefits only for those persons who were listed in Item 1 of the policy as “Named Insured and Address.” It is undisputed the name Jack Napoli, Jr. does not appear on the policy but both the parents of this decedent testified they intended for him to be carried as a named insured and there is an endorsement of record which says “add Jack Napoli, Jr.” and his date of birth.

While the testimony of the parents and the insurance company’s endorsement do not conclusively prove Jack Napoli, Jr. was a named insured for death benefits coverage this evidence is sufficient prima facie to support the allegations in the count charging reformation of contract. The standard of proof in reformation of contracts cases is “clear and convincing” as was held in Allstate Insurance Company v. Vanater, 297 So.2d 293 (Fla.1974). However this is not the standard which must be met for purposes of a directed verdict. If a party presents evidence in support of its allegations that evidence is presumed to be true and every favorable conclusion or inference which can be reasonably and logically drawn from the evidence should be given to that party. All questions and inferences must be resolved against the party moving for a directed verdict and for the other party. Memorial Park, Inc. v. Spinelli, 342 So.2d 829 (Fla.2d DCA 1977). When the parents testified they called the company to add their son as a named insured and the company executed a change endorsement to “add son Jack Napoli, Jr. 2-2-54” it is logical and reasonable to conclude or infer Jack Napoli, Jr. was added as a named insured. Of course this might be proved otherwise by the evidence later presented but it is sufficient to prevent a directed verdict. The judgment is reversed and this cause remanded for new trial.

REVERSED AND REMANDED.

DOWNEY, C. J., and ANSTEAD, J., concur.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Gerald E. PERRY.
    No. 61345.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearing Denied Dec. 14, 1978.
    James P. Lambert, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

On March 1, 1976 defendant Gerald E. Perry was sentenced to two years imprisonment upon conviction for violating La.R.S. 14:69, receiving stolen things. After being sentenced, defendant appealed timely and his incarceration in Orleans Parish Prison was continued for the pendency of his appeal. However, a short time later and before his appeal was considered by this Court, defendant was transferred to the custody of the Warden of Angola. After five days at Angola he was transferred to Charity Hospital in New Orleans, still in the custody of the penitentiary officials. After minor surgery defendant spent several weeks at the hospital and then made good an escape from hospital confinement. He was charged with simple escape and the instant prosecution ensued.

Defendant Perry was tried at a bench trial and found guilty as charged. He now appeals his conviction of simple escape on the basis of three assignments of error, all of which urge one objection: that under the facts of this case the accused was not ever lawfully in the custody of the Warden of Angola Penitentiary because his appeal to this Court from the theft conviction was still pending and therefore he should never have been sent to Angola but should have been detained in Parish Prison in New Orleans pending his appeal.

The crime of simple escape is, pertinently, “The intentional departure, under circumstances wherein human life is not endangered, of a person imprisoned, committed, detained, or otherwise in the lawful custody of any law enforcement officer or officer of the Department of Corrections from any place where such person is legally confined.” R.S. 14:110. In order for a person to commit the crime of escape, the escape must be made from lawful custody. See State v. Verrett, 347 So.2d 230 (La.1977).

The defendant argues that before a simple escape can occur the person or governmental agency actually detaining or physically restraining the accused must be doing so according to law. He urges that under State v. Clark, 317 So.2d 623 (La.1975) he was not in the lawful custody of the Department of Corrections because his conviction for receiving stolen things was still on appeal and he had not been determined to be a security risk. The theory of the Clark case, and State v. Williams, 262 La. 769, 264 So.2d 638 (1972) on which Clark relied, was that an appeal suspends the execution of sentence and a person cannot be sent to the state penitentiary for the execution of his sentence until his conviction is final. Defendant argues that the fact that he was placed in the custody of the Department of Corrections while his appeal was pending rendered that custody unlawful. Since the underlying commitment forming the basis of defendant’s confinement was improper, it is urged that a charge of escape is not sustainable against him.

We believe that defendant’s confinement by the Department of Corrections was “lawful custody” because he was being held under color of law and his custody had not been legally challenged. See State v. Johns, 339 So.2d 801 (La.1976). Although he would have been able to show a defect in his custody through collateral attack, he had not applied for release from commitment through legal channels on that basis and his custody was facially legal.

The words “lawful custody” are described in the official revision comment to the escape statute, R.S. 14:110, in the following way:

“As long as the arrest and commitment are ‘legal’ any attempt to escape is a crime, despite the guilt or innocence of the culprit. But if the warrant of arrest or commitment is void, the prisoner is not liable for escaping. However, an informality or irregularity in the process of commitment is not justification to escape.” (citations omitted)

Thus, an escape may be justifiable where the confinement is without color of authority in, for example, situations where a person has been confined either without any authority at all or where the judgment was void on its face. However, where a prisoner is properly in custody under an order not void, on its face and is serving a sentence under color of law, he cannot, because his confinement is subject to collateral attack, take matters into his own hands by way of escape but must apply for relief through regular legal channels. See City of New Orleans v. Lyons, 342 So.2d 196 (La.1977).

We agree with the California Supreme Court on this subject in which it was said:

“To allow prisoners to use force to escape and then to permit the defense that they were unlawfully confined, would create chaos in a prison. In a democracy the right of self-help is seldom permitted. Resort to the courts is the normal and traditional method of correcting an unlawful confinement.” In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 178, 408 P.2d 948, 954 (1965).

