text:
    Warren Mitchell BELL, Appellant, v. The STATE of Florida, Appellee.
    No. 77-861.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Ronald A. Dion, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Defendant, Warren Mitchell Bell, appeals his conviction for two counts of robbery and two counts of possession of a firearm during commission of a felony.

Bell first contends that the trial court erred in refusing to instruct the jury (1) on specific intent as being an element of the crime of robbery, and (2) on the defense of voluntary intoxication raised at the trial; and further erred in instructing the jurors that the element of intent was irrelevant to their determination of the defendant’s guilt.

The dispositive issue hereunder is whether specific intent (i. e. the intent to permanently deprive the owner of property) is still a requisite element of the crime of robbery as now defined by Section 812.13, Florida Statutes (1975) which reads:

“812.13 Robbery

“(1) ‘Robbery’ means the taking of money or other property which may be the subject of larceny from the person or custody of another by force, violence, assault, or putting in fear.”.

The law is well established that it is within the power of the legislature to dispense with the element of intent and punish particular acts without regard to the mental attitude of the accused. Coleman v. State, 140 Fla. 772, 193 So. 84 (1939); Ex parte Stoddard, 160 Fla. 188, 34 So.2d 92 (1948). Thus, where a statute denounces the doing of an act as criminal without specifically requiring criminal intent, it is not necessary for the prosecution to prove that the commission of such act was accompanied by criminal intent. It is only when criminal intent is required as an element of the offense that the question of “guilty knowledge” may become pertinent in the prosecution’s case. State v. Medlin, 273 So.2d 394 (Fla.1973) and 9 Fla.Jur. Criminal Law § 28 (1972) and cases cited therein.

At the common law and under the former robbery statute, Section 813.011, Florida Statutes (1973) and its predecessor, a felonious taking or intent to permanently deprive the owner of his property was an essential element of the offense. Montsdoca v. State, 84 Fla. 82, 93 So. 157 (1922); Bailey v. State, 199 So.2d 726 (Fla. 1st DCA 1967).

However, in enacting Section 812.13, Florida Statutes (1975), the legislature omitted the word “felonious” thereby expanding the definition of robbery to include any taking and eliminating the requirement of specific intent. Cf. Traxler v. State, 96 Okl.Cr. 231, 251 P.2d 815 (1952); State v. Thompson, 221 Kan. 165, 558 P.2d 1079, 1086 (1976).

The cases cited to by defendant in support of his argument that specific intent is still a requisite element of robbery are inapplicable because these cases were decided under the former robbery statutes. See e. g. Arnold v. State, 83 So.2d 105 (Fla.1955); Bailey v. State, 199 So.2d 726 (Fla. 1st DCA 1967), supra; Stevens v. State, 265 So.2d 540 (Fla. 2d DCA 1972). We also conclude that defendant can take no solace in McCloud v. State, 335 So.2d 257 (Fla.1976) because our Supreme Court was involved there with the issue of force necessary to convert a larceny into a robbery and did not concern itself with the issue of specific intent. Thus, we find that this point of appellant is without merit as robbery is now a general intent offense. See Cirack v. State, 201 So.2d 706 (Fla.1967).

Defendant secondly argues that the trial court erred in refusing to instruct the jury on the lesser included offenses of larceny and simple assault.

The State confesses error because the information filed in this case specifically states “said property being the subject of larceny” and, therefore, under the holdings in Lomax v. State, 345 So.2d 719 (Fla.1977) and Abreau v. State, 347 So.2d 819 (Fla. 3d DCA 1977), the refusal to instruct on the lesser included offense of larceny constitutes reversible error. Accordingly, the convictions are reversed and the cause remanded for a new trial.

We further deem it appropriate to certify this decision to the Supreme Court as one involving a question of great public interest, such question being:

Whether specific intent (i. e. the intent to permanently deprive the owner of property) is still a requisite element of the crime of robbery as now defined by Section 812.13, Florida Statutes (1975).

      . “813.011 Robbery defined; penalties. — Whoever, by force, violence or assault or putting in fear, feloniously robs, steals and takes away from the person or custody of another, money or other property which may be the subject of larceny, shall be guilty of a felony of the first degree, punishable by imprisonment in the state prison for life or for any lesser term of years, at the discretion of the court.” [Emphasis supplied]


source: Caselaw Access Project

author: KEHOE, Judge.

license: Public Domain

text:
    Candace Boegel LOCKWOOD, Appellant, v. David LOCKWOOD, Appellee.
    No. 76-2258.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.

      Koppen & Watkins and Barbara A. North, Miami, for appellant.
    Heimberg & Lumer, Coral Gables, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant, respondent below, brings this appeal from a final judgment of dissolution of marriage dated November 11, 1976, entered by the trial court. Appellant’s basic contention on appeal is that the trial court erred by denying her rehabilitative alimony. We have concluded that the trial court did not err by denying her rehabilitative alimony; however, in our opinion, the trial court did err by failing to reserve jurisdiction in regard to rehabilitative alimony. Therefore, the final judgment of dissolution of marriage is affirmed in part and remanded with directions to modify it to specifically reserve jurisdiction in regard to rehabilitative alimony.

Appellant, wife, and appellee, husband, were married to each other on September 20, 1969, at Lima, Ohio. At the time of their marriage, appellant was 19 years of age and appellee 20 years of age. On the date of the marriage, appellee was a full time college student in his second year of undergraduate study.

Approximately one year after the marriage, the parties moved to Florida so that appellee could attend the University of Miami, and pursue a major in marine biology. Subsequently, appellee changed his major and received an undergraduate degree in History. Appellee continued his scholastic career and next obtained a law degree from the University of Miami Law School in May, 1976. On the date of the final hearing in this matter, appellee had taken the Florida Bar Exam, but the results of his examination were unknown.

Throughout the course of the marriage, appellant had been employed full time. She contributed her entire earnings towards appellee’s education and their living expenses. During his three years of law school, appellee’s earnings averaged between $300 and $400 per year. Since his graduation from law school, appellee has been employed as a construction worker earning approximately $523 per month. The record doesn’t reflect that appellee, as of the time of the final hearing in this matter, had even attempted to find a law related job.

During his last semester in law school, appellee left appellant a note in which he announced he was leaving and that the marriage should have ended several years earlier. Thereafter, appellee filed a petition for dissolution of marriage on which the final hearing was held on November 5, 1976. On November 11, 1976, the trial court entered a final judgment of dissolution of marriage granting, among other things, appellee’s petition and denying appellant’s claim for rehabilitative alimony. From this judgment, appellant brings the instant appeal.

Appellant’s basic contention on appeal is that the trial court abused its discretion in denying her claim for rehabilitative alimony-

The needs of the wife and the financial ability of the husband to pay are two of the primary criteria to be used by a trial court in awarding alimony pursuant to Section 61.08, Florida Statutes (1975). See, e. g., Hausman v. Hausman, 330 So.2d 833 (Fla.3d DCA 1976); Caracristi v. Caracristi, 324 So.2d 634 (Fla.2d DCA 1976); Collins v. Collins, 323 So.2d 583 (Fla.3d DCA 1975); and Hagen v. Hagen, 308 So.2d 41 (Fla.3d DCA 1975). In the instant case, the record clearly reflects that appellant, at the time of trial, demonstrated a need for rehabilitative alimony; however, it is also clear that appellee, due to apparently temporary financial circumstances, lacked the ability to meet this need. Further, it is obvious from the record that the trial court denied any award of rehabilitative alimony to appellant because of appellee’s existing financial circumstances.

Based on the criteria set forth above, we are of the opinion that, as of the time of the trial in the instant action, the trial court, contrary to appellant’s contention, did not err by denying her rehabilitative alimony. However, because of appellant’s clearly demonstrated present need for rehabilitative alimony and the strong likelihood of a substantial change in appellee’s financial circumstances in the near future, we are further of the opinion that the trial court did err by not reserving jurisdiction in regard to the propriety of an award of rehabilitative alimony within a reasonable period of time from the date of the entry of its judgment. Although we are unaware of any Florida case which directly holds that it may be an abuse of discretion for a trial court to fail to reserve jurisdiction for the purpose of awarding rehabilitative alimony, pursuant to Section 61.08, Florida Statutes (1975), we feel that under certain limited circumstances, such as reflected by the record in this case, the principle is a logical extension of those cases holding that it may be an abuse of discretion for the trial court not to reserve jurisdiction for the purpose of awarding permanent alimony. Further, this opinion is in keeping with the policy of Section 61.08 which is to do equity and justice between the parties. See generally Evans v. Evans, 337 So.2d 998 (Fla.4th DCA 1976); Hayes v. Hayes, 325 So.2d 455 (Fla.1st DCA 1976); Hyatt v. Hyatt, 315 So.2d 11 (Fla.3d DCA 1975); Sisson v. Sisson, 311 So.2d 799 (Fla.1st DCA 1975); Lee v. Lee, 309 So.2d 26 (Fla.2d DCA 1975); and Reback v. Reback, 296 So.2d 541 (Fla.3d DCA 1974).

