author: GRIMES, Judge.

text:
    Curry A. POWELL, Appellant, v. Edith J. POWELL, Appellee.
    No. 76-2036.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1977.

      G. Craig Soria, of Law Offices of Dick Lee, Sarasota, for appellant.
    Alexander G. Paderewski, of Dent & Pflugner, P. A., Sarasota, for appellee.
   GRIMES, Judge.

The only issue on this appeal from a final judgment of dissolution is the propriety of an award to the wife of a special equity in proceeds from the sale of the parties’ home owned as tenants by the entireties.

The parties were married in 1969. There was ample evidence that the wife used money unconnected with the marriage to satisfy mortgages on the home arid to pay for improvements thereto. The point of contention is whether these payments constituted gifts.

Prior to the adoption of our 1968 Constitution, where a husband’s separate funds were used to acquire or improve property in which title was held as tenants by the entir-eties, he was presumed to have made a gift to his wife. Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727 (1941); Schoenrock v. Schoen-rock, 202 So.2d 571 (Fla. 2d DCA 1967). On the other hand, where a wife’s separate funds were involved, a counter-presumption existed whereby the wife’s equity from her separate estate was deemed to be held for her in trust by her husband. Pyle v. Pyle, 53 So.2d 312 (Fla.1951); Mays v. Mays, 203 So.2d 674 (Fla. 3d DCA 1967). Beginning with Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971), the Fourth District Court of Appeal rendered several decisions holding that funds contributed by the wife toward entireties property would now be presumed to be a gift in the same manner as if the husband had furnished the money. E. g., Davis v. Davis, 282 So.2d 655 (Fla. 4th DCA 1973); Rey v. Rey, 279 So.2d 360 (Fla. 4th DCA 1973). However, in Hegel v. Hegel, 248 So.2d 212 (Fla. 3d DCA 1971), the Third District Court of Appeal reaffirmed the resulting trust rule with respect to the wife’s contribution of funds.

The law was in this posture when the case of Ball v. Ball, 303 So.2d 32 (Fla. 2d DCA 1974), came before this court. We opted for the rule announced in Steinhauer on the premise that the new Constitution abolished the distinctions between married men and married women with respect to the handling of their property. Because of our conflict with Hegel, the Supreme Court acquired jurisdiction and rendered a decision on the subject which is reported at 335 So.2d 5 (Fla.1976). The Supreme Court rejected both the Hegel rationale and that expressed in our opinion and adopted a new rule whereby all presumptions were abolished. Recognizing the problems which might result from retroactive application, the court stated that the new principles would apply only to dissolution proceedings instituted after the date its opinion became final. This left open the question of how the presumption should be applied in the case of a wife’s contribution of funds subsequent to 1968 where the dissolution action has been filed prior to the date the Supreme Court rendered its Ball opinion.

The instant case falls in this category. Once again it becomes necessary for us to choose between the Steinhauer and Hegel principles. Once again we are persuaded that the enactment of the 1968 Constitution requires that the sexes be treated the same way. Therefore, in the case below when the wife contributed her separate funds to the enhancement of the entireties property, she was presumed to have been making gifts.

There remains, of course, the question of whether or not the presumption of gifts was rebutted by clear and convincing evidence. See Abbott v. Abbott, 297 So.2d 608 (Fla. 2d DCA 1974). On this point the wife admitted that until an argument took place in 1974 during which the husband fired a bullet through the ceiling, she had never intended for the property to be owned other than jointly by her and her husband. She testified:

“Q Up until the shooting, you meant for the house to be yours and Mr. Powell’s, but then afterwards, you meant to have your interest back, is that correct?
A Again, that’s nebulous. No, not really.
Q That’s nebulous. What do you mean?
A I guess if we had stayed together, the house would have continued to be ours.
Q But, the fact that you got, are going to get a divorce and you want back what you paid in, is that right?
A I certainly do.
* * * * * *
Q Up until that time, there was no intent to take anything back that you put in that property, either purchase price or remodeling, it was our home and together you owned it, together, right?
A Yes.”

The only evidence in favor of the wife came in the form of the following response she gave to a question propounded by her attorney near the end of her examination:

“Q What did you intend with reference to these monies that you put in the home, Mrs. Powell, with respect to the ownership by your husband of any of them?
A I didn’t intend it should be his.”

This self-serving statement, standing by itself, cannot suffice as the clear and convincing evidence necessary to rebut the presumption that gifts were made, particularly since the wife’s contributions predated the 1974 quarrel. Therefore, the husband is entitled to one-half of the sale proceeds which are being held pending resolution of this issue.

REVERSED.

BOARDMAN, C. J., and SCHEB, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Homer Charles NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 77-148.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1977.
    Jack 0. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant appeals from the denial of his Fla.R.Crim.P. 3.850 motion. Although not made part of the instant record on appeal, we note that appellant advanced the same grounds in an earlier Fla.R.Crim.P. 3.850 motion (appeal number 70-317), which were rejected in Neal v. State, 239 So.2d 889 (Fla.2d DCA 1970).

Therefore, the action of the trial court in denying appellant’s present motion was proper. State v. Piehl, 184 So.2d 417 (Fla. 1966).

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


text:
    Danny MOLINA, Appellant, v. STATE of Florida, Appellee.
    No. 77-288.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1977.
    Jack O. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate any reversible error; therefore, the judgment appealed from is affirmed.

The sentence of the court, while indicating appellant was to receive credit for time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1) Florida Statutes (1975). Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975).

The record also indicates appellant was sentenced to prison “at hard labor.” To be imprisoned “at hard labor” is improper because no existing statute provides for imprisonment at hard labor as a sentence for any crime. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).

Remanded for correction of the sentence to reflect the precise period of credit time to which the appellant is entitled, and to strike the phrase “at hard labor” from the sentence; otherwise affirmed. Appellant need not be present for this purpose.

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


author: PER CURIAM. GRIMES, Judge,

text:
    Daniel Patrick GRANEY, etc., et al., Plaintiffs, v. Wilson C. RIPPY, Jr., M.D., et al., Defendants.
    No. 77-625.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1977.
    Wagner, Cunningham, Vaughan & Genders, Tampa, Robert Orseck.of Podhurst, Orseck & Parks, P. A., Miami, for plaintiffs.
    Benjamin H. Hill, III, of Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for defendants.
   PER CURIAM.

This cause was submitted to this court upon certified question under Fla.App. Rule 4.6. The questions presented are:

1. DOES THE JURISDICTION OF A MEDICAL MEDIATION PANEL AUTOMATICALLY TERMINATE AFTER EXPIRATION OF 120 DAYS FROM THE DATE A CLAIM IS FILED WHEN:
(a) THE CLERK HAD NOT SET A HEARING DATE;
(b) THE 120 DAYS PERIOD HAD EXPIRED;
(c) NONE OF THE PARTIES HAD REQUESTED AN EXTENSION WITHIN THE 120 DAYS PERIOD; AND
(d) ALL OF THE PARTIES TO THE ACTION HAD STIPULATED TO AN EXTENSION OF TIME FOR THE MEDIATION HEARING, SUCH STIPULATION BEING ENTERED INTO SUBSEQUENT TO THE RUNNING OF THE 120 DAYS PERIOD?
2. IF THE ANSWER TO QUESTION # 1 IS IN THE NEGATIVE, ARE THE PARTIES BOUND BY THE TIME REQUIREMENTS SET FORTH IN SECTION 768.133(3), FLORIDA STATUTES, 1975, OR THE TIME SET OUT IN THE STIPULATION FOR EXTENSION OF TIME WHICH TO MEDIATE THE CLAIM?
3. IF THE PARTIES ARE BOUND BY THE STATUTORY TIME REQUIREMENTS SET FORTH IN # 2 ABOVE, IS THE MAXIMUM STATUTORY LIMIT FOR MEDIATION 6 MONTHS FROM THE DATE THE CLAIM IS FILED OR 10 MONTHS FROM THE DATE THE CLAIM IS FILED?

