text:
    Joseph RAGIN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1527.
    District Court of Appeal of Florida, Third District.
    July 26, 1977.
    Pollack, Tunkey, Robbins & Rosenfield, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

The defendant appeals from a judgment of conviction and sentence for sale and possession of cocaine contending that he was denied a fair trial by certain comments made by the prosecutor in final argument to the jury. The defendant did not object to those comments nor did he make a motion for mistrial based on such comments. The law is clear that an appellate court “will review challenged arguments of prosecutors only when an objection is timely made.” State v. Jones, 204 So.2d 515 (Fla.1967). See also Thomas v. State, 326 So.2d 413 (Fla.1975). The judgments of convictions and sentences are, accordingly, affirmed.


source: Caselaw Access Project

author: MASON, (Retired), Associate Judge: BOYER, Acting Chief Judge,

license: Public Domain

text:
    Joseph L. LESTER, Jr., Appellant, v. DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATIONS, STATE BOARD OF MEDICAL EXAMINERS of Florida, Appellee.
    No. FF-228.
    District Court of Appeal of Florida, First District.
    July 29, 1977.
    Rehearing Denied Sept. 1, 1977.

      Mallory H. Horton, Horton, Perse & Ginsberg, Miami, for appellant.
    Michael I. Schwartz, Slepin & Schwartz, Tallahassee, for appellee.
   MASON, (Retired), Associate Judge:

This is an appeal from a final judgment of the Circuit Court of Leon County in which the trial court refused to restrain or enjoin the appellee Board (defendant below) from prosecuting disciplinary action against the appellant (plaintiff below) pursuant to Chapter 458.1201(1), F.S., for alleged unprofessional conduct within the intent and meaning of Section 458.1201(l)(m) of such Chapter.

On February 17, 1977, the appellant, a licensed physician and surgeon practicing in Key West, Florida, brought the action below for declaratory judgment seeking an adjudication that a certain charge of unprofessional conduct made against him by the appellee Board pursuant to said Section 458.1201(l)(m) was not such as to be encompassed within the meaning and intent of such statute, and for an injunction against the appellee Board prosecuting such charge.

The administrative complaint filed by the Board alleged that the appellant received checks in various amounts from Key West Association, Inc., T/A DePoo Hospital between March of 1974 and August of 1976, which the Board charged amounted to a 4% rebate or kick-back of either the gross hospital receipts or of the total hospital charges incurred by the appellant’s patients in such hospital, and that such action on his part constituted unprofessional conduct within the meaning of said Section 458.-1201(l)(m). Attached to appellee’s administrative complaint were two exhibits: (1) a consultant agreement dated June 1, 1965, by which appellant was to receive 4% of the gross receipts of the hospital for acting as a consultant to the owner of the hospital in the management, planning and operation of the DePoo Hospital, and (2) an agreement dated January 31, 1975, by which appellant was to continue to serve the hospital as such consultant for which services he would be paid a fixed compensation monthly of Fourteen Hundred ($1400.00) Dollars.

In its administrative complaint the appel-lee Board charged that these agreements were no more than cover-ups for rebates or kick-backs to the appellant of portions of the charges made by the hospital to the appellant’s patients. Such, the appellee contends, amounts to unprofessional conduct proscribed by Section 458.1201(l)(m).

The trial court, after hearing, made two conclusions: (1) that the statute as framed was not intended as a limitation or restriction on what might be termed unprofessional conduct, and (2) that the administrative complaint, though specifying that it was brought under Section 458.1201(l)(m) would also lie under the provisions of another subsection of Section 458.1201(1), viz subsection (h), which prohibits a licensee from engaging in unethical and deceptive conduct or practice. Thereupon, the trial court refused to enjoin the appellee Board from proceeding with the disciplinary action against the appellant. It is to be noted that the Board in preferring the charge of unprofessional conduct against the appellant specifically charged him with unprofessional conduct as proscribed only by subsection (m) of Section 458.1201(1).

Section 458.1201 is the section of the Medical Practice Act (Chapter 458, F.S.) which deals with the powers of the Board in the denial, suspension, revocation of license, and other discipline of medical practitioners. It reads, in part, as follows:

“458.1201 — Denial, suspension, revocation of license; disciplinary powers—
(1) The board shall have authority to deny an application for a license or to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unqualified or guilty of the following: (Here is set forth several categories of disqualification or misconduct included in which is subsection (m)).

Subsection (m) sets forth as grounds for denial of license to or discipline of a physician the following facets of misconduct:

“(m) Being guilty of immoral or unprofessional conduct, incompetence, negligence, or willful misconduct. Unprofessional conduct shall include anv departure from. or the failure to conform to. the standards of acceptable and prevailing medical practice in his area of expertise as as determined bv the board, in which proceeding actual injury to a patient need not be established: when the same is committed in the course of his practice. whether committed within or without this state.” (Emphasis supplied)

The administrative charge against the appellant was for unprofessional conduct claimed to be proscribed by the above quoted subsection of the statute and we are called upon to decide whether the acceptance of rebates or kick-backs, if in fact the doctor did receive the same from the hospital, is condemned unprofessional conduct as that term is included within this particular subsection of the statute. We hold that it is not.

In construing the language and import of this statute we must bear in mind that it is, in effect, a penal statute since it imposes sanctions and penalties in the nature of denial of license, suspension from practice, revocation of license to practice, private or public reprimand, or probation, upon those found guilty of violating its proscriptions. This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the applicant or licensee.

It is true that the legislature in enacting Chapter 458 stated that the statute was enacted in the interest of the public welfare and is to be liberally construed so as to advance that purpose. But such laudable expression of purpose does not justify a construction which includes within the ambit of the statute’s proscription conduct not clearly included therein. Nor does it justify a construction that would deny to an individual physician the right to know in advance from a reading of the language what conduct is proscribed by the legislature. See Ex Parte Amos, 93 Fla. 5, 112 So. 289 (1927). Nowhere in this subsection is the receipt or acceptance of rebates prohibited or declared to be unprofessional conduct.

It is clear that what the legislature was condemning as unprofessional conduct in this particular subsection was conduct by a practicing physician in the practice of medicine which did not conform to the prevailing standards of practice exercised by other practitioners in the same area of practice or expertise. The proscription is against poor medical practice as measured by the prevailing standards of good practitioners. It would take a strained construction indeed to say that the underscored language in the statute condemns anything else. There is not the slightest suggestion, implication or inference that the receipt of rebates or kick-backs, however deplorable that might be, would constitute unprofessional conduct under the definition of that term as declared by the legislature in this particular subsection of the statute. Had the legislature desired to include the receipt of rebates or kick-backs within the term “unprofessional conduct” it could have easily said so. It is beyond the function and power of the court to read into a statute a proscription not clearly or by reasonable implication included therein.

Nor does the fact, as suggested by appel-lee, that the legislature in 1976 by an amendment to the Medical Practice Act (Chapter 458 F.S.), outlawed the acceptance of kick-backs from physicians by abortion referral or counseling agencies authorize this court to read such proscription into Section 458.1201(l)(m). Had the legislature intended to include kick-backs or rebates as within the term “unprofessional conduct” proscribed by said section it could have readily done so by further amendment to the Medical Practice Act in 1976. Therefore, we hold that the lower court erred in ruling that the alleged receipt by appellant of rebates or kick-backs constituted “unprofessional conduct” within the meaning of that term as provided in Section 458.-1201(l)(m).

The trial court in its judgment upholding the action of appellee Board in its charge of unprofessional conduct against the appellant attempted to fortify his ruling that the acceptance of rebates falls within the ambit of unprofessional conduct proscribed by Section 458.1201(l)(m) by linking this particular subsection of the statute with another subsection of the same statute, viz., Section 458.1201(l)(h). In his ruling the trial court stated:

“Further, it is the opinion of this court that, though the complaint specified that it was brought under Section 458.-1201(l)(m) that it would also lie under the provisions of Section 458.1201(l)(h) which prohibits a licensee from engaging in unethical and deceptive conduct or practice.”
Section 458.1201(l)(h) provides as follows: “(h) Engaging in any unethical, deceptive, or deleterious conduct or practice harmful to the public in which proceeding proof of actual injury need not be established.”

And by reverting to Section 458.1201(1) there is the legislative declaration that the Medical Board (appellee) is given the authority to discipline a licensee for a violation of this last quoted subsection.

The appellant has assigned as error this finding of the trial court that the charge of “unprofessional conduct” could be sustained under this subsection (h). We agree that this finding was in error for it was not within the purview of the charge preferred against the appellant nor of the issues raised by the pleadings in the court below. By so holding that the charge could be sustained under this last quoted subsection when no notice was given to appellant that he was charged with a violation of such subsection and no opportunity given to raise this issue in the pleadings below, the court denied the appellant due process of law. Section 458.121 dealing with the procedure for revocation and suspension, etc., of licenses in subsection (3) thereof specifically provides that a copy of the charges against a licensee shall be served upon him, together with the notice of the time and place of the hearing before the board, at least twenty days before the time fixed for the hearing. The only charge of which the appellant was given any copy or notice of hearing was the charge claiming that he was guilty of unprofessional conduct proscribed by Section 458.1202(l)(m). Therefore, for the court to hold that the appellant could be found guilty under subsection (h) of Section 458.1201(1) amounts to a denial of due process. See Johnson v. Johnson, Fla.App., 346 So.2d 591, opinion -filed May 18th, 1977.

Concluding as we do that the issue as to whether the acceptance of rebates as charged constituted a basis for disciplinary action under the provisions of Section 458.-1201(l)(h) was not raised by the pleadings below it is not necessary for us to determine the constitutionality of such subsection as to such charge. We leave the resolution of that issue to such time as it is properly before us to resolve, for our decision on this point is without prejudice to the appellee Board to attempt to discipline the appellant by framing the charge under said subsection, at which time the Court below will be empowered to pass upon the question under issues properly framed by the pleadings.