For the reasons set forth above, the final judgment of dissolution appealed is affirmed in part and remanded with directions to modify it to specifically reserve jurisdiction for a reasonable period of time in regard to rehabilitative alimony.

Affirmed in part and remanded with directions.


text:
    Fernando VALDES and Gloria Valdes, his wife, Appellants, v. Ernesto RUAS and State Farm Mutual Auto Insurance Company, Appellees.
    No. 76-1977.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.

      Samuel J. Hannon, Miami and Edward M. Koch, for appellants.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellants, plaintiffs below, bring this appeal from an order dated September 30, 1976, dismissing their complaint with prejudice pursuant to appellees’, defendants below, amended motion to dismiss. For the reasons set forth below, we affirm.

Appellant Fernando Valdes was involved in an automobile accident with appellee Ernesto Rúas. As a result of that accident, Valdes sued Rúas and his insurer for personal injuries sustained in the accident. After a jury trial, a verdict was returned in which it was found that Valdes had not sustained a permanent injury or incurred medical expenses exceeding $1000 as required by the Florida Automobile Reparations Reform Act. Pursuant to this verdict the trial court entered a final judgment thereon (Circuit Court of Dade County, Case No. 75-37848). Subsequently, Valdes again sued Rúas and his insurer for personal injuries sustained in the same accident which was the subject matter of the previous litigation. The complaint alleged, among other things, that (1) appellees were not tort exempt because Valdes had now incurred reasonable medical expenses in excess of $1000, and (2) the injuries were permanent in nature. See Section 627.737, Florida Statutes (1975). Appellees filed a motion, as amended, to dismiss the complaint contending that the final judgment rendered in the prior suit between the parties and the doctrine of res judicata barred the filing of this action. The trial court granted the motion and entered an order dismissing the complaint with prejudice. This appeal followed.

Appellants contend that the trial court erred in dismissing their complaint with prejudice because, at the time of the filing of their complaint, they met the requirements set forth in Section 627.737, Florida Statutes (1975), and that the action was not barred by the doctrine of res judicata.

In two prior decisions of this court, Wooten v. Collins, 327 So.2d 795 (Fla.3d DCA 1976), and Marquez v. Mederos, 307 So.2d 873 (Fla.3d DCA 1975), we held that a trial court would lose subject matter jurisdiction over a lawsuit, thereby becoming impotent to enter final judgment thereon, whenever it was determined that the no-fault threshold requirements of Section 627.737, Florida Statutes (1975), had not been met. However, in the recent case of Calhoun v. New Hampshire Insurance Co., No. 50, 448, 354 So.2d 882 (Fla. Jan. 19, 1978) [hereinafter cited as “Calhoun”], the Supreme Court of Florida has disapproved of this principle. In so doing, it stated as follows:

“Jurisdiction over the subject matter refers to a court’s power to hear and determine a controversy. See Bohlinger v. Higgenbotham, 70 So.2d 911 (Fla.1954). Generally, it is tested by the good faith allegations, initially plead, and is not dependent upon the ultimate disposition of the lawsuit. Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926). We find nothing in the no-fault insurance law whatsoever to indicate that the legislature intended to hinge the subject matter jurisdiction of Florida trial courts on the fact-finder’s determination that an injury was not permanent and the amount of damages was $1000 or less.”

The Court further opined that once a no-fault lawsuit has been properly submitted to a jury and a finding of negligence or non-negligence has been made, it is immaterial to the jurisdiction of the court whether the jury also finds an absence of permanent injury and compensable damages of $1000 or less. From this, the Court concluded that, at this point, the controversy between the parties has been fully litigated and concluded. In reaching this conclusion, the Court went on to say that the doctrine of res judicata applies equally to issues of liability and damages, and once a jury has determined that the damages caused to a plaintiff by the defendant are non-permanent and aggregate $1000 or less, the plaintiff should not be permitted to force the defendant into a second legal defense of additional damages.

In Calhoun, the plaintiff suffered a jury verdict finding that the defendant was not negligent and, pursuant to special interrogatories to the jury, that the plaintiff neither sustained permanent injury nor incurred reasonable and necessary medical expenses in excess of $1000. New Hampshire Insurance Co. v. Calhoun, 341 So.2d 777 (Fla.2d DCA 1976). In the case sub judice, pursuant to manner in which the case was presented to the jury, i. e., the jury was instructed to answer interrogatories about the issues of permanency and medical expenses prior to determining the question of liability, the jury returned a verdict finding that the threshold requirements had not been met. Because of these instructions, the jury did not return a verdict on the question of liability. In the light of the clear expression of policy stated by the Court in its opinion and dicta in Calhoun, we are of the opinion that the principles set forth in that case are equally applicable to the facts of the instant case. Therefore, we hold that the trial court did not err in dismissing appellant’s complaint with prejudice because, based on the reasons and the authority set forth above, it was barred by the doctrine of res judicata.

Affirmed.


author: PER CURIAM.

text:
    INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, Appellant, v. Richard SCHAFFER, Appellee.
    Nos. 77-1633, 77-1637.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 1978.
    Goodhart & Rosner, Greene & Cooper, Miami, for appellant.
    Vogler & Postman, J. Leon Coleman, Miami, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Reversed and remanded with directions to limit the liability of Industrial Fire and Casualty Company to $15,000 under the final judgment based on the authority of Stella v. Craine, 281 So.2d 584 (Fla. 4th DCA 1973). See also Soler v. Kukula, 297 So.2d 600, 601 (Fla. 3d DCA 1974).


author: ERVIN, Judge.

text:
    Luis ALDANA, M.D., Petitioner, v. Patricia Ann HOLUB, and the Honorable Warren H. Cobb, as Judge of the Seventh Judicial Circuit, in and for Volusia County, Florida, Respondents.
    No. GG-361.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1978.
    David L. Holbrook of Wells, Gattis & Hallowes, Orlando, for petitioner.
    Larry Sands, Daytona Beach, for respondent.
   ERVIN, Judge.

Dr. Aldana’s petition for writ of certiora-ri from the order of the judicial referee in a medical mediation proceeding contends the referee departed from the essential requirements of law by (1) declaring a mistrial and terminating the proceedings, (2) refusing to extend the hearing beyond 10 months after the claim was filed and (3) refusing to expedite the selection of new panel members, following termination, so that a hearing might be held prior to the expiration of the 10 month period.

During the course of the hearing, on May 27, 1977, the referee declared a mistrial after statements were made by the physician member of the panel indicating prejudgment of the claim. On June 1, 1977, petitioner moved to reset the hearing within the jurisdictional time limit which would expire on June 11,1977. Alternatively petitioner requested the referee to enter an order tolling the statutory jurisdiction limit until a new medical mediation panel could be composed. During the hearing on June 3, 1977, the attorney for respondent declined to waive the statutory 10 day period to challenge panel members. As a result the referee concluded he had no authority to extend the proceedings beyond the 10 month period.

Whether the referee erred in granting the mistrial or in refusing to expedite the selection of new panel members prior to the expiration of the jurisdiction period are matters we need not decide. We conclude the referee had no authority for any reason to extend the hearing beyond 10 months from the date the claim was filed.

Petitioner argues with some logic that a hearing was in fact held but not completed, and that the statutory jurisdictional period applies only if no hearing on the merits was held prior to the expiration of 10 months. Several cases have held that the time limits imposed by Section 768.44(3) may be extended in exceptional circumstances. State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla. 3d DCA 1977); State ex rel. McGuirk v. Cowart, 344 So.2d 624 (Fla. 3d DCA 1977); State ex rel. Lund v. Keough, 352 So.2d 572 (Fla. 2d DCA 1977). Contra, Perkins v. Pare, 352 So.2d 65 (Fla. 4th DCA 1977); Kirschgessner v. Miami International Hospital, 356 So.2d 11 (Fla. 4th DCA 1977); Cole v. Wallace, 354 So.2d 885 (Fla. 4th DCA 1977). There is clear conflict between the decisions of the Second and Third District Courts of Appeal and those of the Fourth District Court of Appeal. The reasoning of the latter Court, that the jurisdiction of the medical mediation panel terminates as a matter of law if a hearing has not been held at the expiration of the 10 month jurisdictional period, is preferred by us and is consistent with the recently adopted Florida Rules of Medical Mediation Procedure. In Re The Florida Bar, 348 So.2d 547 (Fla.1977). Fla.R.Med.P. 20.190 provides in part:

“The clerk shall send to all parties a notice of termination of the proceedings when any of the following events has occurred:
* * * * * *
(d) The final hearing has not been concluded within 10 months from the date the claim is filed.
Termination for any of the foregoing reasons terminates the jurisdiction of the panel. Such termination is final and cannot be extended, modified or reinstated by the panel, the judicial referee or by agreement of the parties. A termination for one of the foregoing reasons is automatic, and the clerk’s act or failure to act is ministerial only.”

