author: SMITH, Acting Chief Judge. MELVIN, Judge,

text:
    Joseph F. MORGAN and Contrails, Inc., Appellants, v. Haywood GOODWIN, Appellee.
    No. FF-215.
    District Court of Appeal of Florida, First District.
    Feb. 24, 1978.
    D. Michael Chesser of Selby & Chesser, Fort Walton Beach, for appellants.
    William K. Jennings of Dewrell, Kessler & Jennings, Fort Walton Beach, for appel-lee.
   SMITH, Acting Chief Judge.

The owners of a Walton County tract appeal from a judgment awarding Goodwin a laborer’s lien against the bond given as security by' the owners and their surety. Section 713.24, Florida Statutes (1975). A general contractor, having agreed to clear, level, and grade the owners’ land for $18,-000, orally engaged Goodwin to do part of the work. Goodwin supervised a number of laborers, operated and maintained the contractor’s heavy equipment, supplied his own tractor for use with the contractor’s equipment, and supplied fuel at his own expense for all the heavy equipment. Goodwin was to be paid $18.50 per hour. He completed his portion of the work but, according to the undisputed competent evidence, the general contractor left the job unfinished, and the contract price was unpaid to the extent of approximately $3,000.

Appellee Goodwin filed a claim of mechanic’s lien against the owners pursuant to Section 713.08, Florida Statutes (1975), but he did not previously serve a notice to the owners of his intention to claim a lien, as required by Section 713.06(2)(a). Conceding that, Goodwin claims to be a laborer and, as such, exempt from the statutory notice requirement. Goodwin claimed $9,712.50 based on approximately 523 hours of work at $18.50 per hour. Before the trial Goodwin amended his complaint to add a claim for an equitable lien against the real property on the theory that the owners had been unjustly enriched. The trial judge gave Goodwin judgment against the owners and their surety for $3,625, and retained jurisdiction to assess attorneys’ fees. We reverse.

Goodwin’s failure to give notice to the owners within 45 days of beginning work, as required by Section 713.06(2)(a), bars his claim for a valid mechanic’s lien. Goodwin was not a laborer as defined by the statute. Section 713.01(9) defines “Laborer” as- one who “personally performs on the site of the improvement labor or services for improving real property and does not furnish materials or labor service of others.” Goodwin testified that it was part of his oral contract for him to supply fuel for all the tractors at his own expense and to supply his own tractor for use on the job. Section 713.01(6) defines “Furnish materials” to include furnishing supply materials used for construction but not remaining in the improvement, and supplying machinery to the extent of the reasonable rental value. See United Bonding Ins. Co. v. Moody, 213 So.2d 263 (Fla. 1st DCA 1968) (one who rents equipment to a contractor is within the terms of a bond protecting persons supplying “labor and materials”).

Goodwin’s relationship to the job was in some respects characteristic of a laborer: he was to be paid by the hour; he supervised only a few workers; he personally operated and maintained the heavy equipment. But in undertaking to furnish materials and machinery he departed from the special protection afforded laborers. The purpose of the lien law’s notice requirement is to protect the owner from having to pay twice for the same labor or material by allowing him to impound money which would otherwise be paid the contractor. Bryan v. Owsley Lumber Co., 201 So.2d 246, 249 (Fla. 1st DCA 1967); W. W. Gay Mechanical Contractors, Inc. v. Case, 275 So.2d 570 (Fla. 1st DCA 1973). The statute’s unstated rationale for exempting laborers from the notice requirement is that an individual laborer will not work long without pay and consequently will not have a large hidden claim. In this case, Goodwin worked over two months without pay and is claiming $9,712.50 for his work on a general contract valued at $18,000. The trial court awarded Goodwin but $3,625 of his claim, and the implication may be that Goodwin is entitled to half a loaf because he was half a laborer. We cannot accede to such a division of his contract. Goodwin was not a laborer but a subcontractor, defined in Section 713.01(16) as “a person other than a materialman or laborer who enters into a contract with a contractor for the performance of any part of such contractor’s contract.” Goodwin’s failure to serve notice on the owner precluded any valid claim to a statutory mechanic’s lien.

Goodwin’s complaint included a prayer for an equitable lien on the improved property, alleging that the owners were unjustly enriched by his labor and that funds remained to be paid by the owners on the contract price due the contractor. A subcontractor such as Goodwin may be entitled to an equitable lien on unpaid funds despite his failure to perfect a mechanic’s lien. In Crane Co. v. Fine, 221 So.2d 145 (Fla.1969), the Supreme Court found that a materialman whose materials were incorporated in improvements under a plumbing subcontract, and who remained unpaid when the plumbing subcontractor abandoned the contract, was entitled to an equitable lien on funds which were due and owing to the plumbing subcontractor for work already performed at the time the plumbing subcontract was abandoned. Thus, to be entitled to an equitable lien, Goodwin must have established that a portion of the contract price was due, owing, and unpaid to the contractor for work already performed on the contract. See also W. W. Gay Mechanical Contractors, Inc. v. Case, supra; Charter Development Corp. v. Eversole, 342 So.2d 143 (Fla. 1st DCA 1977). Goodwin offered no competent evidence that the general contract was completed or that the $3,000 remaining unpaid was otherwise due and owing to the contractor. Goodwin therefore is not entitled to an equitable lien on the unpaid funds.

The appellant owners have successfully resisted Goodwin’s claim for a mechanic’s lien. They are entitled, therefore, to a reasonable fee for their lawyer’s services. Section 713.29, Florida Statutes (1975). Charter Development Corp. v. Eversole, supra.

REVERSED and REMANDED with directions to enter judgment for appellants.

ERVIN, J., concurs.

MELVIN, J., dissents.

MELVIN, Judge,

dissenting.

I dissent. The trial court based upon evidence found to be creditable, determined that there were a definite number of hours that Goodwin worked in the capacity of a laborer and for which he was entitled to receive his laborer’s wage. I find no basis in this record or the law for this Court to brush aside such judicial determination by engaging in an implication, based upon an inference not supported by the record, that the trial court played the role of Solomon and gave a half a loaf to half a laborer.

      . Section 713.06(2)(a) provides:
      All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, shall be required to serve a notice on the owner setting forth the lienor’s name and address, a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished. This notice must be served before commencing or not later than 45 days from commencing to furnish his services or materials but in any event before the date of furnishing the affidavit under subsection (3)(d)l., of this section, or abandonment, whichever shall occur first. The serving of this notice shall not dispense with recording the claim of lien. This notice shall not be deemed to constitute a lien, cloud or encumbrance on said real property nor actual nor constructive notice of any of the same.


source: Caselaw Access Project

author: BOYER, Judge.

license: Public Domain

text:
    Kenneth I. ROBERTS, Appellant, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, a corporation, Appellee.
    No. FF-459.
    District Court of Appeal of Florida, First District.
    Feb. 24, 1978.

      David C. Goodman, Jacksonville, for appellant.
    Carl K. Staas of Boyd, Jennerette, Leem-is & Staas, Jacksonville, for appellee.
   BOYER, Judge.

Appellant, who was plaintiff in the trial court, seeks reversal of an order of the trial court dismissing his complaint with prejudice.

The facts are not in dispute. Appellant, a Florida resident, while traveling through Georgia had his truck repaired in Georgia by a Georgia resident. Upon returning to Florida he sought to sue for alleged unsatisfactory repairs, the gravamen of his action being that the truck must now be again repaired and that he has lost the use thereof as a result of the alleged “slip-shod” repairs by the Georgia repairman. The complaint was filed in Duval County, Florida, naming as the only defendant appellee Nationwide Mutual Fire Insurance Company, alleged to be the insurance carrier for the Georgia repairman. Nationwide moved to. dismiss for failure to join an indispensible party. The plaintiff (appellant) refused to amend and refused to add the repairman as a party defendant, electing to stand on his complaint as filed. The order here appealed, dismissing with prejudice, was thereupon entered.

It is important to note that direct liability is here sought to be imposed upon the insurer, not for any dereliction of duty on its part, but solely because of the alleged negligence of its insured; thereby distinguishing the case sub judice from a situation wherein the insured might be a passive and disinterested participant. The several cases recited by appellant are adequately discussed in a well reasoned opinion of our sister court of the Fourth District, Kephart v. Pickens, 271 So.2d 163 (Fla. 4th DCA 1972), with which we agree. Although the factual basis in Kephart v. Pickens is distinguishable, which is virtually always the case, the rationale is equally applicable sub judice.

While the Kephart decision has been severely criticized in a law review article, “Mandatory Joinder of Parties in Civil Proceedings”, Vol. XXXVI, No. 3, Spring 1974, University of Florida Law Review, wherein the author, alluding to the reasoning of that opinion states: “This reasoning amounts to nonreasoning and cannot survive analysis.”, neither the author of that article nor appellant in his brief has cited us to any Florida court taking a contrary position: Nor do we.

AFFIRMED.

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


text:
    FORD MOTOR COMPANY, a Foreign Corporation, authorized to do business in the State of Florida, Appellant, v. James Michael AVERILL, Appellee.
    No. HH-35.
    District Court of Appeal of Florida, First District.
    Feb. 24, 1978.

      James N. McConnaughhay and Richard C. Booth, of Harris, Liles & McConnaughhay, Tallahassee, for appellant.
    Edwin A. Green, II, Tallahassee, for ap-pellee.
   BOYER, Judge.