In summary we hold: (1) That the acceptance of rebates or kick-backs is not within the proscription of “unprofessional conduct” as that term is used in Section 458.1201(l)(m), (2) That whether such conduct is proscribed by the provisions of Section 458.1201(l)(h) was not in issue before the trial court in this proceeding and that his ruling to the contrary was void because of a denial of due process to the appellant, and (3) That we do not pass upon the constitutionality of either Section 458.-1201(l)(m) nor Section 458.1201(l)(h) since our decision herein is predicated upon the other reasons heretofore stated herein, leaving such issue of constitutionality for resolution if and when the issue is properly presented so as to require such determination.

Reversed and remanded with direction to the trial court to enter an appropriate judgment in accordance with the views herein expressed.

It Is So Ordered.

DREW, E.' HARRIS, (Retired), Associate Judge, concurs.

BOYER, Acting C. J., concurs specially.

BOYER, Acting Chief Judge,

concurring specially.

I am in complete accord with the foregoing opinion and. concur therein. I have some question as to the procedure employed by appellant for review (see State ex rel. Dept. of General Services v. Willis, 344 So.2d 580 (Fla.1st DCA 1977); School Board of Leon County, Fla. v. Mitchell, 346 So.2d 562 (Fla.1st DCA 1977) and McDonald et al. v. Dept. of Banking and Finance, 346 So.2d 569 (Fla.1st DCA 1977).

However no procedural issue was either raised or briefed, therefore we may not address it.


author: GRIMES, Acting Chief Judge.

text:
    In re ESTATE of V. Richard BECHTEL, Deceased. Evalyn MEARS, Appellant, v. Evelyne R. BECHTEL et al., Appellees.
    No. 76-1461.
    District Court of Appeal of Florida, Second District.
    July 29, 1977.
    As Corrected On Denial of Rehearing Sept. 2, 1977.

      C. Harris Dittmar of Bedell, Bedell, Ditt-mar & Zehmer, Jacksonville, for appellant.
    Michael R. N. McDonnell of Brown, McDonnell & Hart, Tallahassee, for appel-lee Evelyne R. Bechtel.
   GRIMES, Acting Chief Judge.

In the first appearance of this case before our court we reversed the judgment below and held that certain bearer bonds which were located in a jointly-owned safety deposit box on the date of the decedent’s death should be included in the inventory of the assets of the estate. Bechtel v. Estate of Bechtel, 330 So.2d 217 (Fla.2d DCA 1976). Upon remand the successful appellant filed a petition for production of estate assets pursuant to the opinion of this court which had ruled that “. . . the bonds in question were owned by the decedent. . ” Believing himself to be bound by our prior opinion, the trial judge entered an order directing the widow to deliver physical possession of the. bearer bonds to a newly appointed administrator ad litem.

On appeal the widow first contends that the order is not binding upon her because the court never had jurisdiction over her in her individual capacity. Admittedly she was never served by process and, strictly speaking, she was not a party to the previous proceeding. Nevertheless, we hold that she cannot refuse to comply with the court’s order. At the trial, while Mrs. Bechtel (now Mears) was nominally appearing in a fiduciary capacity, she was actually asserting a position favoring her own personal interest and contrary to the interest of the estate. We suggest no impropriety, but simply point out that her posture in the litigation was tantamount to a personal appearance. Cf. First Wis. Nat. Bank of Milwaukee v. Donian, 343 So.2d 943 (Fla.2d DCA 1977). That the issues were clearly drawn is demonstrated by the following colloquy between the court and her attorney which took place at the trial.

THE COURT: Basically, the issues are whether the bonds belong to Mrs. Bechtel as survivor of the tenancy or whether they go into the intestate estate.
MR. VEGA: That is the only issue I see, your Honor. That is the only issue I see and I can submit the written memorandum.

To say that the widow has not had her day in court on this point is to exalt form over substance.

The widow also contends that we erred in certain particulars with respect to our former opinion. Since this is the same lawsuit over which we have not lost jurisdiction, she contends that we should correct the error pursuant to the rationale of Beverly Beach Properties, Inc. v. Nelson, 68 So.2d 604 (Fla. 1953). In our prior opinion we held that the court erred in finding that there had been a waiver of the Dead Man’s Statute which would permit the widow to testify concerning a communication with her husband prior to his death. In support of our ruling we correctly stated that the mere fact that the opposing party had taken her deposition could not waive the protection of the statute. The widow now points out that the successful appellant (now the appellee) introduced the widow’s deposition at the trial. We have examined the record and find this to be so. Therefore, we must acknowledge that the judge correctly admitted the testimony in the first place because the introduction into evidence of the deposition which contained the decedent’s communications with the widow would constitute a waiver of the Dead Man’s Statute. Small v. Shure, 94 So.2d 371 (Fla. 1957); Bordacs v. Kimmel, 139 So.2d 506 (Fla.3d DCA 1962).

In a similar vein the widow also asserts that our statement in the opinion that she did not sign the safety deposit box lease until after her husband’s death is also erroneous. We have examined the record on this point and find that the evidence is conflicting. Since the trial judge originally ruled for the widow, we should give her the benefit of the doubt and concede that there is evidence in the record to support the conclusion that she signed the safety deposit box lease within a few days after it was opened in the name of her and her husband.

In view of these errors which have been brought to our attention, we have undertaken the obligation to review once again the correctness of the original final judgment. But once again we find it wanting. Given the admissibility of the widow’s testimony concerning her husband’s comments, and acknowledging the fact that she signed the lease shortly after the safety deposit box was opened, the evidence still falls short of meeting the legal requisites for proving a tenancy by the entirety in the bearer bonds. The reasoning set forth in our original opinion continues to be valid, and the cases cited therein remain applicable.

The other points raised by the widow are without merit and need not be discussed.

AFFIRMED.

SCHEB and OTT, JJ., concur.


author: HUBBART, Judge.

text:
    Sol W. MEYERSON, Appellant, v. Alan B. COHEN, Appellee.
    No. 76-1050.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1977.
    Fromberg, Fromberg & Roth and Jeffrey Michael Cohen and Arthur Rice, Miami, for appellant.
    Pallot, Stern, Proby & Adkins, Miami, for appellee.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   HUBBART, Judge.

This is a mortgage foreclosure action in which the trial court entered a final judgment of foreclosure against the mortgagor and awarded attorneys fees against the mortgagor and a third party. The party who was not a signator to the mortgage appeals the award of attorneys fees contending that he was under no legal-obligation to pay for such fees. We agree and reverse.

I

On December 17, 1973, Sol W. Meyerson [defendant-appellant] entered into an agreement of purchase, sale and development with Alan B. Cohen [plaintiff-appel-lee], Under the terms of the agreement, Cohen agreed to buy certain property for $100,000 from Meyerson with a right to rescind the purchase within six months after closing on the property, at which time Meyerson would refund the $100,000 to Cohen. To secure this $100,000 obligation as well as other obligations undertaken by Meyerson under the agreement, a mortgage was simultaneously executed on the same day by the International Center of the Americas, Inc., as the mortgagor corporation which was signed by Sol W. Meyerson as the president of the corporation. The mortgagee on the mortgage was Cohen.

Subsequent to the purchase and closing on the property sold by the agreement, Cohen elected to rescind the agreement within the requisite six month period. Meyerson was unable to refund the $100,-000 to Cohen as required by the agreement. Cohen thereupon filed a complaint to foreclose the mortgage before the Circuit Court of the Eleventh Judicial Circuit of Florida. The trial court after a full hearing ordered the foreclosure of the mortgage and awarded attorney’s fees against the International Center of the Americas, Inc. and Sol Meyer-son. This appeal by Meyerson follows directed solely to the award of the attorney’s fees.

II

The law is clear that an “allowance of attorneys’ fees is in derogation of common law and may be awarded a litigant only if provided by contract or statute.” Stone v. Jeffres, 208 So.2d 827, 828-29 (Fla. 1968). See Rivera v. Deauville Hotel, 277 So.2d 265, 266 (Fla.1973). There is no statute authorizing the award of attorney’s fees in mortgage foreclosure actions. Consequently, the issue involved in this case is whether the agreement of purchase, sale and development as well as the mortgage agreement legally obligates, Sol Meyerson to pay attorneys fees in the event of a successful foreclosure on the mortgage.

The purchase and sale agreement signed by Cohen and Meyerson contains no provision for the award of attorneys fees in the event it should become necessary to foreclose the mortgage for a breach of the agreement. The agreement provides for the award of attorneys fees only in the event of a court action to enforce a covenant not to compete, which covenant is not relevant here.

The mortgage contains a provision for an award of attorney fees in the event of a successful mortgage foreclosure action which of necessity binds the party signators to the mortgage. Sol Meyerson signed the mortgage but in a representative capacity as president of International Center of Americas, Inc. The corporate entity was thereby bound under the terms of the mortgage to pay attorneys fees to Cohen upon a successful mortgage foreclosure, but Meyerson was not so bound because he was not an individual signator of the mortgage. E. I. Du Pont De Nemours & Co. v. Barge Carrier, Inc., 55 F.Supp. 728 (S.D. Fla. 1944).

In an effort to attach individual liability against Meyerson on the attorneys fees, Cohen argues that the mortgage provision for attorneys fees is incorporated into the purchase and sale agreement which Meyerson signed. We cannot agree. There is no language in the purchase and sale agreement which evinces the slightest intent to incorporate any of the provisions of the mortgage agreement and Cohen cites us to none. In the absence of such contractual provision, there is no way by which Sol Meyerson can become individually bound on any of the terms of the mortgage agreement.

Cohen does refer us to a provision in the mortgage which he contends incorporates the purchase and sale agreement. The trial court apparently accepted this contention in making its award of attorneys fees against Meyerson individually. Such a contention, however, is to no avail because even if true, Meyerson would still not be bound by the terms of the mortgage regardless of whether the mortgage incorporated the purchase and sale agreement or not. The plain fact is that Sol Meyerson is bound only by the terms of the purchase and sale agreement; and this agreement neither contains a provision for the award of attorneys fees in the event of a successful mortgage foreclosure nor incorporates any of the provisions of the mortgage. We, therefore, hold that Sol Meyerson is not legally obligated by statute or contract to pay attorneys fees in the event of a successful mortgage foreclosure on the property involved in this case. See Spadaro v. Baird, 97 Fla. 50, 119 So. 788 (1929).