While Section 768.44(3) states only that the jurisdiction of the mediation panel terminates if a hearing has not been held 10 months after the claim is filed, Rule 20.190 clearly and unambiguously requires the hearing must conclude by 10 months. True, the Rules of Medical Mediation Procedure did not go into effect until September 1, 1977, after both the claim had been filed and the hearing held, still the rules were adopted by the Court pursuant to Section 768.44. Moreover there appears to be nothing in Rule 20.190 inconsistent or inharmonious with the policy expressed by Chapter 768. Cf. Kirschgessner v. Miami International Hospital, supra.

Petition for writ of certiorari is DENIED.

SMITH, Acting C. J., concurs.

BOOTH, J., dissents without opinion.

      . Sec. 768.44(3), Fla.Stat. (Supp.1976), states: “If no hearing on the merits is held within 10 months of the date the claim is filed, the jurisdiction of the mediation panel on the subject matter shall terminate, and the parties may proceed in accordance with the láw.”

      . Sec. 768.44(2)(g), provides that the parties shall have 10 days in which to challenge panel members for cause.


author: BOYER, Judge.

text:
    The FIRST STATE BANK OF MIAMI, a Florida Corporation, Appellant, v. Patrick McGROTTY and Lansing J. Roy, Appellees.
    No. HH-389.
    District Court of Appeal of Florida, First District.
    Feb. 15, 1978.

      Robert A. Koppen of Koppen & Watkins, Miami, for appellant.
    James L. Tomlinson and John F. Roscow, III, of Scruggs, Carmichael, Long, Tomlin-son, Roscow, Pridgeon, Helpling & Young, Gainesville, for appellees.
   BOYER, Judge.

By interlocutory appeal the Bank seeks review of an order of the trial court relating to change of venue. Clearly one of the counts of the complaint places venue in Alachua County from whence appellant seeks to have venue transferred. Appellant claims that count of the complaint to be without merit and urges that the trial court, as well as this court, should determine the merit of that count of the complaint incident to a determination of proper venue. Determination of the merits of a properly stated cause of action is to be determined at trial and not upon venue issue. Further, even were we inclined to test the merits of the second count of the complaint on appeal, which we are not, it nevertheless appears that appellees’ position is supported by Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934) and M. A. Kite Company v. A. C. Samford, Inc., 130 So.2d 99 (Fla. 1st DCA 1961).

AFFIRMED.

McCORD, C. J., and MASON, ERNEST E., Associate Judge, concur.


text:
    In the Interest of D. K. W., a child, Appellant, v. STATE of Florida, Appellee.
    No. 77-1307.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1978.

      Jack 0. Johnson, Public Defender, and Lawrence D. Shearer, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This is an appeal from an order of delinquency based upon a finding of ungoverna-bility for the second time. The petition upon which the proceedings were based was not signed by a state attorney as required by Section 39.05(1), Florida Statutes (1975). Moreover, the petition failed to allege that D. K. W. had previously been adjudicated as an ungovernable child and that the proceedings could result in an adjudication of delinquency. Therefore, upon the authority of D. T. H. v. State, 348 So.2d 1155 (Fla.1977), the order is reversed and the cause is remanded for further proceedings consistent with the rationale of that case.

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


author: BOARDMAN, Chief Judge.

text:
    Albert K. NEFF, d/b/a Neff Hardware, Inc., Individually and on behalf of Grange Mutual Casualty Company, a Foreign Corporation, Appellant, v. GENERAL DEVELOPMENT CORPORATION, Drage Industries, the Mackle Company, and Port Charlotte Electric, Appellees.
    No. 77-1226.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 1978.
    Wade H. Parsons, Fort Myers, for appellant.
    Patrick J. Murphy, of Crabtree, Butler, Syprett & Meshad, Sarasota, for appellee Drage Industries.
   BOARDMAN, Chief Judge.

This is an appeal of a final judgment on the pleadings entered in favor of appel-lee/defendant, Drage Industries, in an action filed on April 28, 1977 by appellant/plaintiff, Albert K. Neff, d/b/a Neff Hardware, Inc.

Appellant alleged that as a result of a fire on December 18, 1973 in the shopping center complex in which he was a tenant, merchandise and equipment in his hardware store suffered extensive damage. The complaint stated that in 1969 Drage Industries had negligently performed certain electrical work in the south meter room during the remodeling of the shopping center and that this negligence was a direct cause of the fire. The pertinent portions of the complaint are as follows:

17. The Defendant, DRAGE INDUSTRIES, was an electrical contractor that did electrical work on the south meter room in 1969 during the remodeling of the Port Charlotte Shopping Plaza, for the Defendant, GENERAL DEVELOPMENT CORPORATION.
18. That the Defendant, DRAGE INDUSTRIES, was negligent in failing to correct or report the defects in the south meter room described above when such defects should have been apparent to said Defendant, and in failing to use the proper wiring when modifying the system during the remodeling project.
19. That the negligence of the Defendant, DRAGE INDUSTRIES, was a direct cause of the above described fire and was a direct and proximate cause of the damages suffered by the Plaintiff.

In granting the motion on the pleadings the trial court found that the statute of limitations, Section 95.11(3), Florida Statutes, barred appellant’s cause of action and implied that the clock started running in 1969 when appellee performed the work. Appellant contends that the time did not begin to run until the date the fire occurred and his cause of action arose. We are in accord with appellant’s contention.

As this court stated in the recent case of Smith v. Continental Insurance Co., 326 So.2d 189 (Fla.App. 2d DCA 1976):

A statute of limitations starts running when there has been notice of invasion of the legal rights of the plaintiff, i. e., when he has been put on notice of his right of action. This long has been held to be the law in actions based on negligence.

Even though the alleged negligence occurred in 1969 it was not until the personalty was damaged that appellant was made aware of his right to bring this action and that his cause of action arose. The complaint was filed within the time period applicable to any action for injury to personal property under the applicable statute, Section 95.11(3)(h), Florida Statutes (1975).

Accordingly, the judgment appealed is reversed, and the case is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

GRIMES and DANAHY, JJ., concur.

      . It appears that the trial judge was relying on the 1975 statute which became effective January 1, 1975. Application of that statute is not consistent with the implication that the cause of action arose in 1969. The statute of limitations applicable to an action for injury to personal property in effect in 1969 was § 95.-11(5)(c), Fla.Stat. (1969) which provided for a three-year time period. See Lauck v. Gen. Tele. Co., 300 So.2d 759 (Fla.App. 2d DCA 1974). Accordingly, that statute would have barred an action arising in 1969 sometime in 1972. That same statute was in effect in 1973 when, as we hold in this case, appellant’s cause of action actually did arise, and but for the revision effective in 1975 that statute would have barred this action after December 18, 1976. However, the 1975 statute relevant to actions for injury to personal property increased the time period from three to four years on January 1, 1975. § 95.11(3)(h), Fla. Stat. (1975). Absent a legislative mandate to the contrary it is the enlarged limitation period which is applicable to mature causes of action not otherwise barred prior to the effective date of the longer period. See Garris v. Weller Constr. Co., 132 So.2d 553 (Fla.1961). Thus the statute of limitations would not have run in the case before us until December 18, 1977.


author: SCHEB, Judge.

text:
    Robert E. WATERS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1000.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 1978.
    Jack O. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant contends the information under which he was convicted and placed on probation was insufficient to vest subject-matter jurisdiction in the circuit court, and, therefore, that court’s subsequent order revoking his probation was a nullity. We agree.

In February 1976 appellant was charged with receiving stolen property in violation of Section 812.031, Florida Statutes (1975). The information alleged that the stolen property was stereo equipment, but did not state the value of the equipment.