See also Henderson v. State of Kansas, 198 Kan. 655, 426 P.2d 92 (1967).

Thus we hold that the character of defendant’s unchallenged custody did not authorize defendant’s escape, even though he would have been entitled to be transferred to the custody of Orleans Parish prison authorities had he moved legally to invoke the provisions of Code of Criminal Procedure Article 913. Under the circumstances the escape was from “lawful custody.” We thus find no merit to his three assignments of error.

Decree

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

DIXON, J., concurs, only because the escape was from “anyplace” where defendant was lawfully detained.

      . Assignment number 1 is that the trial court erred in denying his motion to quash because the information failed to charge an offense punishable under a valid statute since there was no lawful custody. Assignment number 2 urges that the court erred in failing to grant his motion for acquittal in that the state failed to prove an essential element of the crime, custody. Assignment number 3 avers that the court failed to grant defendant’s motion for arrest of judgment made on the same basis.


author: DENNIS, Justice. SANDERS, Chief Justice MARCUS, Justice

text:
    STATE of Louisiana v. Craig DAIGRE.
    No. 62174.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearing Denied Dec. 14, 1978.

      Daniel T. McKearan, Jr., Harahan, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Gretna, for plaintiff-respondent.
   DENNIS, Justice.

Following a search of his automobile during which evidence was seized, defendant was charged by bill of information with possession of marijuana in violation of La. R.S. 40:966. After his motion to suppress the evidence was heard and denied the defendant entered a guilty plea, reserving his right to appeal from the adverse ruling on the motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976). The court sentenced the defendant to pay a fine of $150.00 and to serve six months in jail, suspended the jail sentence and placed the defendant on inactive probation for a period of six months.

On June 11, 1977, a police officer stopped the defendant' and his passenger for allegedly making an illegal turn at the intersection of Veterans Highway and Clearview Parkway. As the officer approached the defendant’s vehicle he saw the defendant “slumped over,” suggesting to the officer that the defendant might be concealing something beneath the seat of the car. The officer asked the defendant to get out of the car, but the passenger was permitted to remain in the front seat. The officer then proceeded to search under the front seat of the car and discovered six plastic bags of marijuana. The defendant was arrested for possession of marijuana, but no traffic citation was issued.

The Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. A war-rantless search is unreasonable unless the search can be justified by one of the narrowly drawn exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Lain, 347 So.2d 167 (La.1977). The state bears the burden of proving that one of these exceptions applies. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Adams, 355 So.2d 917 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1978).

The only argument offered in support of the constitutionality of the warrant-less search in the present case was that the search was made incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Breaux, 329 So.2d 696 (La.1976); State v. King, 322 So.2d 205 (La.1975); State v. Braford, 298 So.2d 781 (La.1974). This exception occasionally has been invoked to justify searches made incident to the arrest of persons for traffic violations. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (defendant arrested for driving after his license had been revoked); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973) (defendant arrested for driving without a license). However, in order for a search to be valid as an incident to a lawful arrest, the state must prove that the defendant had in fact been arrested at the time the search was conducted. State v. Marks, 337 So.2d 1177 (La.1976).

An arrest occurs only when the facts and circumstances indicate that the police officer has formed an intent to restrain the liberty of an accused for an extended period of time. La.C.Cr.P. art. 201; State v. Robinson, 342 So.2d 183 (La.1977); State v. Warren, 283 So.2d 740 (La.1973). The defendant in the present case was initially stopped for a minor traffic violation, but he was not arrested for that offense. The police officer testified that the defendant was arrested only after the marijuana was discovered. Since the defendant had not been arrested when the search was conducted, the search cannot be valid as incident to a lawful arrest.

We recognize, however, that a police officer is sometimes justified in making a limited weapons search of a person who has not been arrested. Thus, a police officer may conduct a “pat-down” search of the outer garments of a person suspected of committing a crime if the officer reasonably believes that the suspect is armed and dangerous. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). These “stop and frisk” cases represent a pragmatic attempt to accommodate the police officer’s legitimate need for protection during a confrontation with suspects believed to be armed. Such a “pat-down” search is now specifically authorized by La.C.Cr.P. art. 215.1. The “stop and frisk” doctrine may have been slightly expanded by a recent decision of the United States Supreme Court. In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), the Court held that a police officer, upon stopping a vehicle for a minor traffic violation, may require the driver to get out of the car even though the officer has no specific reason to believe that the driver is armed or dangerous. In Mimms, the police officers made a “pat-down” search of the driver only after noticing a bulge in the driver’s jacket which led the officers to believe that the driver was armed, and the officers’ search was limited to the person of the driver.

The search of defendant’s car in the present case, however, cannot be justified as a “stop and frisk” search. The police officer had no reason to believe that the defendant or his passenger was armed or dangerous. Moreover, the officer did not merely frisk the defendant’s outer garments. He returned to the car and reached beneath the seat in order to discover the marijuana.

It is true that automobiles are accorded less protection against warrantless searches than homes or offices. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). However, it is also true that “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564, 580 (1971). We conclude that the search of defendant’s car in the present case violated the Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution.