The final judgment of mortgage foreclosure is affirmed; the order awarding attorneys fees against the International Center of the Americas, Inc. is affirmed; the order awarding attorneys fees against Sol Meyer-son is reversed.

      . “The parties make the following mutual covenants to each other: . . . (c) Neither Party shall own any interest in, or perform any services whatsoever for, any project or enterprise that would compete with any of the developments contemplated if the competitive project or enterprise is located within twenty miles of the project herein planned with which it would be competitive; however, with respect to the rental of office, factory and warehouse space in the Miami Fashion District developments, this restriction shall not apply if the Party advises prospective tenants of space available therein and shows it to them. The Parties agree that remedies at law would be inadequate enforcement of this covenant, and that this covenant may be enforced specifically, in addition to the award of damages and of costs and legal fees incurred in the successful enforcement thereof.” [Emphasis added].

      . “And the said Mortgagor, for itself and its successors, legal representatives and assigns, hereby covenant and agree: . . . 3. To pay all and singular the costs, charges, and expenses, including lawyer’s fees, reasonably incurred or paid at any time by said Mortgagee his legal representatives or assigns, because of the failure on the part of the said Mortgagor, its successors, legal representatives or assigns, to perform, comply with and abide by each and every the stipulations, agreements, conditions, and covenants of said promissory note and this deed, or either, and every such payment shall bear interest from date at the rate of 6 percent, per annum.” [Emphasis added].

      . “This mortgage is to secure a contingent obligation pursuant to a certain agreement between SOL W. MEYERSON and ALAN B. COHEN dated December 17, 1973, more particularly set forth in paragraphs 7(f) and 8 of the said Agreement of Purchase, Sale and Development, said obligation being herein referred to as ‘note.’ ”


author: McNULTY, Acting Chief Judge.

text:
    Eddie Lee HALL, Appellant, v. STATE of Florida, Appellee.
    No. 76-1726.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1977.
    Jack 0. Johnson, Public Defender, and Robert H. Grizzard, II, Asst. Public Defender, and Paul C. Helm, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   McNULTY, Acting Chief Judge.

The only issue meriting discussion is whether, for the purposes of the speedy trial rule, a trial commences when the prospective jurors have been sworn for examination of their qualifications to act as jurors for the week but are not seated for voir dire in the particular trial. The case of State v. May, 332 So.2d 146 (Fla. 3d DCA 1976), answered this question in the negative. We agree. Fla.R.Crim.P. 3.191(a)(3).

In the instant case it appears that on the last day of the speedy trial period, the first day of the trial week, prospective jurors were sworn to examine their qualifications to serve for the week. None were seated for voir dire in this specific case. The next day appellant’s motion for discharge was filed, heard and erroneously denied. The speedy trial time had run. Appellant was, and is, entitled to discharge.

Reversed and remanded for further proceedings not inconsistent herewith.

GRIMES and OTT, JJ., concur.


author: PER CURIAM. MILLS, Judge,

text:
    Nola Collins THOMPKINS, Appellant, v. Tebo THOMPKINS, Appellee.
    No. DD-276.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1977.
    Rehearing Denied Sept. 1, 1977.
    Reginald E. Moore, Daytona Beach, for appellant.
   PER CURIAM.

The parties, former husband and wife, had been married almost ten years prior to their dissolution. They resided in property owned by the wife in her name. The husband, now 87 years old, did extensive remodeling of the property before and after the marriage. In addition the parties had joint accounts with assets of some $18,-000.00. When the parties separated, the husband withdrew $11,949.61 from two accounts. The trial judge granted the wife’s petition for dissolution, denied the husband’s counter-petition for special equity in the wife’s home due to the improvements made and divided the remaining assets in the joint accounts, totaling $6,868.47, between the parties.

The wife appeals arguing the trial court erred in failing to award her half of the monies withdrawn by the husband and appropriated to his own use prior to his leaving the wife. In Beaty v. Beaty, 177 So.2d 64 (Fla. 2nd DCA 1965), the court upheld the chancellor’s award of certain sums of money withdrawn by the wife from the parties’ joint accounts without the husband’s knowledge and consent. The appellate court rejected the wife’s claim that before she could be forced to return the sums to the husband there need be a showing of fraud, stating:

“The joint checking accounts were owned by the parties as an estate by the entire-ties and if portions thereof were removed by one of the parties for a purpose not consistent with their joint interests the chancellor could properly require a return of such portion as would do equity. The adjustment of property rights upon divorce is an equitable proceeding and is governed by equitable principles.” 177 So.2d at 57.

In the case below the learned trial judge declined to award such sums to the wife, although he stated that the husband had no special equity in the real property. We feel it would be appropriate for this cause to be remanded to the trial court for reconsideration of his holding in light of Beaty v. Beaty, supra. In so doing, however, the chancellor should review the entire circumstances of the financial positions of the parties, their respective bank accounts, as well as whether a special equity existed in favor of the husband in the home by reason of the improvements made. See Roberts v. Roberts, 101 So.2d 884 (Fla. 2nd DCA 1958); Long v. Long, 304 So.2d 483 (Fla. 1st DCA 1974).

Remanded for further proceedings not inconsistent with this opinion.

BOYER, Acting C. J., and ERVIN, J., concur.

MILLS, J., dissents.

MILLS, Judge,

dissents.

I dissent. I would affirm. In my judgment, the trial court properly applied the law to the facts of this case and entered an equitable judgment.


author: SMITH, Judge. McCORD, Chief Judge,

text:
    4245 CORPORATION, MOTHER’S LOUNGE, INC. and Cheetah III, Inc., Petitioners, v. DIVISION OF BEVERAGE, Respondent.
    No. FF-381.
    District Court of Appeal of Florida, First District.
    Aug. 10, 1977.

      Charles L. Carlton, Lakeland, of Tobias Simon, P. A., Miami, for petitioners.
    Charles T. Collett, Tallahassee, for respondent and movant.
   ON MOTION TO DISMISS FOR LACK OF JURISDICTION

SMITH, Judge.

By motion to dismiss, the Division of Beverage urges the court is without jurisdiction to review the order of a hearing officer of the Division of Administrative Hearings, Department of Administration (DOAH), holding the Division’s proposed rule affecting alcoholic beverage licensees would not, if adopted, constitute an invalid exercise of delegated legislative authority. The petitioning licensees, aggrieved by the Division’s proposed rule forbidding certain sexual conduct on the premises of licensees, properly initiated DOAH rule challenge proceedings in the course of the Division’s rulemaking proceedings. Section 120.54(4), Florida Statutes (Supp.1976). The hearing officer’s order remits the parties — the Division and this licensee to the Division’s rulemaking proceedings.

Buttressing its motion with constitutional arguments concerning limitations on the judicial power, the Division asserts the licensees cannot be “affected by final agency action” and therefore “entitled to judicial review” under Section 120.68(1) until the agency adopts the proposed rule and undertakes to enforce it against an offending licensee in Section 120.57 proceedings; and, alternatively, that judicial review must at least await agency adoption of the proposed rule. We disagree.

The APA does not withhold judicial review of a new rule until an affected party at its peril violates the rule and thereby induces agency proceedings under Section 120.57 to punish for offending conduct. One who is prospectively affected by an adopted rule may challenge it administratively as “an invalid exercise of delegated legislative authority,” obtain a ruling by a DOAH hearing officer, and promptly seek judicial review of that “final agency action.” Sections 120.56, .68. Absent rule challenge proceedings, a party whose substantial interests are determined in agency enforcement proceedings may, of course, timely seek judicial review of the final agency order and there challenge the underlying rule. Sections 120.57, .68; State ex rel. Dep’t of Gen. Serv. v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977). In that event the party’s prior failure to institute administrative rule challenge proceedings does not constitute failure to exhaust administrative remedies. Sections 120.-54(4)(d), .56(4); Willis, 344 So.2d at 592. But rulemaking itself constitutes final agency action which an adversely affected “party” may judicially challenge by a timely petition for review. Sections 120.52(2), (14), 120.54, 120.68(1). Upon the Division’s adoption of this proposed rule, petitioners as parties to these rulemaking proceedings would be entitled to judicial remedies under the APA.

Nor do we lack jurisdiction, as the Division contends, to review the hearing officer’s final order that the proposed Division rule is valid. If the APA withheld judicial review in such circumstances, an agency whose proposed rule was administratively invalidated would have no recourse except to withdraw the proposed rule. That result, here urged by the Division against its own prospective interests, is not countenanced by the APA. Either the party challenging the rule or the agency, if aggrieved by the hearing officer’s rule determination, may have judicial review under Section 120.68. That is the import of Section 120.54(4)(d), which provides that the hearing officer’s order in such circumstances “shall be final agency action.” The finality of agency action is the principal jurisdictional requisite to judicial review as of right. Section 120.68(1). Dep’t of Environ. Reg. v. Leon County, 344 So.2d 297 (Fla. 1st DCA 1977).

Thus the APA grants the jurisdiction which the Division here contests. The grant was made pursuant to constitutional authority for laws defining “the power of direct review of administrative action.” Article V, Section 4(b)2, Florida Constitution. Having jurisdiction by Constitution and statute, the courts exercising it do not offend the proscription that “No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” Article II, Section 3, Florida Constitution. Nor will our disposition of the case result in a prohibited “advisory opinion” concerning proposed legislation. Collins v. Horten, 111 So.2d 746, 751 (Fla. 1st DCA 1959). While courts lack power to prohibit “the exercise by the Legislature of its lawmaking authority,” a DOAH determination of the invalidity of a proposed rule has exactly that effect on the proposed rulemaking. No reason appears why the legislature could not constitutionally balance its grant of power to DOAH by providing also for judicial review.

The Division’s motion to dismiss is DENIED.

RAWLS, J., concurs.

McCORD, C. J., specially concurs.

McCORD, Chief Judge,

concurring specially.

