text:
    Annie B. CULBERTH, Appellant, v. Iola KEITH and William Keith, her husband, and any and all persons claiming by or through them, Appellees.
    No. 76-2314.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1978.

      Ralph L. Flowers, Fort Pierce, for appellant.
    J. Michael Brennan, of Smith, Brennan & Muschott, Fort Pierce, for appellees.
   DOWNEY, Judge.

In 1970 Iola Keith, as next friend of her son, Frank Williams, brought suit for damages in the Small Claims Court of St. Lucie County against Annie Culberth, as next friend of her son, John Culberth. The case was tried by the court and judgment was entered in favor of Iola Keith and against Annie Culberth for $743.90. Keith thereupon obtained a writ of execution with which the Sheriff levied upon Lots 17 and 18, Bl. 4, Paradise Park Subdivision, St. Lucie County, Fla., real property, owned by Cul-berth. Keith bought the property in at public sale for the amount of the judgment.

Several abortive attempts at appellate review of the Keith judgment and of the refusal of the court to expunge the Sheriff’s deed to the property were made by Culberth but both ended in dismissal for lack of prosecution.

The appellant, Annie Culberth, then filed this suit against Iola Keith et al. to quiet her title to the two lots in Paradise Park Subdivision. Appellant’s complaint alleged, among other things, that Iola Keith in her representative capacity as next friend of her son Frank Williams had sued Annie B. Culberth in her representative capacity as next friend of her son John Culberth but that the Small Claims Court had entered a judgment against Annie B. Culberth, individually. These allegations were admitted by appellee’s answer. Appellant’s complaint further alleged the issuance of the writ of execution, the levy and the sale of appellant’s property, all of which it was alleged were void because appellant was never a party individually to the Small Claims Court litigation. Of course, the ap-pellee denied those allegations and affirmatively pleaded a variety of defenses.

In a pretrial statement in this case appel-lee stated under the heading Unusual or Questionable Points of Law: “The Defendant contends that the Plaintiff became a real party in interest when she attended and participated in the trial concerning her minor youth, therefore subjecting herself to the jurisdiction of the court.” After the case was tried by the Circuit Judge, the Judge wrote a letter to counsel for appellee directing him to prepare a proposed judgment. In said letter the Judge stated:

“Final Judgments rendered by the Courts of this State are, of course, presumptively valid and not subject to collateral attack unless void. Final Judgments merely voidable and not void are not subject to collateral attack. I find that the presumption of validity of the Final Judgment in question has not been rebutted by any competent evidence. The Plaintiff, ANNIE E. CULBERTH, was properly before the Court below and was represented by counsel [sic] the Court below had jurisdiction of her person and of the subject matter of the litigation.”

Final judgment was eventually entered for appellee in which the trial court found that the judgment entered in the Small Claims Court case was not void and thus not subject to collateral attack.

The trial court misconceived the applicable law in this case. A presumption of jurisdiction when it does not appear in the record can only be applied in courts of general jurisdiction. 8 Fla.Jur. Courts § 56. The Small Claims Court of St. Lucie County is not a court of general jurisdiction and thus is not allowed the usual presumption as to jurisdiction. The judgment under review reflects an inherent conflict with the record of the Small Claims Court: Appellant was sued in her representative capacity, a judgment was entered against her in her individual capacity and the Circuit Court held the Small Claims judgment not void. When such a conflict occurs the record must prevail. Krivitsky v. Nye, 155 Fla. 45, 19 So.2d 563 (1944). As the Court therein stated:

“The County Judge’s Court is not a court of general jurisdiction in the course of the common law, and the rule of presumption as to jurisdiction not appearing in the record is not applicable to this court. Its jurisdiction should appear by its records, and when its records and proceedings do not disclose jurisdiction in a particular case they may be attacked in any collateral proceeding by showing the absence of jurisdiction.” See Epping v. Robinson, 21 Fla. 36; State ex rel. Everette v. Petteway, 131 Fla. 516, 179 So. 666. (Emphasis provided.) Id. at 568.

The record of the Small Claims Court litigation shows that the Statement of Claim was filed by appellee as next friend of her son against appellant as next friend of her son. Why the judgment was entered in favor of appellee individually and against appellant individually no one knows. But the record fails to demonstrate that the Small Claims Court had any jurisdiction over Annie Cul-berth individually. The appellee here argues that Culberth submitted herself individually to the jurisdiction of the Small Claims Court by her presence and participation in the Small Claims Court trial. We find no merit in this contention.

It is our conclusion that the Small Claims Court of St. Lucie County had no jurisdiction to enter the judgment against appellant individually and that said judgment is void and subject to collateral attack.

Accordingly, the judgment appealed from is reversed and the case is remanded with directions to enter judgment for appellant quieting title in her as against the Small Claims Court judgment and any right, title or interest claimed thereunder.

REVERSED AND REMANDED.

DAUKSCH, J., and BURNSTEIN, MIETTE K., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Gordon J. LANE, as personal representative of the Estate of Donald Bruce Lane, Sr., Appellee.
    Nos. 77-70 and 77-252.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1978.

      Frank W. Weathers of Weathers & Nark-ier, P. A., West Palm Beach, for appellant,
    Edna L. Caruso of Montgomery, Lytal, Reiter, Denney & Searcy, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Mullis v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971).

ALDERMAN, C. J., and DAUKSCH, J., and GREEN, OLIVER L., Associate Judge, concur.


author: McCORD, Chief Judge.

text:
    DEPARTMENT OF REVENUE and Gerald Lewis, as Comptroller of the State of Florida, Appellants, v. NORTH PORT BANK, a Florida Banking Corporation, Appellee, and Port Charlotte Bank & Trust Company, Amicus Curiae.
    No. EE-332.
    District Court of Appeal of Florida, First District.
    Jan. 31, 1978.
    Robert L. Shevin, Atty. Gen., and Harold F. X. Purnell, Asst. Atty. Gen., for appellants.
    John C. Patterson of Livingston & Patterson, Sarasota, for appellee.
    Robert G. Jacobson of Farr, Farr, Hay-mans, Moseley & Odom, Punta Gorda, for amicus curiae.
   McCORD, Chief Judge.

This appeal is from a summary final judgment ruling that appellee is not liable for certain documentary stamp taxes assessed by appellant on a promissory note. We affirm.

Appellee loaned certain parties the principal sum of $11,700 and took a promissory note which recited in pertinent part as follows:

“For value received, the undersigned (and if more than one, each of them jointly and severally) promise to pay to the order of NORTH PORT BANK, North Port Charlotte, Florida, the sum of Twenty Thousand One Hundred Twenty Seven and 60/100 DOLLARS (TOTAL OF PAYMENTS), payable in 180 monthly installments of $111.82 each, on the 1st day of each successive month commencing on April 1, 1973 ...”

The note further provided that all payments thereunder shall be credited first to interest and lawful charges then accrued and the remainder to principal. It sets forth that the amount of the note includes the amount financed — $11,700-plus a finance charge of $8,427.60 and that this results in an annual percentage rate of 8%. It further states:

“The undersigned has the right to prepay this loan in full and obtain a refund of the unearned portion of the finance charge computed under the ‘Sum of the Digits’ method.”

Appellant contends that documentary stamp tax must be paid upon $20,127.60 and appellee contends that such tax is only payable on $11,700, the principal amount of the loan. We agree with appellee’s contention.

The statute governing this question is § 201.08(1), Florida Statutes (1973), and it reads in pertinent part as follows:

“On promissory notes, ... on each one hundred dollars of the indebtedness or obligation evidenced thereby, the tax shall be fifteen cents on each one hundred dollars or fraction thereof. . . ”

(Emphasis supplied.)

The borrower’s only absolute obligation or indebtedness at the time he signs such a note is for principal and not for unearned interest. He is, of course, obligated to subsequently pay the interest as it accrues but only as it accrues. If he were to exercise his option to pay the note before maturity, he would only be obligated to pay the principal indebtedness and a portion of the interest depending upon how long the loan had been outstanding. The bank could not recover unearned interest. See Holman v. Hollis, 94 Fla. 614, 114 So. 254 (1927). The bank’s right to receive interest on the unpaid principal balance is contingent and, therefore, not taxable. See DeVore v. Lee, 158 Fla. 608, 30 So.2d 924 (1947).

Appellant draws a distinction between the note here under consideration and a note for a stated principal sum in which the payor promises to pay interest on the principal sum until the note is paid in full and to make stated equal periodic payments, such payments to be applied first to interest on the unpaid balance and then to principal, until the note is paid in full, with the privilege of prepayment. Appellant has consistently (and correctly) construed the law to require that documentary stamp tax be paid only on the principal amount of such a note. Insofar as the obligation for documentary stamp tax is concerned, there is no material difference between such a note and the note here before the court. In both instances, the payor promises to pay both the principal amount of the note and interest during the term thereof. In both instances the payment of principal is the only absolute obligation, the payment of interest being contingent.

By previous order we held in abeyance appellant’s motion to strike the statement of facts and the appendix to the brief of the amicus curiae until final consideration of the case. Said motion is now granted.

AFFIRMED.

BOYER and MILLS, JJ., concur.'


author: MELVIN, Judge. BOYER, Judge,

text:
    Bruce Eugene WALTON, Appellant. v. Katherine Elizabeth Macdonald WALTON, Appellee.
    No. EE-453.
    District Court of Appeal of Florida, First District.
    Jan. 31, 1978.