The trial court erred in overruling the defendant’s motion to suppress the marijuana seized from his vehicle on June 11, 1977. Accordingly, the judgment of the trial court is reversed, and the motion to suppress is granted. The case is remanded for further proceedings not inconsistent with the views expressed herein.

SUMMERS, J., dissents.

SANDERS, C. J., and MARCUS, J., dissent and assign reasons.

SANDERS, Chief Justice

(dissenting).

The question here is a very close one. I am inclined, however, to sustain the seizure.

A police officer, working alone at night, stopped an automobile for making an illegal turn. The defendant-driver and a passenger occupied the automobile. As the officer approached the car, he observed the defendant slump over as if he was intoxicated or “was shoving something underneath the seat.” (Tr. 38) The officer testified that he thought a dangerous weapon might be under the front seat (Tr. 41-43) and that he feared for his safety. The officer reached under the seat for weapons and found six plastic bags of marijuana but no weapon.

Under the circumstances, I think the seizure falls within the ambit of a reasonable “frisk” to protect the officer in the performance of his duty. This is especially true here because the passenger remained in the automobile. He, as well as the defendant, could have reached for a weapon under the seat. LSA-C.Cr.P. Art. 215.1; Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); State v. Winesberry, 256 La. 523, 237 So.2d 364 (1970).

As the trial judge ruled, the action taken by the officer was a reasonable protective measure.

For the reasons assigned, I respectfully dissent.

MARCUS, Justice

(dissenting).

I agree that defendant was not arrested at the time of the search. Hence, the search was not incident to a lawful arrest. Moreover, I do not consider that the search can be justified as a “stop and frisk” in a traditional sense. However, I do believe that, under the circumstances here presented, the limited search under the front seat of the car by the police officer was reasonable in order to discover the possible presence of a weapon which was accessible to the passenger still located in the front seat. Hence, I do not consider that defendant’s rights under the fourth amendment were violated. I respectfully dissent.

      . In State v. Breaux, 329 So.2d 696 (La.1976), this Court pointed out that “not every authorized detention may constitute an ‘arrest’ which justifies incident to it a search of the person.” Id. In the present case the defendant was not even issued a summons for the alleged traffic offense. Nor could the police officer have validated a search by making a full custody arrest for a minor traffic violation where an arrest would not be the customary procedure. See, Breaux, at p. 700, n. 4; The Work of the Louisiana Appellate Courts for the 1975-1976 Term—Pre-Trial Criminal Procedure, 37 La.L.Rev. 535, 537 (1977).

      . It should be noted that even if the defendant had been lawfully arrested prior to the search in this case, it is doubtful that the search of defendant’s car would be constitutional. A search incident to arrest authorizes an arresting officer to search the person arrested and the area immediately surrounding him from which a weapon could be seized or evidence could be destroyed. This purpose is not served by a search of the vehicle when the defendant has already been removed from the car. State v. Gaut, 357 So.2d 513 (La.1978); State v. Navarro, 312 So.2d 848 (La.1975).

      . The trial judge found that this search was valid because the driver apparently had placed something under the seat and the passenger remained in the vehicle. The police officer was alone at the time he made the traffic stop in the present case, and he testified that “[m]ore police officers get killed on traffic stops than any other time.” Nevertheless, the officer could articulate nothing which caused him to believe that the defendant or his passenger might be armed or dangerous. The actual reason for the search seems to be the officer’s “hunch” that something illegal would be discovered under the front seat of the car. As the officer himself put it: “1 just wanted to see what was under the seat.”

      . The police officer was alone at the time of the traffic stop; as the officer approached defendant’s vehicle, he saw defendant “slumped over,” suggesting to the officer that defendant might be concealing something beneath the seat; the passenger remained in the front seat.


text:
    STATE of Louisiana v. George R. HUTCHINSON.
    No. 62272.
    Supreme Court of Louisiana.
    Oct. 18, 1978.
    Rehearing Denied Dec. 14, 1978.
    Paul A. Bonin, Garrity, Levenson & Bo-nin, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

TATE, J., dissents.


text:
    STATE of Louisiana v. Mark A. CHRISMAN.
    No. 62260.
    Supreme Court of Louisiana.
    Nov. 2, 1978.
    Rehearing Denied Dec. 14, 1978.

      John Ford McWilliams, Jr., Arthur E. Rollo, Bossier City, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Ronald R. Inderbitzin, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Mark A. Chrisman was charged by bill of information with “possession of marijuana — second offense” in violation of La.R.S. 40:966. On January 31, 1978, the defendant appeared in court with counsel, withdrew his previous plea of not guilty and, reserving his right to appeal from the trial court’s ruling denying his motions to quash and to suppress, entered a plea of guilty as charged. At that time, the state and defense stipulated for the record that “if the defendant was called he would state under oath that all the marijuana was possessed by him for his own personal use.” Subsequently, the trial court sentenced the defendant to serve a period of six (6) months in the parish jail. Defendant now appeals to this Court.