While it is incongruous that the Legislature would declare the order of a hearing officer which approves a proposed rule of an agency to be “final agency action” (and thereby subject to judicial review) when clearly there is no “final agency action” in fact until the proposing agency thereafter adopts the rule (or has a change of heart and rejects it), the Legislature has been given that power by the Constitution, as pointed out in the majority opinion. The Legislature has here declared in effect that “white” is “black.”

      . Florida’s Administrative Procedure Act (APA) there provides that any substantially affected person may challenge a proposed rule as “an invalid exercise of delegated legislative authority” in proceedings before a DOAH hearing officer.

      . Sec. 120.54(4)(d) provides: “The agency proposing the rule and the person requesting the hearing shall be adversary parties. Other substantially affected persons may join in the proceeding as parties or intervenors on appropriate terms which will not substantially delay the proceedings.”

      . “The hearing officer may declare the proposed rule wholly or partly invalid. The proposed rule or provision of a proposed rule declared invalid shall be withdrawn from the committee by the adopting agency and shall not be adopted.” Section 120.54(4)(c).

      . “A party who is adversely affected by final agency action is entitled to judicial review.”


author: HOBSON, Judge.

text:
    Anthony I. TENNELL, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-37 and 76-683.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 1977.
    B. Robert Ohle, McDermott & Ohle, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

Appellant, a juvenile in these consolidated appeals, seeks review of an order transferring him to the adult criminal division of the circuit court and an order denying his motion to suppress his confession.

At the time the appellant gave his confession he was fourteen years of age. The record establishes that he was of below average intelligence; had the reading ability equivalent to that of a child entering the first grade; had difficulty understanding normal speech; and for that reason anyone speaking to him had to speak slowly, repeat himself often, and use simple words for the appellant to understand.

During the interrogation only the officer and appellant were present. The minor’s parents were not notified. The interrogating officer completed the Miranda waiver form himself after advising the appellant of his rights and satisfying himself that the appellant understood them. After appellant signed the waiver, while under interrogation, he made a statement which is the subject matter of this appeal.

The law as to the admissibility of juveniles’ confessions is aptly set forth in T. B. v. State, 306 So.2d 183 (Fla.2d DCA 1975), wherein it is stated on page 185:

A confession is not involuntary merely because the person making it is a juvenile. In determining the admissibility of a juvenile’s statement the “totality of circumstances” under which it was made must be examined. Gallegos v. Colorado, 1962, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325, 87 A.L.R.2d 614; Am.Jur.2d, Evidence, § 574.
A history of the problem of juvenile confessions is set out in People v. Lara, 1967, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202, cert. den., 1968, 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407. Lara sets out the general rule:
“, . .. [A] minor has the capacity to make a voluntary confession, even of capital offenses, without the presence or consent of counsel or other responsible adult, and the admissibility of such a confession depends not on his age alone but on a combination of that factor with such other circumstances as his intelligence, education, experience, and ability to comprehend the meaning and effect of his statement. . . . ” 62 Cal.Rptr. at 599, 432 P.2d at 215.
To these considerations must be added the requirement that, if the statement stems from custodial interrogation, the accused must be given his rights under Miranda and must voluntarily, knowingly and intelligently waive those rights. Miranda v. Arizona, 1966, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.
A juvenile may waive his rights under Miranda, but the state bears a heavy burden in establishing that the waiver was intelligently made. Arnold v. State, Fla.App.3rd, 1972, 265 So.2d 64, cert. den., Fla. 1973, 272 So.2d 817.

Upon a careful reading of the record in this case, we hold that the state has not borne its heavy burden in establishing that the waiver was intelligently made.

The remaining point on appeal has been cárefully considered and found to be without merit.

REVERSED and REMANDED.

BOARDMAN, C. J., and DANAHY, PAUL W., Jr., Associate Judge, concur.

      . Dowst v. State, 336 So.2d 375 (Fla.1st DCA 1976).


author: PER CURIAM.

text:
    Richard David DOERR, II, Appellant, v. STATE of Florida, Appellee.
    No. 76-977.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant Doerr, age sixteen, was charged with three counts of burglary. After the appropriate hearing, he was waived by the juvenile division to the criminal division of the court to be tried as an adult. He then moved to suppress certain statements made to the arresting officer. After denial of the motion, he withdrew his plea of not guilty and entered a plea of nolo contendere to the first count, specifically reserving the right to appeal the court’s ruling on his motion to suppress. The state nolle prossed the remaining two counts. Following a presentence investigation, adjudication was withheld and appellant was placed on probation for a period of three years.

Detective Donald Hartery testified that prior to arresting the appellant he told appellant’s mother that he intended to arrest her son. She tried to help Detective Har-tery locate appellant. Hartery found appellant at an apartment later that night, arrested him, and took him directly to the juvenile detention center. After placing appellant in the patrol car Detective Har-tery advised him of his rights. In response to questions, appellant admitted several burglaries. At the detention center appellant was again advised of his rights and he was again questioned. Detective Hartery identified the transcribed interrogation and stated that appellant had supplied him with details of the crimes, but he was unable to recall whether appellant’s mother was notified before or after the interview since he did not talk with her personally.

Appellant argues that his statements should have been suppressed due to the failure of the arresting officer to comply with Section 39.03(3)(a), Florida Statutes (1975), prior to the appellant’s interrogation. The pertinent part of this section provides:

“If the person taking the child into custody determines, pursuant to paragraph (c), that the child should be detained or placed in shelter care, he shall immediately notify the parents or legal custodians of the child . . ,.” (emphasis supplied)

The thrust of appellant’s argument is that noncompliance with the statute automatically requires suppression of his confessions. In support of this contention, he cites Dowst v. State, 336 So.2d 375 (Fla. 1st DCA 1976), wherein the First District stated that since Section 89.03(3)(a) commands that a juvenile’s parents shall be notified immediately, it is not left to the discretion of an arresting or interrogating officer to suspend that legislative mandate until after he obtains a confession from a juvenile. While certain language of the First District’s opinion lends support to appellant’s position, we do not think that Dowst is authority to suppress the appellant’s confession in this case. In Dowst, the juvenile who was arrested and taken into custody by the police requested to call his parents before he was questioned, but was not permitted to do so until after he confessed. The court clearly delineated its holding in stating:

“We hold that when the Defendant, sixteen years of age, requested to speak to his parents and was denied, such request constituted a continuous assertion of his privilege against self incrimination and that any confession given by him before either (1) he is granted the right to make such call, or (2) the officer makes a good faith effort to so advise his parents, is inadmissible in evidence.” 336 So.2d at 876 (citations omitted).

Section 39.01(30) defines “taken into custody” to mean “the status of temporary physical control of a child by a person authorized by this chapter, pending his release, detention, or placement.” The language of Section 89.03(3)(c) differentiates between taking a child into custody and placing him in detention or shelter care. If a child is not to be detained or placed in shelter care, Section 39.03(2) provides that the person who has taken the child into custody shall release him to a parent or other responsible adult. The only portion of Section 39.03 which specifies notification of the parents or the legal custodians of the child is Section 39.03(3)(a), and this obligation arises when the person taking the child into custody determines that the child should be detained or placed in shelter care. Therefore, as we read the pertinent portion of Section 39.03(3)(a), its purpose is to assure that when a juvenile is to be kept beyond the period of the statutory definition of custody his parents must be advised of his whereabouts. T. B. v. State, 306 So.2d 188 (Fla. 2d DCA 1975). While the legislature could also have required notification of a juvenile’s parents before he could.be interrogated, it has not seen fit to do so. Therefore, even though Detective Hartery may have intended from the outset to cause the appellant to be detained, this is irrelevant to our disposition of the case because the statutory requirement of notification has nothing to do with interrogation.

Juvenile confessions have always been held to be admissible, though the courts have necessarily regarded them with closer scrutiny because of the age of the person involved. See T. B. v. State, supra. In State v. Francois, 197 So.2d 492 (Fla.1967), our Supreme Court declined to adopt an exclusionary rule which would automatically exclude all confessions given by those who were still under the jurisdiction of the juvenile court. The United States Supreme Court has held that the admissibility of a juvenile confession depends upon the “totality of circumstances” under which it was made. Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed. 325 (1962). The more immature the juvenile .may- be, the greater likelihood exists that his confession will be deemed inadmissible. The fact that a juvenile’s confession was. given before he had the opportunity to talk with his parents or an attorney is certainly a factor militating against its admissibility. But, the existence of this fact does not preclude a finding of voluntariness depending upon all of the other circumstances surrounding the confession.

Courts are rightfully solicitous of the procedural due process rights of juveniles. Moreover, the courts have been scrupulous in preserving parental prerogatives over their children. See, e. g., L.C.L. v. State, 319 So.2d 133 (Fla. 2d DCA 1976), wherein this court reversed a trial judge’s transfer of a juvenile case to the criminal division of the circuit court because of the court’s failure to notify the juvenile’s parents of the waiver hearing held under Section 39.09(2), Florida Statutes. See also this court’s recent opinion in Alexander v. State, 341 So.2d 790 (Fla. 2d DCA 1977), where we vacated a judgment and sentence for robbery because the record indicated no notice of the charge was furnished to the parent or guardian of the juvenile, nor was there evidence of actual notice.

Nevertheless, we are also cognizant of the necessity for the police to have the ability to take proper measures to cope with the mounting volume of serious crimes committed by juveniles in this state. The adoption of a strict exclusionary rule as urged by appellant could have the effect of voiding even those confessions of juveniles which are voluntarily given at the scene of the crime.