      S. David Cox, Gainesville, and Tom B. Stewart, Jr., Jacksonville, for appellant.
    Albert J. Datz of Datz, Jacobson & Lembcke, Jacksonville, for appellee.
   MELVIN, Judge.

Appellant-husband seeks reversal of that provision in the final judgment of dissolution of marriage wherein the appellee-wife was awarded the sum of $900 per month as permanent alimony.

The sole point on appeal is whether the trial court abused its discretion in allowing permanent alimony. The appellant-husband recognizes the entitlement of the ap-pellee-wife to a sum of money as monthly alimony. He does not challenge the amount of the award as fixed by the trial court. His sole challenge is directed to the provision that the alimony is permanent alimony.

The marriage dissolved was one of eight and one-half years duration. To this marriage, three children were born, ages 7 years, 5 years, and 10 months. The husband is a successful plastic surgeon, 46 years of age. He has been practicing his profession since 1965. His annual income from his practice is in the six figure range.

The appellee-wife had completed undergraduate studies and lacked some credits to complete her Masters program. It was her testimony that because of the passage of time she could not now receive credit toward the Masters degree for some of the hour credits previously earned in that educational effort. She testified that her main ambition was to remain at home with the children and to provide for them the proper home life and guidance that she, as the mother, feels that they should receive during the years of their youth.

The record reflects evidence to the effect that she could possibly earn between $450 to $550 per month in clerical work, or that she might obtain employment as a waitress for which she could expect payment in the range of $100 to $120 per week. She is in good health and is physically able to perform in the labor market either at the secretarial level or comparable employment. Further, there is evidence that she could qualify for civil service employment with a compensation beginning at $8,500 per year.

In a capsule, it is the position of the appellant-husband that the appellee-wife, having good health and being a person with a college degree in political science, is capable of being rehabilitated and making her own way within some predictable future date, and that he should not be required to continue to pay alimony to her beyond what would be determined to be a reasonable period for her economic rehabilitation.

It was the view of the appellee-wife that her time could be best invested by remaining at home and providing a wholesome home life for the children until they had finished high school. That these children need, as do all children, the benefit of such love, affection and attention cannot, in reason, be brought into debate. The trial court, pursuant to the provisions of Section 61.08, Florida Statutes, has the discretion within reasonable bounds to determine alimony for a spouse, the amount of alimony and whether such alimony shall be rehabilitative or permanent in nature.

In Smithwick v. Smithwick, 353 So.2d 572 (Fla. 1st DCA 1977), Opinion filed December 6, 1977, not yet reported, this Court reviewed an allowance of rehabilitative alimony. Upon review of such question, it is not the function of this Court to substitute its judgment for the reasonable exercise of discretion by the trial court when the same is amply supported by the testimony presented. In Smithwick, we held that the award of rehabilitative alimony should be sustained. We concluded, however, that the trial court was in error by limiting the alimony to a period of one year at which time the court would then review the need of the former wife to continue receiving the same. This Court held that, under the circumstances of that case, the burden should not be with the mother to affirmatively establish that during the preceding 12 months she had made every reasonable effort to find employment. Further, we held that until the children had reached the age of 18 years, the rehabilitative alimony should continue and, upon the youngest child having obtained such age and for a reasonable period thereafter, such rehabilitative alimony should be paid, thereafter to cease.

The question of whether or not the discretion of the court would be exercised in the field of rehabilitative alimony, as distinguished from permanent alimony, was and is within the jurisdiction of the trial court to determine, based upon the evidence presented as to need and ability to provide for such need, subject to review for any alleged abuse of such discretion. The court, in the judgment now reviewed, exercised its discretion based upon ample testimony in awarding permanent alimony to the appel-lee-wife based upon her need and the appellant-husband’s ability to pay. The legislature, in its wisdom, included in Section 61.-08, Florida Statutes, authority to grant, in appropriate cases, permanent alimony. It is not the function of this Court to write with a legislative pen and attempt to amend or abrogate such statute and the court' has never intended so to do.

Where the custodial parent of a child is willing to remain in the home and make a home for children of tender years, extending by precept and example the guidance so vitally needed in the early and teen years of their lives, the court is justified in awarding to such parent, permanent alimony to be paid by the other parent based upon need and ability to pay. What we write here is applicable equally to a mother and wife or to a father and husband, where he or she has been awarded the custody of the children, has a need for financial assistance, and the person not having such custody is financially able to pay reasonable alimony as well as child support. Such allow-anee of permanent alimony may, in such circumstances as here presented, be favorably considered by the trial court. We refer to the opinion of this Court in Ruhnau v. Ruhnau, 299 So.2d 61 (Fla. 1st DCA 1974), wherein we said:

“We also point out that the word ‘permanent’ is not necessarily synonymous with the word ‘forever’. Change of circumstances, including ability of self-support after children are ‘grown and gone’ clearly justifies, depending upon the circumstances of each case, modification of alimony judgments (Florida Statute 61.14).”

The judgment of the trial court granting permanent alimony is amply sustained by the record. It reflects a reasonable exercise of discretion by the court, and is therefore

AFFIRMED.

McCORD, C. J., concurs.

BOYER, J., concurs specially.

BOYER, Judge,

concurring specially.

I concur in the result reached and the reasoning therefor. However I think it important that it be noted that my concurrence is based upon appellee’s assertion that she is ready, willing, able and anxious to discharge her mothering responsibilities. (See Manning v. Manning, 353 So.2d 103 (Fla. 1st DCA 1977), Opinion filed December 20, 1977; McBride v. McBride, 352 So.2d 1254 (Fla. 1st DCA 1977), Opinion filed December 15, 1977; Ruhnau v. Ruhnau, 299 So.2d 61 (Fla. 1st DCA 1974 and Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976)). Should the evidence reveal, upon future motion for modification or termination of alimony, that appellee has decided to substitute the social circuit of her mothering responsibilities then, in my view, such would constitute sufficient change in circumstances to justify granting of such a motion.


text:
    BAUMGARTNER CONSTRUCTION COMPANY, INC., Appellant, v. S. PONCE STONE COMPANY, Appellee.
    No. 76-1830.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Snyder, Young, Stern, Barrett & Tan-nenbaum and William L. Rogers, North Miami Beach, for appellant.
    Spiegelman & Spiegelman and Ronald A. Gottlieb, Miami, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Affirmed. See: LaFleur v. Castlewood International Corp., 294 So.2d 21, 23 (Fla. 3d DCA 1974); Kenco Chemical and Manufacturing Co. v. Railey, 286 So.2d 272, 274 (Fla. 1st DCA 1973).


text:
    CITY OF SOUTH MIAMI, a Municipal Corporation, Appellant, v. SHIRLEY HOMES, INC., a Florida Corporation, et al., Appellees.
    No. 76-1910.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.

      Moore, Kessler, Roth & Beckerman and Edward N. Moore, Miami, for appellant.
    Robert M. Brake, Coral Gables, for appel-lees.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on authority of Anon v. City of Coral Gables, 336 So.2d 420 (Fla.3d DCA 1976).


text:
    Linnea SNYDER, Appellant, v. METROPOLITAN DADE COUNTY, Florida, Larry Miller, Robert R. Dempsey, and Robert W. Wennerholm, Appellees.
    No. 76-2009.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Grusmark, Jaffe & Karten, Miami, for appellant.
    Stuart Simon, County Atty., and Stephen P. Lee, Asst. County Atty., for appellees.
    Before HAVERFIELD, C. J., and HEN-DRY and KEHOE, JJ.
   PER CURIAM.

Affirmed on authority of Johnson v. Carhart, 353 So.2d 874 (Fla.3d DCA 1977), filed December 20, 1977.


author: HENDRY, Judge.

text:
    James PIRRELLO and Marie Pirrello, his wife, Appellants, v. Joy A. POULTER and Douglas Poulter, Appellees.
    No. 76-2075.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.

      Jeffrey M. Mart, Miami, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   HENDRY, Judge.

Appellants (sellers), defendants in the trial court, appeal a final judgment of rescission which set forth with particularity the method by which appellants and appellees (purchasers), plaintiffs in the trial court, would be placed in their original positions prior to the purchase and sale of a residence.

On January 5, 1974, the parties entered into a contract for the purchase of appellants’ home. The home was situated within a tract of land which appellants were in the process of plotting into six lots, one of which was the lot conveyed with home to appellees. At the time the contract was executed, all parties believed that the driveway leading to the house was included within the legal description of the conveyed parcel. After completion of the sale, however, it was learned by the parties that a survey relied upon during the transaction was incorrect, and the driveway to the residence was not included in the conveyance.

Appellees filed their complaint for quiet title, declaratory relief, reformation of deed and rescission against appellants. In a separate count, appellees alleged negligence on the part of the surveyor. Motion for summary judgment was granted by the court, rescinding the contract and the matter was then set for trial on the issue of restoring the parties to their original positions. Thereafter, upon determining the equities, a final judgment was entered by the trial court on October 5, 1976, from which this appeal has been taken.

Appellants raise five points on appeal, four of which can be grouped under the following general contention, to-wit: the trial court failed to properly restore the parties to their original positions. The fifth and final contention claims as error the trial court’s determination that the survey- or employed by appellants was not an independent contractor, but rather an agent of appellants.

After carefully reviewing the record, briefs and arguments of counsel, it is our opinion that for the following reasons, the final judgment must be affirmed.