Appellant, defendant in the trial court, filed this interlocutory appeal seeking review of an amended order granting a motion for rehearing and denying a motion to dismiss counts two and three of the plaintiff’s complaint. Prior to the filing of any briefs and prior to the filing of any record as required by Rule 4.2 d, but after this court has entered an order granting a motion extending the time for the filing of same, appellee filed herein a motion to dismiss the appeal on the basis that appellant’s brief had not been timely filed and on the further ground that the interlocutory appeal “is not authorized by Florida Appellate Rule 4.2 because the order is not a final order nor is it an order relating to venue or jurisdiction over the person.” Appellant filed a response to the motion to dismiss pointing out that this court had entered an order extending the time for the filing of appellant’s brief and alleging that the basis for the interlocutory appeal related to an issue as to jurisdiction over the person and was therefore authorized by said Fla.App. Rule 4.2. There was at that time, as above stated, no record nor certified copies of the appeal papers by which this court could determine its jurisdictional basis for the appeal; therefore, accepting the allegations of appellant’s response as true, the motion to dismiss was denied.

Upon the appeal being perfected by the compliance with Fla.App. Rules 4.2 d and 4.2 e the ease was set for oral argument in accordance with Fla.App. Rule 4.2 f. Only then, after the appeal had been perfected, were we in a position to ascertain whether the order sought to be reviewed was within the ambit of Fla.App. Rule 4.2 a which is the basis of this court’s jurisdiction.

Notwithstanding our prior order denying appellee’s motion to dismiss at a time when there was insufficient record before us to establish our lack of jurisdiction, we have now carefully reviewed the order here sought to be interloeutorily appealed in the light of the briefs and the balance of the record and find that said order is not one of those enumerated by the rule for the vesting of jurisdiction in this court. We, of course, have no authority to assume jurisdiction when there is none. We therefore have the duty and responsibility at any stage of the proceeding at which we discover jurisdiction lacking to immediately cease exercising same.

Accordingly, determining, as we do, that we are without jurisdiction we do not meet the merits of the case. Our prior order denying appellee’s motion to dismiss for lack of jurisdiction is hereby vacated and set aside and this interlocutory appeal is sua sponte dismissed for want of jurisdiction.

IT IS SO ORDERED.

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


author: PER CURIAM.

text:
    William George WATTS, Sr., Appellant, v. Magdalene Booth WATTS, Appellee.
    No. HH-106.
    District Court of Appeal of Florida, First District.
    Feb. 24, 1978.
    L. Haldane Taylor, of Taylor & Brecher, Jacksonville, for appellant.
    Keith M. Deal, Jacksonville, for appellee.
   PER CURIAM.

This is an appeal from an order denying appellant’s petition to remove ap-pellee as the guardian of three minor children. The record reflects that appellant is the paternal grandfather of the children, while appellee is the ex-wife of the children’s natural father. Testimony established that the children were living with appellee and their father at the time of his death. The children expressed to the trial judge a desire to continue living with appel-lee and her two children, and a Department of Health and Rehabilitative Services “home study" ordered by the trial court was favorable to appellee. On this record, we do not see an abuse of discretion nor a failure to follow the law, and we affirm the lower court’s order. We note that whether a guardian is properly discharging his duties is always subject to review on appropriate petition.

AFFIRMED.

McCORD, C. J., and BOYER, J., and McLANE, RALPH M., Associate Judge, concur.


author: BOARDMAN, Chief Judge.

text:
    Donald A. BARRETT and H. Jean Barrett, his wife, Flora A. Kirsheman, Theodore W. Kolz and Lois E. Kolz, his wife, Sidney A. Stephens and Irene C. Stephens, his wife, and James J. Wrasman and Winifred M. Wrasman, his wife, Appellants, v. John F. LEIHER, Appellee.
    No. 77-480.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1978.

      Richard T. Bennison of MacKenzie, Cas-tagna, Bennison & Gardner, Clearwater, for appellants.
    No appearance for appellee.
   BOARDMAN, Chief Judge.

Appellants/plaintiffs, Donald A. Barrett, H. Jean Barrett, Flora A. Kirsheman, Theodore W. Kolz, Lois E. Kolz, Sidney A. Stephens, Irene C. Stephens, James J. Wras-man, and Winifred M. Wrasman, appeal an adverse final judgment rendered in favor of appellee/defendant, John F. Leiher. We reverse.

Appellants filed suit against appellee to require him to remove from his premises a structure which appellants alleged violated a restrictive covenant running with the land. There is no dispute as to the facts involved. Appellants and appellee were residents of Pennwood Estates, a subdivision located in Pinellas County, Florida. By the declaration of restrictions duly recited and recorded October 6, 1967 in the public records, all lots of the subdivision were made subject to certain covenants which provided in pertinent part that:

1. All lots in this subdivision shall be known and described as residential lots. No structure shall be erected, altered, placed or permitted to remain on any residential lot other than one single family private dwelling with an attached garage for not less than two automobiles. No lot shall be reduced in size by any method whatsoever. Lots may be enlarged by consolidation with one or more adjoining lots under one ownership. In the event one or more lots are developed as a unit, all restrictions herein contained shall apply as to a single lot. In any event, no dwelling shall be erected, altered, placed or permitted to rémain on any site smaller than one (1) lot as shown on the recorded plat.
2. No residence shall be erected upon any said lot which residence has less than 1650 square feet base building area exclusive of garages, servants’ quarters, or open porches, or other areas which are either open or enclosed solely by screens. For the purpose of measurements for compliance with this restriction, outside wall dimensions may be used.
3. Prior to start of construction, builders’ plans must be approved by the developer, its duly authorized agent or assigns. All dwellings shall be of masonry type construction with cement tile roofs. All dwellings shall have a concrete driveway and a concrete sidewalk along the road right-of-way, an exterior post lantern, sodded front yard at completion of construction, according to the developer’s specifications.
7. Trailers, tents, shacks, barns or other temporary buildings of any design whatsoever, are expressly prohibited within this subdivision and no temporary residence shall be permitted in unfinished residential buildings. This shall not prevent temporary buildings used by contractors and developers in construction work, which shall be removed from the premises on completion of the building.
10. Fencing will be permitted but to be no higher than 5 feet and not to extend beyond the front corner of the house and must comply with specifications of County of Pinellas for residential purposes.
13. No clothes line shall be installed so as to be seen from the street in front of a residence. All garbage cans to have a decorative wall so they cannot be seen from the street in front of a residence.
15. These covenants are to run with the land and shall be binding upon all parties and all persons who may now own or who may hereafter become the owner or owners of any of the above described lots and all parties claiming under them, for a period of 25 years from the date this instrument is recorded, after which time said covenants, reservations and restrictions shall automatically extend for successive periods of 10 years each, unless prior to the commencement of any 10 year period an instrument in writing, signed by the owners of a majority of the lots hereby affected, has been recorded in the Public Records of Pinellas County, Florida, which said instrument may agree to change, alter or rescind said covenants, reservations and restrictions, in whole or part. (Emphasis added.)

Appellee testified that at the time he purchased his property in 1974 that he was aware of the restrictions and that they had been attached to his title insurance policy.

This controversy arose between the parties When appellee began construction of a free-standing deck on his property. From the evidence introduced, particularly the picture of the deck, it is apparent that it is not attached to or connected to his residence. As described in the complaint it was approximately twelve to fourteen feet in height; a wooden deck suspended between the corner posts approximately eight feet above the ground level; a wooden railing approximately four feet high around the perimeter of the deck; a palm-frond thatching suspended from the railing; and a wooden stairway and hand rail running from the deck to the ground. It was located in appellee’s back yard half way between the rear of his residence and the rear lot line.

After a hearing the trial court found that paragraph one of the restrictions which are the subject matter of this suit, do [sic] not contain a definition of the word “structure”, and therefore said restrictions are ambiguous as to the intent of the requirements therein contained, and in the case of Ballinger v. Smith, 54 So.2d 433, the Florida Supreme Court in citing the cases of Moore v. Stevens [90 Fla. 879], 106 So. 901, and Heisler v. Marceau [95 Fla. 135], 116 So. 447, held that “the law favors the free and untrammeled use of real property. Restrictions in conveyances on the fee are regarded unfavorably and are, therefore, strictly construed, but where the intention is clear, the Courts will enforce such restrictions if not unreasonable.”
That it is evident from the evidence presented that a number of swimming pools have been constructed in the sub-division, [sic] and that infact [sic] the developer who promulgated said’ restrictions, constructed some of said swimming pools, and
Therefore, by the intent of the restrictions, not all structures are forbidden in that it appears that the primary purpose of the restrictions is to restrict the use of the property for single family use. .

While we agree with the statement of law relied on by the trial court, as stated in the order appealed, we do not agree with its conclusion that the restrictive covenant at issue is ambiguous and unenforceable. Despite an acknowledgement by the courts of a predisposition against restrictive covenants, it is not necessary to specifically define each term within a covenant to draft an enforceable restriction.

Florida adheres to the general rule that a reasonable, unambiguous restriction will be enforced according to the intent of the parties as expressed by the clear and ordinary meaning of its terms. If it is necessary to construe a somewhat ambiguous term, the intent of the parties as to the evil sought to be avoided expressed by the covenants as a whole will be determinative. Only where intent cannot be ascertained will the covenant not be enforced. See Hagan v. Sabal Palms, Inc., 186 So.2d 302 (Fla.2d DCA 1966), citing Moore v. Stevens, 90 Fla. 879, 106 So. 901 (1925); 20 Am. Jur.2d Covenants, Conditions, and Restrictions §§ 185-87 (1965).