In April 1976 appellant pled guilty in circuit court to the charge. At that time the state outlined a factual basis as required under Fla.R.Crim.P. 3.170(j); however, no mention was made of the value of the property involved, and no evidence of the value was before the court. The trial court withheld adjudication and placed appellant on probation for two years.

In March 1977 appellant’s probation supervisor filed an affidavit charging him with violating his probation. After a hearing, the court found appellant guilty of the violation. Appellant’s probation was extended to four years and a special condition was added. This appeal ensued with appellant contending the trial court was without subject-matter jurisdiction from the outset.

The threshold issue is whether appellant can raise the question of subject-matter jurisdiction on this appeal. The state contends that appellant waived any objection to the information by not appealing the original order placing him on probation. We disagree. Appellant’s contention goes to whether the trial court had jurisdiction over the offense charged. Since lack of subject-matter jurisdiction is fundamental error, it can be raised at any time. Solomon v. State, 341 So.2d 537 (Fla. 2d DCA 1977).

The information by which appellant was charged failed to allege that the property stolen was worth $100 or more; therefore, the crime charged was only a misdemeanor under Section 812.031(3). Since the circuit court does not have jurisdiction when only a misdemeanor is charged, the trial court did not have jurisdiction in this case. Article V, Section 5(b), Florida Constitution; Section 26.012, Florida Statutes (1975). Therefore, any order entered by the circuit court was void. Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972).

We note that this case is distinguishable from Caves v. State, 302 So.2d 171 (Fla. 2d DCA 1974). In Caves the defendant, for the first time, challenged the sufficiency of the information to charge the crime of auto theft after the state had presented its case. The defendant contended that even though the information tracked the language of the statutory crime of auto theft, it was deficient because it did not contain the essential common-law element that the taking was with the intent to permanently deprive the owner of his property. We held that the defendant’s attack came too late, as the state had proved the necessary intent during the presentation of its case and the jury was properly instructed that such intent was an essential element of the crime.

Unlike Caves, the information in this case failed to allege the necessary statutory element (that the value of goods stolen was $100 or more) required to vest felony jurisdiction in the circuit court. Additionally, in the instant case there was no recitation of value in the factual basis outlined before the court, nor was there any other evidence before the court to supply the omitted allegation on this issue.

Since appellant was charged only with a misdemeanor, the circuit court had no jurisdiction to proceed and its order placing appellant on probation was void. It follows, therefore, that the order modifying his probation was also a nullity. Petters v. State, 350 So.2d 558 (Fla. 2d DCA 1977); Dicaprio v. State, 352 So.2d 78 (Fla. 4th DCA 1977).

Accordingly, the order placing appellant on probation and the order modifying that probation are hereby vacated.

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

      . § 812.031, Fla.Stat. (1975):
      (1) Whoever intentionally receives, retains, disposes, or aids in concealment of any stolen property of another without consent of the owner or person entitled to possession, knowing that it has been stolen, or under such circumstances as would induce a reasonable man to believe that the property was stolen, commits an offense.
      (2) If the property received is:
      (a) Of the value of $100 or more;

      the offender shall be deemed guilty of a felony of the third degree, punishable as provided in s. 775.084.
      (3)If the property received is not described in subsection (2), the offender shall be deemed guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.


text:
    STATE of Florida, Appellant, v. Larry BOURBON, Appellee.
    No. 77-1476.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, Robert H. Grizzard, II, Asst. Public Defender, and James R. Wulchak, Legal Intern, Bartow, for appellee.
   PER CURIAM.

Reversed on the authority of State v. Wilcox, 351 So.2d 89 (Fla. 2d DCA 1977), and Massey v. State, 348 So.2d 1244 (Fla. 1st DCA 1977).

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


author: SANDERS, Chief Justice. PER CURIAM.

text:
    Numa GUIDRY et ux. v. Mark CHERAMIE et al.
    No. 59970.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied Feb. 17, 1978.
    John L. Lanier, Pugh, Lanier & Pugh, Thibodaux, for defendants-respondents.
    M. Arnaud Pilie, Pilie, Pilie & Landry, New Orleans, for plaintiffs-applicants.
   SANDERS, Chief Justice.

The issue to be determined here is the validity of a judicial sale of immovable property to effect a partition under a commission prematurely issued ordering the sale of the property.

Having been stipulated by the parties, the facts are not at issue. Plaintiffs brought suit for partition by licitation of property they owned with defendants. Three of the defendants in the partition suit had personal service; the others received domiciliary service.

Defendants in the partition suit filed no pleadings, and, on June 21, 1974, a preliminary default was entered against all defendants. On November 5, 1974, the default was confirmed. No notice of the default judgment was served on any defendant.

On the same day the default judgment was signed, the plaintiffs sought to execute the judgment, and they had the clerk of court issue a commission to the sheriff to sell the property.

After advertisement, the property was sold at public auction for $40,000, on December 11,1974, to Numa Guidry, Robert J. Guidry, and Dick J. Guidry.

The defendants filed opposition when the partition came on for homologation. After a hearing on September 20, 1976, the trial court set aside the judicial sale in the partition suit; denied the homologation of the partition; affirmed the validity of the judgment of partition; and denied defendants’ motion for a new trial.

Plaintiffs suspensively appealed, and the Court of Appeal affirmed the district court judgment. 345 So.2d 157 (1977). On application of the plaintiffs, we granted writs to review the judgment insofar as it set aside the judicial sale. La., 346 So.2d 714 (1977).

After a careful review of the law and the proceedings in this case, we have determined that the lower courts erroneously invalidated the judicial sale.

The lower courts found the judicial sale invalid because the defendants who received domiciliary service were not served with the notice of the default judgment required by Louisiana Code of Civil Procedure Article 1913, which provides in pertinent part:

“Notice of the signing of a default judgment against a defendant on whom citation was not served personally, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service.”

On the basis of this article, the lower courts found that the delays for application for a new trial and the taking of a suspen-sive appeal did not begin to run against those defendants who received only domiciliary service until such time as they were served with notice of judgment required by the article. LSA-C.C.P. arts. 1913, 1974, 2087, 2123. Thus, the judgment while valid was not final as to those defendants.

The sale of property to effect a partition is merely a preliminary step to the partition itself. In reality, the partition is the division of the proceeds from the sale of the property. Hollingsworth v. Caldwell, 195 La. 30, 196 So. 10 (1940); Bickham v. Pitts, 185 La. 930, 171 So. 80 (1936); Dees v. Tildón, 2 La.Ann. 412 (1847). By their rule opposing the homologation of the partition, defendants attacked both the judgment of the partition and the judicial sale. In its judgment of September 20, 1976, the district court upheld the validity of the partition judgment; annulled the sale because of lack of notice to some defendants; and denied defendants’ motion for a new trial. Defendants did not appeal this judgment. Thus, the judgment became final insofar as it upheld the validity of the partition judgment. LSA-C.C.P. arts. 1974, 2087, 2123.

In the present case, despite defendants’ contention that, due to their lack of notice of the judgment of default, they were unable to attack the judgment of partition and sale, such is not the case. The defendants were allowed to attack the judgment of partition and sale in their opposition of the homologation. At that point, the judgment of partition was upheld, and defendants chose not to appeal. That portion of the judgment declaring the partition valid became final.

It is a well-settled principle of law in our jurisdiction that a judicial sale made under a writ or process prematurely issued cannot be annulled solely on the ground of prematurity. Gentilly Development Co. v. Carbajal, 168 La. 786, 123 So. 325 (1929); Alfano v. Franek, 159 La. 498, 105 So. 598 (1925); Wheeling Pottery Co. v. Levi, 48 La.Ann. 777, 19 So. 752 (1896); Regan v. Washburn, 39 La.Ann. 1071, 3 So. 178 (1887). As to the present sale, the failure of notice became a mere irregularity which was cured by expiration of the time in which defendants could have taken a sus-pensive appeal. LSA-C.C.P. arts. 1974, 2087, 2123.

For the reasons assigned, that portion of the judgment of the Court of Appeal affirming the Seventeenth Judicial District Court’s judgment setting aside the judicial sale in the partition suit and denying the homologation of the partition is reversed, and the case is remanded to the Seventeenth Judicial District Court, Parish of La-fourche for further proceedings consistent with law and the views herein expressed.

ON REHEARING

PER CURIAM.

In their application for rehearing, defendants allege that they filed an answer to plaintiffs’ appeal to the Court of Appeal. They attach a copy of that answer. Thus, it appears that the statement in our opinion that defendants did not appeal is in error.