Defendant’s primary contention both before the trial court and on appeal is that La.R.S. 40:966 is unconstitutional when applied to the possession of marijuana by an adult for personal consumption in the privacy of his home. In support of this contention, defendant relies on decisions by the United States Supreme Court recognizing that a right to privacy, or a guarantee of certain areas or zones of privacy, does exist under the United States Constitution, see e. g. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), and on Article 1, Section 5 of the Louisiana Constitution of 1974, which provides, in pertinent part, that “[ejvery person shall be secure in his person, property, communications, houses, papers and effects against unreasonable searches, seizures, or invasions of privacy.” (emphasis added)

While we recognize the importance of an individual’s right to privacy, particularly in the sanctity of his own home, at the present time we are unable to conclude that constitutionally protected privacy interests are violated by a statutory scheme making the possession of marijuana in one’s own home a criminal offense. Possession of marijuana is not a personal right which can be deemed “fundamental” or “implicit in the concept of ordered liberty” such that it is included within a constitutional zone of privacy. See Roe v. Wade, supra. Thus bearing in mind the basic presumption that legislative enactments are constitutional, see State v. Skinner, 358 So.2d 280 (La.1978); State v. Everfield, 342 So.2d 648 (La.1977), and considering the extant conflicts in the scientific community as to the effects of marijuana use, as illustrated by the testimony of the two expert witnesses in this case, we cannot say that the legislature had no rational or reasonable basis for proscribing the substance to protect the public health, safety and welfare.

Although not controlling our decision in this case, we do note that the overwhelming majority of jurisdictions which have considered the right to privacy and the possession or use of marijuana are in accord. See, e. g., NORML v. Guste, 380 F.Supp. 404 (E.D.La.1974), aff’d 511 F.2d 1400 (5th Cir.), cert. denied 423 U.S. 867, 96 S.Ct. 129, 46 L.Ed.2d 96 (1975); State v. Murphy, 117 Ariz. 57, 570 P.2d 1070 (1977); Kreisher v. State, 319 A.2d 31 (Del.1974); Laird v. State, 342 So.2d 962 (Fla.1977); State v. Baker, 56 Haw. 271, 535 P.2d 1394 (1975); State v. Kincaid, 98 Idaho 440, 566 P.2d 763 (1977); Marcoux v. Attorney General, 375 N.E.2d 688 (Mass.1968); People v. Alexander, 56 Mich.App. 400, 223 N.W.2d 750 (1974); State v. Kells, 199 Neb. 374, 259 N.W.2d 19 (1977); Cavaness v. State, 581 P.2d 475 (Okl.Cr.App.1978); State v. Anderson, 16 Wash.App. 553, 558 P.2d 307 (1976). Contra, Ravin v. State, 537 P.2d 494 (Alaska 1975).

In addition to his right to privacy argument, defendant has also assigned as error the trial court’s ruling that the penalty provisions of La.R.S. 40:966(D) are not unconstitutionally excessive and several rulings as to the admissibility of evidence. We have reviewed these contentions and find them to be without merit.

Accordingly, defendant’s conviction and sentence are affirmed.

      . While a plea of guilty generally waives all non-jurisdictional defects in the pre-plea proceedings, this Court has held that a defendant may condition his plea, subject to acceptance by the trial court, upon the reservation for appellate review of specified pre-plea errors. State v. Aguillard, 357 So.2d 535 (La.1978); State v. Crosby, 338 So.2d 584 (La.1976).


author:
SUMMERS, Justice. DENNIS, Justice,
      TATE, Justice,

text:
    STATE of Louisiana v. Charles THOMPSON.
    No. 61735.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      Nesib Nader, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., B. Woodrow Nesbitt, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   SUMMERS, Justice.

By an indictment returned on February 15, 1977 the Grand Jury of Caddo Parish charged that on January 5, 1977 Charles Thompson committed aggravated rape upon a nine-year-old girl. La.Rev.Stat. 14:42. In a jury trial in November 1977, Thompson was found guilty as charged. After a sentencing hearing the jury recommended that Thompson be sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Whereupon, the trial judge sentenced Thompson accordingly-

All assignments of error briefed and argued on Thompson’s appeal are considered in this decision.

The victim testified that on the morning of January 5_ 1977, while she was walking to the bus stop on her way to school, the defendant grabbed her and forced her into a nearby house on Douglas Street where he had sexual intercourse with her. Eyewitnesses confirmed the abduction.

Assignment 1: In its case in chief the State sought to establish that Reginal Wilson, a child of eight, had sufficient understanding to be a witness. After examination by the prosecutor, the trial judge and defense counsel, objection was made by defense counsel to any testimony from the child because of his age, his hesitation, and his inability to respond to questions. Argument was that the events in question occurred too long ago to expect such a young child to remember. And defense counsel felt that because of the nature of the case, a child’s testimony should not be received.

The trial judge did not agree. It was his opinion that the responses to the questions and the level of the child’s understanding were sufficient to permit him to testify.

Without the benefit of observing his demeanor on the stand on this appeal, a reading of the transcript pertaining to the examination of the child confirms the correctness of the ruling of the trial judge. Reginald subsequent testimony also supports a finding that he had sufficient understanding to testify as a witness. There is no indication that his answers to questions were hesitant. Nor does the written transcript support the defense claim that the child was unable to respond to questions. To the contrary, the transcript indicates that he was alert, forthright and accurate in his replies. He was in the third grade at the time of the trial. His responses to questions concerning his name and address, the school he attended, his mother’s name and his brother’s age all manifest the clarity of his expression and reliability of his recall. He knew what it meant to lie, he attended Sunday School at times, believed in God and understood that God wanted him to tell the truth. And, apparently, there was no evidence of confusion in the taking of the oath.