Appellants’ initial four contentions are all addressed to certain discretionary rulings of the chancellor. Primary among those discretionary rulings is a determination by the chancellor of the fair rental value of the residence on a monthly basis along with a determination of the total amount of rent to be awarded appellants by virtue of the occupancy of the home by appellees. Another discretionary ruling challenged by this appeal centers around the chancellor’s awarding of six percent interest on the proceeds of the sale to appellees, said award being predicated upon appellants’ use of the money for the period of time prior to the rescission of the contract. Additionally, the chancellor ruled that appellees would be entitled to the costs and interest incurred by virtue of an eight percent mortgage placed upon the home by appellees.

Suffice it to say that all of the above rulings were made in an attempt to both determine the equities between the parties and return those parties to their former status. In accordance with the sound principles of equity jurisdiction and the law of rescission, we cannot say that the chancellor abused his discretion in so ruling. See Villafranca v. Cotitia, 147 Fla. 715, 3 So.2d 397 (Fla.1941); Ganaway v. Henderson, 103 So.2d 693 (Fla. 1st DCA 1958).

Appellants’ final contention claims error on the part of the trial court in ruling that the surveyor in error was an agent of appellants, rather than an independent contractor. We find this contention to be without merit. Campbell v. Bellman, 293 So.2d 795 (Fla. 3d DCA 1974).

Accordingly, the final judgment rescinding the contract and determining the equities is hereby affirmed.

Affirmed.


text:
    Inga EAGAN and Robert Eagan, Appellants, v. Herbert PADGETT, Alma Padgett and Allstate Insurance Company, Appellees.
    No. 76-2326.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Stabinski, Funt, Tucker & Levine and Martin Levine, Miami, for appellants.
    Talburt, Kubicki & Bradley and Robert J. Dickman and Betsy E. Hartley, Miami, for appellees.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

The trial court correctly entered a final summary judgment in this action because the record reveals conclusively that there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. Fla.R.Civ.P. 1.510(c); Wills v. Sears, Roebuck & Company, 351 So.2d 29 (Fla.1977).


author: HAVERFIELD, Chief Judge. ■

text:
    Mikeal PORTER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2381.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before HAYERFIELD, C. J., and HEN-DRY and KEHOE, JJ.
   HAVERFIELD, Chief Judge. ■

This appeal raises the question of whether a defendant is entitled to have counsel present during his pre-sentence investigation interview with the probation and parole commission.

Defendant following a jury trial was found guilty of possession of heroin. The trial judge then ordered a pre-sentence investigation (P.S.I.) pursuant to Fla.R. Crim.P. 3.710. Subsequently, defense counsel’s motion that he be allowed to be present at defendant’s P.S.I. interview with the probation and parole commission was denied. Defendant contends the denial constituted reversible error because a P.S.I. interview is a critical stage of the criminal proceedings and, therefore, requires the assistance of counsel and in support of this contention relies upon Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

We find that Gardner is not controlling as the Supreme Court was concerned with the imposition of the death penalty (a different kind of punishment than any other which may be imposed in this country) based in part on confidential information which was not disclosed to the defendant or his counsel and which the defendant had no opportunity to deny or explain. While the Supreme Court in Gardner, supra, did hold that the sentencing is a critical stage of a criminal proceeding, the court did not find that a defendant is entitled to counsel at the P.S.I. interview.

We believe that the following holding in In Re Beverly, 342 So.2d 481, 489 (Fla.1977) is dispositive of the issue presented:

* * * * * *
“Appellant also contends that he was denied his right to counsel, saying that the patient has the right to counsel at the interview with the examining psychiatrist. The subject of an involuntary civil commitment proceeding has the right to the effective assistance of counsel at all significant stages of the commitment process. Lynch v. Baxley, 386 F.Supp. 378 (M.D.Ala.1974). By significant stages we mean all judicial proceedings and any other official proceeding at which a decision is, or can be, made which may result in a detrimental change to the conditions of the subject’s liberty. The right to counsel does not extend to preliminary stages, such as psychiatric interview where custodial decisions are not made. The presence of counsel at that stage would unduly interfere with the objective evaluation of the patients’s mental condition by the examining physician. Lynch v. Baxley, supra. We hold that a patient does not have a right to counsel at the psychiatric interview, as no such right is applicable at the psychiatric examination stage. We point out that appellant was adequately represented by court-appointed counsel at the hearing.”

Similarly, a P.S.I. interview is a preliminary stage where no decision is or can be made which may result in a detrimental change to the condition of an already convicted defendant’s liberty. The presence of counsel at this interview would unduly interfere with the evaluation of the defendant by the parole and probation commission. Further, a reading of Fla.R.Crim.P. 3.713 clearly indicates that the P.S.I. is non-adversary in nature and, therefore, does not necessitate or even contemplate the presence of counsel.

The interview not being a critical stage of the proceedings, we conclude the judge did not err in denying defense counsel’s motion to be present at defendant’s P.S.I. interview.

Affirmed.

      . Gardner, supra, 430 U.S. at 357, 97 S.Ct. at 1204, 51 L.Ed.2d at 401.


text:
    Judith C. WILLEY, Appellant, v. David C. WILLEY, Appellee.
    No. 77-45.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Carole A. Gardiner, Chopin & Chopin, Miami, for appellant.
    Charles M. Kelly, Hialeah, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

There was error committed in granting modification of a final judgment of dissolution of marriage when the trial judge found, and the record reflected, that the husband failed to demonstrate a change in the circumstances of the parties. See Gillotte v. Gillotte, 212 So.2d 657 (Fla.3d DCA 1968); Taplin v. Taplin, 341 So.2d 1064 (Fla.3d DCA 1977); Section 61.14(1), Florida Statutes (1975).

Reversed.


author: NATHAN, Judge.

text:
    Frank ROBERTS, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Dade County Zoning Department, and Walter F. Roggells, as the Chief Zoning Enforcement Officer of Metropolitan Dade County, or his successor, Appellees.
    No. 77-137.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Daniel V. Ligman and Michael G. Martin, Coral Gables, for appellant.
    Stuart L. Simón, County Atty. and Stanley B. Price, Asst. County Atty., for appel-lees.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   NATHAN, Judge.

In a suit for declaratory judgment the trial court did not err in entering a judgment on the pleadings which determined that it was the legislative intent of Section 33-20(e) of the Code of Metropolitan Dade County to prohibit the storage, in a residential district, of a boat the length of which exceeds twenty-six (26) feet. Cf. Rinker Materials Corporation v. City of North Miami, 286 So.2d 552 (Fla.1973); 30 Fla.Jur., Statutes, § 90.

Affirmed.

      . Section 33-20(e) of the Code of Metropolitan Dade County provides: “Boat Storage. Boats of less than twenty-six (26) feet in length, not more than ninety-six (96) inches in width and between thirteen (13) feet six (6) inches in height, may be stored in the RU, EU, AU and GU zoning districts subject to the following conditions . . . ”


text:
    Curtis McNAIR, Appellant, v. The STATE of Florida, Appellee.
    No. 77-800.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Bennett H. Brummer, Public Defender and Mark King Leban, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ronald A. Dion, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Curtis McNair appeals his conviction for carrying a concealed firearm and first urges as reversible error the denial of his motion to suppress the pistol seized from his apartment pursuant to a warrantless search where there were no exigent circumstances or other recognized exceptions to the warrant requirement.

The record reflects to the contrary. Officer Allen, who searched the apartment, testified that he observed McNair who was some 30 to 35 feet away from his apartment pull a pistol from his pocket, turn and walk about 15 feet and then throw the pistol to his wife standing on the porch in front of their apartment. She took the pistol and tossed it inside the apartment. Officer Allen, not knowing if anyone was in the apartment, became concerned for his safety and that of others based upon the possibility that someone could have been inside and could have access to the pistol. He thereupon removed McNair’s wife who was blocking the entrance, entered the apartment and retrieved the pistol. This constituted sufficient evidence of exigent circumstances. See McGeehan v. Wainwright, 526 F.2d 397 (5th Cir. 1976); U. S. v. Bowdach, 414 F.Supp. 1346 (S.D.Fla.1976).

McNair next argues that the court erred in denying his motion for judgment of acquittal because he was exempted from the crime charged in that he carried the firearm at his own home pursuant to Section 790.25(3)(n), Florida Statutes (1975).

This argument is without merit as McNair was carrying the pistol on his person when he was about 30 to 35 feet from his apartment. See Facion v. State, 290 So.2d 75 (Fla. 2d DCA 1974); Rash v. State, 331 So.2d 373 (Fla. 3d DCA 1976).

Affirmed.


author: HUBBART, Judge.

text:
    S. F., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1171.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., Linda Collins Hertz, Jose R. Rodriguez, and Steven R. Jacob, Asst. Attys. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HUBBART, Judge.

This is a juvenile delinquency proceeding for loitering and prowling filed before the Juvenile Division of the Dade County Circuit Court. The juvenile was adjudicated delinquent as charged and appeals.

The controlling issue presented for review is whether it is essential to a successful prosecution for loitering and prowling under Section 856.021, Florida Statutes (1975),-for the state to establish that (a) the police prior to any arrest for the offense charged gave the accused an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the accused to identify himself and explain his presence and conduct, or (b) there were circumstances which made it impracticable for the police to give the accused such an opportunity. We hold that such a showing is essential to a successful prosecution for loitering and prowling under Section 856.021, Florida Statutes (1975). Accordingly, we reverse and remand for a new trial.