In our view the questions certified do not meet the prerequisites of the aforesaid rule. Since the supreme court has recently adopted Rules of Medical Mediation Procedure, it now appears that sufficient guidance is available to the trial court to make its own determination of the questions.

Accordingly, we decline to answer the questions.

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

GRIMES, J., dissents with opinion.

GRIMES, Judge,

dissenting.

I would go ahead and answer the questions because I do not believe that the Rules of Medical Mediation Procedure adopted subsequent to the events involved in this case constitute “controlling precedent” for purposes of Fla.App. Rule 4.6a dealing with certified questions.

I respectfully dissent.

      . In re The Florida Bar (In re Rules of Medical Mediation Procedure), 348 So.2d 547 (Fla. 1977).


text:
    Randy V. COKER, Appellant, v. STATE of Florida, Appellee.
    No. 77-715.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1977.
    Jack 0. Johnson, Public Defender, James A. Cornelius, Asst. Public Defender, and Lawrence D. Shearer, Legal Intern, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Reversed on the authority of Huckelbury v. State, 337 So.2d 400 (Fla. 2d DCA 1976).

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


author: SCHEB, Judge.

text:
    CANADA DRY BOTTLING COMPANY OF FLORIDA, INC., Petitioner, v. K. M. A., INC., Respondent.
    No. 77-809.
    District Court of Appeal of Florida, Second District.
    Sept. 16, 1977.

      John H. Piccin, of Pattillo, MacKay & McKeever, Ocala, for petitioner.
    T. Richard Hagin, of- Getzen & Hagin, Bushnell, for respondent.
   SCHEB, Judge.

The circuit court, in its appellate capacity, held the county court erred in denying defendant’s motion for dismissal at the conclusion of plaintiff’s evidence, but that plaintiff was entitled to another trial to present additional evidence. In this latter ruling the court departed from the essential requirements of the law. Our writ of cer-tiorari is granted.

Respondent K.M.A., as plaintiff, filed an action in county court seeking damages against the petitioner Canada Dry, as defendant. The complaint alleged that Canada Dry’s employee negligently allowed one of its trucks to roll down a street and crash into K.M.A.’s building. In a nonjury trial, K.M.A. relied solely upon the hearsay testimony of its president, who was not present when the accident occurred, to establish liability of the defendant. K.M.A.’s timely objection to this hearsay evidence was overruled by the trial judge.

When the plaintiff completed its presentation and again at the conclusion of the trial, defendant Canada Dry moved to dismiss the action under Fla.R.Civ.P. 1.420(b). The court denied the motions and awarded K.M.A. a judgment of $2,724.88.

On appeal the circuit court adjudged:

1. The Final Judgment is reversed because the lower court erred in denying Appellant’s [Canada Dry’s] motion for involuntary dismissal, made at the end of Appellee’s [K.M.A.’s] case in chief and renewed at the close of all the evidence.
2. This cause is remanded to the lower court with the direction that Appellee [K.M.A.] be allowed to reopen its case in chief in order to present any evidence it may have of Appellant’s [Canada Dry’s] negligence or evidence it may have which will permit application of the doctrine of res ipsa loquitur.

Once a plaintiff has been given a fair opportunity to present its case in chief and the defendant, as here, has moved for dismissal under Rule 1.420(b), the court must determine if a prima facie case has been established. The motion is treated similarly to a motion for directed verdict in a jury trial. If the plaintiff has not established a prima facie case, it is incumbent upon the court to grant the defendant’s motion and render a judgment on the merits for the defendant. Tillman v. Baskin, 260 So.2d 509 (Fla.1972); Osborne v. Shell Oil Co., 104 So.2d 670 (Fla. 1st DCA 1958); Fla.R.Civ.P. 1.420(b).

Where a trial court has refused to enter a directed verdict in favor of the defendant, the circuit court on appeal must either affirm, or reverse with directions to enter judgment for the movant. See 6345 Collins Avenue v. Fein, 95 So.2d 577 (Fla. 1957). Here the circuit court properly reversed the county court for denying the defendant’s motion to dismiss. But, as an appellate tribunal, the circuit court then departed from the essential requirements of the law when it remanded the case to allow the plaintiff to reopen and present additional evidence.

Certiorari is granted and this cause is remanded with directions that the circuit court order a judgment be entered in favor of defendant.

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


author: ERVIN, Judge. RAWLS, Acting Chief Judge

text:
    GULF POWER COMPANY, Petitioner, v. The FLORIDA DEPARTMENT OF COMMERCE and Norman V. Tucker, Respondents.
    No. FF-460.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1977.
    C. Roger Vinson of Beggs & Lane, Pensacola, for petitioner.
    R. Carson Dyal, Alex D. Littlefield, Jr., Tallahassee, for respondents.
   ERVIN, Judge.

Gulf Power seeks review of an order of the Industrial Relations Commission affirming an order of the appeals referee granting unemployment benefits to Tucker.

Tucker was hired by Gulf Power in July, 1975. At that time he was advised to cut his beard and maintain a neat appearance since this would assist him in his job application. Tucker did as the Gulf Power interviewer suggested, although there was at that time no written appearance code in effect. Mr. Tucker was hired by Gulf Power on July 14,1974 and worked primarily as a member of a line crew, installing electrical power transmission lines. In May, 1976, he began to grow his beard again. On May 19, 1976, a letter was sent to all employees advising them that hair styles should look clean and neat and that beards and goatees were not permitted, but if a mustache was worn, it could not extend past the limits of the upper lip. Tucker did not shave his beard and on May 26,1976, he was called to meet with his supervisor and other superiors. They wished to know if he intended to comply with Gulf Power’s directive of May 19th and shave his beard. When Tucker replied he would like to think about it for a day, he was told that if he could not answer at that time he could consider himself terminated.

Section 443.06(1), Florida Statutes (1975), provides that an individual shall be disqualified for unemployment benefits if “he has voluntarily left his employment without good cause attributable to his employer.” The only issue which we have before us is whether an employee who elects to violate the company’s dress and appearance code shall be deemed to have “voluntarily left his employment without good cause attributable to his employer.” It is important to note that we are not presented with any evidence as to whether Mr. Tucker was discharged for misconduct connected with his work. If he was so discharged for such reason then clearly under the statute he would not be entitled to unemployment benefits. Nor are we presented with any issue that Mr. Tucker had a constitutional right to wear a beard. There is authority from other jurisdictions that an employer may as a condition to employment establish reasonable standards of appearance and dress of its employees. Willingham v. Macon Telegraph Publishing Co., 507 F.2d 1084 (5th Cir. 1975); Brown v. D.C. Transit System, Inc., 173 U.S.App.D.C. 130, 523 F.2d 725 (1975).

On the simple issue as to whether or not the employee voluntarily left his employment for not complying with the employer’s dress and appearance code, we find that there is competent and substantial evidence supporting both the appeals referee’s decision as well as the order of the Industrial Relations Commission. The employee clearly did not voluntarily leave his employment. When asked by his supervisor whether he wished to comply with Gulf Power’s directives, Tucker did not make an outright demurrer, he only asked to be given one day to think about it and then was told if he could not immediately reply, he should consider himself terminated. The petition for review is denied.