In reaching this conclusion, we have not overlooked the case of Roberts v. State, 285 So.2d 385 (Fla.1973), in which a confession was suppressed for the failure to comply with the italicized portion of Section 39.-03(3), Florida Statutes (1971), set forth below:

“The person taking and retaining a child in custody shall notify the parents or legal custodians of the child and the principal of the school in which said child is enrolled at the earliest practicable time, and shall, without delay for the purpose of investigation or any other purpose, deliver the child, by the most direct practicable route, to the court of the county or district where the child is taken into custody . . ..” (emphasis supplied)

Thereafter, the legislature eliminated the italicized language upon which the Roberts decision was based and substituted a milder version thereof which requires that a child who is to be detained or placed in shelter care shall be delivered to the intake officer without unreasonable delay. Section 39.-03(3)(a), Florida Statutes (1975). See Interest of R. L. J., 336 So.2d 132 (Fla. 1st DCA 1976). We do not believe that the mere fact the Supreme Court chose to interpret the stricter language of another portion of the predecessor of Section 39.03(3)(a) as invalidating a confession means that court would interpret the language of the section concerning the notification of parents to mean that any confession given prior to the notification must automatically be suppressed.

It should be noted that the appellant does not contend that his confessions were involuntary. In the words of appellant when asked why he admitted his guilt to Detective Hartery, “I didn’t want to hear his mouth.” He even admitted that he was familiar with the Miranda warnings because he had heard them when the police had interrogated him on other occasions. This is not a case like Tennell v. State, 348 So.2d 937 (Fla. 2d DCA 1977) (Opinion filed August 10, 1977) in which the absence of the juvenile’s parents because of the failure on the part of the appropriate authorities to notify them was only one of several factors dictating the conclusion that the confession was involuntary. The appellant’s motion to suppress was properly denied.

The resolution of the issue raised by this appeal can have substantial impact in the field of juvenile justice. Therefore, we have determined to certify this case to the Supreme Court as having passed upon the following question of great public interest:

IS ANY CONFESSION BY A JUVENILE AFTER HE IS TAKEN INTO CUSTODY RENDERED INADMISSIBLE IF IT WAS GIVEN PRIOR TO NOTIFICATION OF HIS PARENTS OR LEGAL GUARDIANS PURSUANT TO SECTION 39.03(3)(a), FLORIDA STATUTES (1975)?

AFFIRMED.

GRIMES and SCHEB, JJ., concur.

HOBSON, Acting C. J., dissents without opinion.


text:
    Magnolia GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 76-723.
    District Court of Appeal of Florida, Second District.
    Aug. 12, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant/defendant, Magnolia Green, was adjudicated guilty by the trial court on charges of possession of heroin, possession of codeine, and possession of paraphernalia. A general sentence of seven years imprisonment was imposed on her. The court then suspended that sentence and ordered appellant to be placed on probation for ten years.

We affirm the judgment but reverse the sentence and remand this cause to the trial court for apportionment of the general sentence in accordance with Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975).

AFFIRMED in part; REVERSED in part, and REMANDED.

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


author: GRIMES, Judge.

text:
    Anthony Terry JONES, Appellant, v. STATE of Florida, Appellee.
    No. 76-1322.
    District Court of Appeal of Florida, Second District.
    Aug. 17, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This is an appeal from an order revoking probation and imposing a five-year prison term.

Appellant was charged with violating two conditions of his probation. The more serious charge pertained to violating the condition of his probation that he “remain at liberty without violating the law” by committing a burglary while armed. He was also charged with having violated the condition of his probation that he “not use intoxicants to excess; nor . . . visit places where intoxicants, drugs or other dangerous substances are unlawfully sold, disbursed or used” in that appellant admitted having smoked marijuana. Appellant’s probation supervisor was the only witness who testified at the evidentiary hearing on these charges.

The only evidence directed toward the commission of a burglary was the testimony that the witness had received a phone call from the Tampa Police Department informing him that appellant was arrested on such a charge. This evidence did not provide a basis for revoking appellant’s probation for two reasons. First, a probation revocation cannot be predicated solely upon hearsay evidence. Couch v. State, 341 So.2d 285 (Fla. 2d DCA 1977); Brown v. State, 338 So.2d 573 (Fla. 2d DCA 1976). Furthermore, the mere proof that a probationer has been arrested for an offense, the commission of which would be a probation violation, is insufficient, by itself, to support a revocation. Crum v. State, 286 So.2d 268 (Fla. 4th DCA 1973); Brown v. State, supra.

The proof of appellant’s violation of the other condition consisted of the supervisor testifying that appellant had told him that he had smoked marijuana shortly before his arrest. While smoking marijuana is a crime and testimony of appellant’s admission would not constitute hearsay, the fact remains that appellant was charged with violating the condition that he should not use intoxicants to excess and should not visit places where intoxicants, drugs or dangerous substances are unlawfully used. The evidence failed to show that appellant violated this condition. The suggestion that appellant had to be some place when he smoked the marijuana and, therefore, this was a place where drugs were being unlawfully used is unconvincing. The conduct established by appellant’s admission does not appear to be that which is intended to be proscribed by the condition which he was charged with violating. Furthermore, it is obvious that the revocation of appellant’s probation and the imposition of a five-year prison sentence was predicated primarily upon the finding that appellant had committed a burglary. Cf. Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA 1976).

The order of the trial court revoking appellant’s probation is reversed, and the case is remanded for further proceedings consistent herewith, including another revocation hearing should a new affidavit be filed. See Tuff v. State, supra.

McNULTY, A. C. J., and OTT, J., concur.


author: SANDERS, Chief Justice. CALOGERO, Justice

text:
    STATE of Louisiana v. Joseph B. FORBES, Sr., Richard Jones and James A. Jones.
    No. 59174.
    Supreme Court of Louisiana.
    June 20, 1977.
    Dissenting Opinion Aug. 23, 1977.
    Dwight D. Reed, Opelousas, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty.-, Robert Brinkman, First Asst. Dist. Atty., for plaintiff-appel-lee.
   SANDERS, Chief Justice.

The State jointly charged the defendants, Joseph B. Forbes, Sr., Richard Jones, and James A. Jones, with armed robbery, a violation of LSA-R.S. 14:64. A unanimous jury found them guilty as charged. Each defendant received forty years imprisonment at hard labor.

The defendants appeal. They rely on five assignments of error for reversal of their convictions and sentences. One defendant, Joseph Forbes, raises an additional argument in a pro se brief. As the defense did not brief or argue twenty-one assignments of error, we consider them abandoned. State v. Phillips, La., 337 So.2d 1157 (1976); State v. Blanton, La., 325 So.2d 586 (1976); State v. Carlisle, La., 315 So.2d 675 (1975).

We adduce the following context facts:

James Jones, dressed in female clothing, and Joseph Forbes entered an Opelousas bank, while Richard Jones remained in the car. At gun point, James Jones and Joseph Forbes ordered two bank tellers and a customer to lie on the floor face down. After tying and handcuffing them, the two defendants emptied the cash drawers. As they threw the money and a gun into the waiting car, the police arrived and arrested all three defendants.

ASSIGNMENT OF ERROR NO. 1

The defendants complain of the denial of a challenge for cause of a prospective juror, Mr. Savoie. They allege that he was unable to accept the law as given by the court. LSA-C.Cr.P. Art. 797(4). Subsequently, defendant Forbes excused him with a peremptory challenge.

Louisiana Code of Criminal Procedure Article 800 provides in pertinent part:

“A defendant cannot complain of a ruling refusing to sustain a challenge for cause made by him, unless his peremptory challenges shall have been exhausted before the completion of the panel.”

In State v. Dreher, 166 La. 924, 118 So. 85 (1928), this Court stated:

“In the trial of the several accused jointly, the peremptory challenges of the defense cannot be said to be exhausted as long as any of such challenges are left to one or more of the accused. State v. Breaux et al., 104 La. 540, 29 So. 222; State v. Shields, 33 La.Ann. 1410; State v. Creech, 38 La.Ann. 480; State v. Marceaux, 50 La.Ann. 1137, 24 So. 611.”

Joseph Forbes exercised only eleven of his twelve peremptory challenges. Therefore, the defense cannot complain of a denial of a challenge for cause.

Assuming, however, that this Court may treat this assignment, we find that the trial judge properly denied the challenge for cause. Mr. Savoie’s entire voir dire examination reveals that he was willing and able to accept and apply the law as the court instructed. See State v. Passman, La., 345 So.2d 874 (1977); State v. Johnson, La., 324 So.2d 349 (1975).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Defense counsel twice asked a panel of six prospective jurors if any of them were related to a law enforcement agent. Clifford Frilot, Sr., responded in the negative, one time verbally and the other time by nodding his head. After completion of the voir dire, all parties accepted Mr. Frilot.

During trial, the defense moved for a mistrial on the ground that Mr. Frilot had perjured himself on voir dire. One of his sons was a city policeman and another was a deputy sheriff, employed as a night jailer. Immediately, the State proposed a stipulation whereby both sides would agree to substitute the alternate juror for Mr. Frilot. The defense rejected the proposal and insisted on its motion.

At the hearing on the motion, Mr. Frilot initially could not recall counsel asking him if he were related to any law enforcement officers. After hearing a play back of the question and answer, he explained that he understood the question to refer to the arresting officers in this case. Mr. Frilot stated:

“. . .1 don’t have to lie to nobody, not a man at sixty-eight. I been here all my life. I told you the truth. Everything I said there was nothing but the truth. Now, I might have misunderstood something.”

(Tr. vol. 7, p. 435.)

After reception of evidence, the court denied the motion for a mistrial.

A mistrial is a drastic remedy. It is authorized only in specified instances where unnecessary prejudice results to the accused. When a juror makes false statements on voir dire, the trial judge has discretion in ruling on a motion for mistrial. LSA-C.Cr.P. Art. 775; State v. Nicholas, La., 312 So.2d 856 (1975). This Court will not disturb the trial judge’s ruling absent a clear showing of an abuse of that discretion. State v. Nicholas, supra.

The juror testified that he misunderstood the question asked and that the mistake was unintentional. He responded truthfully to the question he thought propounded, whether he was related to the arresting officers. He also testified that the fact that his sons were law enforcement officers would not influence him and that he would base his decision solely on the evidence presented at trial. Both father and sons testified that they never discussed this case with each other.