Actually whether defendants had or hád not appealed the portion of the judgments adverse to them, i. e., upholding validity of the judgment ordering the partition and denying their motion for a new trial with respect thereto, the finality of such judgment in either event would have succeeded the partition sale. [Considering that defendants had appealed, by way of answer to plaintiffs’ appeal, that portion did not become final until after the unfavorable judgment in the Court of Appeal.]

The sale we find valid even though made under a writ of process prematurely issued was one which preceded defendants’ rule and judgment thereon.

Contrary to the not unreasonable inference which might be gleaned from our opinion, the reasons for our holding are thus unaffected by defendants’ appeal (or non appeal) and our erroneous observation that defendant did not appeal the post sale judgment on rule did not affect the result in this case.


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

text:
    STATE of Louisiana v. Gregory R. HOLMES.
    No. 60106.
    Supreme Court of Louisiana.
    Dec. 19, 1977.

      George S. Hesni, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Appellant Gregory R. Holmes was charged with the armed robbery of Enos Jones on October 29, 1974. La.Rev.Stat. 14:64. A jury found him guilty as charged, and he was sentenced to imprisonment for twelve years.

Defendant entered the “Our Place” bar on Thalia Street in New Orleans on the night of October 29, 1974, bought a coke and BC powder and left. Twenty minutes later he returned with a nickel-plated pistol, pointed it at the owner-bartender and ordered her not to move. He then approached Enos Jones and demanded his money and his watch. After taking Jones’ money he ordered Jones to sit down and put his head on the table. Defendant then robbed another patron in the bar in the same fashion. The resistance of a third customer and the interference of the proprietor’s dog prevented defendant from completing a third robbery. As defendant left the bar, he shot at the dog and missed.

Jones rushed out after defendant and was in time to see him enter the passenger side of a Mustang as it drove off.

Assignment 1

It is asserted that the trial judge erred in denying defendant’s motion to suppress the identification of defendant and in denying defendant’s motion for discovery. Three issues are raised in this connection.

First, the defense contends that his arrest was unlawful and the taint of that illegality rendered his line-up identification inadmissible; second, he was improperly denied the right to be represented by his retained counsel at his line-up; and, third, he was improperly denied pretrial discovery.

Another robbery by a Negro male in October 1974 occurred at “Koocheey’s Bar” on Allen Street. A confidential informer contacted Officer Walker on November 10, 1974 and told him that a Negro male residing at 359 Magnum Street committed that robbery. He described the perpetrator as standing 5' 11" in height with a slim build, bush hair and being approximately twenty years old. The informer said he drove a dark green Mustang, 1965 or 67, with license number 212B742. The informer led the officer to the Magnum Street address and pointed out the dark green Mustang parked nearby.

A surveillance of that address was established by the police and that afternoon they observed a man fitting the description furnished by the informer and a witness enter the car and drive off. He was followed by the police who shortly thereafter pulled him over and arrested him for the Koocheey Bar robbery. In a search of the suspect’s person the police seized a matchbox of heroin from his pocket.

In a separate bill of information defendant was charged with possession of heroin. A motion to suppress the heroin as evidence was filed in that proceeding and the motion was granted.

In the meantime, defendant appeared in a line-up in connection with the Koocheey Bar robbery. Witnesses gave such an unsatisfactory identification that the District Attorney’s Office refused the charge involving that robbery. However, the police brought the witnesses and victims of the October 29 robbery in “Our Place” to view the defendant in the same line-up. These witnesses identified defendant as the robber and he was charged with the robbery of Jones in the proceedings which are the subject of this appeal.

The arrest

The defense contention that there was no probable cause to arrest defendant is apparently based upon the fact that the trial judge sustained the motion to suppress in connection with the charge of possession of narcotics.

Sustaining the motion to suppress in the possession of the narcotics case is not determinative of the validity of the arrest in the case at bar. Especially is this so when the trial judge assigned no reasons for his ruling on that motion. Reference to the transcript of that hearing would indicate that the motion could probably have been granted because of an illegal search and seizure, not because of an illegal arrest.

In any event the motion to suppress in this ease must stand upon the record and issues presented here. The validity of an arrest must be determined by the provisions of Article 213(3) of the Code of Criminal Procedure. Under that authority an officer may make a warrantless arrest for a felony committed out of his presence if he has “reasonable cause to believe that the person to be arrested has committed an offense.” Reasonable cause exists when the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonable trustworthy information, are sufficient to justify an average man of caution in the belief that a felony has been committed. State v. Phillips, 347 So.2d 206 (La.1977); State v. Linkletter, 345 So.2d 452 (La.1977) and State v. Johnson, 249 La. 950, 192 So.2d 135 (1966).

On the facts recited it is submitted that the information furnished by the confidential informer which was independently verified by the police against the information contained in the police report of the robbery provided reasonable cause to arrest without a warrant. The line-up was therefore not tainted by an illegal arrest.

Counsel at the line-up

The officers conducting the lineup were aware of the fact that defendant had retained counsel and they made reasonable efforts to contact him so that he could attend the line-up; however, defense counsel asserts he did not receive the message because he was elsewhere at the time. In view of retained counsel’s absence an attorney was appointed to assist and advise defendant at the line-up. Appointed counsel did therefore attend the line-up.

Absence of retained counsel at a pre-in-dictment line-up does not deprive the defendant of rights which would warrant reversal of his conviction. Neither the federal nor state constitution guarantees the accused the right to counsel at a pre-indictment line-up. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Taylor, 347 So.2d 172 (La.1977). While recognizing the doctrine of these cases, counsel seeks to invoke the rule of Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) holding that when the process shifts from investigatory to accusatory our adversary system begins to operate and at that time the accused is entitled to a lawyer.

The rule of Escobedo is not pertinent to the facts in this case. The line-up being conducted was investigatory in character, prior to indictment. Furthermore, the Es-cobedo rule is intended to apply to confessions and inculpatory statements, not to line-up identifications. The decisions in Kirby v. Illinois, supra, and State v. Taylor, supra, fix the rule to be applied to line-ups.

Discovery

Pretrial discovery of statements taken from potential witness was not permitted at the time defendant’s motion for discovery was filed. State v. Gray, 286 So.2d 644 (La.1973).

This assignment of error is without merit.

Assignments 2 and 3 are not briefed or argued and are considered abandoned.

Assignment 4

When the defendant was arrested he had $128 in his pocket. Testimony had also established that he was unemployed. A defense objection was made at the trial when the prosecutor sought to question the arresting officers about this money, arguing that the State failed to lay a proper foundation for its introduction. The jury was retired and defense counsel restated his objection asserting that the money was seized fifteen days after the crime, there was no evidence connecting the money with the robbery, and the money stolen in the robbery was in twenty dollar denominations, whereas the money the State sought to introduce was in ones, fives and tens.

The arresting officers did identify the money as that recovered from defendant at the time of his arrest. This identification did support a claim that the money was relevant to the proof that defendant was in possession of money when he was arrested, although he did not work, leaving the inference that the money was obtained from the robbery. It is of course arguable that the time lapse since the robbery and the dissimilarity in the denominations of the bills make it highly unlikely that the money found on defendant was obtained as a result of the robbery. As tenuous as the relevancy may be it is not illogical. The weight to be given to the evidence is a matter for the jury to decide. State v. Dotson, 260 La. 471, 256 So.2d 594 (1971).

In defendant’s brief it is contended that the money was improperly introduced in evidence for still another reason: The money was seized incident to an unlawful arrest and as such is inadmissible. Inasmuch as this contention is made for the first time in brief, it cannot be considered. La.Code Crim.Pro. art. 841.

Assignment 5

The defense asserts that the prosecutor deliberately misled the jury when he stated in rebuttal to defense counsel’s closing argument:

“It’s a coincidence that Gregory Holmes was driving a dark Mustang. It’s a coincidence that Gregory Holmes was wearing plaited hair. It’s a coincidence that Gregory Holmes, who doesn’t work, was in possession of a hundred and twenty-eight dollars. It’s a coincidence that where Gregory Holmes lives there’s a gun that matches the description of the perpetrator’s gun. It’s a coincidence that one shot was fired; and it’s a coincidence that the gun was missing one bullet.”

The basis of defendant’s contention is that there was no evidence that the gun had been fired. Reference is made to testimony at the hearing on a motion for a new trial to the effect that the gun was inoperable when tested by police.

Several witnesses testified that defendant fired his gun once before leaving the bar. And officers seized a gun with only one bullet missing from the six bullet chamber during a search of defendant’s home. The prosecutor’s argument was therefore a permissible comment upon the evidence. La.Code Crim.Proc. art. 774.