The plain meaning of “structure” is embodied in Webster’s International Dictionary: “Something constructed or built. . ” We can find nothing ambiguous in the use of this term in the case before us and conclude that the deck is a structure as ordinarily understood. Since paragraph one of the declaration unambiguously, expressly prohibits any structure other than one single-family dwelling with an attached garage on any one lot, appellee’s deck is not a structure permitted under the declaration of restrictions and must be removed. Furthermore, not only is the term structure not ambiguous, but the intent of paragraph one is clear from the body of the declaration. It was the overall purpose of the restrictions to develop and maintain a residential area of some homogeneity in density, size, design, and materials of the structures and appearance of the lots. Paragraph one serves this purpose by restricting density and providing a uniform design and appearance.

REVERSED and REMANDED for proceedings consistent with this opinion.

GRIMES and DANAHY, JJ., concur.


text:
    Paul S. FOSS, Appellant, v. STATE of Florida, Appellee.
    No. 77-696.
    District Court of Appeal of Florida, Second District.
    Feb. 24, 1978.

      Robert E. Jagger, Public Defender, and Michael C. Cheek, Asst. Public Defender, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and .Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This is an appeal from a judgment of guilt on a charge of felony possession of marijuana. Appellant contends that the trial court erred in denying his motion to suppress the marijuana evidence. We agree and'reverse.

At the hearing on the motion, Clearwater Patrolman Robert Repp testified that one night at about 11:00 p. m. he observed a car traveling ten to fifteen miles per hour below the thirty miles per hour speed limit. However, he observed no erratic driving nor any violation of traffic laws. He further testified that he stopped the car because the passenger (appellant) appeared to be slumped over in the seat and he was concerned for- his welfare. Subsequent to the stop, Patrolman Repp and another officer shined their flashlight on appellant who was asleep in the car and saw that he was holding a clear plastic bag of marijuana. It was this marijuana which appellant asked the trial court to suppress.

It is our belief that the stop of the car in which appellant was a passenger was improper. Clearly, Officer Repp knew nothing from the facts which we have stated that would have given him a well-founded suspicion of criminal activity on the part of the occupants of the car. Moreover, the circumstances were not such as to give him a reasonable belief that an emergency existed. As a result he could not legally stop the car. Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977); Long v. State, 310 So.2d 35 (Fla. 2d DCA 1975).

Since the stop was illegal, the seizure of the marijuana was also illegal because it was the fruit of an improper exercise of police power. Lower v. State, supra. Therefore, we reverse the judgment of the trial court and the order placing appellant on probation and remand the case for proceedings consistent with this opinion.

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


text:
    Charlie VINING and Velma Vining, wife of Charlie Vining, Appellants, v. AVIS RENT-A-CAR SYSTEMS, INC., Appellee.
    No. 75-756.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1978.
    Papy, Levy, Carruthers & Poole and Sheridan K. Weinstein, Coral Gables, for appellants.

      Richard M. Gale, Robert L. Dube, Miami, for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on April 20,1976 affirming the order of the circuit court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed November 10, 1977 (354 So.2d 54) and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the judgment of this court filed April 20, 1976 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded for further proceedings consistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16(b), Florida Appellate Rules).


text:
    Paul Lawrence GARCIA, Appellant, v. The STATE of Florida, Appellee. Edward Simon SAVAGE, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-1719 and 77-1720.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 1978.
    Chambers & Hayes, Homestead, for appellants.
    Office of the State’s Atty., Jeff D. Gautier, State’s Atty., Key West, and Andrew Tobin, Asst. State’s Atty., Tavernier, for appellee.
    Before KEHOE, J., and BOYD, JOSEPH A., Jr., and CHARLES CARROLL (Ret.), Associate Judges.
   PER CURIAM.

The appellants appeal on order by the trial court denying their motions to expunge the record. By our order of November 21, 1977, we consolidated these appeals for all appellate purposes.

Garcia entered a plea of guilty of Grand Larceny. The trial court withheld an adjudication of guilt and placed him on probation for 18 months.

Savage pleaded guilty to possession of a short-barreled shotgun. The trial court withheld an adjudication of guilt and placed him on probation for one year.

Both appellants successfully completed their probationary period and filed motions to expunge the record pursuant to Section 901.33, Florida Statutes (1975). Neither had previously been convicted of a criminal offense. The trial court denied both motions.

We reverse and remand to the trial court for the sealing of the court records from public view in accordance with Johnson v. State, 336 So.2d 93 (Fla.1976).

Reversed and remanded with directions.


author: MILLS, Judge. BOYER, Judge,

text:
    Nelson Lee SPOTTS, Appellant, v. Linda Lou SPOTTS, Appellee.
    No. FF-480.
    District Court of Appeal of Florida, First District.
    Feb. 24, 1978.

      Barry J. Fuller, Orange Park, for appellant.
    Frank M. Scruby of Scruby, Yonge & Cobb, Orange Park, for appellee.
   MILLS, Judge.

The husband appeals from a final judgment in a dissolution of marriage action contending the trial court erred in providing for future automatic child support increases without a hearing, in considering business depreciation, as a source of income, in awarding child support of $300.00 per month per child, and in awarding the wife lump sum alimony of $25,000.00.

The husband and wife were married in 1965 upon their graduation from college. The wife became a teacher and has continued to follow this profession. The husband held several jobs, returning to college in 1968 to pursue a veterinary course which he completed in 1973. The husband and wife worked while the husband was attending the veterinary course. During this period of time the wife contributed earnings of $29,900.00 to the family and the husband contributed $17,300.00 plus $5,500.00 he had to borrow and on which he now owes $4,500.00. Upon graduation the husband, along with his family, moved to Jacksonville. The wife continued teaching and the husband began work with a veterinarian.

At the time of the hearing the husband was a self-employed veterinarian of about one year and the wife was still employed as a school teacher. The annual gross income of the husband was about $20,440.00, that of the wife was $9,159.00. The children born of the marriage were approximately six years and two years of age. The husband owed approximately $74,000.00 on loans required to set up his practice. He had an approximate equity in the property of $30,900.00. The husband owed about another $29,000.00. The future earning capacity of the husband appeared very good.

The final judgment required the husband to pay child support of $300.00 per month per child and beginning in 1978 to increase the child support $10.00 per month per child for each $1,000.00 per annum of the husband’s net income which exceeds $20,000.00 to which depreciation claimed is to be added. It also ordered the husband to pay the wife $25,000.00 as lump sum alimony payable monthly over a period of years.

We find no error in the method used by the trial court in providing for future automatic child support increases. The amount of the increase is small. The formula used by the court is precise and definite and will save time and money of all involved because they will not be returning to court every time the husband’s net income increases. The husband’s right to move for modification under appropriate circumstances is still preserved.

The court did err in considering business depreciation as a source of income. Section 167(a) of the Internal Revenue Code of 1954, as amended, provides:

“There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear and tear (including a reasonable allowance for obsolescence)—
(1) of property used in the trade or business, dr
(2) of property held for the production of income.”

The Congress of the United States has recognized that before a net income figure can be reached, depreciation of the property used to produce income must be deducted. Depreciation, therefore, is not income. It is a cost of producing income. This provision is stricken from the final judgment.

The court did not abuse its discretion in awarding child support of $300.00 per month per child. The record reflects the need of the children and the ability of the husband (father) to pay.

The court did abuse its discretion in awarding the wife $25,000.00 lump sum alimony. The wife was earning $9,159.00 annually, the husband $20,440.00. The wife had no liabilities. The husband had liabilities in excess of $100,000.00. The wife was awarded all of the household goods and furniture and a 1975 automobile. The husband must pay $7,200.00 in annual child support. The husband was required to pay the wife’s attorney’s fee. Although the husband appears to have a good future ahead of him, he has sizeable obligations to meet for some years to come. In order to meet the obligations, he must work diligently and from his gross revenue have enough left after meeting the above mentioned obligation to maintain and preserve his practice as a veterinarian and provide a living for himself.

Although the wife worked during the entire marriage, particularly while the husband was attending veterinary college, and contributed her earnings to the family, so did the husband. During this period she contributed about $7,000.00 more than the husband. Apparently, this was the basis for the award of lump sum alimony.

The husband and wife now occupy a position of equal partners. Whether the marriage continues or is severed, the woman is as fully equipped as the man to earn a living. The husband and wife share equal rights and obligations in the marriage relationship and share equal burdens in the event the marriage is dissolved. Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974).

We, therefore, reduce the lump sum alimony to $7,000.00 to be paid in the same manner as provided in the final judgment.

Affirmed in part; reversed in part.

McCORD, C. J., concurs.

BOYER, J., concurs in part and dissents in part.

BOYER, Judge,

concurring in part and dissenting in part.

I concur regarding child support and the formula devised by the learned trial judge. I would not disturb that formula. However, in my view this is not a proper case for lump sum alimony. I would therefore reverse and remand for the trial court to reconsider periodic alimony on a rehabilitative basis.


author: DENNIS, Justice. PER CURIAM.

text:
    STATE of Louisiana v. Randolph Wayne SCOTT.
    No. 60011.
    Supreme Court of Louisiana.
    Dec. 19, 1977.
    Rehearings Denied March 3, 1978.

      Scotty G. Rozas, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Gregory D. Lyons, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant Randolph Wayne Scott was convicted by a jury of manslaughter, La. R.S. 14:31, and sentenced to fourteen years in the custody of the Department of Corrections. Defendant appeals his conviction, relying upon thirteen assignments of error.