The evidence supports a conclusion that Mr. Frilot was an impartial juror. Thus, we hold that the trial judge did not abuse his discretion in denying a mistrial. State v. Madison, La., 345 So.2d 485 (1977); State v. Calloway, La., 343 So.2d 694 (1977) and cases cited therein. See State v. Rounsavall, La., 337 So.2d 190 (1976).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defense objected to the admission of two color photographs (S-13 and S-14) depicting the turquoise Tempest Pontiac in which Richard Jones sat during the armed robbery. They aver that the State failed to lay a proper foundation for their introduction. The court overruled the objection.

In State v. Freetime, La., 334 So.2d 207 (1976), we stated:

“It is a well-settled rule that a photograph need not be identified by the person who took it to be admissible in evidence. State v. Browning, 290 So.2d 322 (La.1974); State v. Mitchell, 278 So.2d 48 (La.1973); State v. Fox, 251 La. 464, 205 So.2d 42 (1967). Generally, photographs are admissible in evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy and when they tend to shed light upon the matter before the court. State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970). Sufficiency of identification of a photograph for purpose of admissibility thereof into evidence rests largely within the discretion of the trial judge. State v. Fox, supra.

Although the photographer’s notation appears on the back of the photographs, the State did not call him as a witness.

Numerous witnesses described the car involved in the robbery as a turquoise Pontiac. Officer Clay, one of the arresting officers, testified that S-13 and S-14 depicted the car the defendants used. Hence, the identification was sufficient, and the testimony of the photographer was not required.

We conclude that the trial judge properly admitted the photographs.

Assuming, however, that the photographs were inadmissible, their admission was harmless error. S-4, a black and white photograph, shows a Pontiac parked on the side of the bank. This car bears the same license number as the car in S-13 and S-14. As the jury previously saw a photograph of the same car, the defendants were not prejudiced by the admission of S-13 and S-14. LSA-C.Cr.P. Art. 921.

This assignment of error is without merit.

ASSIGNMENT OP ERROR No. 4

The defense alleges that the trial court erred in admitting a pair of boots worn by James Jones during the robbery. They contend that the State failed to lay a proper foundation.

In State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), this Court stated:

“To admit demonstrative evidence at a trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it is offered in evidence,
“The law does not require that the evidence as to custody eliminate all possibility that the object has been altered. For admission, it suffices if the custodial evidence establishes that it is more probable than not that the object is the one connected with the case, A preponderance of the evidence is sufficient. State v. Coleman, 254 La, 264, 223 So.2d 402; State v, Martin, 250 La, 705, 198 So,2d 897; State v. Bertrand, 247 La, 232, 170 So.2d 386,
“The lack of positive identification goes to the weight of the evidence, rather than to its admissibility, Ultimately, connexity of physical evidence is a factual matter for determination by the jury. State v. Wright, 254 La. 521, 225 So.2d 201; State v. Whitfield, 253 La. 679, 219 So.2d 493; State v. Progue, 243 La, 337, 144 So.2d 352; 2 Wharton’s Criminal Evidence (12th ed,), § 673, p. 617.”

Officer Clay, an arresting officer, identified the boots as those worn by James Jones. Similarly, Officer Latiolais, the other arresting officer, testified that the boots at trial were the same type James Jones wore.

In addition to this visual identification, the State established a sufficient chain of custody for admission. Officer Clay took the boots from James Jones. He gave them to Captain Mason, who inventoried, tagged, and placed them in a locked filing cabinet in his office. When he removed the boots for delivery to the prosecutor, he inventoried them again. The prosecutor locked them in a closet in the District Attorney’s office until trial.

We are convinced that the State’s evidence sufficiently identified the boots as those worn by James Jones during the armed robbery, Therefore, the trial judge properly admitted them.

This assignment of error is without merit.

ASSIGNMENT OP ERROR NO. 5

The defendants allege that the trial court erred in denying their motion for a change of venue. In the motion the defense avers that the extensive pre-trial publicity so inflamed and prejudiced the community that it would be impossible to select a fair and impartial jury,

Louisiana Code of Criminal Procedure Article 622 provides:

“A change of venue shall be granted when the applicant proves that by reason of prejudice existing in the public mind or because of undue influence, or that for any other reason, a fair and impartial trial cannot he obtained in the parish where the prosecution is pending,
“In deciding whether to grant a change of venue the court shall consider whether the prejudice, the influence, or the other reasons are such that they will affect the answers of jurors on the voir dire examination or the testimony of witnesses at the trial.” [Emphasis supplied.]

In State v. Berry, La., 329 So.2d 728 (1976), this Court set forth the principles pertinent to a motion for a change of venue. We stated:

“In a motion for change of venue the defendant has the burden of showing that he cannot obtain a fair trial in the parish where the prosecution is pending. State v. Stewart, La., 325 So.2d 819, decided Jan. 19, 1976; State v. Dillard, 320 So.2d 116 (La.1975); State v. Bell, [La., 315 So.2d 307 (1975)]; State v. Richmond, 284 So.2d 317 (La.1973). Article 622 of the La.Code of Criminal Procedure requires more than mere knowledge by the public of the facts surrounding the offense. It requires, in addition, proof of such prejudice in the public mind that a fair and impartial trial cannot be obtained in the parish. State v. Stewart, supra; State v. Dillard, supra; State v. Flood, 301 So.2d 637 (La.1974).
“Under the test adopted by the La. Code of Criminal Procedure, the fact that a jury can be selected because the requisite number of prospective jurors are not subject to a valid challenge for cause does not establish that a change of venue is not necessary. As we stated in State v. Beil, supra, quoting from Official Revision Comment (b) to La.C.Cr.P. art. 622:
‘ * * * The change of venue concept should operate where the state of the public mind against the defendant is such that jurors will not completely answer honestly upon their voir dire, or witnesses will be so affected by the public atmosphere that they will not testify freely and frankly.’ 315 So.2d at 310. « * * *
“The granting or denial of change of venue rests within the sound discretion of the trial judge and his ruling denying the motion will not be disturbed unless the evidence affirmatively shows that the ruling was erroneous and an abuse of judicial discretion. State v. Dillard, supra; State v. Stewart, supra; State v. Richmond, supra.[Emphasis supplied.]

The armed robbery occurred on January 5, 1973. For several days thereafter, two Opelousas radio stations and an Opelousas newspaper extensively covered the crime. These reports disseminated the following information: that Planter’s Bank, Indian Hills Branch, was robbed at 11:51 a. m., on January 5, 1973; that two black men, one dressed as a woman, entered the bank, brandished a gun on two bank employees, and tied them up; that they also tied up a customer who entered the bank while the robbery was in progress; the names of these three people tied; that nine minutes later two police officers apprehended the two men who left the bank and a third black man who waited in a nearby car; the names, ages, and addresses of the suspects booked; the names of the arresting officers; the amount of money recovered; that the State charged all three with armed robbery and also charged James Jones with aggravated assault; that the three suspects were transferred to parish jail for security reasons; that the Opelousas Police Chief and City Council commended the quick actions of the police; and the name of the judge who would try the case. The Chief of Police and the District Attorney’s office provided the news media with some of the above information.- In addition, the newspaper ran pictures of the money recovered and of James Jones dressed in female clothing.

On January 19, 1973, a newspaper article stated that trial was fixed and bond set for Joseph Forbes. It also gave the name of his attorney. Another article published the same day reported that Joseph Forbes said in open court “in ‘militant rhetoric’ ” that he was being held as a political prisoner. On January 21, 1973, the newspaper announced that this trial would receive the tightest security ever provided in that court, and that one suspect is a professed Black Panther. On January 22, 1973, the newspaper stated that Richard Jones and James Jones pled not guilty amid tight security; that the State would try them the same date as Joseph Forbes; and that court appointed counsel would represent Richard Jones and James Jones. On February 28, 1973 and March 1,1973, the newspaper stated that defense motions, including a motion for a change of venue, delayed the trial. All these articles included other basic information repeated in the previous news coverage.

The court conducted the venue hearing on February 28, 1973. The defendants introduced the newspaper articles and radio broadcast scripts of the above described publicity. To ascertain the effect of this publicity, the court issued twenty “John Doe” subpoenas to the various communities from which the jury would be chosen. The court excused two men subpoenaed: one because he was a convicted felony and unqualified for jury service, and another because he refused to accept the law as instructed. Of the remaining persons, two knew nothing of the case. They assured the court that they would base their decision solely on the evidence adduced at trial. Because of publicity or conversation, five had formed opinions as to the defendants’ guilt or innocence. However, they testified that these opinions would yield to the evidence and to the defendants’ presumption of innocence, and that they would set the opinions aside and decide the case based on the law, as instructed by the judge. The remaining eleven men knew something about the case, but none had formed an opinion as to the guilt or innocence of the defendants. Therefore, they testified that they would be open-minded, fair, and impartial jurors who would consider the defendants innocent until proven otherwise by the State, and who would consider only the evidence at trial as a basis for their decision.

A reading of the entire “dry run” voir dire indicates that those questioned had only a superficial knowledge of the case. No one knew the details. Most knew only the bare essentials: that a robbery occurred and that the police caught the suspects outside the bank. Apparently, the publicity had made no lasting impression as to the guilt of the defendants.

Trial began on March 1, 1973, The court swore twelve jurors and one alternate. The voir dire examination of the first three jurors, transmitted in a supplemental record at our request, indicates that, while each of the jurors knew of the crime, none had a fixed opinion as to guilt. The voir dire of the remaining nine jurors and the alternate juror discloses the following: Four jurors were unfamiliar with the circumstances of the crime. Five knew some facts of the armed robbery but had formed no opinion as to the defendants’ guilt or innocence. One juror knew of some facts from the publicity and had formed an opinion based on that knowledge. The juror assured the court that he could and would set aside that opinion and base his decision solely upon the evidence adduced at trial.

In our opinion, the defendants have failed to establish either that there was “such prejudice in the public mind that a fair and impartial trial [could not] be obtained in [that parish]’’ or that “the state of the public mind against the defendant^] [was] such that jurors [did] not completely answer honestly upon their voir dire, or witnesses [were] so affected by the public atmosphere that they [did] not testify freely and frankly,” State v. Berry, supra.

We conclude that the trial court properly denied the motion for a change of venue.

This assignment of error is without merit.