Assignment 6

In a motion for a new trial defendant alleges that the verdict is contrary to the law and the evidence; that newly discovered evidence mandates a new trial; that the trial court erred in denying his motion to suppress; and that the prosecutor improperly commented in rebuttal argument that the gun had been fired.

An allegation that the verdict is contrary to the law and the evidence presents nothing for review in this Court. We have reviewed the trial judge’s ruling denying defendant’s motion to suppress and found it free of error. A review of the prosecutor’s rebuttal argument and the trial judge’s ruling on the defense objection that there was no evidence to support the statement that the gun had been fired has resulted in sustaining the ruling of the trial judge. We find that there was evidence to support the claim that the gun had been fired.

Only defendant’s allegation that the gun was inoperable, a fact discovered after trial, which is said to be newly discovered evidence, has not been reviewed on this appeal.

A firearms expert did testify that the gun introduced as evidence at the trial was inoperable due to a defective trigger return spring and a bent ejector. He also testified that the gun could have become inoperable by being dropped.

The gun was seized almost two weeks after the offense. It may have become inoperable during that time. The trial judge could reasonably conclude that this evidence would not have changed the verdict. La.Code Crim.Pro. art. 851; State v. Credeur, 328 So.2d 59 (La.1976).

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

TATE, J., concurs and assigns written reasons.

DIXON, J., dissents.

CALOGERO, J., dissents, finding merit in assignment of error # 1 (defendant was improperly denied representation by his retained counsel at his line-up.)

DENNIS, J., concurs and assigns reasons.

DENNIS, Justice,

concurring.

I disagree with the majority’s treatment of the validity of the defendant’s arrest. The arrest was apparently found to be unlawful by the district court in a previous motion to suppress hearing in another prosecution against the defendant for possession of narcotics. The State is therefore precluded from re-litigating this issue in this proceeding involving the armed robbery. State v. Doucet (La.1977) (Docket No. 59,784 rendered this date).

However, due to the events which intervened between the arrest and the line-up identification, the lack of flagrant official misconduct, and other factors, see, Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the causal connection between the two became so attenuated that the identification evidence cannot reasonably be considered a fruit of the unlawful arrest. See, State v. Jenkins, 340 So.2d 157 (La.1976).

I further concur in the reasons assigned by TATE, J., in his concurring opinion.

TATE, Justice,

concurring.

While I concur in the conviction, I do not agree with the majority’s implication that, prior to indictment, the state has no obligation to respect the accused’s right to the presence of his retained counsel at a line-up.

After the accused’s arrest for the offense, the investigatory stage has passed. Once counsel had been retained or appointed, the accused has a right to his counsel’s presence when he is interrogated or when his person is exhibited, as an accusatory step in the proceedings, at a line-up — if only to assure that the procedures are validly and fairly conducted. The constitutional right to the effective assistance of counsel does not commence with the indictment, as Escobedo and many other decisions hold.

Moreover, aside from constitutional requirements, the Louisiana Code of Criminal Procedure, Article 230, specifically provides: “The person arrested has, from the moment of his arrest, a right to procure and confer with counsel * * If counsel has been retained or appointed, investigating officers have no right to hustle off a defendant for a line-up or medical tests to secure evidence, for instance, without affording him a right to confer with counsel as to the legality and fairness of the procedures in which his person is to be involved.

Here, however, no flagrant violation of this right occurred. In the first place, there is some question whether counsel had actually been retained for the present (armed-robbery) offense, rather than for different (drug possession and a different armed-robbery) charges. In the second place, some effort was made to assure for the accused the presence of the counsel he said he had retained. The accused was permitted to call his office and to speak with his secretary (since counsel was absent) to leave word for him, and some additional effort was made to locate counsel.

Finally, after counsel still could not be located, an attorney was secured from the legal aid office to represent the accused at the line-up. (I note that no formal appointment by a judge was made. The representation was secured from legal aid at the request of the prosecutor.)

So far as the record shows, this attorney attempted to assure the fairness of the proceedings and adequately represented the interests of the accused. It is therefore difficult to find that actual prejudice was sustained by the accused, although admittedly reversible error should result irrespective of (proven) prejudice if the state denies the effective assistance of counsel to the accused at any proceeding to which the accused is entitled to it. See State v. McGhee, 350 So.2d 370 (La.1977).

In view of the slight ambiguity existing as to the existence of the attorney-client relationship at the time of the line-up, I am not prepared to hold it to be reversible error that further efforts, including a reasonable delay, were not made to assure the presence of the accused’s retained counsel, instead of that of an attorney selected to represent him in the (assumed) absence of counsel. Thus, in my opinion, no reversible error occurred, partly because here the state made good faith efforts to assist the accused to have present the counsel of his choice.

My chief fear in ascribing to an affirmance is that, in view of the majority’s broad language, less perceptive or less well-intentioned prosecutors or police officials than those here involved may regard this decision as authorizing a denial to an accused of his right to consult with his counsel (not one selected ad hoc by the state) at any accusatory proceedings involving his person following his arrest. As noted, our statutory law requires that he have access to the assistance of his counsel “from the moment of his arrest.” La.C.Cr.P. art. 230. See also La.C.Cr.P. art. 511.

More important, our state and federal constitutions guarantee an accused the right to the effective assistance of counsel. Any inconvenience to the state in affording the accused such right must be regarded as the worthwhile price we pay for the individual liberty to ail guaranteed by the constitutions of our republic. If the majority’s opinion could be interpreted as an erosion of this fundamental right, reversal is required, despite the particularized present circumstances which in the writer’s opinion may justify an affirmance.

I should also note that the causal connection between illegality of the initial arrest on November 10 and the line-up of November 10 is too attenuated to infect, per se, the validity of the line-up: The latter is insulated by intervening circumstances (representation by counsel, etc.) and time from the initial taint of the illegal arrest. See State v. Jenkins, 340 So.2d 157 (La.1976). See also, U. S. v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).

I therefore concur for the moment, with some reservations, in the affirmance.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Melvin CROCHET.
    No. 60135.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearing Denied March 3, 1978.

      Gordon Hackman, Boutte, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., John J. Erny, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Melvin Crochet, was indicted by a Grand Jury for committing aggravated rape, La.R.S. 14:42, on August 5, 1976. He entered a plea of not guilty and not guilty by reason of insanity. Following a six day trial by jury, defendant was found guilty as charged by unanimous vote of the jury. He was sentenced to serve 50 years at hard labor.

On appeal defendant relies upon twenty-six assignments of error, which comprise thirteen arguments, for reversal of his conviction and sentence.

On August 5, 1976 the defendant, while armed with a knife, forced the fifteen year old victim and her four year old nephew into the victim’s sister-in-law’s automobile which was parked at the Sugarland Shopping Center in Lafourche Parish. Defendant drove the car to a cane field behind Central Lafourche High School. Leaving the four year old in the car, the defendant took the victim down a cane row at knife point, made her partially disrobe, and raped her. He then drove her and her nephew back to the shopping center, got into his own automobile, and went to his home in Des Allemands, St. Charles Parish. Later on that same date defendant was arrested and charged with aggravated rape.

ASSIGNMENT OF ERROR NO. 1

Defendant alleges that the trial judge erred in failing to require an appropriate sanity hearing and that he failed to apply the appropriate standards in assessing defendant’s capacity to proceed.

Defendant’s complaint centers on the fact that neither of the two doctors appointed to examine him were psychiatrists and that their examinations were inadequate and cursory and revealed very little medical information on which the trial judge could base his ruling that defendant was presently able to stand trial.

Both of the doctors who examined the defendant, and who testified at the hearing that defendant had mental capacity to proceed to trial, were general practitioners. Neither had any special training in the field of psychiatry but one of the doctors had been a deputy coroner since 1955 and had been exposed to people with mental disorders in connection with his duties as deputy coroner.

Dr. Musso testified that while he spent about an hour with the defendant he only devoted fifteen minutes inquiring into the defendant’s mental capacity. On cross-examination the doctor admitted that he did not give defendant an I.Q. test and that his interview consisted only of general orientation questions, including some relating back to his childhood, and inquiries relating to the use of drugs and alcohol and his past criminal record. Upon questioning by the district attorney, Dr. Musso stated that the defendant appeared well oriented as to time and place, was cooperative, and understood questions asked of him.

Dr. Madden testified that he spent one-half hour with the defendant. He asked the defendant why he dropped out of school at age fifteen and questioned defendant regarding his understanding of the crime of aggravated rape. Dr. Madden stated that the interview with the defendant was quite “limited.” Upon questioning by the district attorney, Dr. Madden stated that while defendant was nervous during the interview, he did answer questions responsively.