The victim, Anne Melancon, was found dead in her apartment at about 4:00 a. m. on October 16, 1975. Curtis Richards, the neighbor who discovered the body, ran to defendant Scott’s apartment in the same complex and told him that something was wrong with Anne. The two men, along with Scott’s wife Loretta, returned to the victim’s apartment. The defendant picked up Anne Melancon’s four-year old child, who was asleep on the dead woman’s lap, and handed him to Loretta Scott, instructing her to call the police. The child remained with the Scott family for two days until the victim’s family could be located out of state.

Richards and Scott waited for the arrival of the police, and Scott subsequently gave the police a statement. In this statement, which was exculpatory in nature, Scott admitted having gone to the victim’s apartment, but he said he went there only to borrow some baking ingredients earlier in the evening. At the time of making his initial statement, defendant agreed to return to police headquarters at a later time to take a polygraph test.

Investigation of the killing by the police turned up no physical evidence which pointed to any individual as the perpetrator, but testimony adduced at the motion to suppress indicated that two deputies informed the investigating officers that they had seen the defendant or someone fitting his description leaving the victim’s apartment on the night of the killing. Neither of the deputies testified at the motion to suppress hearing or at the trial. The second-hand recitations of their report by other officers leaves unclear the exact time the person left the apartment, the physical arrangement of the apartment in the complex, whether the person could have been leaving another apartment in the same building, and whether the deputies positively identified the defendant. The record does not explain why the two deputies did not testify or why the arresting officers did not act on the deputies’ information sooner. Although the police were aware of the deputies’ statement on the morning of the murder, no further action was taken until the defendant failed to appear at the police station to take a previously scheduled lie detector test nearly two days after the crime. In the interim, Curtis Richards and his brother, both initially considered suspects in the case, had been cleared in the opinion of the police. Again, however, the record does not disclose the reasons for the removal of their names from the list of possible culprits.

When the defendant failed to appear at the police department for his polygraph test on October 18, the investigating officers began a search to ascertain his whereabouts. In the course of their investigation, they learned from the defendant’s wife that she was going to leave him and that he was no longer staying in his apartment, from his employer that his job with a life insurance company had been terminated, and, from other sources, that his car had apparently been abandoned in the parking lot of a J. C. Penney’s store. By questioning the personnel at Penney’s, where defendant had worked nights as a maintenance man, the deputies learned that defendant had been seen in the company of one Calvin Pitre, a Penney’s employee. The officers contacted Pitre, learned that defendant was staying in his apartment, and, with Pitre’s permission, proceeded to his apartment and arrested the defendant on October 19, 1975, at about 9:00 p. m.

On the night of his arrest, after being advised of his rights, defendant was questioned from about 10:00 p. m. until 1:30 a. m. the next morning by Officers Landry and Smith at the Lake Charles City Police Department. At first, defendant gave statements exculpating himself; later, however, he confessed to the killing. Although a written statement was partially prepared on the 19th, it was not finished; no written statement was signed at that time. At 1:30 a. m., the interview was terminated by the officers and defendant was taken back to jail.

At 7:30 a. m. the next morning, October 20, the defendant was questioned again, this time by Officers Landry and LeJeune. After being given his rights, he gave a written statement in narrative form which implicated him in the murder. After the preparation and signing of the statement, defendant was taken by Officer Landry to see Dr. Cook, the coroner, for treatment of a headache.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that the arresting officers lacked probable cause to arrest him for the charged offense, and that the State failed to prove that a subsequently obtained confession was voluntary and admissible.

Voluntariness of the Confession

The voluntariness of the confession is a threshold requirement of admissibility. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The defendant contends that the trial judge should have suppressed the confession that he gave to the police, arguing that the statement was not given freely and voluntarily. Defendant, who testified that he was suffering from a severe headache, asserts that his physical condition and his depressed mental state so affected his comprehension that he was unable to give a wholly voluntary statement. Further, defendant argues that he signed the statement only upon a promise by the police that he would then be taken to a doctor for treatment of his headache.

Before a confession may be introduced into evidence, the State must establish beyond a reasonable doubt that the inculpatory statement was freely and voluntarily made. La.C.Cr.P. art. 703(C); La. R.S. 15:541; State v. Glover, 343 So.2d 118 (La.1977). See also, State v. Cobbs, 350 So.2d 168 (La.1977); State v. Scott, 344 So.2d 1002 (La.1977); State v. McSpaddin, 341 So.2d 868 (La.1977). The admissibility of the confession is a matter for determination by the trial judge, and his conclusions as to the credibility of witnesses testifying as to voluntariness will not be disturbed unless unsupported by the evidence. State v. Cobbs, supra; State v. Schamburge, 344 So.2d 997 (La.1977); State v. Ross, 343 So.2d 722 (La.1977); State v. Hollingsworth, 337 So.2d 461 (La.1976).

In the instant case, the defendant’s testimony at the hearing on the motion to suppress was directly contradicted by the testimony of the police officers conducting the investigation. The officers stated that, while the defendant did complain of a headache, he was alert and able to understand the questions put to him. Further, the officers testified that no inducements, promises, or threats were made to the defendant before he signed the inculpatory statement. In fact, they asserted that defendant’s rights were explained to him on at least three separate occasions, and that they volunteered to take the defendant to a doctor at the close of the questioning.

Further, we find that the trial court did not err in considering inconclusive the expert testimony presented on behalf of the defendant. At best, the experts were able to state that the defendant’s mental condition might have somehow affected the vol-untariness of the confession. For example, the coroner, Dr. Cook, testified that the defendant had a serious psychological problem related to his sexual orientation and maturity, which, together with his state of mental depression, could have caused him to confess to a crime he did not commit. However, none of the medical testimony directly and unequivocally indicated more than a possibility that the defendant’s mental state had precluded him from freely and voluntarily confessing to the crime. Our review of the entire record presented to us on appeal supports the finding of the trial judge that the State met its burden of proving that the statement was freely and voluntarily made.

Probable Cause and Attenuation

In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the United States Supreme Court held that a confession obtained as a direct result of an arrest made without probable cause should be suppressed. When the defendant challenges the admissibility of a confession on the ground that it was the result of an arrest made without probable cause, “the burden of showing admissibility rests . on the prosecution.” Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). This affirmative showing must be made by establishing that probable cause existed to arrest the defendant or, if the arrest was unlawful, by showing that the causal connection between it and the subsequently obtained confession was so attenuated that the confession could not properly be considered as a fruit of the illegal arrest. Wong Sun v. United States, supra. See, State v. Jenkins, 340 So.2d 157 (La.1976).

Any lawful arrest, whether war-rantless or pursuant to an arrest warrant, must be based upon probable cause to believe that the person arrested has committed or is committing an offense. State v. Herbert, 351 So.2d 434 (La.1977); State v. Ranker, 343 So.2d 189 (La.1977); State v. Jackson, 337 So.2d 508 (La.1976). Although the measure of probable cause does not require that the arresting officer have sufficient proof to convict the accused, the arrest may not be predicated upon mere suspicion. State v. Randolph, 337 So.2d 498 (La.1976).

In State v. Thomas, 349 So.2d 270, 272 (La.1977), we set forth the applicable principles:

“A warrantless arrest, no less than an arrest pursuant to a validly issued warrant, must be based on probable cause, [citations omitted] Probable cause exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense, [citations omitted] While the officer need not have sufficient proof to convict, mere suspicion is not enough to justify an arrest, [citations omitted]

“LaFave, ‘Street Encounters’ and the Constitution: Terry, Sibron, Peters and Beyond, 67 Mich.L.Rev. 40, 73-74 (1968) observes:

“ ‘As to the probability required for an arrest, it may generally be stated that it must be more probable than not that the person has committed an offense, although this is less certain as to the probability that a particular person is the offender than to the probability that a crime has been committed by someone. In the latter situation, which assumes central importance when there is no doubt who the offender is if a crime has been committed, courts ordinarily require that criminal conduct be more probable than non-criminal activity. This approach is reflected in those decisions which say that there must be “more evidence for [the existence of criminal conduct] than against” or that the suspect’s actions must be “inconsistent with any innocent pursuit,” and also in the many cases where grounds for arrest have been found lacking because the conduct of the suspect was equivocal, that is, where the possibility of criminal conduct was no greater than the possibility of innocent behavior.’ ” (Footnotes omitted.)

In discussing the factors to be considered in determining when the connexity becomes so attenuated that suppression of a confession resulting from an unlawful arrest is not required, the United States Supreme Court, in Brown v. Illinois, stated:

“It is entirely possible, of course, as the State here argues, that persons arrested illegally frequently may decide to confess, as an act of free will unaffected by the initial illegality. But the Miranda warnings, a lone and per se, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession. They cannot assure in every case that the Fourth Amendment violation has not been unduly exploited. See Westover v. United States, 384 U.S. 436, 496-497, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966).
“While we therefore reject the per se rule which the Illinois courts appear to have accepted, we also decline to adopt any alternative per se or ‘but for’ rule. The petitioner himself professes not to demand so much. Tr. of Oral Arg. 12, 45, 47. The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanie test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, see Johnson v. Louisiana, 406 U.S. 356, 365, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), and, particularly, the purpose and flagrancy of the official misconduct are all relevant. * * * ” Brown v. Illinois, supra, 422 U.S. at 427, 95 S.Ct. at 2261.