PRO SE ASSIGNMENT OF ERROR NO.

1

In his pro se brief, the defendant, Joseph Forbes, argues an issue raised in a motion in arrest of judgment. He alleges that this prosecution for armed robbery places him in double jeopardy since he pled guilty to the robbery of Planter’s Bank in federal court.

Louisiana Code of Criminal Procedure Article 597 provides:

“Double jeopardy does not apply to a prosecution under a law enacted by the Louisiana Legislature if the prior jeopardy was in a prosecution under the laws of another state or the United States."

By the terms of this article, the plea of guilty in federal court to the violation of the federal bank robbery statute does not bar a prosecution in state court for the violation of the state armed robbery statute. Under the doctrine of double jeopardy, a subsequent prosecution by a different sovereign is constitutionally permissible. Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); 21 Am.Jur.2d, Criminal Law, § 192, p. 244. Hence, the trial court properly denied the motion in arrest of judgment.

This assignment of error is without merit.

For the reasons assigned, the convictions and sentences are affirmed.

TATE, J., concurs only in the result of the disposition of Assignment 2.

DIXON, J., dissents.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice

(dissenting).

When a prospective juror makes a false statement on voir dire examination and that fact is discovered during the trial, the remedy is a mistrial. C.Cr.P. art. 775. I believe that the juror in question here, Clifford Frilot, Sr., did make a false statement, and that the trial judge erred in failing to grant defendant’s requested mistrial. On voir dire examination, Frilot answered twice (once orally, once with a nod) that he had no relatives or close friends in law enforcement, although he actually had two sons in law enforcement, one a city policeman and the other a deputy sheriff assigned to the jail. When confronted with the tape recording of his answers, he said that he had misunderstood the question, thinking that the question referred only to his possible relationship with persons involved in the trial.

The situation arose in the following manner. The prospective panels of jurors were sitting in the courtroom where they were questioned by counsel. Repeatedly, defense counsel asked whether the jurors had close friends or relatives who were law enforcement officers. Many persons answered that they had relatives and/or friends who were variously connected with law enforcement in the rural parish. These were questioned and excused. (They were Mr. Lagrange, brother-in-law in sheriff’s department; Mr. Courville, brother-in-law and various friends who are law enforcement officers; Mr. Lafleur, acquaintances who were law enforcement officers; Mr. Gard-iner, acquaintances who were law enforcement officers; Mr. Breau, friends on police force; Mr. Savoie, cousins who are state troopers.) The lengthy record makes clear that all prospective panels heard the questioning of each of these persons.

Moreover, it is incontestably true that the panel on which Mr. Frilot sat was asked: “Are any of you related to or very close friends to the law enforcement, any law enforcement agent, including the District Attorney’s office?” and that Mr. Frilot answered “No, sir.” Another prospective jur- or on the same panel, Mr. Pitre, said that the sheriff of the parish was his uncle. He was questioned extensively and excused. Again counsel asked, “Now, are [sic] .there anybody else on the panel that’s related to any of the law enforcement officers, other than what we’ve explored, to Mr. Pitre?” The record reflects that all the persons, including Mr. Frilot, responded negatively, but defense counsel persisted, “Or close friends to any law enforcement officer?” Another member of Mr. Frilot’s panel then said, “Oh, I know some. I’m from here. Everybody knows ’um.” He was likewise excused.

After Mr. Frilot was sworn in as a juror, he was present in the jury box as defense counsel repeatedly asked succeeding panels of jurors if they had any friends or relatives who are “members of law enforcement offices, * * * police department, sheriff’s department, state police . . . .” and he heard jurors admit such relationships, be questioned extensively, and be excused. (These were Mr. Taylor, whose wife’s cousin was in law enforcement; Mr. Duplechin, close friend in law enforcement; Mr. Bernard, brother worked for sheriff’s department; Mr. Dupre, friend of sheriff and other law enforcement officials; Mr. Fon-tenot, first cousin on Opelousas police force; Mr. Thenis, friends in Eunice police department; Mr. Soileau, fourth cousin in sheriff’s office; Mr. Ballard, distant cousin in Opelousas police department; Mr. Truitt, acquaintances on force; Mr. Carroll, one friend in law enforcement; Mr. Marks, friend of sheriff and some deputies.) These persons were all excused although they stated that they had never spoken to their friend or relatives about the prosecution, and did not know if they were even involved in this particular case.

It is inconceivable to me that a man could have heard the same questions asked person after person (the voir dire examination in this case fills at least five volumes) and “misunderstood” when he personally was asked the question three different times. I believe that the juror made a false statement during his voir dire and that the remedy should have been that requested by counsel, a mistrial.


author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Leonard RAYFORD, Appellant.
    No. 59407.
    Supreme Court of Louisiana.
    July 1, 1977.
    Clyde Merritt, Orleans Indigent Defender Program, New Orleans, for appellant,
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst, Dist, Atty., for appellee.
   TATE, Justice.

The defendant was convicted of armed robbery, La.R.S. 14:64, and sentenced to 22 years imprisonment at hard labor, On this appeal, he relies upon two assignments of error, abandoning three others he had perfected.

We find no merit to the assignments argued. We therefore affirm:

Assignment 1: The defendant complains that the trial court erred by refusing to give a special charge relating to “identification”, which he had requested. The special charge was not submitted to the trial court in writing, La.C.Cr.P. art, 807, nor is its substance or wording contained in colloquy of counsel and the court, nor anywhere else in the record. Due to this noncompliance with procedural prerequisite, we are unable to review the merits of the assignment. It accordingly lacks reversible merit,

Assignment 4: The defendant complains of the state’s use of the testimony of Carol Carson. He does so on the ground that such testimony had previously been found to be perjured. He thus attacks the state’s alleged knowing use of perjured testimony.

Miss Carson had been convicted on the day previous to the present defendant’s trial of participating in the present robbery. Her trial jury rejected her defense, which was that Rayford and his companion had coerced her into helping them. (Her testimony shows that both men were armed when she met them outside the cleaner’s, shortly before they robbed it.)

The state called Miss Carson as its witness in the present defendant’s trial. She testified before the present jury to the same effect as she had testified at her own trial. The circumstances of her testimony and conviction at the previous trial were fully revealed to the jury, as was the prosecutor’s promise to recommend leniency in her sentence if she would testify truthfully in the present trial.

Pretermitting whether the issue has been properly raised and preserved for appellate review, we find no merit to the defendant’s contention that the conviction should be set aside because of the prosecution’s alleged knowing use of perjured testimony:

At both trials, the state relied upon as truthful the witness’s testimony, insofar as it related the acts of the defendant himself in participating in the robbery. In the earlier trial of the witness herself, the state attacked only the self-exonerating testimony of the witness (i. e., that her own participation was coerced) as not credible.

Thus, there is no showing of the intentional use of false testimony to convict the petitioner. In both trials, the state relied upon as truthful the witness’s testimony of the defendant’s personal participation in the crime. This testimony is so connected with the self-exonerating portion of the testimony of the witness (which the state contested at her own trial) that the former could not be introduced without educing the latter (self-exonerating) testimony also.

The record reveals no attempt to mislead the jury (but rather full disclosure to it) concerning the state’s belief in the truthfulness of this ancillary (self-exonerating) testimony of the witness. It moreover was relatively insignificant on the issue of the defendant’s guilt, in the context of the full testimony of the witness (the same at both trials) as to the accused’s personal participation in the crime.

Decree

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


text:
    STATE of Louisiana v. Larry Joe PHILLIPS.
    No. 60455.
    Supreme Court of Louisiana.
    Aug. 16, 1977.
   In re: Larry Joe Phillips, applying for appeal bond.

Writ denied. The showing made does not warrant the exercise of this Court’s jurisdiction. No abuse of discretion is shown in the ruling of the trial judge.


text:
    STATE of Louisiana v. Barry HACKETT.
    No. 60474.
    Supreme Court of Louisiana.
    Aug. 16, 1977.
   In re: Barry Hackett applying for supervisory and remedial writs.

Writ granted. Bail bond reduced to $30,-000.


text:
    STATE of Louisiana v. Jimmy Earl MAY.
    No. 60481.
    Supreme Court of Louisiana.
    Aug. 19, 1977.
   In re: Jimmy Earl May applying for writs of certiorari, prohibition and mandamus.

Writ granted. Bail reduced to $50,000.


text:
    STATE of Louisiana v. Joe A. CATANESE.
    No. 60482.
    Supreme Court of Louisiana.
    Aug. 19, 1977.
   In re: Joe A. Catanese applying for writ of review.

Writ denied. No showing has been made that the trial judge abused his discretion.

TATE and DENNIS, JJ., concur.

Defendant has an adequate remedy by appeal in event of conviction.


author: SAMUEL, Judge.

text:
    BUNEL OF NEW ORLEANS, INC. v. Elton A. CIGALI.
    No. 7757.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 26, 1977.
    Walter R. Fitzpatrick, Jr., New Orleans, for defendant-appellee.
    Montgomery, Barnett, Brown & Read, Patrick J. Browne, DeVerges & DeVerges, Edward J. DeVerges, Jr., New Orleans, for plaintiff-appellant.
    Before SAMUEL, BOUTALL and MORIAL, JJ.
   SAMUEL, Judge.

Plaintiff, a lessee, filed this suit against its lessor seeking damages for alleged wrongful eviction and wrongful cancellation of the lease of a portion of a building in the City of New Orleans. Part of plaintiff’s cause of action involves its inability to recover a $30,000 unpaid balance for the sale of a business located at the leased premises on the ground that defendant induced plaintiffs sublessee to abandon the premises and relinquish rights under the sublease. Defendant answered, denying plaintiff’s allegations, and filed a reconven-tional demand for three months’ unpaid rent totaling $3,600, and $1,200 in construction cost.

After a trial on the merits, there was judgment dismissing plaintiff’s suit and awarding defendant $3,600 on his reconven-tional demand. Plaintiff has appealed.

The lease was executed April 23, 1971 between defendant as lessor and Jack Bu-nel, individually, as lessee. The plaintiff corporation was substituted as lessee without defendant’s approval, but subsequently that substitution was ratified by him. The lease prohibited subleasing without written approval by the lessor.