The composition of the sanity commission is provided by Louisiana Code of Criminal Procedure Article 644:

“Within seven days after a mental examination is ordered, the court shall appoint a sanity commission to examine and report upon the mental condition of the defendant. The sanity commission shall consist of at least two and not more than three physicians who are licensed to practice medicine in Louisiana, and have been in the actual practice of medicine for not less than three consecutive years immediately preceding the appointment. No more than one member of the commission shall be the coroner or any one of his deputies.”

There is no requirement in the article that the doctors appointed be psychiatrists. See, State v. Stuart, 344 So.2d 1006 (La.1977). But see, comments under Article 644, “It is contemplated that Louisiana courts will continue their practice of appointing a psychiatrist or psychiatrists when available, as under a similar discretionary provision of amended Article 269 of the 1928 Code of Criminal Procedure.”

The refusal to appoint available psychiatrists to a sanity commission would constitute an abuse of discretion, but in the absence of a showing that such a specialist was available for appointment there is no trial error. However, the district court is obliged to review the findings of each physician carefully and to accept his conclusions only if they are reasonable and are founded on an adequate medical examination and other data. In State v. Bennett, 345 So.2d 1129 (La.1977), we set forth some of the appropriate criteria for determining whether an examining physician had conducted a sufficient inquiry into an accused’s mental capacity to stand trial. The failure of a physician to consider a substantial number of these criteria indicates a lack of thoroughness or a lack of understanding of the sanity commission’s objective. In Bennett, we held that where the record clearly indicates the sanity commissioners failed to consider most of the important criteria for determining competency to stand trial and there was evidence indicating that the defendant was severely mentally retarded the trial judge abused his discretion in not requiring further examination and testing by the physicians. In the instant case the record reflects that the examinations were not as thorough as is desirable, but the evidence does not show that the physicians could not have reasonably reached their conclusions on the basis of their interrogations of defendant regarding his general orientation, childhood, habits and criminal record. The record does not reflect that the doctors disregarded any signs of mental retardation or disorder or that additional mental tests were indicated which they failed to undertake. Accordingly, the instant case is distinguishable from Bennett and we conclude that the trial judge did not abuse his discretion. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

Defendant alleges the trial judge erred in not granting defendant a continuance because his counsel of record had conflicts on the date set for trial and because it was necessary to have defendant examined by a psychiatrist of his own choosing before trial. The record indicates that defense counsel failed to request such a continuance. The period between the October 26th sanity commission hearing and the trial on December 6th provided defendant with an adequate opportunity to arrange for an examination by a doctor of his own choosing.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

Defendant alleges that the motion to quash the indictment for aggravated rape should have been sustained because the crime carried a mandatory death penalty. A motion in arrest of judgment was filed and denied on this issue also.

In his brief defendant argues that although State v. Sledge, 340 So.2d 205 (La.1976) [see also State v. Craig, 340 So.2d 191 (La.1976); State v. Morris, 340 So.2d 195 (La.1976)] stands for the proposition that only the penalty provision in the aggravated rape statute was declared unconstitutional, this Court does not have the authority to “legislate” as to penalties. Defendant’s contention is without merit because this Court reasoned in those cases that the legislature intended that a defendant be sentenced to the most serious penalty for the next lesser included offense at the time of the commission of the crime.

ASSIGNMENT OF ERROR NO. 4

Defendant alleges that the trial judge should have granted his motion for new trial because the verdict was contrary to the law and evidence because the rape victim failed to resist to the utmost.

La.R.S. 14:42 defines aggravated rape as follows:

“Aggravated rape is a rape, heterosexual or homosexual, committed where the sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one or more of the following circumstances:
“(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force;
“(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution;
“(3) Where the victim is under the age of twelve years. Lack of knowledge of the victim’s age shall not be a defense.
“Whoever commits the crime of aggravated rape shall be punished by death.”

The evidence indicates that at one point defendant got out of the car in order to walk around to the door on the passenger’s side where the victim was seated. Upon cross-examination, she admitted that she possibly could have locked defendant out because he had left the keys in the ignition switch. This was not conclusive evidence of a failure to resist as defendant contends. Due to the exigencies of the situation, it cannot be said that she should have instantly thought of locking all the doors. A locked automobile door would not long deter a strong or persistent assailant. The victim may have been justifiably concerned about the consequences of an unsuccessful escape attempt for her and her nephew in the back seat. The rape itself did not occur at the moment in question, but a few minutes later when the defendant forced the victim, at knifepoint, to walk into the cane fields.

Defendant further argues that there is no evidence that the victim resisted during the rape itself. This is incorrect. The victim testified that she struggled to free herself but did not attempt to kick the defendant in the groin for fear that he would kill her with his knife.

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 5, 6, 17-24

Defendant alleges that after he exhausted his twelve peremptory challenges during the voir dire of the jury, the trial judge erred in not dismissing a prospective juror for cause.

The prospective juror’s niece was a friend of the rape victim; she had discussed the crime with her mother-in-law who in turn received information from her daughter, a neighbor of the victim’s family; she also had potential baby-sitting problems which she said might divert her attention from the case; her husband’s first cousin was a deputy sheriff; and she stated she found that voir dire was nerve wracking. Based on the above, defendant urges that the prospective juror could not be impartial because she had preconceived notions about the case and that she was antagonistic towards defense counsel following a vigorous voir dire examination.

However, upon questioning by the court and the district attorney, the prospective juror stated that she could assess the case in light of the evidence brought out at the trial and would carefully listen to the evidence. She did not actually know the victim or her family and the information received from her mother-in-law was third hand. Her husband was not close with his cousin, the deputy sheriff. Also, with regard to her potential baby-sitting problems with her youngest son, she admitted that her husband could make arrangements for his care.

A determination of the competency of jurors is within the sound discretion of the trial judge and his ruling will not be disturbed on appeal absent arbitrariness. State v. Wilkerson, 326 So.2d 353 (La.1976). In the present case the trial judge did not abuse his discretion in overruling the challenge for cause. The juror’s answers on voir dire indicated that she could and would decide the case on its merits and would not be influenced by her prior knowledge.

These assignments do not present reversible error.

ASSIGNMENTS OF ERROR NOS. 7 and 29

Defendant alleges the trial judge erred in allowing the coroner, Dr. Robichaux, to refer to the apparent virginity of the victim before the rape.

The coroner testified:

“Q. Dr. Robichaux, could you give me a more detailed description of the damage to the vagina of the victim, alleged victim?
“A. This is pretty much — the sum total of damage was the damage to the hymeneal [sic] ring, those small torn areas of the hymen. That happens in these instances of intercourse with a virginal type of female. There was some little bit of redness around the area of the vagina. This was about the sum total of the damage we are speaking of.”

Before Dr. Robichaux took the stand, defense counsel offered to stipulate “ * * * that if Robichaux testified he would say that the girl had had sexual intercourse . . . ” and moved the court to instruct the doctor to refrain from expressing his opinion that prior to the crime the victim had been a virgin. The trial judge stated that he did not have the authority to limit the doctor’s testimony or force the state to enter a stipulation. In this statement he was incorrect but his overruling of the defendant’s motions was not incorrect under these circumstances. In State v. Gilmore, 332 So.2d 789 (La.1976), we held that where the State’s proof has been rendered unnecessary by defendant’s judicial admission, the court may properly find that the prejudicial nature of the evidence outweighs the now diminished or nonexistent legitimate interest of the State in its admission, and require the State to accede to the stipulation in lieu of the evidence. However, in that case we also pointed out that a defendant may not be permitted to rob the State’s evidence of its fair and legitimate weight by means of a unilateral stipulation which is cleverly made with grudging limitations or evasions or insinuations, so as to be technically but not practically a waiver of proof. In the instant case we find that the defendant offered to stipulate that sexual intercourse had occurred but he did not offer to stipulate that involuntary or forcible intercourse had occurred. Defense counsel argued that the State could use the victim’s testimony to prove force or violence. Thus, the defendant did not make a legitimate offer to waive the requirement that the State prove an involuntary act of sexual intercourse, he merely offered to stipulate that the doctor would testify that sexual intercourse had occurred. Also, the doctor’s reference to virginity on direct examination by the State’s attorney was so fleeting and oblique that we do not think that its prejudicial nature outweighed the legitimate interest of the State in its admission.

These assignments have no merit.

ASSIGNMENTS OF ERROR NOS. 8 and 14

Defendant alleges that the trial judge erred in failing to suppress evidence taken from his person as a result of his unlawful arrest.