SMITH, J., concurs.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

I would affirm the claims referee who, in denying benefits to claimant, stated, “You chose to keep your beard rather than your job.”


author: SMITH, Judge.

text:
    STATE of Florida ex rel. Glenwood Brooks COBB, Sr., Relator, v. The Honorable W. L. BAILEY, as Circuit Judge of the Fourteenth Judicial Circuit of the State of Florida, Respondent.
    No. HH-68.
    District Court of Appeal of Florida, First District.
    Sept. 19, 1977.

      Bill A. Corbin Law Offices, P.A., Blounts-town, for relator.
    Robert L. Shevin, Atty. Gen., Douglas C. Kearney, and Joseph W. Lawrence, II, Asst. Attys. Gen., Tallahassee, for respondent.
   SMITH, Judge.

We issued a rule nisi in prohibition on relator’s showing that the respondent circuit judge, having recused himself from consideration of the dissolution issues in this case of marital strife, improperly proceeded to hear and determine the wife’s motion for contempt process against relator. Respondent has filed a return to the rule and we have considered the case on briefs and a transcript of the circuit court’s proceedings. The respondent circuit judge, sensitive to an appearance of impropriety in his consideration of emotional issues between parties with whom the judge had social and business relations for “quite a long time,” invited an oral suggestion for recusal, which relator made, and recused himself from consideration of the case. The court reserved power, however, to act immediately on imminent questions of temporary alimony and child support and temporary use and possession of an automobile and household items. While relator acquiesced in the court’s retention of limited jurisdiction, relator affirmatively objected when, nearly four weeks later, .the respondent judge undertook disposition of the wife’s petition that relator be held in contempt for disobedience to the court’s order temporarily regulating the parties’ property affairs pending a full hearing before another judge.

We consider that the respondent judge’s recusal order effectively deprived that judge of authority to preside in the contempt proceedings. In these circumstances, the trial court’s order temporarily fixing the parties’ obligations pending final hearing may stand, but the wife’s petition for contempt proceedings should have been and must now be referred to another circuit judge. A recusal entered on informal motion in lieu of formal disqualification proceedings ends the judge’s power to take part in the disposition of the case. Gilmer v. Shell Oil Co., 324 So.2d 171 (Fla. 2d DCA 1975). The contempt order is vacated and a writ of prohibition will issue.

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


author: RAWLS, Acting Chief Judge.

text:
    Robert Dewayne WILCOX, Appellant, v. STATE of Florida, Appellee.
    No. DD-97.
    District Court of Appeal of Florida, First District.
    Sept. 20, 1977.
    Richard W. Ervin, III, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   RAWLS, Acting Chief Judge.

On September 14, 1973, Wilcox and another were charged with possession of more than five grams of cannabis contrary to the provisions of Section 893.13, Florida Statutes.

Wilcox entered a plea of nolo contendere to the charge, and on December 19, 1973, the trial court sentenced him to a 6-month term in the county jail and, commencing thereafter, three years probation.

On July 1,1976, an affidavit for violation of probation was filed against Wilcox on the basis of his arrest June 28, 1976, for possession of numerous marijuana plants and drug paraphernalia. Immediately prior to a probation revocation hearing held on July 23, 1976, Wilcox’s counsel made a motion to dismiss on the grounds that the 3-year probationary period following the 6-month county jail sentence constituted an illegal sentence. Wilcox’s motion was denied and following the revocation hearing, the trial court, finding that Wilcox had violated his probation, adjudicated him guilty of the 1973 possession charge and sentenced him to four years imprisonment.

By this appeal, Wilcox argues that the probationary portion of his 1973 “split sentence” was illegal and void and, therefore, the subsequent revocation and sentencing are a nullity. We are constrained to disagree and must affirm.

Wilcox primarily relies upon the Florida Supreme Court’s opinion in State v. Jones, 327 So.2d 18 (Fla.1976). Based upon a similar factual situation, the Jones decision professed to “clarify and establish” that area of the law dealing with probation, in general, and, specifically, with “split sentences” pronounced prior to the July 1, 1974, amendment of Section 948.01(4), Florida Statutes.

In arguing to this court that the probation portion of his split sentence was a nullity in that it was entered pursuant to a felony conviction prior to the effective date of Section 948.01(4), Florida Statutes (1974), Wilcox recites the following paragraph from the Supreme Court’s opinion in Jones:

“We hold that prior to July 1, 1974, the provisions of Section 948.01(4), Florida Statutes (1973), granted specific authority to the trial judge to prescribe a period in the county jail followed by probation for those offenses punishable only by imprisonment in the county jail (misdemeanor offenses). It is our opinion that the term ‘whenever punishment by imprisonment in the county jail is prescribed’ is descriptive of the offenses to which the subparagraph was applicable. The new amendment to Section 948.01(4), effective July 1, 1974, expands the trial judge’s specific statutory authority to include felonies as well as misdemeanors in the use of the split sentence probation alternative.”

Standing alone, the above quoted paragraph appears to fully support Wilcox’s contention that his 1973 felony split sentence was illegal. In further support of his proposition, Wilcox cites Williams v. State, 332 So.2d 33 (Fla. 4th DCA 1976), in which Williams pled guilty to a felony on June 15, 1974, and was sentenced to the Division of Corrections for a term of three years, provided that after he served 12 months of said term he should be placed on probation for a period of four years. Williams appealed and the Fourth District, citing the same above quoted paragraph from Jones, vacated the sentence and remanded for resen-tencing stating:

“The problem in this case is that the offense with which appellant was charged took place before the effective date of the amendment to § 948.01, F.S., so that the trial judge did not have the authority to utilize the split sentence procedure in sentencing appellant to the Division of Corrections.”

The apparently insurmountable obstacle that precludes us from reversing the instant cause is the actual disposition of the Jones decision. Notwithstanding language of the opinion holding that split sentences were not available for those adjudged guilty of felonies prior to July 1, 1974, the Supreme Court quashed the decision of the Third District Court of Appeal and remanded with directions to reinstate the three concurrent 2-year sentences imposed by the trial court. Thus, it would appear in Jones that the probation, which the trial court did not have the authority to impose initially, was nevertheless susceptible to revocation subsequent to the service of its accompanying jail time. Further, the probation revocation may be the basis for a second imposition of incarceration in the state prison system up to the maximum a defendant may have received initially, with credit given for jail time served.

The pertinent facts in the instant case are indistinguishable from those in Jones and, thus, are deserving of the same result.

AFFIRMED.

SMITH and MILLS, JJ., concur.

      . Section 893.13(l)(a)2, Fla.Stat., provides that such possession is a felony of the third degree which, pursuant to Sec. 775.082(3)(d), Fla.Stat., is punishable by a term of imprisonment in the state prison not exceeding five years.

      . Jones pled guilty to three felonies and was sentenced to three concurrent sentences of one year in county jail to be followed by five years probation. Upon reconsideration of the sentences the trial court reduced the jail time to the 85 days that Jones had served but retained the 5-year probation period. Jones later violated his probation and, following a revocation hearing, was sentenced to three concurrent sentences of two years each with credit for jail time served. Jones appealed and the Third District Court of Appeal, 296 So.2d 519, affirmed the judgment of guilt but set aside the sentences, holding that pursuant to Sec. 948.-01(4), Fla.Stat. (1973), Jones could only be sentenced to the county jail for the remaining unserved portion of the previously imposed concurrent one year jail sentences. The Third District certified the issue to be one of great public interest to the Florida Supreme Court pursuant to Article V, Section 3(b)(3), Florida Constitution.

      . Chapter 948, Fla.Stat. (1973).