The lease is a renegotiation of a previous lease executed in 1969 when, as part of the same transaction, the plaintiff corporation purchased a restaurant business operated in the leased premises. After renegotiation of the lease in 1971, plaintiff contracted for leasehold improvements to be amortized over the term of the lease. He continued to operate a restaurant in the premises.

In December, 1971 plaintiff, through its agent, James C. Migliacco, negotiated a sublease of the premises with a corporation called Blue Eyes, Inc. Plaintiff sought defendant’s consent for the sublease, and by letter of December 22,1971, defendant gave limited permission to sublease upon condition that if the premises be subleased to a corporation instead of an .individual “there must be obtained in writing a surety agreement whereby the stockholders and owners of that corporation personally agree to discharge the obligations of the corporation as subtenant.” The liability of plaintiff on the original lease remained unaltered.

In connection with the sublease, plaintiff sold its restaurant business to Blue Eyes, Inc. The terms of sale were $2,000 cash, with a balance of $30,000 payable over a five-year lease term.

The evidence indicates plaintiff represented to defendant the premises would be subleased to an individual, James C. Migli-acco, but nevertheless, the sublease was executed to the corporation, Blue Eyes, Inc. and neither plaintiff nor the sublessee furnished a surety agreement by the stockholders and owners of the sublessee corporation. The record shows the owner of Blue Eyes, Inc. refused to execute a surety agreement or personally bind himself.

The lease contains a provision setting forth grounds available to the lessor to cancel the lease and further provides that if these grounds or violations continue for a period of time after written notice has been given lessee, lessor has the right to declare the rent for the entire term of the lease due and demand the entire rental for the term of the lease, to declare the lease immediately cancelled, or to proceed for past due installments, without the necessity of putting lessee in default. The lease was on a standard printed form, and the blank providing for the number of days notice to be given by the lessor was not filled in.

In early 1972 plaintiff discovered the sub-lessee had vacated the premises, and learned defendant had leased the premises to another tenant in February, 1972. Plaintiff bases its suit upon failure of defendant to afford it written notice of cancellation of the lease and upon defendant retaking physical occupancy of the premises without resort to judicial eviction procedure.

No payments were ever received or accepted by defendant from the sublessee. Moreover, the contents of the leased premises were removed by persons other than the lessor, presumably creditors of the subtenant.

Plaintiff’s representative, Jack Bunel, denies receipt of any notice of cancellation of the lease by defendant. Defendant introduced evidence of at least five notices or attempts to give notice. The first was on January 12,1972 when defendant’s attorney wrote to Blue Eyes, Inc., through Migliacco, stating defendant’s refusal to honor the sublease to a corporation and demanding that Migliacco execute the necessary documents to bind him personally for the rental payments. The letter was returned unopened to defendant’s attorney marked “Addressee Unknown”, and defendant’s attorney later delivered it by hand to Migliac-co.

The second, on January 14, 1972, when defendant’s attorney notified Bunel by mail that the original lease had been violated by non-compliance with the conditions imposed upon the right to sublease.

Third, on January 20, 1972, when defendant’s attorney again notified Bunel by mail that the lease had been violated, the rent was unpaid and eviction would follow if the rent was not paid and the violation removed within five days. The letter further advised Bunel that the sublessee intended to leave the premises, which would be considered an abandonment in the absence of Bunel’s contacting defendant. Testimony of defendant’s attorney establishes neither the letter of January 14, nor the letter of January 20,1972 were ever returned to him.

Fourth, when on advice of counsel, defendant caused a five-day Notice to Vacate to be placed on the door of the premises. The notice was addressed to Bunel of New Orleans, Inc., Migliacco, and occupants of the premises and notified them to vacate for nonpayment of rent. No response was made to this notice.

Fifth, when A. J. Cigali, agent for defendant, telephoned Bunel’s residence and corporate domicile of Bunel of New Orleans, Inc., and communicated to Mrs. Bunel that the lease had been violated. Evidence indicates no response was made to these calls. Bunel did not deny the calls and he did not call his wife as a witness.

Shortly thereafter, the leased premises were emptied of their contents by plaintiff or parties other than defendant. Because the premises had been vacated and because he had no response to his letters or notices, defendant concluded plaintiff had either vacated in accordance with the posted notice or abandoned the property. Thereafter, defendant reentered the property, caused it to be refurbished, and in February, 1972, leased to another tenant. Approximately six months later, plaintiff filed this suit.

The evidence regarding notice by defendant to plaintiff is contradictory. The trial judge obviously believed defendant’s evidence and concluded as a matter of fact that notice had been given plaintiff. There is insufficient evidence in the record to overturn this finding by the trial judge, and the legal issues presented by the parties must be determined on the basis that adequate notice was given.

The general rule set forth in the jurisprudence is that a lessor has no right to take possession or in any way disturb the possession of the lessee without first resorting to judicial process. If the lessor wrongfully dispossesses his lessee, he thereby commits a trespass and becomes liable to the lessee in damages.

An exception to the general rule allows the lessor to exercise self-help when the lessee has voluntarily abandoned the premises.

In addition, Article 4731, Louisiana Code of Civil Procedure, provides:

“If the lessee or occupant fails to comply with the notice required to vacate required under this Title, the lessor or owner, or agent thereof, may cause the lessee or occupant to be cited summarily by a court of competent jurisdiction to show cause why he should not be ordered to deliver possession of the premises to the lessor or owner.” LSA-C.C.P. Art. 4731. (Emphasis ours).

Article 4731 clearly implies, in accordance with the rationale of the jurisprudence, there is no need for a summary eviction procedure when the lessee or occupant voluntarily leaves the leased premises.

The law requires actual eviction before a tenant may recover damages from his lessor. When the rent is unpaid and lessee leaves the premises without action by the lessor, there is in fact an abandonment of the premises and the lessor’s taking possession thereof does not constitute wrongful eviction.

As found by the trial judge, the defendant lessor gave appropriate notice to both the plaintiff and the sublessee of his intention to effect an eviction. After these notices were given, defendant saw the premises were in fact empty. In the absence of a response to his notices, he was entitled to conclude plaintiff had either vacated the property pursuant to notice or had abandoned the premises.

Defendant did not padlock the premises or eject the occupants thereof in any way. He simply observed the property in an abandoned condition and took the necessary steps to prepare the property to lease again in order to minimize his damages from plaintiff’s breach of the lease by non-payment of rent.

Plaintiff urges the trial court committed error by awarding defendant the sum of $3,600 on his reconventional demand for unpaid rent and other items. The monthly rental was $1,200, and defendant sought rent for January, February, and March, 1972 plus $1,200 for unpaid costs of renovation and attorney’s fees.

Plaintiff argues, in effect, the trial judge made a wrongful award of three months’ rent because the property was leased by defendant on February 20, 1972, thereby entitling defendant at most to one month’s rent for January and 20 days rent for February. Counsel for defendant interprets the judgment in another manner, with corrected figures, as follows:

1) Rent for January, 1972 . $1,200.00
2) Rent for 20 days in February,-1972 . . :. 827.59
3) Balance due by plaintiff for renovations he was obliged to pay . 1,200.00
4) Ten percent attorney’s fees in accordance with the lease . 322,76
TOTAL. $3,550.35.

Counsel for defendant suggests the trial judge simply rounded the figure off to an even $3,600.

Since defendant in fact rented the premises on February 20, 1972, he is not entitled to recover a full three months’ rent. On the other hand, this court cannot presume the trial judge made such an unwarranted award, and the basic analysis of the judgment made by defendant is an interpretation which accommodates both the facts of the case and the judgment of the court. However, we do not think the sum of $49.65 is small enough to allow the trial judge to round off the figure to $3,600, and the judgment on defendant’s reconventional demand must be reduced accordingly.

For the reasons assigned, the judgment appealed from is amended by reducing the sum awarded defendant on his reconven-tional demand from $3,600 to $3,550.35. As thus amended, and in all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . Plaintiff relies on Code of Civil Procedure Articles 4701, 4703, 4731 and 4732.

      . Waller & Edmonds v. Cockfield, 111 La. 595, 35 So. 778; Weber v. McMillan, La.App., 285 So.2d 349; Buchanan v. Daspit, La.App., 245 So.2d 506.

        . Wolf v. Cuccia, 144 La. 336, 80 So. 581; Reed v. Walthers, La.App., 193 So. 253. See also Weber v. McMillan, supra, note 2.

      . Gibbs v. Stanfill, La.App., 146 So.2d 418.

      . Reed v. Walthers, supra, note 2.


author: MARVIN, Judge.

text:
    William Henry RHODES, Plaintiff-Appellant, v. Josephine Robinson RHODES, Defendant-Appellee.
    No. 13237.
    Court of Appeal of Louisiana, Second Circuit.
    June 22, 1977.
    Rehearing Denied, En Banc, Aug. 29, 1977.
    Writ Refused Oct. 13, 1977.
    Gamm, Greenberg & Kaplan by Alex Ru-benstein, Shreveport, for plaintiff-appellant.
    Piper & Brown by Robert E. Piper, Jr., Shreveport, for defendant-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

This appeal by the husband from a divorce judgment presents only issues of fact. He complains the lower court abused its discretion (1) in finding the wife not at fault, and (2) in awarding her $40 weekly permanent alimony. We affirm.

These parties were married in 1938 and more often than not, lived together until their final estrangement in 1972. Nine children were born of the marriage, eight of whom lived to reach adulthood. The husband brought suit for divorce in 1976, and the wife reconvened. On grounds of two-year separation in fact, the divorce was granted in the husband’s favor. His contentions that he was forced to separate because his wife threatened him with a knife were rejected below. The trial court instead accepted the contrary version of the wife, corroborated by a major daughter of the marriage.

A pendente lite alimony rule was heard four months before the trial on the merits. These proceedings, introduced at the trial on the merits by agreement “in an effort to save time,” support the award.

The record shows no abuse of discretion.

At appellant’s cost, judgment is

AFFIRMED.