The record reveals that the juvenile S.F. herein was charged by petition filed before the Juvenile Division of the Dade County Circuit Court with the offense of loitering and prowling. The sparse five pages of trial testimony in the record show that on the afternoon in question the juvenile herein and another juvenile walked through the open door of a private room on the second floor of a rooming house stating that they were looking for a job and wanted a cigarette. These actions and words caused alarm for the safety of the occupant of the room who in turn picked up a club and ordered the two juveniles out of his room. The juveniles thereupon left. No evidence was presented as to the arrest of the juvenile herein.

The trial court adjudicated the juvenile delinquent as charged and placed him under the supervision of the Florida Division of Youth Services. The trial court thereafter denied the juvenile’s motion for a new trial, which denial is assigned as error and represents the sole point on appeal before this court.

Section 856.021, Florida Statutes (1975), the statute under which the juvenile herein was charged and adjudicated delinquent, states the controlling law:

“(1) It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
(2) Among the circumstances which may be considered in determining whether such alarm or immediate concern is warranted is the fact that the person takes flight upon appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstance makes it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting him to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this section if the law enforcement officer did not comply with this procedure or if it appears at trial that the explanation given by the person is true and, if believed by the officer at the time, would have dispelled the alarm or immediate concern.” [Emphasis added.]

There are two elements to the offense of loitering and prowling under the above statute: (1) the defendant loitered or prowled in a place, at a time, or in a manner not usual for law abiding individuals; and (2) such loitering and prowling were under circumstances which warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. In order to establish the second element of the offense, it must be shown that (a) the police prior to any arrest for the said offense gave the accused an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the accused to identify himself and explain his presence and conduct; or (b) there were circumstances which made it impracticable for the police to give the accused such an opportunity. State v. Ecker, 311 So.2d 104 (Fla.1975); L.L.J. v. State, 334 So.2d 656 (Fla. 3d DCA 1976); B.A.A. v. State, 333 So.2d 552 (Fla. 3d DCA 1976).

In the instant case, the state failed to establish the second element of the offense because it did not make the above requisite showing concerning the pre-arrest offer of an opportunity to dispel alarm. Indeed, no evidence concerning the juvenile’s arrest was ever offered by the state at trial. The absence of such a requisite showing is fatal to the state’s case. L.L.J. v. State, 334 So.2d 656 (Fla. 3d DCA 1976).

The state contends that the required statutory showing was unnecessary in this case because the juvenile gave an explanation of his presence to the occupant in the room. This does not comply with the statute because it was not an explanation given to a police officer prior to arrest. Moreover, the words in the room as well as the actions of the juvenile herein gave rise to the charged alarm on the part of the room occupant. It would be anomalous indeed to hold, as the state urges, that the words giving rise in part to the alarm also constitute the alleged explanation to dispel the alarm. It may be that someone in the rooming house directed the juvenile to the room where the door was open as the place where he should enter and inquire as to any job openings at the rooming house. In short, the juvenile should have been given an opportunity by the police prior to arrest to dispel any alarm caused by his words and actions in the room in question. The failure of the state to establish that such an opportunity was given, or that under the circumstances it was impracticable for the police to have given the juvenile such an opportunity, is fatal to the state’s case.

The adjudication of delinquency is reversed and the cause remanded to the trial court with directions to afford the juvenile a new trial.


text:
    R. O., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1470.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976); Rosson v. State, 319 So.2d 64 (Fla. 2d DCA 1975).


text:
    A. S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1589.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Bennett H. Brummer, Public Defender, and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.

      Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

A. S., a juvenile, was charged by petition for delinquency with grand larceny. He brings this appeal from an order adjudicating him delinquent and placing him under the supervision of the Division of Youth Services. The sole question presented is whether the charge of grand larceny was supported by substantial, competent evidence.

We agree with appellant that there was not substantial, competent evidence to support a finding of grand larceny. However, the record does support a finding that A. S. was guilty of petty larceny. Therefore, we affirm the adjudication of delinquency, and remand the cause to the juvenile court for modification of the order in accordance with this opinion.

Affirmed and remanded.


text:
    Mylon WENGRIN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1610.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Bierman, Sonnett, Beiley, Shohat & Osman and Lawrence E. Besser, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Affirmed. State v. Heisterman, 343 So.2d 1272 (Fla.1977); State v. Davis, 243 So.2d 587, 591 (Fla.1971); State v. West, 262 So.2d 457 (Fla. 4th DCA 1972).


text:
    David Miller SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 77-72.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Appellant was found guilty of unlawful possession of burglary tools, attempted trespass and attempted petit larceny. He was adjudged guilty and sentenced to a term of three years at hard labor in the state penitentiary as to the possession of burglary tools count. Sentences were withheld as to the two other counts.

Appellant seeks reversal of his convictions on the ground that the trial court erred in failing to grant his motion for new trial based upon the grounds that the prosecuting attorney made improper remarks in his closing argument to the jury that deprived appellant of a fair and impartial trial.

We have carefully considered the record, briefs and arguments of counsel and have concluded that the remarks of the prosecutor were not so harmful or fundamentally tainted so as to require a new trial. No reversible error having been shown, the convictions must be affirmed. Olivia v. State, 346 So.2d 1066 (Fla. 3d DCA 1977).

Appellant has also questioned the legality of the sentence insofar as it provides that the appellant is to serve his term in the penitentiary at “hard labor.” We agree that the trial court erred in specifying that appellant serve his sentence at “hard labor” for there is no longer statutory authority for the “hard labor” provisions of the sentence. Accordingly, the words “hard labor” are hereby stricken and the sentence is affirmed as amended. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974).

Affirmed as amended.


author: PER CURIAM. McCORD, Chief Judge,

text:
    The CITIZENS & PEOPLES NATIONAL BANK OF PENSACOLA, a National Banking Corporation, Petitioner, v. STATE of Florida DEPARTMENT OF REVENUE, Respondent.
    No. DD-390.
    District Court of Appeal of Florida, First District.
    Feb. 2, 1978.
    Robert L. Stone of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for petitioner.
    Robert L. Shevin, Atty. Gen., and Caroline C. Mueller, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

The petition for review is GRANTED and the order of the hearing officer is QUASHED. State Dep’t of Revenue v. Miami Nat’l Bank, 354 So.2d 84 (Fla. 1st DCA 1977).

BOYER and SMITH, JJ., concur.

McCORD, C. J., concurring specially.

McCORD, Chief Judge,

concurring specially.

I concur in the foregoing opinion only because a majority of a panel of this Court decided the question here involved in State Department of Revenue v. Miami National Bank, 354 So.2d 784 (Fla. 1st DCA 1977). Although I dissented from that opinion, the majority opinion is now the law of this Court.


author: CALOGERO, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. 1971 GREEN GMC VAN. STATE of Louisiana v. ONE 1973 PONTIAC GRAND PRIX.
    Nos. 59461 and 59635.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
    Rehearing Denied Oct. 21, 1977.
    Dissenting Opinion Feb. 13, 1978.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Richard E. Chaffin, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-relator in 59461 and for plaintiff-appellant in 59635.
    Joseph P. Brantly, IV, Baton Rouge, for defendant-respondent in 59461.
    Robert W. Morgan, Baton Rouge, for defendant-appellee in 59635.
   CALOGERO, Justice.

These two consolidated cases raise an issue of first impression: the constitutionality of the automobile forfeiture statute, La. R.S. 40:989(A)(4). Both trial judges have ruled in favor of releasing the vehicles at issue here.

The case involving the 1971 Green GMC van arose in the following manner. On October 14, 1976 at 11:15 p.m., officers of the Baton Rouge Police Department observed four young men standing beside a green GMC van, passing a hand-rolled cigarette among themselves. One young man was rolling another cigarette. The officers arrested the four for possession of marijuana. One of the four, Charles Baughman, gave a written consent to search the van. The search of the van revealed two plastic bags containing suspected marijuana, one shoe box containing suspected marijuana, and two packs of cigarette papers. The four young men were each charged with possession of marijuana with intent to distribute. The material seized was confirmed by chemical analysis to be marijuana.

As far as this record shows, no criminal charges have been filed against any of the four arrested. Instead the District Attorney filed a rule to show cause why the GMC van should not be forfeited pursuant to La. R.S. 40:989. The rule alleges that the vehicle was registered to Polly M. Baugham, and that it was “used to transport a controlled dangerous substance; to wit: Marijuana, on October 14, 1976.” Ms. Baugh-man (who is Charles Baughman’s mother and who had absolutely no involvement with the criminal transaction) moved to quash the rule on the grounds that: 1) it would be a denial of due process of law in violation of the federal and state constitutions to require forfeiture of her property where it cannot be shown that she had actual or implied knowledge of criminal activity; 2) it would be a denial of equal protection of law to require forfeiture of this vehicle, and not a vehicle owned and operated by a common carrier; 3) the action is premature because no hearing has been held concerning the validity of the search of the van sought to be forfeited; and 4) the statute is unconstitutionally overbroad.

At the rule hearing, counsel stipulated to the police report, evidently agreeing that the, substance found in the van was marijuana and indicating that the van was parked the entire time it was in police view. Polly Baughman testified that the title of the van was in her name, although everyone in the family used the van, including her son Charles who was using it on the night in question with her permission.

The trial judge denied the forfeiture on the basis that the legislature intended the forfeiture provision to be available in cases of drug trafficking, but not in cases of simply possessing or using a drug within a vehicle. He felt that the statute was overly broad, and thus a violation of due process, since its language made possible the confiscation of a person’s property when he or she had no knowledge that any illegal substance was present in the vehicle. We granted the state’s application for writs to review the judge’s ruling, and consolidated the case with State v. One 1973 Pontiac Grand Prix.