In the instant case, we are unable to conclude from the record before us that the State carried its burden of establishing the admissibility of the defendant’s confession by either showing that probable cause existed to arrest the defendant or that the causal connection between an unlawful arrest and a subsequent confession had been broken for Fourth Amendment purposes. We have reached this conclusion primarily as a result of the ambiguous testimony of the arresting officers about what was actually seen and reported by the two deputies regarding the person they saw in the vicinity of the victim’s apartment on the night of the killing. In our view, the ambivalent quality of this evidence, together with the fact that the State did not call the two deputies to testify, either at the motion to suppress hearing or-at the trial, resulted in a failure of the State to establish satisfactorily that the officers had probable cause to arrest the defendant. The failure of the defendant to appear for his polygraph test and the other circumstances caused by the termination of his employment and the breakup of his marriage combined with the ambiguous secondhand recitation of the deputies’ report does not establish a probability that the defendant committed the offense. The facts as set forth in the record may have warranted suspicion and further investigation, but they do not establish probable cause to arrest the defendant for the killing.

Turning to the question of whether there was a sufficient break in causality between arrest and confession to purge the latter of any taint, initially we find that defendant was given his Miranda rights on more than one occasion before making an inculpatory statement. While the Court in Brown rejected the Miranda warning as a “talismanic test” for determining attenuation, it nevertheless acknowledged that the presence or absence of such a warning is an important factor to be considered. Further, we find that the “temporal proximity of the arrest and the confession” in the instant case is fairly close. Defendant was interrogated on one evening and the next morning, and his confession was obtained at the end of the morning session. The testimony introduced on the motion to suppress does not indicate the presence of any significant intervening circumstances between defendant’s arrest and his confession. However, we are unable from the record before us to determine whether “official misconduct” occurred, or, if it occurred, the “purpose and flagrancy” of the misconduct. Brown v. Illinois, supra, 422 U.S. at 603-4, 95 S.Ct. 2254.

This issue is, of course, related to the probable cause question. As with probable cause, the lack of a clear and complete record of the pertinent evidence thwarts our inquiry. The United States Supreme Court has indicated that a confession resulting from an invalid arrest may nevertheless be admissible if the illegality did not have a quality of “purposefulness.” Brown v. Illinois, supra, 422 U.S. at 605, 95 S.Ct. 2254. Particularly disturbing in this regard is the fact that the two deputies who purportedly saw defendant or someone resembling him leaving the victim’s apartment were never called to testify at either the motion to suppress hearing or at trial. Further, the arresting officers were aware of the deputies’ report for almost three days before the defendant was arrested, but failed to act until defendant absented himself from his home and office, an occurrence which seems readily explained by the termination of his employment and the breakup of his marriage. The officers had been given these reasons for defendant’s unusual behavior before the arrest and easily could have verified the facts before interrogating him. If the record had made clear the exact nature of the information provided by the deputies, and given more explanation of the actions of the arresting officers in eliminating the other suspects and delaying before focusing their investigation on defendant, perhaps it would have been sufficient to dispel the aura of “purposefulness”. As it stands now, however, the record supports the conclusion that defendant was simply picked up for questioning as well as it does that a good faith but negligently invalid arrest was made.

On this record, we cannot conclude that the State met the requirement that it prove either probable cause for the defendant’s arrest or a break in causal connexity between the arrest and the confession. Rather than decide those matters for the first time at this level, we think it preferable to allow the trial court to reconsider the issues under the guidelines expressed herein.

ASSIGNMENT OF ERROR NO. 5

In this assignment, defendant contends that the trial judge erred in accepting the determination of voluntariness made at the motion to suppress. Defendant argues that, in the face of new evidence presented at trial on his behalf, the court should have re-opened the inquiry as to whether defendant’s statement was voluntarily made, rather than simply allowing the new evidence to go to the jury to aid in its determination of the weight to be given to the confession.

Our review of the testimony presented by the defendant at trial indicates that no evidence was adduced which would have altered the initial determination of volun-tariness made at the motion to suppress. The expert medical testimony was essentially corroborative of the medical evidence presented at the hearing on the motion; the witnesses indicated that defendant was a self-defeating personality type who suffered from periods of severe depression, but none of the witnesses was able to say that there was more than a possibility that defendant’s mental state had deprived him of the ability to make a voluntary statement. The factual testimony presented by defendant’s other witnesses also presented basically the same issues already raised at the initial hearing; no testimony was presented which would have justified a change in the original determination that the confession was freely and voluntarily made.

Because of our finding that the evidence adduced at trial was insufficient to reverse the original finding of voluntariness, we find it unnecessary to reach the issue of whether the trial judge should in fact have re-opened the inquiry which had been resolved by the determination at the hearing on the motion to suppress. After considering all evidence presented by defendant on his behalf, we conclude that the trial court did not err in ruling that defendant’s confession was made freely, voluntarily, and without coercion.

Defendant’s fifth assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 6

Defendant complains that he was not given the warnings required by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) prior to his giving a statement which implicated him in the murder of Anne Melancon. This contention is based upon the fact that the “Miranda rights” printed at the top of the confession signed by defendant do not include the right to appointed counsel during interrogation. Because the written enumeration of rights was insufficient, defendant contends that the confession which he subsequently gave was obtained in violation of his constitutional rights.

Defendant’s argument relating to the instant assignment is without merit. A review of the trial testimony indicates that defendant was orally advised at least once, and possibly twice, of the full range of rights accorded to him under Miranda. Under the circumstances of this case, the fact that the subsequent written waiver was incomplete and does not state one of the entire panoply of rights does not, in view of the full oral warnings, invalidate the confession. Defendant’s sixth assignment is unmeritorious.

Since we find no trial error except that on the motion to suppress, it is not necessary at this time to reverse the conviction or order a new trial, because the error might be eliminated upon another trial of the motion to suppress or the conduct of such other factual inquiries as may be necessary to resolve the admissibility issue. See, State v. Simmons, 328 So.2d 149 (La. 1976). We reserve to the trial judge the power to grant a new trial should he determine the confession inadmissible. If, on the other hand, the trial judge determines, af-' ter taking additional evidence that the confession is admissible, the right to appeal • from such ruling is reserved to the defendant. In the absence of such an appeal, the¡ conviction and sentence will be affirmed.

The case is remanded to the district court for further proceedings in accordance with this opinion.

SANDERS, C. J., and SUMMERS and-MARCUS, JJ., dissent.

PER CURIAM.

Both applications for rehearing are-de--nied. The State has noted an erroneous statement in our original opinion, caused by the truncated record before us, and has now supplied a transcript showing that Deputies Fruge and Allen testified in some proceeding in this case. We have examined that testimony, and it does not establish probable cause for defendant’s arrest, and therefore does not affect our ruling on the remand.

The applications for rehearing are denied.

      . Of these, Assignment No. 1 is moot; Assignments Numbers 2 and 3 have not been briefed and are thus deemed abandoned. We have examined the record in relation to Assignments 7-13, which raise issues of the sufficiency of the notice of intent to use defendant’s confession, the right of defendant to inspection of a police report not used in court, inadvertent remarks of witnesses relating to voice analyzer tests, improper cross-examination of defendant, limitation of expert testimony offered by a defense witness, and failure of the trial court to grant a new trial, and find them to be without merit.


author:
DIXON, Justice. SUMMERS, Justice,
      MARCUS, Justice

text:
    STATE of Louisiana v. Roy Edward SEGERS. STATE of Louisiana v. Bobby Therral SMITH.
    No. 60388.
    No. 60389.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearing Granted in No. 60388 and Denied in No. 60389.
    March 3, 1978.
    For Rehearing Opinion in No. 60388, see 357 So.2d 1.

      Thomas W. Davenport, Jr., Davenport, Files, Kelly & Marsh, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Walter L. Smith, Jr., Roland T. Huson, III, R. Neal Wilkinson, Asst. Attys. Gen., John T. Seale, Dist. Atty., Thomas F. Wade, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendants Roy Edward Segers and Bobby Therral Smith were indicted with others by the Tensas Parish Grand Jury for the possession of marijuana with the intent to distribute and conspiracy to distribute marijuana. Segers was tried by jury, found guilty on both counts and sentenced to serve four years imprisonment at hard labor and to pay a fine of $7500 for conspiracy and eight years at hard labor and a fine of $15000 for the possession' with intent to distribute. Smith, pursuant to a plea bargain, pleaded guilty to possession with the intent to distribute, reserving his right to appeal the trial court’s denial of a motion to suppress physical evidence. (See State v. Hutchinson, 349 So.2d 1252 (La.1977); State v. Lain, 347 So.2d 167 (La.1977); State v. Crosby, 338 So.2d 584 (La.1976)). He was sentenced to serve ten years imprisonment at hard labor and fined $15000. Defendant Segers urges five assignments of error on appeal; defendant Smith, one.

In the evening of April 26, 1976 an off-duty Tensas Parish Deputy Sheriff, Victor Thomas Mahoney, Jr., noticed a large U-Haul truck and car turn onto a road providing access to an area known as “the Island,” alongside Lake Bruin. Because there had been several recent burglaries of the camps lining Lake Bruin, Deputy Mahoney was suspicious of the truck and car and decided to follow with his headlights turned off. After losing contact with the truck, Maho-ney drove along the camps, shining his spotlight in hope of sighting the truck and car. Earlier that day he had noticed a large airplane parked on an airstrip located on “the Island,” so when he came to the entrance of the airstrip he turned to check the plane. There he first noticed a two-door Pontiac that had not been there earlier in the day, parked next to the plane. He took the license number of the car and radioed headquarters for a registration verification. He was told that the license number displayed should be on a four-door car. Becoming more suspicious, Deputy Mahoney drove closer and then noticed a U-Haul truck parked on the other side of the plane. He then radioed for assistance.