      . Sec. 948.01(4), Fla.Stat. (1973), reads as follows:
      “(4) Whenever punishment by imprisonment in the county jail is prescribed, the court, in its discretion, may at the time of sentencing direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.”
      However, in an act that took effect July 1, 1974, the legislature amended Sec. 948.01(4) to read, in pertinent part, as follows: “(4) Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed . . .”


text:
    Willie Selton BONNER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1117.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1977.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Willie Selton Bonner appeals his sentence of three years imprisonment upon his convictions for two separate offenses, breaking and entering and possession of burglary tools.

We remand the instant ease to the trial court for resentencing in accordance with our Supreme Court’s recent decision in Dorfman v. State (Fla.Sup.Ct. Case No. 50,026, opinion filed July 28, 1977), wherein it was held that the imposition of general sentences as in the instant case are no longer proper.

So ordered.


text:
    Pamela K. FACENTE, Appellant, v. James T. FACENTE, Appellee.
    No. 76-1620.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1977.
    Ralph F. Miles, Hialeah, for appellant.
    McCormick, Bedford & Backmeyer and Gerald L. Bedford, Miami, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Affirmed. See Epperson v. Epperson, 101 So.2d 367, 370 (Fla.1958); Bergh v. Bergh, 127 So.2d 481, 486 (Fla. 1st DCA 1961).


text:
    Earnest GOODMAN, Appellant, v. MIAMI CRANE SERVICE, INC., a Florida Corporation, Appellee.
    No. 76-1656.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1977.

      Headley & Sudduth, Sam Daniels, Miami, for appellant.
    Marlow, Mitzel, Ortmayer & Shofi, Miami, for appellee.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

Affirmed. See Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla.1977).


text:
    Larry PERKINS, Appellant, v. LA GORCE COUNTRY CLUB et al., Appellees.
    No. 76-1694.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1977.
    Tobias Simon; Elizabeth duFresne and Jennifer Hurst, Miami, for appellant.
    Robert C. Ward, Miami Beach, Horton, Perse & Ginsberg and Mallory H. Horton, Miami, Katz & Rosen, Coconut Grove, Russell C. Gay, North Bay Village, Adams, George, Lee & Schulte, Dixon, Dixon, Lane & Mitchell, Wakefield, Hewitt & Webster, Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellees.
    Before HENDRY, C. J., and HAVER-FIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed. See State ex rel. Randall v. Miami Coin Club, 88 So.2d 293 (Fla.1956); State ex rel. Barfield v. Florida Yacht Club, 106 So.2d 207 (Fla. 1st DCA 1958); Section 617.10, Florida Statutes (1975).


text:
    Lynde R. JOHNSON, Appellant, v. INDIANA INSURANCE COMPANY, Appellee.
    No. 76-1723.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1977.
    Michael A. Lipsky, Miami Beach, Philip J. Mandina, Miami, for appellant.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and William Bruce Harper, Jr., Miami, for appellee.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Foremost Dairies, Inc., of the South v. Cutler, 212 So.2d 37 (Fla. 4th DCA 1968); Poitier v. State, 303 So.2d 409 (Fla. 3d DCA 1974); Klepper v. J. C. Penney Company, Inc., 340 So.2d 1170 (Fla. 4th DCA 1976).


author: BOARDMAN, Chief Judge. GRIMES, Judge,

text:
    James C. HARRIS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-720.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1977.

      Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Chief Judge.

Appellant/defendant, James C. Harris, Jr., was charged by information with robbery with a weapon. Section 812.13, Florida Statutes. After a jury trial he was found guilty of third-degree robbery (without the use of a weapon). Section 812.-13(2)(c), Florida Statutes. The trial judge sentenced appellant to a term of 15 years imprisonment to include a “minimum time of imprisonment provided in FSA 775.087, subsection 2.”

Appellant has raised two meritorious points on this appeal. The first is whether it was error to limit appellant to six peremptory challenges during the jury selection for trial on a first-degree robbery charge which is punishable by life in prison. The second is whether the court erred by sentencing him to a mandatory three years.

Since appellant was charged with and tried for robbery with a weapon which is a felony punishable by life imprisonment he was entitled, to ten peremptory challenges. Bell v. State, 338 So.2d 1328 (Fla. 2d DCA 1976); Section 812.13, Florida Statutes; Fla.R.Crim.P. 3.350. However, appellant has not alleged or shown, either at trial or on appeal, that there was a particular juror whom he would have removed by exercise of a seventh peremptory challenge. See, e. g., Young v. State, 234 So.2d 341 (Fla.1970). Although it was error to limit appellant to six challenges, since no prejudice resulted it was harmless error. Additionally, he was found guilty of a lesser offense, and if he had been initially charged with it he would have been entitled only to six challenges. We see no reason why he ought to be in any better position now that he has been convicted of that lesser offense than he would have been had such lesser offense been the original charge.

There is no case law precedent which supports or statute which authorizes imposition of a mandatory minimum sentence for conviction of robbery without a weapon. The sentence is reversed, and the cause remanded for correction of the sentence.

The remaining point raised by appellant is without merit, and we affirm the ruling of the trial court denying the motion to suppress.

AFFIRMED in part; REVERSED in part; REMANDED for proceedings consistent with this opinion.

McNULTY, J., concurs.

GRIMES, J., concurs in part, dissents in part.

GRIMES, Judge,

dissenting in part.

In Bell v. State, 338 So.2d 1328 (Fla. 2d DCA 1976), where the defendant had used all of the peremptory challenges which the court said he could have, we held that it was not necessary for him to seek to exercise an additional challenge in order to preserve the question of whether he should have been permitted a greater number of challenges. In Bell, as here, the defendant was entitled to ten rather than six peremptory challenges because he was charged with an offense for which he could receive a life sentence. Therefore, the sole difference between the cases is that Bell was convicted as charged, whereas the appellant was convicted only of a crime for which he could be sentenced to a maximum of fifteen years.

Since appellant was charged with a crime for which he could be imprisoned for life, he was entitled to use up to ten peremptory challenges in the course of selecting the jury which would try him. I cannot subscribe to the after-the-fact reasoning that the error was harmless because appellant was ultimately convicted of an offense which would have entitled him to only six challenges if he had been charged with it in the first place.

I respectfully dissent from that portion of the majority opinion which holds that limiting appellant to six peremptory challenges was harmless error. I concur with the balance of the opinion.

      . The trial judge stated in the judgment that there was sufficient evidence to find that appellant committed the robbery with a weapon.


text:
    Robert A. ANDERSON, Appellant, v. Norma J. ANDERSON, Appellee.
    No. 77-129.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 1977.

      William H. Shields of Pavese, Shields, Garner, Haverfield & Kluttz, Fort Myers, for appellant.
    No appearance for appellee.
   PER CURIAM.

Appellant/plaintiff, Robert A. Anderson, brought suit on an alleged oral contract between himself and his former wife, appel-lee/defendant, Norma J. Anderson. Appel-lee filed an answer and asserted res judica-ta as an affirmative defense. She also filed a motion for summary judgment alleging “that there is no genuine issue of any material fact concerning the defense of Res Ju-dicata arising as a result of the Final Judgment dissolving the marriage of the parties hereto. . . . ” The motion was granted and this appeal followed.

The four elements of res judicata are not present in this case, and the doctrine is thereby inapplicable. Although under Florida’s permissible joinder rule of civil procedure appellant may have been able to resolve this controversy during the dissolution proceeding he was not required to do so.

Because there is an issue of genuine material fact as to the existence and terms of an oral contract between appellant and appellee pertinent to the alleged legal obligation of appellee to pay one-half of the indebtedness evidenced by the promissory note we reverse and remand for further proceedings. Holl v. Talcótt, 191 So.2d 40 (Fla.1966).