Section 469 of Title 15 of the Revised Statutes sets the standard to be observed when a child is called upon to testify:

“Understanding, and not age, must determine whether any person tendered as a witness shall be sworn; but no child less than twelve years of age shall, over the objection either of the district attorney or of the defendant, be sworn as a witness, until the court is satisfied, after examination, that such child has sufficient understanding to be a witness.”

An important consideration in the determination of a child’s competency to testify is his demeanor on the witness stand. In this respect the judgment of the trial judge should be given great weight, for the effect of the importance of witnesses’ manner where children are testifying cannot be overstated. It is a factor this record does not supply. Nothing in this record leads us to believe that the trial judge erred in finding Reginal qualified as a witness.

In State v. Francis, 337 So.2d 487 (La.1976), criteria were suggested which could be applied in deciding whether a child has the “sufficient understanding” required by Section 469. These criteria were substantially complied with in this case. Decisions of this Court support a finding that this assignment has no merit. State v. Noble, 342 So.2d 170 (La.1977); State v. Sharp, 338 So.2d 654 (La.1976); State v. Johansen, 332 So.2d 270 (La.1976); State v. Pace, 301 So.2d 323 (La.1974); State v. Milford, 225 La. 611, 73 So.2d 778 (1954).

Assignment 2: After Shirley Cogas was qualified as an expert criminalist, particularly in the field of serology, she testified for the State. During direct examination two glass slides with the name of the victim and the date January 5, 1976 (corrected to January 5, 1977) written thereon, were presented to the witness. She testified that she had examined the slides and found microscopically that there was spermatozoa present and she also determined that they contained seminal fluid.

She was then asked by the prosecutor, “The presence of spermatozoa would indicate what in a case involving an alleged rape?”

In reply, she stated, “Well, spermatozoa would indicate specifically that there was seminal fluid there, that there was that type of body secretion.”

A defense objection was then made that the witness could not testify that a rape had occurred in this case. The objection was overruled.

Initially it should be noted that the question had been answered when the objection was made. Notwithstanding the trial judge’s inability to rule on a question already answered, the question propounded and the answer that followed simply meant that the witness found seminal fluid and that seminal fluid is present in a sex act. The testimony does not mean, as defense counsel claims, that the expert witness was testifying that a rape had occurred. Previously the witness had testified that the presence of seminal fluid on undergarments would indicate that a sexual act had occurred. Thereafter her testimony was qualified. She testified that the presence of seminal fluid on the undergarments indicated that a sex act had occurred, but she could not say that it was completed. She did not say, and we are convinced that the jury did not understand from her testimony, that a rape had occurred.

It was undoubtedly within the expertise of the witness to testify, as she did, that the presence of seminal fluid was associated with a sex act. Such a conclusion is a matter of common knowledge. La.Rev. Stat. 15:466. There is, therefore, no merit to this assignment.

Assignment 4: Emma Lee Manigo was living in Shreveport with appellant Thompson prior to and during January 1977 when the alleged rape occurred. The child victim lived with her at times. She testified for the defense that about 8 o’clock on the morning of January 5, 1977 she was awakened by her mother and told that the child had been raped. She dressed and went in search of Thompson. First she went to the'house of a friend of Thompson; then she called Thompson’s mother who told her where Thompson could be found. With this information she proceeded to the Castle Hotel on Sprague Street. At first the desk clerk refused to tell her if he was there, but when she told the clerk what she wanted to see Thompson about he telephoned Thompson’s room. When Manigo stated that Thompson came down the stairs in the hotel, defense counsel asked her, “Did you talk to him?”

She answered,

“Well, I was hollering at him, ‘Charles, did you do it?’ And he said, ‘What you talking about?’ And I just kept hollering at him. That’s all I could do, and we got down the street across the street on the other side of Douglas and that’s when the police arrested both of us.”

Defense counsel then asked,

“He never did answer you?”

Before Manigo could reply, the State’s attorney objected and requested that the witness be instructed not to say what Thompson said to her, arguing that it would be impermissible hearsay testimony.

The trial judge sustained the objection, unless the answer was to be a declaration against interest, an exception to the hearsay rule. He required that defense counsel lay a foundation to this testimony which would remove it from the hearsay rule.

The defense contends that the answer Thompson would give was part of the res gestae and as such admissible as an exception to the hearsay rule. The contention is without merit. “To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.” La.Rev.Stat. 15:448. See also La.Rev.Stat. 15:447.

It is a tenuous argument indeed to take the position that Thompson’s statement to Manigo at the hotel was made “under the immediate pressure of the occurrence through the instructive, impulsive and spontaneous words and acts of the participants.” Nor were his statements at the hotel “necessary incidents of the criminal act, or immediate concomitants of it,” nor did they “form in conjunction with it one continuous transaction.”

Elapsed time between the alleged rape and the intended statement was appreciable. After the assault the child walked to her grandmother’s house and told her what had happened. The grandmother then reported the matter to Manigo, who dressed and went in search of Thompson. Her search consumed considerable time — a call at the house of Thompson’s friend, a telephone call to Thompson’s mother, and then a trip to the hotel and a conversation with the clerk — all before Thompson appeared to talk to her, hardly a conversation forming a necessary incident of the criminal act, or part of a continuous transaction.