The 1973 Grand Prix case involves a similar factual situation. On September 4, 1976, officers of the Baton Rouge Police Department, while investigating an automobile accident, were informed that the driver of one of the vehicles, a 1973 Pontiac Grand Prix, was seen just after the collision to have concealed something in his trunk. Officers approached the man, Jeffrey Scott, who, according to police officers, voluntarily opened the trunk and handed a paper bag to them which contained suspected marijuana. Officers searched the entire automobile and found other marijuana. A total of twenty-six lids and one pound of marijuana was recovered.

On October 18, 1976, the District Attorney of East Baton Rouge Parish filed a rule to show cause why the 1973 Pontiac Grand Prix should not be forfeited, naming Jeffrey Scott as the person to whom the car was registered. A motion to quash was filed urging that the forfeiture statute is unconstitutional in that it provides for the seizure of property without due process of law in violation of Article I, Section 2 of the Louisiana Constitution of 1974 and thé fifth and fourteenth amendments to the United States Constitution, and that the statute does not require a showing of guilty knowledge or intent as a prerequisite to forfeiture.

The trial judge granted the motion to quash on the grounds that the statute violates the guarantee of due process in Article 1, section 1 of the Louisiana Constitution, and the right to property embodied in Article I, section 4 of the Louisiana Constitution. The state appealed that ruling. La.Const. art. V, § 5.

The forfeiture statute, passed by the legislature in 1972, allowed the forfeiture of any conveyance (aircraft, vehicle or vessel) which is used “or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, [or] possession of a controlled dangerous substance. R.S. 40:989(A)(4). The statute exempts common carriers except in a case where the owner was “knowingly and intentionally a consenting party or privy to a violation of this part”. R.S. 40:989(A)(4)(a). Also exempted are private owners when the vehicle was stolen, or when the substance involved is one ounce or less of marijuana and the offense is committed by someone other than the owner without the consent of the owner. R.S. 40:989(A)(4)(b). The statute provides that the District Attorney shall proceed against the vehicle by rule to show cause in the district court having jurisdiction of the offense “on producing due proof that the vehicle was being used in violation of the provisions of this part.” R.S. 40:989(G). The vehicle “shall not be repleviable” but is forfeited to the use of the seizing law enforcement agency, for its own use or its disposal at public auction, the proceeds to be used for the costs of the proceeding. R.S. 40:989(D)(1)(2). Any excess funds go into the general fund of the parish (or, in Orleans Parish, to the Commission Council of the City of New Orleans). R.S. 40:989(J).

By its terms, the statute covers the two cases of marijuana possession now before the Court. The illegal substance was discovered in vehicles which were being used in some manner to facilitate their possession. There is no necessity under the statute for the state to secure a criminal conviction against the car owner or driver, to establish that the seizure of contraband was legally made or that the possessor was lawfully arrested. Nor must the state prove its case beyond a reasonable doubt, or prove that the car owner had any knowledge whatsoever of the illegal possession (except in the two instances explained above which are not relevant here). The statute simply provides for confiscation of the vehicle on the state’s production of “due proof” that the vehicle contained any controlled dangerous substance or any materials or equipment used or intended for use in its manufacture. The issue now before us is whether the state can constitutionally cause the forfeiture of these two vehicles.

The state urges that the trial judge in the GMC Van case and the trial judge in the Grand Prix case erred in finding that the statute violated Article I, section 2 of the Louisiana Constitution which proscribes the taking of property without due process of law. The state asserts that due process guarantees are met by the statute which requires the state to file a rule to show cause and thereafter establish that the vehicle was used in violation of the statute, and was legally in the hands of the user. Defendant then, it is argued, has the opportunity to show that the vehicle should be exempt from the statute.

Defendants, on the other hand, argue that due process requires a full and fair evidentiary hearing, a burden of proof higher than the civil more-probable-than-not standard, and opportunity for appeal of the forfeiture order before the forfeiture may be effected. Defendants also complain that under the statute the vehicle can be forfeited and sold before it is determined whether the search which produced the contraband was legal. Finally, defendants argue that requiring forfeiture of a car, especially when the owner had no knowledge at all of the criminal activity, is basically unfair as it is merely a punitive measure. Defendants, therefore, argue that the statute violates both procedural and substantive due process.

Initially it can be noted in regard to the substantive due process claim that a person convicted of his first possession of marijuana can be imprisoned no longer than six months and/or fined no more than five hundred dollars for the criminal offense, R.S. 40:966(D)(1) (or no more than five years and/or $2,000.00 on his second) but that he stands to lose his automobile, boat or plane in a forfeiture proceeding (very possibly a more severe penalty) when the state has not secured a conviction of any criminal law, has not even initiated prosecution, and may not even intend to attempt prosecution for any criminal violation. In regard to the procedural due process claim, it can be stated that the myriad protections which surround criminal prosecutions are not present in the forfeiture proceeding which offers no jury trial, no greater burden of proof than “due proof,” no need to prove that the search was legal, and no necessity for the state to establish that the vehicle owner knew or should have known of his vehicle’s use in criminal activity.

Louisiana law has traditionally looked with disfavor upon forfeitures. Puchner v. Employers’ Liability Assur. Corp., 198 La. 921, 5 So.2d 288 (1942); Homestead Soc. v. Langermann, 156 La. 76, 100 So. 55 (1924). A forfeiture proceeding, although technically a civil proceeding, is designed as a penalty for violation of a law. State v. Billiot, 254 La. 988, 229 So.2d 72 (1969); Cornman v. Conway, 178 La. 357, 151 So. 620 (1933); Finance Sec. Co. v. Conway, 176 La. 456, 146 So. 22 (1933); Perry v. Butler, 8 So.2d 95 (La.App.1942); Armbruster v. Behan, 3 Orl.App. 184 (La.App.1906); see United States v. U. S. Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1885). When a forfeiture provision is pe nal in nature, conviction of the offender on the criminal matter has routinely been held to be a prerequisite to confiscation. See Lowther v. United States, 480 F.2d 1031 (10th Cir. 1973); United States v. $3,296.00 in Currency, 286 F.Supp. 543 (D.C.N.Y.1968); Shipman v. Du Pre, 222 S.C. 475, 73 S.E.2d 716 (1952); People v. Reulman, 62 Cal.2d 92, 41 Cal.Rptr. 290, 396 P.2d 706 (1964); State v. Benavidez, 356 S.W.2d 845 (Tex.Civ.App.1962). Consistent with this jurisprudence, in State v. Billiot, supra, we upheld the Louisiana statute allowing forfeiture of the equipment used in the illegal taking of fish and game against a due process attack, concluding that the statute was constitutional because the forfeiture could be effected only after the criminal conviction. See R.S. 56:507-508. We note also that under our fish and game statute when the criminal violation is nolle prosequied or dismissed, or when the accused fisherman is acquitted, the seized vessel and equipment must be returned to its owner without delay. R.S. 56:508.

The forfeiture statute at issue, on the other hand, purports to allow the forfeiture of vehicles when no one (owner, driver, lessee, etc.) has been either prosecuted or convicted of the underlying drug offense. It allows no action for return of the vehicle when a criminal prosecution is nolle prose-quied or dismissed or when the accused is acquitted. Nor can the owner apply, as he can after forfeiture under the federal statute, for remission or mitigation of the forfeiture. 49 U.S.C. § 788 (1964). The Louisiana statute, in fact, provides that “[p]ro-perty taken or detained under this section shall not be repleviable”. R.S. 40:989(C). We find the failure of the statute to require criminal conviction before forfeiture to be a major statutory infirmity.

Additionally, we find the statute deficient in that it does not require proof that the search producing the controlled dangerous substance was legal. Because a forfeiture proceeding is in substance and effect a criminal proceeding, the United States Supreme Court has held that it falls under the protection of the fourth amendment, and evidence obtained as the result of a wrongful search and seizure cannot be used in a forfeiture action. One 1958 Plymouth Sedan v. Commonwealth of Pa., 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965). Moreover, a vehicle seized after an unlawful arrest cannot be forfeited. Berkowitz v. United States, 340 F.2d 168 (1st Cir. 1965). But the statute at issue here, R.S. 40:989(A)(4) does not make forfeiture conditional upon a finding that seizure of the driver or the illegal substance was done in a manner comporting with federal or state constitutional standards. Therefore it unconstitutionally would allow the use of illegally seized evidence as a basis for forfeiture.

In addition to these infirmities, and perhaps the most significant problem with the statute, is the fact that it allows the confiscation of an automobile, a boat, or an airplane without any requirement that the vehicle or vessel owner knew of the illegal possession, had consented to it, or had any connection with it at all. A person cannot be convicted of a drug offense in this state without proof that he knew that the substance he possessed or sold was an illegal drug. R.S. 40:966(A); State v. Knight, 298 So.2d 726 (La.1974); State v. Elzie, supra.