REVERSED and REMANDED.

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


author: HOOD, Justice ad hoc.

text:
    Clydia DAVENPORT, Plaintiff-Appellant, v. Paul J. HARDY, Secretary of State, Clyde F. Bel, Sr., Constable of the First City Court for the City of New Orleans and, Henry Michel Grundmeyer, Constable of the Second City Court of the City of New Orleans, Defendants-Appellees.
    No. 60458.
    Supreme Court of Louisiana.
    Aug. 24, 1977.
    Written Reasons Rendered Aug. 31, 1977.
    Rehearing Denied Sept. 2, 1977.

      Glenn L. Morgan, New Orleans, for plaintiff-appellee.
    William J. Guste, Jr., Atty. Gen., Joseph W. Thomas, Asst. Atty. Gen., Ronald C. Davis, Staff Atty., New Orleans, for Paul J. Hardy.
    Roger B. Jacobs, New Orleans, for Clyde F. Bel, Sr.
    James A. McPherson, New Orleans, for Phyllis Landrieu, additional party plaintiff.
   HOOD, Justice ad hoc.

Plaintiff, Clydia Davenport, a candidate for election to the Office of Constable of the First City Court of the City of New Orleans, seeks a declaratory judgment decreeing Act 619 of 1977 unconstitutional. She also seeks a writ of mandamus ordering the Secretary of State to refuse to obey the provisions of that act. The defendants are the Secretary of State, the Constable of the First City Court of the City of New Orleans, and the Constable of the Second City Court of that city. The trial court issued an alternate writ of mandamus pursuant to plaintiff’s demands.

Interventions were filed by two other parties who allegedly are also candidates for the Office of Constable of the First City Court of the City of New Orleans. Both intervenors join plaintiff in this suit.

The trial judge rendered judgment decreeing the statute unconstitutional, directing that the writ of mandamus previously issued be made peremptory, and ordering the Secretary of State to proceed with the election for the Offices of Constable for the First and Second City Courts as presently scheduled. Two of the defendants, the Constable of the First City Court and the Secretary of State, appealed to this Court under authority of LSA-Const. Art. 5, Sec. 5(D) (1974).

The appeal was argued on August 24, 1977, and, because of the nature and exigency of the case, we rendered judgment later that day, reversing the judgment appealed from, vacating the mandamus issued by the trial court and dismissing the suit. We now assign reasons for that judgment.

Several issues are presented, the principal ones being whether Act 619 of 1977 is invalid on the grounds (1) that it fails to set forth completely the provisions of the law enacted or amended, and (2) that it adopts a system or code of laws by general reference to it, all inconsistent with the requirements or prohibitions contained in Article 3, Section 15(B), of the Louisiana Constitution of 1974.

The offices of Constable of the First City Court and Constable of the Second City Court of the City of New Orleans were established by Sections 89 and 92 of Article 7 of the Louisiana Constitution of 1921. In each instance, the term of office of the constable was fixed in those constitutional provisions at four years.

The Louisiana Constitution of 1974 does not specify the terms of office of the constable of either of those courts. Instead, Section 32 of Article 5 of that Constitution provides that “the following courts and officers in Orleans Parish are continued, subject to change by law: . . .the constables and the clerks of the first and second city courts . . ..” [Emphasis supplied.]

The 1974 Constitution also provides that Article 7, Sections 89 and 92 of the 1921 Constitution are continued in existence as statutes. LSA-Const. 1974, Art. 14, Sec. 16(A). The provisions of those sections of the 1921 Constitution were incorporated in the Louisiana Revised Statutes as LSA-R.S. 13:2153.1. Since the 1974 Constitution became effective, therefore, the terms of offices of the Constables of the First and Second City Courts have been controlled by statutes, rather than by provisions of the Constitution.

Act 619, adopted at the 1977 regular session of the Louisiana Legislature, purports to amend and reenact LSA-R.S. 13:2153.1 by increasing the terms of offices of the constables of the two city courts, changing the time of the election of their successors, and extending the present terms of the incumbent constables for a period of about eight or nine months. The pertinent parts of Act 619 of 1977 provide:

“2153.1. First and second city court; clerks and constables
“A. There shall be one clerk and one constable of the First City Court of the city of New Orleans, each of whom shall be elected by the qualified voters residing within the territorial jurisdiction of the court. The clerk shall be elected for a term of four years. The term of the constable in office on the effective date of this Section shall expire on December 31,1978; provided, however, that his successor shall be elected at the same time as district attorneys throughout the state in 1978, and thereafter the successors to the office of constable shall be elected at the same time as the district attorneys throughout the state.
“B. There shall be one clerk and one constable of the Second City Court of the city of New Orleans each of whom shall be elected by the qualified voters residing within the territorial jurisdiction of the court. The clerk shall be elected for a term of four years. The term of the constable in office on the effective date of this Section shall expire on December 31,1978; provided, however, that his successor shall be elected at the same time as district attorneys throughout the state in 1978, and thereafter the successors to the office of constable shall be elected at the same time as the district attorneys throughout the state.
“Section 2. If any provision or item of the Act of the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this Act are hereby declared sev-erable.
“Section 3. All laws or parts of laws in conflict herewith are hereby repealed.”

The 1974 Constitution and the laws of the State of Louisiana provide that a district attorney shall be elected for a term of six years. LSA-Const.1974, Art. 5, Sec. 26(A); LSA-R.S. 16:1.

The obvious purpose of Act 619 of 1977 is to conform the terms of office and the time of the election of the Constables of the First and Second City Courts to the terms of office and the time of election of practically all other constables in Louisiana. See LSA-R.S. 13:1879. It increases the term of office of each such constable to six years, and it provides for the election of his successor at the congressional elections.

Plaintiff and intervenors contend that Act 619 of 1977 is unconstitutional and void, primarily because it fails to set forth completely the provisions of the law enacted or amended, and, because it adopts a system or code of laws by general reference, all in violation of LSA-Const.1974, Art. 3, Sec. 15(B). They take the position that since the above act is invalid, the terms of the incumbent Constables of the First and Second City Courts expire in April, 1978, and that the election of their successors must be held on October 1, 1977, as heretofore required, instead of with the congressional elections in 1978.

LSA-Const.1974, Art. 3, Sec. 15(B), provides:

“A bill enacting, amending, or reviving a law shall set forth completely the provisions of the law enacted, amended, or revived. No system or code of laws shall be adopted by general reference to it.”

The trial judge held that Act 619 of 1977 was void because it failed to set forth “completely” its provisions, as required by the above quoted provision of the Constitution. He points out that the act purports to fix the terms of office for the Constables of the First and Second City Courts by declaring that they shall be elected at the same time as district attorneys. He then reasons that “assuming that the act fixes a term of office, one must refer to another law to discern what this term is,” and that the act thus fails to “completely” set forth its provisions. We do not agree with the conclusions reached by the trial court.

All Louisiana Constitutions since 1845 have contained provisions similar to those included in LSA-Const.1974, Art. 3, Sec. 15(B). See, LSA-Const. Art. 119 and 120 (1845); LSA-Const. Arts. 116 and 117 (1852); Arts. 119 and 120 (1864); LSA-Const. Arts. 115 and 116 (1868); LSA-Const. Arts. 30 and 31 (1879); LSA-Const. Arts. 32 and 33 (1898); LSA-Const. Arts. 31 through 33 (1913); LSA-Const. Art. 3, Sec. 18 (1921).