Among those answering the call was Trooper Danny Warner of the Louisiana State Police Morehouse-Ouachita Narcotics Strike Force. After discovering marijuana gleanings on the exteriors of the truck and plane and detecting the odor of marijuana, Trooper Warner and Deputy Mahoney flew to St. Joseph, Louisiana to get a search warrant. When they arrived in St. Joseph, they awoke Judge Alwine M. Smith and told her their story. She executed a search warrant authorizing the search of the plane and other vehicles. The subsequent search resulted in the seizure of over three thousand pounds of marijuana. Segers was arrested on April 27, 1976; Smith several days later.

Assignment of Error No. 1 (Segers and Smith)

This assignment was taken to the denial of a motion to suppress the physical evidence (marijuana) seized in the search conducted pursuant to the search warrant. The defendants contend that the search was unconstitutional because the affidavit executed in the application for the warrant was defective in three respects: first, in that it presents an unclear and insufficient recitation of facts on which a finding of probable cause may be based; second, in that the facts recited in the affidavit were subsequently acknowledged to be untrue by the affiant; and third, in that there is no reference to whether the facts are current or whether they are remote in time from the application. The search warrant itself is attacked on grounds that it fails to describe either the property or the place to be searched.

Testimony at the hearing on the motion to suppress reveals that Trooper Warner and Deputy Mahoney told Judge Smith the facts, and then she filled out the “Application for Search Warrant” form. The affidavit reads as follows (the handwritten words by Judge Smith are underlined):

“APPLICATION FOR SEARCH WARRANT
STATE OF LOUISIANA PARISH OF Madison
BEFORE ME, the undersigned authority, personally came and appeared Dannv Warner and Victor Thomas Mahoney, Jr., who each being duly sworn, says:
That he is 26 and 32 years of age respectively, a resident of Monroe. La. and Tensas Parish. respectively - - ■
That he verily believes that personal property belonging to persons unknown contains a controlled dangerous substance, marijuana and is (edifice)
possessed bv the owners and operators of the vehicles and airplane above described for the purpose of distribution located on the property of Lake Bruin Airport -- in the (city, town, village) of Parish of Tensas. Louisiana; the said property consisting of a white over gold 1973 Grand Prix. VIN # 2-K57T3A220601 License LXZ 627. 76 Tex & Airplane Lockheed Lodestar L18--Twin Engine FAA regis #- N755A-a Ford Custom 350 U Haul Truck orange & white--1P60776 Ala 1
Affiant further believes that said property or a part thereof is concealed in or about the house of Lake Bruin Airport on the property of Person’s at present unknown, in Tensas on the Highway -- That the Deputy Sheriff Victor T. Mahoney. Jr. observed the outside of the aircraft and the outside of the Ford U Haul Truck & it smells strongly of marijuana and has marijuana gleanings on the outside of the truck & plane as if unloaded near or at the truck.
Affiant requested the issuance of a search warrant herein.
s/ TFC Dannv A. Warner
s/ Victor Thomas Mahoney, Jr. Sworn to and subscribed before me this 26 day of April. 1976.
s/ Alwine M. Smith_
JUDGE
Sixth Judicial District Court State of Louisiana.”

(Original affidavit reproduced in Appendix).

Defendants contend that the affidavit is so poorly drafted that it is nonsensical and fails to support a finding of probable cause.

In United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), the United States Supreme Court set out the following principle:

“ . . .If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” 380 U.S. at 108, 85 S.Ct. at 746.

See also United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Ford, 180 U.S.App.D.C. 1, 553 F.2d 146 (1977); United States v. Harper, 550 F.2d 610 (10th Cir. 1977); United States v. Harvey, 540 F.2d 1345 (8th Cir.1976); State v. Williams, 338 So.2d 1365 (La.1976); State v. Roach, 322 So.2d 222 (La.1975).

Defendants argue that this principle is inapplicable to the present affidavit because it was drafted.by the judge and therefore must be literally interpreted. We do not agree. It is sufficient that the affidavit shows that the magistrate was informed of the facts and circumstances within the affiants’ knowledge upon which a finding of probable cause may reasonably be based.

A commonsense reading of the affidavit before us reveals that the judge was told that the affiants believed that marijuana was hidden in three described vehicles and that they based this belief on the observation of marijuana gleanings on the outside of the vehicles and on the detection of the odor of marijuana in the area. These facts are sufficient to support a finding of probable cause.

Defendants next contend that even if the affidavit demonstrates probable cause to search, it nevertheless must fall because certain facts contained in the affidavit are untrue. Specifically, they point to that portion of the affidavit which recites, “That the Deputy Sheriff Victor T. Mahoney, Jr. observed the outside of the aircraft and the outside of the Ford U Haül Truck & it smells strongly of marijuana and has gleanings on the outside of the truck & plane . ” At the hearing on the motion to suppress Deputy Mahoney testified that he did not tell Judge Smith that he observed or smelled the marijuana, but rather that Trooper Warner, a narcotics officer, observed those facts.

While it is true that the affidavit may be interpreted in the manner advanced by the defendants, it must be noted that both Ma-honey and Warner were affiants. Thus the statement may be interpreted to mean that Warner, as one of the affiants, told of the gleanings and odor. Because the affidavit was written by the judge and any technical inaccuracies could not be the result of intentional police fabrication (see State v. Rey, 351 So.2d 489 (La.1977)), this “inaccuracy” is not fatal to the affidavit.

Defendants’ final attack on the affidavit is based on the failure of the affidavit to reflect the time when the observations made by the affiants took place. In State v. Boudreaux, 304 So.2d 343 (La.1974), this court, when faced with the same issue now presented, stated:

“The absence of a date for each episode described in the affidavit is not fatal, however, The language of the affidavit, including the use of the present tense, indicates that the affiants are describing a course of conduct continuing to the date of the warrant. .
“Such an affidavit has been held to be adequate if, in a commonsense construction, it can be said from the face of the affidavit that the information received by the affiant was current and not stale. See: Borras v. State, 229 So.2d 244 (Fla.,1969); State v. Clay, 7 Wash.App. 631, 501 P.2d 603 (1973); Sutton v. State, 419 S.W.2d 857 (Tex.Cr.App., 1967); Lewis v. State, 126 Ga.App. 123, 190 S.E.2d 123 (1972). ...” 304 So.2d at 345-46.

See also State v. Turner, 337 So.2d 1090 (La.1976). Application of these principles to the affidavit in the instant case renders the defendants’ argument without merit.

Finally, defendants attack the search warrant itself on grounds that it fails to particularly describe either the place to be searched or the property to be searched. The contention is without merit. The search warrant states that the vehicles located at the Lake Bruin Airport are to be searched because they were being used to conceal marijuana. The license numbers of the vehicles were listed on the back of the search warrant. Testimony at the hearing on the motion to suppress indicates that there are two airports in the Lake Bruin area: one commonly known as the “Lake Bruin Airport” and another known as the “Sun Crop Dusting Airport.”

The description contained in a search warrant is adequate if it is sufficiently detailed so as to allow the officers to locate the property with reasonable certainty and with the reasonable probability that they will not search the wrong premises. State v. Cobbs, 350 So.2d 168 (La.1977); State v. Alexander, 337 So.2d 1111 (La.1976). This test is satisfied by the search warrant at issue in the present case.

This assignment is without merit.

Assignment of Error No. 2 (Segers)

In this assignment Segers contends that the trial court erred in denying a motion to suppress an out-of-court photographic identification.

Evidence of the out-of-court identification was not introduced at trial. Therefore, if error, it was harmless. ,

This assignment is without merit.

Assignment of Error No. 3 (Segers)

On the morning of April 27, 1976 Segers heard a news report of the search of his airplane. He called the Sheriff’s Office and was told to meet Sheriff Theo Poe at the airport. Upon arriving at the airport Seg-ers met the Sheriff, shook hands and exchanged pleasantries. Sheriff Poe then asked the defendant whether he owned the plane and Segers replied that it belonged to his corporation, Segers and Associates, Inc. Sheriff Poe next asked Segers whether he had flown the airplane into Tensas Parish. Segers stated that he had not flown the aircraft, but that he had served as a member of the crew. Segers was then arrested and advised of his Miranda rights.

The Sheriff testified at first that he would not have permitted Segers to depart after admitting an ownership interest in the plane, but would not have arrested him for possession of the contraband merely because he owned the plane. Later the Sheriff testified that he didn’t know whether Segers would have been permitted to leave and said, “I would have asked him some more questions. He could of course have refused to answer ’em.” Defendant assigns as error the introduction of the statement into evidence at trial, arguing that his constitutional rights had been violated. In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court held:

“ . . . the prosecution may not use statements, whether exculpatory or incul-patory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. . . . ” 384 U.S. at 444, 86 S.Ct. at 1612.

The Court defined “custodial interrogation” as:

“ . . . questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. . . . ” 384 U.S. at 444, 86 S.Ct. at 1612.