However broadly the rule of res gestae may have been applied in the past, in no instance cited has it been as liberally applied as the defense urges in the instant case. La.Rev.Stat. 15:447-48; State v. Drew, 360 So.2d 500 (La.1978); State v. Williams, 331 So.2d 467 (La.1976).

Subsequently, Thompson took the stand in his own behalf and testified that as they left the hotel Manigo asked him if he had raped the child, to which he replied, “What?” Thus, the statement to which the State objected did in fact get to the jury thereby rending the ruling of the judge moot.

Assignments 7, 9 and 10: Thompson testified in his own behalf. At the time of the trial, he was incarcerated in the State Penitentiary at Angola. He was asked on direct examination where he lived “prior to your having been sentenced in a previous conviction?” He testified that at the time of the alleged offense on January 5, 1977, he was out of jail on bond on account of a pending criminal charge against him.

This interrogation by defense counsel also took place:

“Q. Mr. Thompson, we’re not going to conceal anything from the jury. I want to know if you have ever been convicted before?
A. Yeah. Yes, sir. I’ve been convicted before.
Q. Where and for what?
A. I been convicted for burglary.
Q. Was it simple burglary?
A. Simple burglary.
Q. Have you ever been convicted of any assault on any female?
A. I’ve never been convicted for hurting or attacking anyone.
Q. Are there any other crimes? Robbery?
A. No. Never no robbery.
Q. What about homicide?
A. No. Never. None of that.”

On cross-examination the prosecutor questioned Thompson to some extent concerning the details of the burglary. To a considerable degree, a large portion of the details of the crime were volunteered by Thompson and were beyond the scope of the questions propounded by the State’s attorney. He exhibited no reluctance in his attempt to minimize the seriousness of the offense. Finally, defense counsel objected to inquiry into the details of past convictions. In overruling the objection the trial judge announced to the jury:

“I will remind the jury, and I will so instruct you at the conclusion of the case, that the nature of this offense that is under inquiry . . . [the burglary] by the state is only to be considered in testing the credibility of this witness and is not to be used in determining the guilt or innocence of the defendant.”

Interrogation relating to the burglary was brief thereafter. Thompson then admitted that he had previously been convicted of theft, two separate charges of receiving stolen goods and simple escape. Cross-examination continued, over defense objection, eliciting the details of these crimes also.

To support its position that the trial judge erroneously allowed the prosecutor to question defendant concerning the details of the crimes for which defendant had been convicted, defense counsel relies upon Section 495 of Title 15 of the Revised Statutes:

“Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.”

A line of decisions by this Court has held that the prosecutor may cross-examine a defendant on the circumstances surrounding the crime forming the basis of a prior conviction. The extent to which this inquiry can be permitted is dependent upon the facts of the particular case. State v. Whitmore, 353 So.2d 1286 (La.1978); State v. Dupar, 353 So.2d 272 (La.1977); State v. Chenier, 343 So.2d 177 (La.1977); State v. Williams, 339 So.2d 728 (La.1976); State v. Elam, 312 So.2d 318 (La.1975); State v. Jackson, 307 So.2d 604 (La.1975).

As articulated in State v. Jackson, supra, the basis of the rule for admitting details of convictions to test the credibility of the defendant lies in a recognition of the fact that it is not the conviction which impeaches, but the unlawful act. The conviction only simplifies proof. And, theoretically, evidence of the character of the crime is evidence of past conduct of a witness and is generally admissible, for it may be relevant to the determination of his credibility by the jury. It is only because of policy considerations that evidence of prior misconduct of the witness is inadmissible.

These policy considerations are based on problems arising from presentation of the evidence rather than the nature of the evidence itself. These involve the amount of new evidence generated by the production of additional testimony upon minor points by additional witnesses. Each additional witness introduces the entire group of questions as to his qualifications and his impeachment, etc., so that the trial may become in length extremely protracted, and with relatively little profit. In addition, the mass of testimony on minor points tends to overwhelm the essential issues of the case and to confuse the tribunal in its efforts to disentangle the truth upon those material points. Another consideration is the unfairness of surprise which arises from the proof of prior misconduct when there is no possible way of anticipating the nature of false evidence which could be refuted. Ibid.

None of these objections could be assigned to the case before us. While the prosecutor’s questioning pertaining to the circumstances surrounding the convictions did occur, it was neither lengthy nor protracted in time. Nor did it result in creating a mass of new evidence from a number of additional witnesses, who were in turn subjected to impeachment.

Because the crime for which he was being prosecuted was so grave, it is unlikely that details of the convictions of simple burglary, two charges of receiving stolen goods, and simple escape prejudiced Thompson’s cause. To the contrary, the details disclosed by the cross-examination only served to militate the seriousness of the offenses in Thompson’s favor by permitting him to point out that these prior convictions did' not involve aggravating circumstances. Otherwise, if only proof of the convictions was permitted, the jury would be free to infer that the crimes were grave, a danger of prejudice to the defendant. His ready replies and detailed explanations and descriptions of the circumstances surrounding the prior offenses created an impression which was favorable to Thompson. For instance, while admitting the burglary, Thompson was able to place before the jury the fact that he did not break and enter, having entered the structure through an opening previously made by someone else; the stolen goods he received were five tape deck tapes, not things of great value; and the escape for which he pled guilty only involved a twenty-four hour absence from jail. In addition, the admonition of the trial judge further tended to limit the adverse effect of the evidence of the circumstances surrounding the prior convictions.