The Constitution of 1845, being the first to contain such a provision provided in Articles 119 and 120 that:

“No law shall be revised or amended by reference to its title; but in such case, the act revised, or section amended, shall be reenacted and published at length.” [Art. 119.]
“The legislature shall never adopt any system or code of laws by general reference to such system or code of laws, but in all cases shall specify the several provisions of the laws it may enact.” [Art. 120.]

Article 3, Section 18, of the Constitution of 1921 provided:

“The Legislature shall never adopt any system or code of laws by general reference to such system or code of laws; but in all eases shall recite at length the several provisions of the laws it may enact.”

Since 1845, the Constitutional provisions requiring that an act shall set out its provisions at length and prohibiting the adoption of systems or codes of laws by general reference have gone through some stylistic changes, but the meaning has remained the same. The essential difference between the provisions of LSA-Const.1974, Art. 3, Sec. 15(B) and similar provisions in previous constitutions is that the word “completely” was used in 1974, whereas the words “at length” were used prior thereto. We believe that the provisions of the 1974 Constitution in that respect are substantially the same as the corresponding provisions of the other Constitutions.

We have examined- the Records of the Louisiana Constitutional Convention of 1973, and the published Constitutional Convention of 1973, Verbatim Transcripts, and find nothing in either indicating that the Convention intended to change the law as it existed prior to the slight stylistic change made in 1974. We believe that there would have been some comment about or reference to the change in the language used in Article 3, Section 15(B) if the members of the convention had intended a change in the previously existing law.

This Court has held consistently that the constitutional prohibition against adopting a system or code of laws by general reference is directed against the adoption of foreign systems or codes of laws, and not those arising domestically, i. e., from our Legislature. Consistent with that finding, we also have determined that laws previously enacted by our Legislature, and in force at the time of the enactment of a new law, may be incorporated into the new law by a mere general reference to the existing laws in the new statute. State v. Reado, La., 295 So.2d 440 (1974); State v. Pete, 206 La. 1078, 20 So.2d 368 (1944); Campagna v. City of Baton Rouge, 165 La. 974, 116 So. 403 (1928); State v. Be Hart, 109 . La. 570, 33 So. 605 (1903); Kathman v. City of New Orleans, 11 La.Ann. 145 (1856); Arnoult v. City of New Orleans, 11 La.Ann. 54 (1856). See also, State ex rel. Bragg v. Rogers, 107 Ala. 444, 19 So. 909 (1895).

In State v. De Hart, supra, we said:

“We are inclined to think that the words ‘any system or code of laws,’ as used in the article, means systems or codes of laws other than our own — systems of law, codes of law in vogue in other countries and jurisdictions; that these are not to be adopted by merely a general reference to the same, but that such systems or codes, or the several provisions of the same, wanted to be adopted or enacted here, are to be recited at length in the adopting act.”
“The General Assembly in enacting the statute of 1884 did not ‘adopt’ a ‘system or code of laws by general reference to such system or code of laws,’ within the meaning of the constitutional provision. The statute makes, merely, a particular reference to two articles of the Civil Code, a system of laws long since adopted in Louisiana, and this in aid only of its purpose to define accurately the crime of incest which the act denounces and punishes.”

The statute attacked on constitutional grounds in Campagna v. City of Baton Rouge, supra, authorized governing authorities to advertise for bids and to let contracts “in the manner now provided by law.” In upholding the validity of that act, we held that it “in no way adopts a system or code of law, but . . . refers to and adopts the procedure contained in statutes on the same subject matter and originating from the same source, i. e., the Legislature of the state.”

We think the rules applied in the cited cases are applicable here.

Act 619 of 1977 contains a general reference to the laws of the State of Louisiana, presently in force and effect, which relate to the terms of office and the time of the election of district attorneys. We find that the reference to those existing laws is not prohibited by LSA-Const.1974, Art. 3, Sec. 15(B), and that that section of the Constitution does not preclude the incorporation into the new statute of the existing Louisiana laws relating to the terms and time of election of district attorneys. We also find that, with the permissible general reference to other existing laws of this state, the statute sets forth completely the provisions of the law enacted or amended.

Our conclusion is that the provisions of Act 619 of 1977 do not conflict with the requirements or prohibitions contained in LSA-Const.1974, Art. 3, Sec. 15(B), and that the statute thus is constitutionally valid.

Plaintiff and intervenors contend further that the Legislature does not have the right or authority to extend the terms of the incumbent constables. They argue that the provisions of Act 619 of 1977, and particularly those which purport to extend the terms of the incumbent officials, deprive them of rights guaranteed to them by Article 4, Section 4, of the Federal Constitution, and by the Fourteenth Amendment to that Constitution. We find that the Louisiana Legislature has the right and authority to extend the terms of the two defendant constables, as provided in the above act, and that in doing so it does not deprive plaintiff or intervenors of any rights which were guaranteed to them by the Federal Constitution.

The Louisiana Legislature possesses the authority to enact any law which is not prohibited by our Constitution. Hainkel v. Henry, La., 313 So.2d 577 (1975); In re Gulf Oxygen Welder’s Supply Profit Sharing Plan and Trust Agreement, La., 297 So.2d 663 (1974); Joint Legislative Committee of Legislature v. Strain, 263 La. 488, 268 So.2d 629 (1972); Kane v. Louisiana Commission on Governmental Ethics, 250 La. 855, 199 So.2d 900 (1967); Plebst v. Barnwell Drilling Co., Inc., 243 La. 874, 148 So.2d 584 (1963); State v. Pete, supra. See, The Work of the Louisiana Appellate Courts for the 1974-1975 Term — Louisiana Constitutional Law, 36 La.L.Rev. 533; 1 Official Journal of the Proceedings of the Constitutional Convention of 1973, 769 (1973).

The 1974 Constitution fixes the terms of office for many officials, including Supreme Court Justices, Court of Appeal judges, district court judges, members of the Judiciary Commission, district attorneys, clerks of district courts, and coroners. La.Const. Art. 5, Secs. 3, 8(C), 15(C), 25, 26(A), 28(A), 29. It, however, does not set a term of office for constables of the New Orleans City Courts. Instead, it specifically vests the Legislature with the authority to govern those offices. Article 5, Section 32 provides:

“Except for provisions relating to terms of office as provided elsewhere in this Article, and notwithstanding any other contrary provision of this constitution, the following courts and officers in Orleans Parish are continued, subject to change by law: the civil and criminal district courts; the city, municipal, traffic, and juvenile courts; the clerks of the civil and criminal district courts; the civil and criminal sheriffs; the constables and the clerks of the first and second city courts; the register of conveyances; and the recorder of mortgages.” [Emphasis supplied.]

In this instance, therefore, the Constitution generally establishes the Legislature’s power to govern the office of constable. It imposes no limitations or restrictions on the exercise of that power, and it does not fix the terms of office of the constables. Under those circumstances, we believe that the Legislature has the authority to extend the terms of office of the encumbent constables, as it did in Act 619 of 1977.

State v. Guillory, 184 La. 329, 166 So. 94 (1935), supports the legal principles upon which we base our decision. Therein we stated:

“But section 40 of article 7 of the Constitution contains no restriction upon legislation curtailing the term of office or affecting the salary of a district attorney, during his incumbency. His term of office or salary may, therefore, be curtailed or affected by a simple act of the Legislature during his incumbency, without the necessity of impeachment, or address out of office, or suit to remove, as such legislation is authorized by the present Constitution.”

In Gouaux v. Smith, 160 La. 617, 107 So. 466 (1926), we said:

“As this mandate, in article 296 of the Constitution of 1898, and of 1913, and in section 11 of article 6 of the Constitution of 1921, directing the Legislature to create parish and municipal boards of health, did not fix the term of office, the Legislature had authority to fix it. And the Legislature had authority — and has the authority yet, if it was not surrendered by the restriction in the call for the constitutional convention of 1921 — to abolish, during the term of an incumbent, any office that the Legislature had authority to create and to fix the term of.”