Since this forfeiture statute is penal in nature and has as its object punishment for a criminal offense, due process does not allow an innocent person to be penalized for an offense which he did not commit, which he did not intend to allow his vehicle to be used to commit, and which he had absolutely no knowledge was being committed. Our decision in this regard is in line with those of many other courts which have held that a vehicle cannot be forfeited unless the owner knew of, consented to or had some connection with the unlawful use of the vehicle by the person to whom he had entrusted it. Re One 1965 Ford Mustang, 105 Ariz. 293, 463 P.2d 827 (1970); Re One 1962 Volkswagen Sedan, 105 Ariz. 315, 464 P.2d 338 (1970); Garner v. State, 121 Ga.App. 747, 175 S.E.2d 133 (1970); 1957 Chevrolet v. Division of Narcotic Control of Dept. of Public Safety, 27 Ill.2d 429, 189 N.E.2d 347 (1963); People v. One 1941 Buick Sport Coupe, 28 Cal.2d 692, 171 P.2d 719 (1946). In United States v. U. S. Coin & Currency, supra, 401 U.S. at 721, 91 S.Ct. at 1045, the United States Supreme Court stated in this regard that “When the forfeiture statutes are viewed in their entirety, it is manifest that they are intended to impose a penalty only upon those who are significantly involved in a criminal enterprise.” (emphasis added) Because the statute demands no such proof of knowledge on the part of the vehicle owner, it allows the taking of property without due process of law.

Therefore, because the statute allows forfeiture of a person’s vehicle without proof of conviction on the drug offense, proof of the legality of the search and seizure, and proof that the vehicle owner himself knew of, should have known of, or was involved in the criminal offense, R.S. 40:989(A)(4) offends the due process clauses of the federal and state constitutions. U.S.Const., fifth and fourteenth amendments; La. Const, art. I, § 2 (1974).

Additionally and independently we hold that the forfeiture statute unlawfully impinges upon the right to property guaranteed by the Louisiana Constitution of 1974. That provision, Article I, section 4 of the Constitution, guarantees in pertinent part that:

“Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.”
* * * * * *
“Personal effects, other than contraband, shall never be taken.”

The state argues that the taking of the two defendant automobiles pursuant to the forfeiture statute, which provides that “[t]he following shall be subject to forfeiture and no property right shall exist in them,” is a reasonable exercise of the police power. Alternatively, the state urges the Court to adopt the federal jurisprudence which categorizes certain vehicles containing contraband as “derivative contraband.”

The constitutional provision grants each citizen the right to own and use his property subject to reasonable statutory restrictions and reasonable exercise of the police power. This statute, it is argued, is a reasonable exercise of that power because the statute’s purpose is the thwarting of traffic in illegal drugs. As such, it is argued, it promotes the common welfare by “dispossessing an individual of a vehicle which is utilized for the purpose of illegally transporting controlled dangerous substances.”

Forfeiture is not an exercise of the police power but a punishment for an illegal act. State v. Billiot, supra; Cornman v. Conway, supra; Finance Sec. Co. v. Conway, supra. In Cornman and Finance Sec. Co., both of which involved the forfeiture of an automobile seized while transporting illegal malt extracts, we quoted with approval this statement from Ernst Freund, The Police Power, p. 558, § 526:

“Such forfeiture is not an exercise of the police power, i. e., the taking of the property does not directly subserve the public welfare, but is intended as punishment for an unlawful act.” 176 La. at 463, 146 So. at 24.

This statute does more than simply effect forfeiture of the vehicle of a person who uses his car while trafficking in illegal drugs. It also effects forfeiture (punishment appropriate only for law violation) of the vehicle of a person, such as Ms. Baughman, who has not violated our drug laws. She is an innocent person who is being penalized by loss of her vehicle by operation of the statute. And we find a situation where an owner who does know, for example, that two ounces of marijuana has been left in his automobile, boat or plane and stands to lose all his or her right to that vehicle because of such knowledge and possession far too harsh a penalty for violation. See Cornman v. Conway, supra.

Article I, section four of our Constitution was intended to give “far-reaching new protection” to the right of citizens to own and control private property. L. Jenkins, The Declaration of Rights, 21 Loy.L. Rev. 9, 19 (1975); see XII Constitutional Convention of 1973, Verbatim Transcripts, 6-120 (August 30,1973). Its language goes beyond other state constitutions, including our 1921 Constitution, and the federal constitution in limiting the power of government to regulate private property. Jenkins, supra; L. Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1 (1974); see Guidry v. Roberts, 335 So.2d 438 (La.1976). Under these circumstances, we find that R.S. 40:989(A)(4) is an unreasonable restriction on the right to property guaranteed by Article I, section 4 of the Louisiana Constitution.

Nor do we find merit in the state’s argument that the defendant automobiles are “derivative contraband” and as such are subject to seizure because they fall within the contraband exception of Article I, section 4 which provides that “Personal effects, other than contraband, shall never be taken.”

Under our law contraband is property insusceptible of ownership. State v. Billiot, supra; Gascon v. State, Department of Public Safety, 263 So.2d 81 (La.App. 1st Cir. 1972). It is an article, such as an illegal drug, the possession of which is proscribed by law. We find particularly apt this statement of the United States Supreme Court in One 1958 Plymouth Sedan v. Commonwealth of Pa., supra, 380 U.S. at 699, 85 S.Ct. at 1250:

“There is nothing even remotely criminal in possessing an automobile. It is only the alleged use to which this particular automobile was put that subjects [its owner] to its possible loss.”

These automobiles cannot be termed “contraband” and subject to forfeiture like illegal narcotics. See United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951). In short, these vehicles are not contraband but are personal effects, the ownership of which is protected by Article I, section 4 of the Constitution.

Because we today strike R.S. 40:989(A)(4) as unconstitutional because it violates state and federal constitutional due process guarantees, and, independently, violates our state constitutional right to property, we do not reach the other issues in this case. We emphasize that our decision affects only that portion of R.S. 40:989 which allows for the forfeiture of conveyances including aircraft, vehicles, or vessels namely, R.S. 40:989(A)(4). Thus we find the provision at issue, R.S. 40:989(A)(4), severable from the statute because it is independent from the remainder of the statute, and hot so intertwined with it as to raise the presumption that the legislature would not have enacted the statute without this provision. Guidry v. Roberts, supra; Roy v. Edwards, 294 So.2d 507 (La.1974).

Therefore, for the reasons assigned, we hold Revised Statute 40:989(A)(4) unconstitutional, affirming the decisions of both courts below, and we order the vehicles released to their owners without delay, the state to bear all costs of these proceedings permitted by law.

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

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

In my view there is no property right in a vehicle which is intentionally used by the owner, or another with the owner’s permission, to transport or possess narcotics defined as contraband. The contested statute so declares. La.Rev.Stat. 40:989 A(4) and E. Louisiana’s Constitution makes it clear that the right to enjoy property in this State is subject to the reasonable exercise of the police power and the guarantees to the enjoyment of property do not apply to contraband, the possession of which is by its very nature pregnant with illegality. La. Const, art. I, § 4.

This is not a penal statute to which concepts of criminal law should be applied such as requiring a criminal conviction before forfeiture; or that the owner of the offending vehicles had no knowledge that they were being used to transport narcotics; or that the search producing the narcotics was legal. The purpose of the statute is to further the regulation and control of drugs and narcotics. Its design is to impede, restrain and otherwise discourage the distribution of narcotics which are declared to be dangerous substances. Calero-Toledo v. Pearson Yacht, 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974).

Forfeiture authorized by the statute of vehicles, vessels or aircraft used to possess, transport, or distribute narcotics serves to discourage their use as instrumentalities which facilitate violations of the Controlled Dangerous Substances Law. In this respect the statute is a reasonable exercise of the State’s police power as contemplated in Section 4 of Article I of the Constitution. The statute’s goal or purpose bears a real and substantial relationship to the general welfare. It is a conscientious effort by the legislature to provide a deterrence to the growing menace of drug addiction pervading today’s society.

I would uphold the statute against the claim of unconstitutionality.

      . Other portions of R.S. 40:989 allow the forfeiture of such things as the controlled dangerous substances themselves, the materials and equipment used to produce such substances, and all property which is used as a container for such substances. Those portions of the statute providing for such forfeitures are not at issue in this case.

      . Although the record before us reflects no reason for the state’s failure to prosecute, it can be noted that the small amount of marijuana seized in the case would not support an inference that the young men possessed the marijuana with the intent to distribute it. See State v. Elzie, 343 So.2d 712 (La.1977); State v. House, 325 So.2d 222 (La.1975).

      . Scott was charged with possession of marijuana with intent to distribute. The validity of these two seizures was raised by defendant Scott in the criminal case filed against him. His motion to suppress was denied by the trial judge, and his application for supervisory writs to this Court was denied on the basis that he had an adequate remedy by review in event of conviction. State v. Scott, 346 So.2d 222 (La.1977).