Since Miranda was decided, numerous cases have endeavored to refine the meaning of “custodial interrogation.” (See, e. g., Mathis v. U. S., 391 U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968); Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969); Beckwith v. U. S., 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976)). In the recent case of Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977), the Court was faced with the following factual situation:

“ ‘An officer of the State Police investigated a theft at a residence near Pendle-ton. He asked the lady of the house which had been burglarized if she suspected anyone. She replied that the defendant was the only one she could think of. The defendant was a parolee and a “close associate” of her son. The officer tried to contact defendant on three or four occasions with no success. Finally, about 25 days after the burglary, the officer left his card at defendant’s apartment with a note asking him to call because “I’d like to discuss something with you.” The next afternoon the defendant did call. The officer asked where it would be convenient to meet. The defendant had no preference; so the officer asked if the defendant could meet him at the state patrol office in about an hour and a half, about 5:00 p. m. The patrol office was about two blocks from defendant’s apartment. The building housed several state agencies.
‘The officer met defendant in the hallway, shook hands and took him into an office. The defendant was told he was not under arrest. The door was closed. The two sat across a desk. The police radio in another room could be heard. The officer told defendant he wanted to talk to him about a burglary and that his truthfulness would possibly be considered by the district attorney or judge. The officer further advised that the police believed defendant was involved in the burglary and [falsely stated that] defendant’s fingerprints were found at the scene. The defendant sat for a few minutes and then said he had taken the property. This occurred within five minutes after defendant had come to the office. The officer then advised defendant of his Miranda rights and took a taped confession.
‘At the end of the taped conversation the officer told defendant he was not arresting him at this time; he was released to go about his job and return to his family. The officer said he was referring the case to the district attorney for him to determine whether criminal charges would be brought. It was 5:30 p. m. when the defendant left the office.’ ” 429 U.S. at 493-94, 97 S.Ct. at 713.

The Court, in holding that the defendant’s Miranda rights had not been violated because the questioning occurred in a noncustodial situation, stated:

“ . . . [pjolice officers are not required to administer Miranda warnings to everyone whom they question. . . Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.” 429 U.S. at 495, 97 S.Ct. at 714. (Emphasis added by author).

This court, in cases dealing with whether a custodial situation exists, has relied on factors generally indicating the degree the police suspect the person interrogated of committing the offense in order to determine whether there actually is custody. See State v. Hodges, 349 So.2d 250 (La.1977); State v. Corey, 339 So.2d 804 (La.1976); State v. Roach, 322 So.2d 222 (La.1975).

A comparison of the facts of the instant case with those of Mathiason and with the factors indicating the degree of police suspicion in mind, obtains the following: (1) in both cases the police had reason to suspect the defendant—in Mathiason, because of the victim’s information; in the present case, because the plane was registered to the defendant’s corporation; (2) the police initiated the interview in Mathia-son ; Segers initiated the meeting in the present case; (3) in neither case did the police have positive proof of the defendant’s involvement until after the initial questioning.

We conclude that the defendant’s statements made to the Sheriff, like those of the defendant in Mathiason, were not made while in custody within the meaning of Miranda v. Arizona, supra.

Defendant argues that even if Miranda is not applicable, his rights afforded by Art. 1, § 13 of the La.Const. of 1974 were violated when the Sheriff questioned him.

Art. 1, § 13 provides, in pertinent part: “When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. . ” (Emphasis added).

Defendant is correct when he argues that the term “detained” might not mean the same as “custody” under the Miranda cases. This situation was at least considered at the time Art. 1, § 13 was formulated. Har-grave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L. Rev. 1, 40-42 (1974).

In interpreting the meaning of “detained” it is essential to keep in mind the reasons for the requirement that police inform citizens of their constitutional rights prior to interrogation. Central to the purpose of this requirement is the protection of the individual’s rights against self-incrimination from the coercive potential of police interrogation. In the present case we find particularly significant the fact that the defendant initiated the contact by voluntarily calling the Sheriff’s Office. The Sheriff’s initial questioning was conducted in a cordial atmosphere without any of the earmarks of coercion. While the defendant was certainly under suspicion because of his connection with the corporate owner of the plane, his ownership interest, while suggesting the possibility, or even the probability, of criminal participation or knowledge, was not necessarily incriminating. The facts of this case do not show that the defendant was “detained” within the meaning of Art. 1, § 13 at the time he answered the Sheriff’s initial questions.

This assignment is without merit.

Assignment of Error No. 4 (Segers)

Defendant contends it was error for the trial court to refuse to give a requested special jury charge on mistake of fact.

A requested special charge need not be given if it is adequately covered by the general charge or another special charge. C.Cr.P. 807; State v. Progue, 350 So.2d 1181 (La.1977); State v. Brooks, 350 So.2d 1174 (La.1977). The trial court adequately charged the jury concerning mistake of fact in the present case.

This assignment is without merit.

Assignment of Error No. 5 (Segers)

Defendant Segers complains that his sentence is unconstitutionally excessive within the meaning of Art. 1, § 20 of the La.Const. of 1974.

After conviction but before sentence the trial court held a pre-sentence hearing at which the defendant put on evidence of mitigating factors to be considered in sentencing. The twenty-eight year old defendant showed that he had no previous criminal record and that he had been consistently employed since he completed his education. At the time of the offense defendant was the president of a family corporation engaged in the sales and service of computer related equipment. The corporation had gross sales of close to $1,000,000 and a net of approximately $80,000. Defendant testified that he thought the trip to Mexico was for the purpose of obtaining ancient Indian artifacts and that it was not until the trip back that he learned that the airplane was loaded with marijuana. This testimony was corroborated by the results of a lie detector test.

The maximum sentence for conspiracy to distribute marijuana is five years imprisonment and a fine of $5000. R.S. 14:26, R.S. 40:966 B(2). The maximum sentence for possession with the intent to distribute marijuana is ten years imprisonment and a fine of $15000. The defendant was sentenced to serve four years imprisonment at hard labor, fined $7500 and ordered to serve one additional year in default of the payment of the fine on the conspiracy conviction. On the possession with intent to distribute conviction defendant was sentenced to serve eight years imprisonment, fined $15000 and ordered to serve two additional years in default of payment of the fine.

In view of the fact that the offense involved the transportation of such a large amount of marijuana into Tensas Parish, we conclude that the defendant’s sentence (concurrent sentences, C.Cr.P. 833) was not excessive. The fact, if accepted as true, that he did not know the true nature of the venture until the marijuana was on the plane does not alter the fact that he continued in its commission without notifying the authorities.

This assignment is without merit.

For the foregoing reasons, defendants’ convictions and sentences are affirmed.

SANDERS, C. J., concurs in the result only.

MARCUS, J., concurs and assigns reasons.

SUMMERS, Justice,

concurring in the result only.

This court cannot properly review the excessiveness of the sentence in this case.

Appendix to follow.

MARCUS, Justice

(concurring).

La.Const. art. 1, § 20 (1974) provides that “[n]o law shall subject any person . to cruel, excessive, or unusual punishment.” (Emphasis added.) Hence, our review is limited to whether the “law” subjects any person to excessive punishment, not whether a sentence in a particular case is excessive. Accordingly, I respectfully concur.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Mister DONAHUE.
    No. 60479.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearing Denied March 3, 1978.

      Joseph R. Raggio, Taylor & Raggio, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, L. J. Hymel, Jr., Walter L. Smith, Jr., Asst. Attys. Gen., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Mister Donahue appeals his convictions and sentences for the crimes of second degree murder and armed robbery, of Marshall Bond in 1973. For the second degree murder conviction he was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence for twenty years. For the armed robbery conviction he was sentenced to a consecutive ninety-nine years without benefit of parole, probation or suspension of sentence. He argues three assignments of error which he contends justify reversal of his convictions and sentences.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

Defendant alleges that his motion to quash and his motion for mistrial were wrongly denied. In these motions he contended that the charge against him for second degree murder, which was brought by bill of information, could legally have been brought only by grand jury indictment. Defendant’s contention is correct.

Prosecution was originally instituted against defendant Donahue for first degree murder and armed robbery by grand jury indictment in 1975. After recusal of the District Attorney, the indictment was nolle prossed and prosecution, then in the charge of the Attorney General’s office, was reinst-ituted by a second grand jury indictment on December 8, 1975 for first degree murder. Thereafter, the death penalty under Louisiana’s first degree murder statute was invalidated, Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). The Attorney General’s office chose to nolle pros the grand jury indictment and to reinstitute prosecution against Donahue by bill of information for second degree murder and armed robbery on December 21, 1976. Defendant’s contention that the second degree murder charge was brought by bill of information rather than grand jury indictment is borne out by the record. This renders the prosecution for second degree murder null, for reasons which follow.

Article 1, section 15 of the Louisiana Constitution of 1974 provides that no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury. Likewise, Code of Criminal Procedure Article 382 provides that prosecution for an offense punishable by death, or for an offense punishable by life imprisonment, shall be instituted by grand jury indictment. The crime of second degree murder carries a punishment of life imprisonment. La.R.S. 14:30.1. Therefore, prosecution for the offense with which defendant is charged can be instituted only by grand jury indictment. State v. Stevenson, 334 So.2d 195 (La.1976).

The state argues that, because the crime for which defendant is charged occurred before the effective date of the 1974 Constitution, the 1921 Constitution, which allowed prosecution of a crime punishable by a life sentence or bill of information, governs these proceedings. That position lacks merit. Had the charge been filed during the time that the 1921 Constitution was in effect, it would have been valid when filed, and would have supported a conviction gained after the 1974 Constitution took effect. La.Const. art. 14, § 23 (1974); State v. Smith, 329 So.2d 725 (La. 1976). But the conviction at issue here is grounded upon a charge filed in December of 1976, a date subsequent to the effective date of the 1974 Constitution. It was not valid when filed, and it cannot support a valid conviction. State v. Stevenson, supra; State v. Smith, supra. In this circumstance the date of the occurrence of the crime is immaterial.

' For this reason, institution of the prosecution against defendant Donahue for second degree murder by bill of information rather than grand jury indictment constitutes error, and the trial judge wrongly denied defendant’s motion to quash as to that charge.

That resolution does not end the matter, for the state argues that even should the second degree murder conviction be invalid, the second conviction, that for armed robbery, need not be upset.