When all things are considered the cross-examination of Thompson on the details of his previous convictions did not help the State’s case.

Assignment 8: While Thompson was under cross-examination by the prosecutor, he was asked on two occasions whether he wanted to return to the penitentiary. The second time defense counsel objected that the question was repetitious and the trial judge instructed the prosecutor to desist;

In brief on this appeal defense counsel argues that the questioning did not seek to elicit relevant testimony.

This assignment is without merit. The trial judge sustained the objection by instructing the prosecutor to move on to another subject. In addition the question sought to elicit a response which was obvious to the jury—Thompson did not want to return to the penitentiary. And finally, the trial objection that the question was repetitious can not be converted into an argument couched in terms of relevancy on appeal.

Assignment 11: A young boy, Regina! Wilson, about eight years old, testified that he saw Thompson “drag” the victim into the house on Douglas Street where she said she was raped. In his testimony Thompson denied his involvement in the rape, or that he was present in the vicinity at the time. On cross-examination the prosecutor asked, “So today you’re saying that this little boy is mistaken or he’s a liar.” The question was answered without objection.

Thompson was also asked whether Andrew Smith, an elderly man who saw Thompson and the victim emerge from the house where the rape is alleged to have occurred, was mistaken about his testimony and what he saw. This question was also answered without objection. In further cross-examination Thompson was asked if George Smith, the desk clerk, was mistaken when he testified concerning Thompson’s departures from the hotel. He answered without objection. And the victim’s grandmother’s testimony was that the child came to her crying and the child had “white stuff” between her legs shortly after the time of the alleged rape. Thompson was asked on cross-examination if she too was incorrect. This too was answered. When Thompson was asked if the Coroner was incorrect when he testified that the little girl had been subjected to a traumatic sexual intercourse, defense counsel objected that the prosecutor was asking Thompson for an opinion on what the Coroner said.

Although only the last question was objected to, defense counsel assigns error to the questioning of all of these witnesses. It is contended that the questions, involving accusations of incorrectness and mistakes, are prejudicial and impermissible because they are crude efforts at cross-examination which should not be encouraged. This contention is without merit. The questions are neither crude nor impermissible. They were simply an effort on the part of the prosecutor to clarify the defendant’s position relative to his contradictory testimony on the facts. ■

As to the objection that defendant could not be called upon to give an opinion on the correctness of the Coroner’s testimony, that, too, is not a well-founded contention. The answer did not require an opinion, only a statement of the impression Thompson gained from the Coroner’s testimony. Having taken the stand he was subject to cross-examination on his phase of the case. The question was relevant and permissible. This assignment is without merit.

For the reasons assigned, the conviction and sentence are affirmed.

TATE, J., concurs and assigns reasons.

DIXON and CALOGERO, JJ., concur.

DENNIS, Justice,

dissenting.

The holding approving of cross-examination of a witness on the details of a prior conviction disregards R.S. 15:495.

TATE, Justice,

concurring.

Assignment 11 represents impermissible cross-examination of a witness by asking him to express his opinion of the credibility of an opposing witness. This court has repeatedly disapproved of this type of cross-examination as improperly argumentative. See, e. g., State v. Duke, 358 So.2d 293 (La.1978) and cases therein cited. While I doubt that the error is reversible in the present case, the majority opinion incorrectly condones this improper practice — which may eventually require reversal to effectuate our repeated prohibitions against its use.

With regard to Assignments 7, 9, and 10, I once again note my disagreement with State v. Jackson, 307 So.2d 604 (La.1975) and its progeny. However, until Jackson et al. are overruled (as eventually they must be), the trial court was not in error in permitting such cross-examination.

      . La.Rev.Stat. 15:447:
      “Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”


author: CALOGERO, Justice. SANDERS, Chief Justice DENNIS, Justice,

text:
    STATE of Louisiana v. Darlene ROBERTSON.
    No. 61751.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Gilmer P. Hingle, Smith & Hingle, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Johnny Carl Parkerson, Dist. Atty., Steven A. Hansen, Asst. Dist. Atty., for plaintiff-respondent.
   CALOGERO, Justice.

Darlene Robertson was charged by separate bills of information with possession of marijuana in violation of R.S. 40:966 and criminal mischief in violation of R.S. 14:59. After separate bench trials, she was found guilty of both charges. For the possession of marijuana conviction, she was sentenced to pay $300 and for the criminal mischief conviction, she was sentenced to serve sixty days in the parish prison. On application of defendant, we granted writs and specifically requested argument on assignments eleven and twelve. We have reviewed the assignments and arguments on the possession of marijuana conviction and find no reversible error. We do find merit, however, in assignments eleven and twelve, relative to the criminal mischief conviction and therefore reverse that conviction and sentence of defendant.

Defendant in assignments eleven and twelve contends that the trial judge erred in not granting her motion for a directed verdict. In that motion she argued that the state failed to prove that defendant had the requisite intent to commit the crime and/or that she gave a false report or complaint to an officer of the law.