      . The forfeiture statute, R.S. 40:989, reads as follows:
      “A. The following shall be subject to forfeiture and no property right shall exist in them:
      (1) All controlled dangerous substances which have been produced, manufactured, distributed or dispensed or acquired in violation of the provisions of this part;
      (2) All raw materials, products, and equipment of any kind which are used, or intended for use, in producing, manufacturing, dispensing, compounding, processing, importing, or exporting any controlled dangerous substance in violation of the provisions of this part;

        ís) All property which is used, or intended for use, as a container for property described in Paragraphs (l)-and (2);
      (4) All conveyances including aircraft, vehicles, or vessels which are used or intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, production, manufacture, compounding, dispensation or concealment of property described in Paragraphs (1) and (2), except that:
      (a) No conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited under the provisions of this part unless it shall appear that the owner or other person in charge of such conveyance was knowingly and intentionally a consenting party or privy to a violation of this part; and,
      (b) No vessel, vehicle, or aircraft shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such vessel, vehicle, or aircraft was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of the United States, or of any state; provided, however, that when the vessel, vehicle, or aircraft involved contained only marijuana, in an amount of one ounce or less, the vessel, vehicle, or aircraft shall not be forfeited under the provisions of this section by reason of any act or omission upon proof by the owner thereof that such act or omission had been committed or omitted by any person other than such owner without the consent of the owner;
      (5) All books, records, and research, including formulas, microfilm, tapes, and data which are used, or intended for use, in violation of this part.
      B. Any property subject to forfeiture under this part may be seized upon process issued by any court of record having jurisdiction over the property except that seizure without such process may be made when:
      (1) The seizure is incident to an arrest with probable cause or a search under a valid search warrant or an inspection under a valid administrative inspection warrant;
      (2) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding under this part.
      C. Property taken or detained under this section shall not be repleviable, but shall be deemed to be in the custody of the law enforcement agency making the seizure subject only to the orders and decrees of the court of record having jurisdiction thereof. Whenever property is seized under the provisions of this part, the law enforcement officer or employee, aforesaid, making the seizure shall:
      (1) Place the property under seal;
      (2) Remove the property to a place designated by the valid warrant under which such property was seized; or,
      (3) Request that the Department of Public Safety take custody of the property and remove it to an appropriate location for disposition in accordance with law.
      D. Whenever property is forfeited under this part the law enforcement agency making the seizure may:
      (1) Retain the property for official use;
      (2) Sell any forfeited property, which is not required to be destroyed by law and which is not harmful to the public, provided that the proceeds be used for payment of all costs of the proceedings for forfeiture and sale including expenses of seizure, maintenance of custody, advertising and court costs;
      (3) Request that the Department of Public Safety take custody of the property and remove it for disposition in accordance with law; or
      (4) Forward it to the Bureau of Narcotics and Dangerous Drugs for disposition. Such disposition may include delivery for medical or scientific use to any federal or state agency under regulations of the president of the State Department of Health.
      E. All substances listed in Schedule I that are produced, possessed, transferred, sold, distributed, dispensed or offered for sale in violation of the provisions of this part shall be deemed contraband and seized and summarily forfeited to the state. Similarly, all substances listed in Schedule I, which are seized or come into the possession of the state, the owners of which are unknown, shall be deemed contraband and summarily forfeited to the state.
      (1) All species of plants from which controlled substances in Schedules I and II may be derived which have been planted or cultivated in violation of this part, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the state.
      (2) The willful failure, upon demand by a duly authorized law enforcement officer, the president of the State Board of Health or his duly authorized agent, of the person in occupancy or in control of land or premises upon which such species of plants are growing or being stored, to produce an appropriate registration, or proof that he is the holder thereof, shall constitute grounds for the seizure and forfeiture of such species of plant, the regulation of which is herein provided for.
      F. Any law enforcement agency is empowered to authorize, or designate, officers, agents, or other persons to carry out the seizure provisions of this section. It shall be the duty of any officer, agent, or other person so authorized or designated, or authorized by law, whenever he shall discover any vessel, vehicle, or aircraft which has been or is being used in violation of any of the provisions of this section, or in, upon, or by means of which any violation of this section has taken or is taking place, to seize such vessel, vehicle, or aircraft and to place it in the custody of such person as may be authorized or designated for that purpose by the respective law enforcement agency pursuant to these provisions.
      G. The district attorney within whose jurisdiction the vessel, vehicle, or aircraft or other property has been seized because of its use or attempted use in violation of any provision of this part shall proceed against the vessel, vehicle, or aircraft or other property by rule to show cause in the district court having jurisdiction of the offense and have it forfeited to the use of or the sale by the law enforcement agency making the seizure on producing due proof that the vehicle was being used in violation of the provisions of this part.
      H. Where it appears by affidavit that the residence of the owner of the vessel, vehicle, or aircraft or other property is out of the state or is unknown to the district attorney, the court shall appoint an attorney-at-law to represent the absent owner, against whom the rule shall be tried contradictorily within ten days after its filing. This affidavit may be made by the district attorney or one of his assistants. The attorney so appointed may waive service and citation of the petition or rule but shall not waive time nor any legal defense.
      I. Whenever the head of the law enforcement agency effecting the forfeiture deems it necessary or expedient to sell the property forfeited, rather than to retain it to the use of the law enforcement agency, he shall cause an advertisement to be inserted in the official paper of the parish where the seizure was made, and after ten days, shall dispose of said property at public auction to the highest bidder, for cash and without appraisal.
      J. The proceeds of all funds collected from any such sale, except as provided in Subsection D(2) above, shall be paid into the general fund of the parish and in the parish of Orleans, to the Commission Council of the city of New Orleans.
      K. The rights of any mortgage holder or holder of a vendor’s privilege on the property seized under this part shall not be affected by the seizure.”

      . In the GMC Van case it was never established for the record that the weight of the marijuana involved was over one ounce. However, we will assume for purposes of this opinion that the weight requirement was met. R.S. 40:989(A)(4)(b).


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Samuel PROCTOR and Willie Young, Jr.
    No. 59809.
    Supreme Court of Louisiana.
    Dec. 27, 1977.

      Jude Thaddeus Fanguy, Houma, for Willie Young, Jr.
    Van F. Ellender, Houma, for Samuel Proctor.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendants Samuel Proctor and Willie Young, Jr. were jointly charged by bill of information with one count of armed robbery and nine counts of attempted first degree murder. La.R.S. 14:64; La.R.S. 14:27; La.R.S. 14:30. They were tried jointly by a twelve person jury and found guilty of one count of armed robbery, eight counts of attempted first degree murder and one count of attempted second degree murder. The trial court sentenced each defendant to serve terms of ninety-nine years at hard labor without benefit of probation or parole on the armed robbery counts and fifty years at hard labor on each of the remaining nine counts, the sentences to be served consecutively. Defendant Proctor argues four assignments of error on appeal as does defendant Young.

These charges arose out of the following incident. At about 2:30 p. m. on February 21, 1976, defendant Samuel Proctor entered an RGS Supermarket in Houma, Louisiana, and ordered two store employees to fill a paper sack with cash from the registers. At first they thought he was joking but when defendant drew a .38 caliber revolver, they quickly complied with his demands. Proctor left with the money and crossed the parking lot to a green Chevrolet in which defendant Willie Young was waiting. With Young at the wheel, they sped away.

A witness to the robbery followed the car until she was able to flag down a policeman. This man, Captain Authement of the Houma Police Department, had already been notified of the robbery and been given a description of the getaway car by police broadcast. When he was alerted that defendants were the fugitives, he turned on his flashing light and siren, radioed for assistance and gave chase. Responding to Authement’s call, Officers Larry Pontiff and Roy LeBoeuf joined in the pursuit. Proctor exchanged gunfire with each of the officers, and by turning down a gravel side road defendants were able to elude their pursuers. As defendants emerged onto a main road, however, they were met by Officers John Price and Orville Callahan in their patrol unit. Again there was an exchange of gunfire before a high speed chase began through a residential neighborhood. When Detectives Johnny Mann and John Fitzgerald joined in the chase, Proctor leaned out of his window and fired upon them as well, striking their vehicle but causing no injury.

Detective Frank Finane set up a roadblock in defendant’s path by parking his car across the road. As they approached he took cover behind his vehicle and fired at them; but when he paused to reload his gun Young accelerated and struck the rear end of the patrol unit which spun around, knocking Finane to the ground and allowing defendants to pass.

A quarter mile up the road, police had set up another roadblock. Defendant’s car rammed it broadside, then maneuvered around it and in so doing struck and seriously injured Deputy Wayne Ledet, who had positioned himself at the side of the road. Defendants were apprehended shortly thereafter when one of the pursuing vehicles pushed their car off the road.

ASSIGNMENT OF ERROR NO. 1 (YOUNG)

Defendant Young contends that the trial court erred in denying his motion for severance of offenses. He concedes that the offenses were properly joined under Article 493 of the Code of Criminal Procedure because they are based on the same criminal transaction, but claims that severance was necessary to achieve a fair determination of his guilt on the nine counts of attempted first degree murder and the one count of armed robbery. His motion specifically asserted that he:

“would be prejudiced and not able to obtain a fair determination of his guilt or innocence of each offense charged if the trial of the Armed Robbery Charge is held at the same time as the trial of the 9 counts of Attempted First Degree Murder; and ... is entitled to and desires a severance of the trial of this matter so that the trial of the Armed Robbery is held separately from the trial of the 9 attempted First Degree Murders.”

What defendant requested, and now argues before us that the judge wrongly denied, was severance of the offenses for two trials, one for the armed robbery count, and another for the nine attempted first degree murders.

Severance of joined offenses is regulated by Article 495.1 of the Code of Criminal Procedure which provides that:

“The court, on application of the prosecuting attorney, or on application of the defendant shall grant a severance of offenses whenever:
(a) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(b) if during the trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. The Court shall consider whether, in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.”

This provision, modelled after the ABA Standards relating to Joinder and Severance, is designed to weigh the possible prejudice to a defendant in meeting multiple counts in a single trial against the public interest in avoiding time-consuming, duplicitous and expensive trials, represented in the companion statute on joinder. See State v. Carter, 352 So.2d 607 (La.1977); State v. McZeal, 352 So.2d 592; ABA Standards relating to Joinder and Severance, § 2.2(b) and commentary. The article provides alternate tests for determining whether a severance should be granted, depending upon when the question is raised: the broader “appropriate to promote a fair determination of defendant’s guilt or innocence” standard is applicable before trial, when the decision often rests upon speculation as to what will occur during trial; the stricter “necessary to achieve” standard is applicable to a severance motion urged after trial has already commenced, when the court is in a better position to analyze the actual prejudice accruing to the defendant. See commentary, ABA Standards, § 2.2(b) supra. In either case, one critical question is “whether, in view of the number of offenses charged and the complexity of the evidence offered, the trier of fact [could] distinguish the evidence and apply the law intelligently as to each offense.” C.Cr.P. art. 495.1.