Armed robbery is neither a capital crime nor a crime punishable by life imprisonment. La.R.S. 14:64; La.Const. art. 1, § 15 (1974). It may be charged by grand jury indictment or by bill of information. State v. Williams, 341 So.2d 370 (La.1976); State v. Bradford, 298 So.2d 781 (La.1974). It is clear, therefore, that had the armed robbery charge been brought alone, it could properly have.been brought by bill of information.

Moreover, if the second degree murder had been quashed before trial began, the prosecution for armed robbery could have continued on the valid robbery count. This is so because each count in a multiple-count charge independently charges an offense. It is this principle which underlies the entire procedure whereby offenses are joined in a single count, as explained in Wharton’s Criminal Procedure, as follows:

“Each count, being in legal contemplation a separate indictment or information must contain all the allegations necessary to constitute the offense sought to be charged in such count, for it is upon the principle of the joinder of offenses that the joinder of counts is allowed. In determining whether an indictment or information is sufficient, each count must be treated as a whole, and the jury is not required to treat such an indictment or information as an indivisible unit.” 2 Wharton’s Crim.Proc. § 295, pp. 138-39 (12th ed., Torcia ed., 1975)

Thus, if one count of a two-count indictment or information is invalid, the entire accusation will not be quashed, but, instead, only the defective counts will be quashed. See Selveater v. United States, 170 U.S. 262, 18 S.Ct. 580, 43 L.Ed. 1029 (1898). Moreover, Louisiana law allows the granting of partial relief in response to a motion to quash. State v. Mitchell, 319 So.2d 357 (La.1975).

The only real question, then, is whether the charge and evidence of second degree murder presented to the jury simultaneously with the armed robbery charge so infected the otherwise properly charged and tried armed robbery prosecution as to require reversal of the armed robbery conviction. We believe that it did not.

In the first place, the two crimes arose out of the same transaction, and facts as to each would have been respectively admissible at separate trials of the other as part of the res gestae. R.S. 15:447, 448. This is not a situation where the counts could not have been joined and where such misjoin-der resulted in inherent prejudice to defendant on each charge. See State v. McZeal, 352 So.2d 592 (La.1977). Here, because of a technical but fatal deficiency in one count of the accusation defendant should not have been tried on that count. Under these circumstances, we hold that our quashing of the second degree murder count post trial does not affect the otherwise valid armed robbery charge and trial, and that the conviction and sentence for the crime of armed robbery should be allowed to stand.

Thus, while we nullify defendant’s conviction and sentence for second degree murder, we find that this defect does not infect the conviction and sentence for armed robbery. We therefore turn to the other assignment which defendant contends requires reversal of his conviction.

ASSIGNMENT OF ERROR NO. 7

Defendant argues that the trial judge erred in refusing to grant a mistrial requested on the basis of the prejudicial conduct of a witness in the case. The witness was Ossie B. Brown, District Attorney for the Parish of East Baton Rouge, who had been recused as prosecutor in the case because of his involvement in taking defendant Donahue’s confession to the crime. Defendant complains that while Brown was on the witness stand he made unnecessary and unsolicited remarks which prejudiced his case. Specifically, he complains first that the district attorney should not have testified in narrative form, and that the district attorney should not have volunteered lengthy answers to questions. We see the following recitals as typical of those of which defendant complains:

“PROSECUTOR: Now, Mr. Brown, did you promise Mr. Whitmore anything whatsoever in exchange for him giving you this statement?
WITNESS: No, sir. Mister Donahue asked to see me and after he finished telling me this, he said, do you think that I will go to jail for this. And very plainly and very ordinarily I would say .
DEFENSE COUNSEL: I’m going to object . . .
* * * * * *
“PROSECUTOR: And at that time did you have occasion to see and talk with Mister Donahue again?
WITNESS: Yes, sir.
PROSECUTOR: And what was the purpose of this conversation?
WITNESS: I asked Mister Donahue when I talked to him the first time if he’d like to tell what he told me to the deputies. He said, yes. That’s when I asked him why didn’t he take a break and go eat. I was informed that he had decided he wasn’t going to give them a taped statement. And I said, well, let me go see what the problem is. I went into the room where Mister Donahue was, and I asked him was anything wrong. He said no. I said, are you going to give them a taped statement. He said, No, I’ve said all I’m going to say.
PROSECUTOR: And was this the last contact you had with Mister Donahue?
WITNESS: That was the last contact I had with him. I did something else when I was in the room at that time.
PROSECUTOR: And what was that, Mr. Brown?
DEFENSE COUNSEL: Your Honor * * * Mr. Brown is still volunteering the information.”

We will assume without deciding that the witness here, the district attorney of the parish where the crime occurred who had been recused because of his involvement in the case, is not an ordinary lay witness but one whose remarks are attributable to the state. See State v. Foss, 310 So.2d 573 (La.1975). Nevertheless, we do not find that the remarks in question were of such a nature as to prejudice defendant’s case and cause reversible error. While the witness’ answers were consistently unnecessarily long and often supplied unsolicited material, we cannot say that the content of the answers was inadmissible or the method of recitation prejudicial. We also note the laudatory and conscientious efforts of the trial judge to contain the unsolicited testimony, his consistent action in sustaining defendant’s objections, and his eventual success in curtailing the witness’ remarks. While we do not approve of the witness’ form of testifying, we find in this assignment no reversible error.

Decree

For the reasons assigned, defendant’s conviction and sentence for the crime of armed robbery are affirmed. Defendant’s conviction for second degree murder is annulled and the sentence upon that conviction is set aside.

CONVICTION AND SENTENCE FOR ARMED ROBBERY AFFIRMED; CONVICTION AND SENTENCE FOR SECOND DEGREE MURDER ANNULLED AND SET ASIDE.

      . Of the eight assignments originally taken, defendant argues four, five and seven and specifically abandons the others in brief.

      . Defendant’s co-perpetrator, Kenny Wayne Whitmore, was initially indicted by the same grand jury, but those charges were nolle prossed, his case was severed and he was subsequently reindicted by grand jury for second degree murder and armed robbery. After a jury trial he was found guilty of both crimes, and these convictions were affirmed by this Court. State v. Whitmore, 353 So.2d 1286 (La. 1977).

      . The state also argues that defendant’s motion to quash, filed after jury selection, was not timely filed and should not be considered on appeal. That position is totally without merit. A motion to quash on the basis that an information charges an offense for which prosecution can be instituted only by a grand jury indictment is jurisdictional, and can be raised at any time. C.Cr.P. art. 535, esp official revision comment (b)(6). Had defendant filed no motions relative to this defect, we would still raise it on our own motion. State v. Stevenson, 334 So.2d 195 (La.1976).

      . The 1974 Constitution became effective at midnight, December 31, 1974.

      . These charges, which arose out of the same transaction, could have been brought in a two-count grand jury indictment as were the charges against defendant Whitmore. See note 2.


text:
    STATE of Louisiana v. Alcide J. WEYSHAM.
    No. 60401.
    Supreme Court of Louisiana.
    Feb. 17, 1978.
    Milton P. Masinter, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Alcide J. Weysham, a former member of the Louisiana State Bar Association, was charged in the same bill of information with two separate counts of unlawful practice of law in violation of La.R.S. 37:213. After a judge trial, defendant was found guilty as charged on both counts. On each count, defendant was sentenced to pay a fine of $500 (or, in default thereof, to serve three months in the parish prison) and to serve one year in the parish prison. Execution of the prison sentences was suspended, and defendant was placed on inactive probation for the same period of time. As a special condition of probation, defendant was ordered to make restitution to the victims of his criminal conduct within ninety days. The sentences on the two counts were ordered to run consecutively. On appeal, defendant relies upon nine assignments of error for reversal of his convictions and sentences.

We have reviewed the record and find no merit to defendant’s assignments of error. Accordingly, we affirm his convictions and sentences.

DECREE

The convictions and sentences are affirmed.

      . Defendant was disbarred by this court on January 20, 1975. Louisiana State Bar Assoc. v. Weysham, 307 So.2d 336 (La.1975).

      . In brief, defendant expressly abandons Assignments of Error Nos. 1, 6 and 7.


text:
    STATE of Louisiana v. Albert J. BEAUVAIS.
    No. 60735.
    Supreme Court of Louisiana.
    Feb. 17, 1978.
    Simmons, Nelson & Dunn, Raymond L. Simmons, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

On May 4, 1976 Albert J. Beauvais was indicted by the Grand Jury for the Parish of East Baton Rouge for the February 24, 1976 murder of Wesley Holton, Jr. in violation of La.R.S. 14:30.1. Following a trial by jury defendant was found guilty of manslaughter and was sentenced to serve ten (10) years at hard labor with credit for time served. On appeal to this Court defendant relies on thirty-five assignments of error for reversal of his conviction and sentence.

We have reviewed the record and find no merit to defendant’s assignments of error. Accordingly, we affirm his conviction and sentence.

Decree

The conviction and sentence are affirmed.

      . Of these thirty-five assignments of error defendant has neither briefed nor argued five of them. These are deemed abandoned. State v. Jones, 340 So.2d 563 (La. 1976). The remaining thirty assignments are presented in ten arguments.


author: SANDERS, C. J.,

text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 59705.
    Supreme Court of Louisiana.
    Feb. 24,1978.
   In re: Motion for further consideration and supplemental brief.

Denied.

SANDERS, C. J.,

dissented from the judgment in this case, but concurs in the denial of this motion on the ground that the judgment rendered does not permit this request for reconsideration.

SUMMERS and MARCUS, JJ., would grant.