We conclude that the enactment of Act 619 of the 1977 regular session was within the authority of the Legislature.

Plaintiff argues that Act 619 of 1977 is invalid because it contravenes Article 3, Section 12(A)(1), of the Louisiana Constitution of 1974, which provides:

“Except as otherwise provided in this constitution, the legislature shall not pass a local or special law:
“(1) For the holding and conducting of elections, or fixing or changing the place of voting.”

One of the intervenors argues that the act is invalid because it is a local or special law, and that notice of the intent to introduce a bill to enact such a law was not properly published, as required by LSA-Const.1974, Art. 3, Section 13.

We have concluded that the statute being attacked here is not a “local” or “special” law, and that the provisions of Sections 12 and 13 of Article 3 of the Constitution of 1974 are not applicable.

A law is not local or special, even though its enforcement may be restricted to a particular locality, simply because the conditions under which it operates do not prevail in every locality. State ex rel. Miller v. Henderson, La., 329 So.2d 707 (1976); Teachers’ Retirement System of Louisiana v. Vial, La., 317 So.2d 179 (1975); Knapp v. Jefferson-Plaquemines Drainage District, 224 La. 105, 68 So.2d 774 (1953); Kotch v. Board of River Port Pilots Commissioners, 209 La. 737, 25 So.2d 527 (1946), affirmed 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1947); Clark v. City of Opelousas, 147 La. 1, 84 So. 433 (1920) and the cases cited therein; State v. Dalon, 35 La.Ann. 1141 (1883); Comment, General and Special Laws in Louisiana, 16 La.L.Rev. 768 (1956).

We held in State v. Clement, 188 La. 923,178 So. 493 (1938), that a “general” law is one which operates equally and uniformly upon all persons brought within the relations and circumstances for which it provides, or one which operates equally upon all of a designated class, founded upon a reasonable and proper classification. A “local” or “special” law is one which because of its restrictions can operate upon or affect only a portion of the citizens, or a fraction of the property embraced within the classification created.

In State v. Dalon, supra, an act to put the Criminal District Court for the Parish of Orleans in motion was attacked on the ground that it was local or special law which had not been properly published. We held that the act was not local or special legislation. In doing so, we said:

“The argument, that a law which relates solely to the machinery of a court of justice having jurisdiction over the territory of one parish only, is a local or special law, because it does not operate throughout the State and all the parishes thereof, is perfectly preposterous, and so hollow that it cannot stand criticism.
“The real distinction between public or general laws and local or special laws is, that the former affect the community as the whole, whether throughout the State or one of its subdivisions; and the latter affect private persons, private property, private or local private interests.”

Dalon, supra, has most recently been cited with approval in Teachers' Retirement System of Louisiana v. Vial, La., 317 So.2d 179 (1975), where we held:

“General laws are those that operate equally and uniformly upon all persons brought within the relations and circumstances for which they provide or that operate equally upon all persons of a designated class founded upon a reasonable and proper classification. In contrast, a statute is special if it affects only a certain number of persons within a class and not all persons possessing the characteristics of the class. In essence, a special law is one directed to secure some private advantage or advancement for the benefit of private persons.” [Footnoted citations omitted.]

In Kotch v. Board of River Port Pilots Commissioners, supra, the plaintiff attacked a statute which created the Board of River Port Pilot Commissioners solely for the Port of New Orleans. Relying on Dalon, supra, we held that the statute involved there was not a local or special law.

The act which was attacked in State ex rel. Grosch v. City of New Orleans, 211 La. 241, 29 So.2d 778 (1947), increased the salaries of the deputies of the Criminal Sheriff of the Parish of Orleans. We held that the mere fact that the deputies were paid by the City of New Orleans did not render that statute a local or special law; that the Criminal Sheriff and his deputies are indispensable adjuncts to law enforcement; and that the fixing of their salaries is necessarily inter-related with the proper and competent administration of justice. We concluded that the act fixing their salaries was not a local or special law.

In the instant suit, although the constables of the First and Second City Courts are elected by voters from a limited area, they serve the community as a whole and not a certain number of persons within a class. The act does not give private advantage for the benefit of persons within a certain locality, but on the contrary it affects generally all persons who may have contact with the First and Second City Court.

Our conclusion is that Act 619 of 1977 is not a local or special statute, and that LSA-Const.1974, Article 3, Sections 12 and 13 are not applicable to it.

We find no merit to the argument that the act must be applied prospectively only, and that it should not be permitted to avoid the election scheduled to be held on October 1, 1977, solely because the Democratic Executive Committee has met and the election campaign has already commenced.

For these reasons we rendered judgment on August 24,1977, reversing the judgment appealed from, declaring Act 619 of 1977 to be constitutional and valid, vacating the writ of mandamus issued by the trial court and dismissing this suit.

DIXON, J., absent.


author: DIXON, Justice,

text:
    Phyllis Tuminello SNELL v. Ernest Roy SNELL, Sr., et al.
    No. 60603.
    Supreme Court of Louisiana.
    Sept. 12, 1977.
   In re: Phyllis Tuminello Snell applying for writs of certiorari, prohibition and mandamus.

Writ denied. It is understood that the trial judge will make a determination of the issue of compliance with the conditions of custody by the mother on September 20, 1977.

DIXON, J., dissents from the denial for the following reasons: (Attached)

DIXON, Justice,

dissenting from the denial:

Relator is the mother of a normal girl child born Sept. 1974 and a boy child “with medical and learning problems” born April 1971. In an opinion dated Dec. 1, 1976, the trial judge found the father of the children to be unable and unfit to care for the children, and, in spite of “difficulty . to verbalize the reasons for the decision”, found the mother to be “unable, at this point in time, to properly care for her children.”

A rule to change custody was filed by the mother on May 17, 1977, alleging changed circumstances. In an opinion of June 28, 1977 the trial judge granted a separation to the mother, continued a $35 weekly award of alimony pendente lite, and granted custody to the mother with three special conditions with physical custody “not to be given until after Aug. 1, 1977.” The conditions were that the children were to remain under the care of a Dr. Buerger as long as the doctor required, proof of enrollment in a certain school to be furnished the court, along with proof that the mother had her own apartment, before physical custody is granted.

Because the trial judge was about to go on vacation until Aug. 1, arrangements were made through a person, probably a lawyer, to enroll the children in the school and rent an apartment. On June 30 the mother filed a rule to have the conditions declared satisfied. The trial judge denied the request, for the stated reason that he had intended that the mother, herself, fly to California and make the arrangements. The judge did not indicate that he had communicated this intention to the parties.

On Aug. 1 the lawyers met the judge in chambers. The lawyer for the grandmother raised some question about the house the mother had rented, instead of the apartment she had previously arranged for. The judge then made some telephone calls out of the presence of the lawyers, then continued the matter until August 3. On Aug. 3, the matter was continued to Aug. 9, at which time the judge granted respondents a continuance until Sept. 20 in order to take depositions in California. The only showing concerning the purpose of the depositions in the record before us (we have transcript of the proceedings of Aug. 9.) is what the trial judge said. He had called the mother’s new landlord, whose number had been furnished him by the mother, and her “statements .over the telephone just raised questions in the mind of the court.” The substance of the “questions” does not appear in the record, in spite of the fact that the judge knew the record would be reviewed.