The commentary to the source provision explains that the above-quoted portion

“stresses the fact that the critical issue when severance of related offenses is in question is whether the trier of fact will be in a position to' separate out the facts and law applicable to each count.” ABA Standards, § 2.2(b), p. 33.

Other commentators have discussed the necessity for trial judges, who must decide the merits of severance motions, and the appellate courts, which review those judgments, to consider the number and complexity of the crimes charged, and the likelihood of confusion on the part of the trier of fact. 37 La.L.Rev. 203 (1976); Wright, 1 Federal Practice and Procedure § 222, p. 435; 8 Moore’s Federal Practice §§ 8.02[1], 14.03.

Some of the dangers inherent in a multiple offense joinder situation are that the jury may become confused in trying to apply the applicable law and evidence to the correct offense; that the jury may consider that a person charged with doing so many things is a bad man who must have done something, a feeling that might lead to a cumulation of the evidence; that the judge might find it difficult to adequately charge a jury as to the law with respect to each offense; that the prosecutor may find it troublesome to present his evidence in a compartmentalized and understandable manner; and that a defendant may be confounded or embarrassed in his defense because of the sheer number or complexity of the charges against him. See: United States v. Catena, 500 F.2d 1319 (3rd Cir. 1974); United States v. Clayton, 450 F.2d 16 (1st Cir. 1971); Daly v. United States, 119 U.S.App.D.C. 353, 342 F.2d 932 (1964); Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964); United States v. Quinn, 365 F.2d 256 (7th Cir. 1966); United States v. Lotsch, 102 F.2d 35 (2nd Cir. 1939); United States v. Moreton, 25 F.R.D. 262 (W.D.N.Y.1960); Wright, 1 Federal Practice and Procedure § 222, p. 435; 8 Moore’s Federal Practice §§ 8.05[2], 14.03. Moreover, there is no doubt that the greater the number of offenses charged and the degree of their complexity, the greater the likelihood of the occurrence of any or all of these dangers. 8 Moore’s Federal Practice § 8.02[1]. These problems are further exacerbated when the state has chosen to charge jointly two or more defendants. For these reasons, this Court will closely examine any denial of a motion for severance in which a defendant claims that the number and complexity of the crimes charged present a real possibility of these enumerated or related dangers in his case.

In the case before us, defendants Proctor and Young were charged with one count each of armed robbery and nine counts each of attempted first degree murder. These charges, although admittedly arising from a series of transactions joined together (or essentially the same transaction), were based upon a series of separate actions each of which had to be proved individually. During the course of the two-day trial, twenty-three witnesses, eleven of whom were victims of the offenses, testified for the state; the defense offered no evidence. While the state’s case was well organized and presented with clarity, it is quite possible if not likely that the jury found difficulty in remembering and distinguishing the evidence relating to the nine attempted murder charges. It is obvious, as defense counsel urged in closing argument, that a discriminating analysis of the evidence was essential. He claimed, for instance, that the state had improperly charged defendants with four counts of attempted first degree murder based upon evidence that one shot had been fired at each of two patrol cars in each of which two officers were riding. Furthermore, he argued that defendants had not intended to kill but only to frighten off the pursuing officers by firing upon them; evidence indicating that some of the shots fired were fired wildly (e. g., hitting the pavement) supported this theory as to several of the counts.

We might, therefore, be impressed with defendant’s argument on severance had he asked for and urged his motion for a severance on the basis that the nine attempted murder charges were too numerous to be tried at one time, especially in view of the nature of the offenses and the complexity of the evidence as to each charge. However, defendant’s motion for severance, quoted hereinabove, clearly makes no such claim. It asks only for severance of the armed robbery charge from the murder charges so that defendant might be tried twice rather than once. We agree with the trial judge that there was no merit to that motion.

The single armed robbery was distinct and separate in its proof from the attempted murders which took place during defendants’ attempt to escape. The evidence was presented by the state in such a way that the proof of the robbery was carefully and easily distinguished from the proof of the attempted murders. The elements of the crime of armed robbery are different from those of attempted murder, and a fact-finder would have had little difficulty in keeping them separated.

Moreover, this is not a case of “same or similar character” joinder, so that the severance issue in this case raises none of the issues which caused us to find error in the judge’s failure to sever in State v. Carter, supra.

For these reasons, then, we find that the trial judge did not err in failing to grant defendant Young’s motion for severance of offenses. The assignment of error lacks merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 4 (PROCTOR)

ASSIGNMENTS OF ERROR NOS. 3 AND 5 (YOUNG)

By these assignments both defendants urge that the verdicts of guilty of attempted first degree murder of Wayne Ledet and guilty of attempted second degree murder of Frank Finane were contrary to the law and evidence. As defendants failed to urge these contentions to the trial court by motion for a new trial (or by any other means) this assignment is not properly presented for appellate review. See C.Cr.P. arts. 841, 920.

In any case, the Court lacks appellate jurisdiction to consider the sufficiency of the evidence, which is a question of fact, in criminal cases. Only when the defendant asserts a total lack of evidence of an essential element of the crime is a question of law presented which this Court can review.

These assignments lack merit.

ASSIGNMENT OF ERROR NO. 11 (PROCTOR)

ASSIGNMENT OF ERROR NO. 12 (YOUNG)

We construe these assignments, as made and as explained in brief, to be urging that otherwise legal sentences (i. e., within the allowable maximum statutory penalties) for the respective crimes charged in numerous counts of a single indictment are unconstitutional because as imposed they are to run consecutively. The consecutive sentences for each defendant were ninety-nine years without benefit of probation or parole on the armed robbery conviction and fifty years on each of the nine attempt murder convictions. The question as thus presented is narrower and different from the contention that a given sentence is excessive and thus reprobated by the Louisiana Constitution Article 1, section 20.

There is no merit in the contention. For the commission of ten crimes the law permits defendants’ being given ten sentences, and there is now no legal or constitutional bar to consecutive sentence imposition, except and unless one appears in an appropriate consideration of a properly raised objection to an excessive sentence in violation of the Louisiana Constitution.

ASSIGNMENT OF ERROR NO. 12 (PROCTOR)

By this assignment, defendant Proctor argues that the state improperly exercised its peremptory challenges to exclude blacks from the petit jury, in violation of the equal protection clause of the fourteenth amendment.

The record reflects that the state used five peremptory challenges during the jury impanelment, but there is no indication of the race of those persons. Nor did defense counsel complain to the trial court at any time that the state’s exercise of its challenges was improperly motivated. Consequently, there is no record evidence to support defendant’s factual allegation that blacks were excluded.

In addition, the record does not contain evidence of a historical system of discriminatory exclusion in the state’s exercise of its peremptory challenges. Absent such a showing, defendant cannot successfully complain of discrimination in the choosing of a jury. State v. Rhodes, 351 So.2d 103 (La.1977) and the cases cited therein.

Decree

Accordingly, defendants’ convictions and sentences are affirmed.

AFFIRMED.

SANDERS, C. J., concurs.

      . Proctor originally filed twelve assignments of error and defendant Young thirteen. Those assignments not argued are deemed abandoned. State v. Jones, 340 So.2d 563 (La.1976).

      . The minutes reflect that defendant Proctor also filed a motion for severance, but he assigns no error complaining of its denial.

      . Article 493 of the Code of Criminal Procedure provides in full that:
      “Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”

      .Other questions will doubtless arise as the new statute is utilized. See, for example, State v. Carter, supra, which generally requires on motion of the state or defendant severance of offenses joined only because they are of “the same or similar character” if those offenses are not mutually admissible under R.S. 15:446 as “other crimes.”

      . Article 793 of the Code of Criminal Procedure provides that jurors may not refer to written notes but must rely upon their memories in reaching a verdict.

      . Had excessiveness been the substance of the assignment it would have availed defendants naught because they entered no objection at the time of sentencing. Under the prevailing majority view on this Court, absent timely objection the issue of excessiveness is not properly raised on appeal. La.C.Cr.P. arts. 841, 920; State v. Williams, 340 So.2d 1382 (La.1976); State v. Williams, 322 So.2d 177 (La.1975); see especially State v. Bryant, 325 So.2d 255, 267 (La.1976) (concurring opinion).

      . We deal here, of course, with a case where there were ten separate victims of these ten criminal violations. Compare, Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); State v. McCarroll, 337 So.2d 475 (La.1976). 8 Moore’s Federal Practice § 8.07[2],

      . We deem it worth noting that consecutiveness may be a consideration in excessiveness attacks as was noted in State v. Underwood, 353 So.2d 1013, 1019 (La.1977) wherein we stated: “Based on American theory and practice, concurrent rather than consecutive sentences are the usual rule, at least for a defendant without previous criminal record and in the absence of a showing that the public safety requires a longer sentence. Except for an offender who has been convicted prior to the present offenses, the concurrent sentences should normally not exceed the maximum for the most serious offense tried.” And as appears at footnote 6 of that same opinion “One of the justifications advanced for the ‘federal’ rule of liberal joinder is that, thereby, the defendant will receive a greater opportunity to receive concurrent rather than consecutive sentences.” 353 So.2d at 1019. Just as a matter of information, defendants herein have prior criminal records.

      .Young’s assignment number thirteen raised the same issue but because he does not argue it we deem it abandoned. State v. Jones, supra.