When the defendant brought the victim and her nephew back to the parking lot at the shopping center following the rape, the victim’s sister-in-law saw her car being driven into the lot. She had previously thought it had been stolen and had called her husband to pick her up at the shopping center. She saw the defendant get out of her car and she watched him get into another automobile. She was able to write down the license number of the car in which defendant drove away. She gave this piece of paper with the license number on it to her husband who went to State Police Headquarters with it. Deputy Sheriff Wesley Hodges testified that he received a call to report to the headquarters to investigate a rape. When he got there he had a dispatcher run a license check on the number given him by the husband of the victim’s sister-in-law. This check revealed that the car was registered in the name of Melvin Crochet who lived in Des Allemands, St. Charles Parish. Deputy Hodges next went and talked to the coroner who confirmed that the victim had been raped. The deputy talked to the victim who gave a description of her assailant. He also testified that he talked with the sister-in-law who told him she had written down the license number.

Based on the above information, Deputy Hodges procured an arrest warrant from a justice of the peace. He drove to Des Alle-mands and picked up a St. Charles Parish deputy and they met two other deputies who knew where Crochet resided. They proceeded to Crochet’s house and one of the deputies recognized Crochet. The St. Charles Parish officers arrested Crochet and secured the knife from a pat down search of defendant’s person. He was booked in the St. Charles Parish jail on a fugitive warrant and then taken to La-fourche Parish where he was booked. The clothes Crochet was wearing were taken from him when he was given prison garb to wear.

The trial judge ruled that under Code of Criminal Procedure Article 202, dealing with arrest warrants, the deputy’s affidavit specifying the nature, date and place of offense and the name of the offender and victim, together with the facts presented to the judge, viz., license number and check; interviews with the victim and her sister-in-law were sufficient to establish probable cause to believe the defendant committed the rape.

The trial judge ruled correctly. The search and seizure of the articles on defendant’s person were valid incidents of a valid arrest.

These assignments have no merit.

ASSIGNMENT OF ERROR NO. 9

Defendant alleges that the trial judge erred in requiring defendant to roll up his sleeve during the trial in order to expose a tattoo on his left arm. Defendant argues that this forced him to give evidence against himself in contravention of Article 1, § 13 of the 1974 Louisiana Constitution. Further, because the victim had already positively identified the defendant there was no need to further corroborate her testimony by the showing of the tattoo.

Defendant’s argument that he was forced to give evidence against himself is without merit. In State v. Brown, 326 So.2d 839 (La.1976) this Court held that requiring a defendant to stand up at trial was demonstrative rather than testimonial evidence and did not violate the right against self-incrimination. See also, State v. Collins, 328 So.2d 674 (La.1974) (requiring a defendant to open his mouth and reveal teeth was demonstrative evidence); see also, State v. Simms, 341 So.2d 874 (La.1977).

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 10 and 15

Defendant alleges that the trial judge erred in failing to grant a new trial on the grounds that the prosecutor repeatedly implied that the defense counsel was purposely delaying the trial.

During the voir dire of the jury the district attorney objected to the long questions asked by defense counsel and objected several times because defense counsel was repeating questions. The trial judge instructed defense counsel to ask shorter questions and to conduct the voir dire on a question/answer basis. The district attorney did make remarks such as the voir dire could take three weeks or it could go on for days. On another occasion, during the trial, the trial judge told defense counsel to clarify a question he was asking in order to expedite the questioning of a witness. Later on, the district attorney objected to the defense counsel’s cross-examination of a policeman and said “this is an exercise in the unproductive consumption of time.”

Defendant argues that the cumulative effect of all these remarks prejudiced the jury against him. We note, however, that defendant did not move for a mistrial because of prejudicial remarks made by a district attorney. Instead, he moved for a new trial. The provision applicable is Article 851(5) of the Code of Criminal Procedure, which provides that a new trial shall be granted when “[t]he court is of the opinion that the ends of justice would be served by the granting of a new trial. * * * ” Although we do not approve of the prosecuting attorney’s tactics of making remarks to the jury instead of addressing objections to the bench, we cannot say that the references to time scattered throughout the nine volumes of the record were prejudicial enough to warrant the granting of a new trial.

These assignments are without merit.

ASSIGNMENT OF ERROR NO. 11

Prior to trial defendant filed a motion requesting the State to produce all exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The record reflects that the State complied with the motion and produced several items of exculpatory evidence.

In his motion for new trial the defendant alleged that the prosecution failed to disclose all evidence favorable to him under Brady. The defendant argued that the police investigated the cane field, the scene of the rape. Further, because the victim testified that there was a struggle, evidence of such a struggle should have been found at the scene. Because the State did not put on evidence at the trial regarding the condition of the cane field, the defendant argued that no evidence of a struggle existed and that this evidence of absence of a struggle should have been revealed to him under Brady.

At the hearing on the motion for new trial the district attorney stated that his office did have evidence of a struggle but that this evidence was not used at the trial. He explained that because the trial was lengthy (six days), he chose not to introduce this evidence at the trial because it would only serve to further lengthen the trial and, in his opinion, it was unnecessary to use this evidence to obtain a conviction.

The trial judge denied defendant’s motion for a new trial based on this allegation. We find that the trial judge did not abuse his discretion and that this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 12

Defendant alleges that the trial judge erred in failing to grant a new trial on the grounds the jury failed to give full and fair consideration to all the issues involved in the case. Defendant’s objection centers around the fact that the jury was out only forty minutes.

This assignment is without merit. This Court has held in the past that shortness of time spent by a jury in deliberation is not a ground for granting a new trial. See, State v. Richmond, 278 So.2d 17 (La.1973).

ASSIGNMENT OF ERROR NO. IS

Defendant contends the trial judge erred in overruling defendant’s objection to the introduction into evidence of statements made by the defendant during the commission of the offense on the grounds they were irrelevant and highly prejudicial. The victim testified that the defendant threatened to kill her and her nephew if she would not give him the car keys. The trial judge admitted these statements as part of the res gestae.

Defendant concedes that the threats made against the victim are relevant because threats of great and immediate bodily harm may be an essential element of aggravated rape. He questions the relevancy of threats against the four year old nephew because he was not the rape victim. However, the rape statute does not explicitly require that threats be made against the victim. La.R.S. 14:42(2) provides that aggravated rape is a rape “where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution.” The statute is clearly designed not merely to protect against threats upon the victim but also to protect against non-consensual sexual intercourse through destruction of the victim’s will to resist. Accordingly, we think it is reasonably within the legislative intent to interpret the statute as prohibiting such rapes through means of threats of great and immediate bodily harm upon a person whom the victim is legally, morally or emotionally obliged to defend.

This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 16 and 26

Defendant alleges that the trial judge erred in curtailing defense counsel’s questioning of prospective jurors as to reasonable doubt and that he further erred when he implied that reasonable doubt might be 25% of the evidence.

Defendant objects because the trial judge curtailed voir dire as follows:

“Q. I would like to question you now about what you think reasonable doubt means. Reasonable doubt, of course, means something different to one person than it does to another. I would like for you to assume that 100% is total proof a particular evident [sic] and 0% is no proof, and ask you if you can tell me in numbers what on that 100% point scale would be guilt beyond a reasonable doubt.
“BY THE STATE: Objection, Your Honor.
“BY THE COURT: Sustained. That’s not a proper question for this. I have never heard the question before. That doesn’t make it improper, but there is no scale, percentage scale, that we gauge what is reasonable doubt and what is not, Mr. [defense counsel]. So I am going to sustain the objection.”

While parties must be afforded wide latitude in conducting voir dire examinations, Article 786 of the Code of Criminal Procedure vests the trial judge with discretion to regulate the scope of the examination. State v. Williams, 346 So.2d 181 (La.1977). The judge properly curtailed defense counsel’s attempt to require the jurors to translate their concept of reasonable doubt into percentages because of the danger that the jurors would be misled into thinking a certain percentage was legally required.

Defendant’s argument that the trial judge implied reasonable doubt might be 25% of the evidence is without merit. Defense counsel asked one prospective juror what he would think if the State only proved its case by 51%. The State objected and the Court, in its reasons for not allowing defense counsel to proceed along this line, stated that:

“ * * * [T]he jury must have no reasonable doubt when the case is finished with its evidence, regardless of whether it is 51%, 99%, 25% of the evidence. I don’t know what it takes to convince an individual juror beyond a reasonable doubt. That is a matter of an individual judgment and you can’t put a percentile figure on it. * * * ”

Within their context the judge’s remarks did not imply that 25% doubt constituted reasonable doubt.

These assignments are without merit.

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

SANDERS, C. J., and MARCUS, J., concur.