The charge of criminal mischief arose from the following facts. Defendant who was residing in an apartment in Sterling-ton, Louisiana with her boyfriend wrote several notes threatening the boyfriend with kidnapping charges if he did not take her home to Monroe. She signed the name of Ray Cook, a Ouachita Parish deputy and placed the notes in and around the apartment. When he found the notes, the boyfriend brought them to the sheriff’s office which thereupon began an investigation. When questioned about the notes, defendant claimed that she had on several occasions seen deputies around the apartment, and that at least on one occasion deputies had entered the apartment through a window. She stated that it was after the deputies entered the apartment that she noticed the notes. A very brief time elapsed before defendant in a tape-recorded statement recanted that story and admitted that she had written and placed the notes and that no deputies had been in the apartment. At defendant’s trial, Deputy Calhoun, the investigating officer, testified that the charge against defendant was based upon the notes defendant admitted having written and not the story she gave at the outset of the interrogation.

Louisiana Revised Statute 14:59 defines criminal mischief as “the intentional performance of the following acts:

(5) Giving of any false report or complaint to a sheriff, or his deputies, or to any other officer of the law relative to the commission of, or an attempt to commit a crime . . . .”

If as Deputy Calhoun testified the charge was based on the handwritten notes to the boyfriend then there was no evidence of defendant’s “giving of any false report or complaint to a sheriff, or his deputies . .” The notes were written to the boyfriend and left for him to find. The notes, hardly a “report” or “complaint,” were not sent or given to the sheriff or intended for him. Moreover, although it might be inferred from the substance of the notes that the defendant was being kidnapped, the notes do not “report” or “complain” to the sheriff that a crime had been or was being committed. The notes simply purported to be warnings from a deputy designed to prompt defendant’s boyfriend to take her back to Monroe.

Even if the basis of the criminal mischief charge was the story defendant first told Deputy Calhoun when he questioned her about the notes, defendant cannot be found to have given a false report or complaint to the sheriff. The most that can be said is that she lied initially when interrogated, perhaps to avoid discovery of her having forged Deputy Cook’s signature, and that she quickly recanted, admitting in her only formal statement that she wrote the notes and that no deputies had entered the apartment.

Louisiana Code of Criminal Procedure Article 778 provides for a judgment of acquittal in a bench trial as follows:

“In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction.
If the court denies a defendant’s motion for a judgment of acquittal at the close of the state’s case, the defendant may offer its evidence in defense.”

In determining whether a trial judge erred in denying a defense motion for a directed verdict (motion for a judgment of acquittal), this Court can find error in the denial of the motion and reverse the conviction only if there is no evidence presented of the crime charged or of an essential element thereof. State v. Reeves, 342 So.2d 605 (La.1977). In this case the state failed to prove that defendant gave “a false report or complaint to a sheriff, or his deputies.” Consequently the state produced no evidence and the motion for a directed verdict — judgment of acquittal — should have been granted.

Decree

For the foregoing reasons, defendant’s conviction and sentence on the charge of possessing marijuana is affirmed; defendant’s conviction and sentence of criminal mischief is reversed and set aside and the charge ordered dismissed.

POSSESSION OF MARIJUANA CONVICTION AND SENTENCE AFFIRMED; CRIMINAL MISCHIEF CONVICTION AND SENTENCE REVERSED.

SANDERS, C. J., dissents and assigns reasons.

DENNIS, J., concurs in part and dissents in part and assigns reasons.

SANDERS, Chief Justice

(dissenting).

To warrant a reversal of the conviction for criminal mischief, the law requires that there be no evidence to support the conviction. State v. Reeves, La., 342 So.2d 605 (1977); State v. Holder, 159 La. 82, 105 So. 232 (1925).

It is true that the defendant did not take the forged notes to the law enforcement officers. She did, however, forge them and place them in the apartment. When confronted by the law enforcement officers, she supported their authenticity. She falsely asserted to them: (1) that she had seen deputies around the apartment on several occasions; (2) that they made an illegal entry into the apartment through the window; (3) that she recognized one of them; and (4) that she found the notes after this entry. [Tr. p. 5.]

In my opinion, this constitutes evidence of the “giving of a false report to a sheriff, or his deputies . . . relative to the commission of ... a crime.” See LSA-R.S. 14:59(5). The subsequent recantation does not obliterate the offense.

For the reasons assigned, I respectfully dissent.

DENNIS, Justice,

concurring in part, and dissenting in part.

I respectfully dissent from the reversal of the criminal mischief conviction. The investigating officer testified that the defendant initially told him that she witnessed one or more deputies unlawfully enter her residence. This constituted evidence of an intentional giving of a false report of a crime. The fact that the defendant later recanted her story provides no defense to the prosecution.

      . The first statement which defendant gave to Deputy Calhoun was neither written nor taped, and the second tape-recorded statement does not form part of the record. It was Deputy Calhoun’s testimony at trial that the first oral statement was to the foregoing effect.

      . Defendant insists that the recantation took place during the same interrogation and within moments of the first oral statement giving the misinformation. The record, while not indicating the length of the interrogation nor whether it was interrupted, shows simply that the questioning began at 11:24 A.M. and that the recorded statement was taken at 2:17 P.M. on July 19, 1977.