On Friday, after reading the application, I had decided to concur in the denial of Writs solely because Sept. 20 is now not so far away. On reflection, however, I cannot. The motion for continuance filed Aug. 5 and sustained Aug. 9 does not disclose what relevant evidence the grandmother might develop by California depositions. There is no shred of evidence in this record, nor contention made by the parties or the judge, that could support the continued refusal to permit this mother to regain the custody of her children.

It is a great injustice to separate a mother from her children without good reason, and a greater injustice to perpetuate the error, once discovered. I would grant the writ, reverse the ruling of the trial court, and order the children surrendered to the mother immediately.


text:
    Eddie L. SAPIR v. Paul J. HARDY, Secretary of State, and Harry Connick, District Attorney, Parish of Orleans.
    No. 60577.
    Supreme Court of Louisiana.
    Sept. 2, 1977.
   In re: Eddie L. Sapir applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 349 So.2d 478.

Writ denied. No error of law.


text:
    STATE of Louisiana v. Rodney BLACKWELL.
    No. 60592.
    Supreme Court of Louisiana.
    Sept. 8, 1977.
   In re: Rodney Blackwell applying for Remedial Writs.

Writ granted. It is ordered that Rodney Blackwell be returned to the parish prison from Angola pending the finality of his conviction.


text:
    STATE of Louisiana v. John Paul KIMBLE.
    No. 60617.
    Supreme Court of Louisiana.
    Sept. 9, 1977.
   In re: John Paul Kimble, applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. Insufficient reasons are shown to warrant the exercise of our supervisory jurisdiction at this time. Relator has an adequate remedy by appeal in the event of conviction.

DIXON, J., is of the opinion this application is probably premature since the privilege is against compelling the wife “to be a witness” in a criminal proceeding. When the privilege is claimed during the trial, whatever remedy the law provides is available to the parties.


text:
    STATE of Louisiana v. Jacob BAKER.
    No. 60601.
    Supreme Court of Louisiana.
    Sept. 9, 1977.
   In re: Jacob Baker applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied.. Adequate remedy by review.


text:
    Jonathan C. HARRIS and all other residents and taxpayers of the State of Louisiana v. The TRUSTEES OF the LOUISIANA PUBLIC FACILITIES AUTHORITY, PUBLIC FACILITIES CORP.
    No. 60582.
    Supreme Court of Louisiana.
    Sept. 9, 1977.
   In re: The Trustees of the Louisiana Public Facilities Authority, Public Facilities Corp., et al., applying for remedial supervisory writs.

Writ denied. On the showing made, exercise of our supervisory jurisdiction is not warranted.

Relators’ alternative request (to have the Court of Appeal ordered to rule) is moot inasmuch as the Court of Appeal has today rendered the ruling herein sought.


text:
    STATE of Louisiana v. Edmond TALBOT, III.
    No. 60589.
    Supreme Court of Louisiana.
    Sept. 12, 1977.
   In re: Edmond Talbot, III, applying for supervisory writs.

Granted, in part, denied in part. As to assignments 1 and 2, the writ is granted and the trial court is ordered to hold an evidentiary hearing with respect to bail on the rape charge; as to all other contentions and assignments, the writ is denied.


text:
    STATE of Louisiana v. Gordon NOVEL.
    No. 60510.
    Supreme Court of Louisiana.
    Sept. 13, 1977.
   In re: Peerless Insurance Co., applying for writ of mandamus, or other supervisory relief.

Granted. (See Order Attached)

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Matthew S. Braniff, Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 27th day of September, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Hosea D. LEVINGSTON.
    No. 60622.
    Supreme Court of Louisiana.
    Sept. 15, 1977.
   In re: Hosea D. Levingston applying for writs of certiorari, mandamus and stay order.

Writ refused. There is an adequate remedy for review in the event of conviction.


text:
    In re Jack P. F. GREMILLION
    No. 60632.
    Supreme Court of Louisiana.
    Sept. 15, 1977.
   In re: Jack P. F. Gremillion applying for reinstatement.

The petition is granted.

Petitioner is reinstated as á member of the Louisiana State Bar Association effective this day and his name shall be rein-scribed on the roll of attorneys in this Court.


text:
    STATE of Louisiana v. Marlin PRESTWOOD.
    No. 60627.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Marlin Prestwood, applying for remedial writ and stay order.

Writ denied. This Court will not interfere in the orderly process of the trial court.


text:
    STATE of Louisiana ex rel. Chester WILLIAMS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 60625.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Chester Williams applying for mandamus and remedial writs of certiorari.

Application denied as moot. Applicant’s conviction was affirmed on appeal May 25, 1977.


text:
    STATE of Louisiana ex rel. Vernado MIXON v. Charles A. WARD, Judge, Criminal Dist. Court, Parish of Orleans.
    No. 60501.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Vernado Mixon applying for remedial writs.

Writ denied. The trial court’s ruling is correct, for the reasons stated by its return of September 9, 1977.


text:
    STATE of Louisiana ex rel. William DOYLE v. Hon. Israel AUGUSTINE, Judge, Section "I", Criminal District Court.
    No. 60499.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: William Doyle applying for remedial writs of certiorari and mandamus.

Writ denied. The trial judge granted relator an out of time appeal on July 28, 1977.


text:
    STATE of Louisiana ex rel. Edward COLLINS v. Ross MAGGIO, Jr., Warden, etc.
    No. 60497.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Edward Collins, applying for writ of mandamus.

Writ denied. Return from Criminal District Court indicates that a hearing has been set for October 3,1977. Hence, application is moot.


text:
    Milton E. RUTLEDGE v. TENTH JUDICIAL DISTRICT COURT, PARISH OF NATCHITOCHES, et al.
    No. 60395.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Milton E. Rutledge, applying for writ of mandamus.

Writ denied. Petitioner’s complaint that he has not been afforded a speedy trial is groundless. Return to this Court indicates that the State is not retarding trial but rather proceeding with attempts at extradition, petitioner having chosen not to waive extradition proceedings.


text:
    Agnes CARTER v. Salvadore T. MULE and St. Paul Fire and Marine Insurance Co.
    No. 60164.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Agnes Carter applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 882.

Writ denied. . No error of law.


text:
    STATE of Louisiana ex rel. Terry Joseph GREGOIRE v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 60122.
    Supreme Court of Louisiana
    Sept. 16, 1977.
   In re: Terry Joseph Gregoire, applying for writ of habeas corpus, alternatively for certiorari, prohibition.

Writ granted. It is ordered that the trial judge conduct an evidentiary hearing on the allegations that relator was denied an appeal because of an alleged threat and that his counsel was ineffective.

DIXON, J., is of the opinion that an out-of-time appeal should be granted.


author: DIXON, J.,

text:
    STATE of Louisiana ex rel. Claude WATTS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 60112.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Claude Watts, applying for writ of habeas corpus.

Writ denied. Based upon the information furnished this Court by the District Attorney to the effect that the minutes of court show all relator’s convictions in the Parish of Iberville to have been with benefit of counsel, the result reached by the district court is correct.

DIXON, J.,

dissents. The trial judge erred in denying an evidentiary hearing to determine whether uncounselled convictions were used to impeach applicant on his trial. Under new provisions and rules, the hearing could have been held without returning the applicant from Angola to Iberville Parish. The factual determination should not have been left to this court.


text:
    C. C. CARPENTER, Jr. v. LEON E. WERNTZ AND ASSOCIATES, INC.
    No. 60117.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Leon E. Werntz and Associates, Inc. applying for certiorari or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 345 So.2d 1018.

Writ denied. We are unable to say the judgment of the court of appeal is incorrect.

CALOGERO, J., is of the opinion this writ should be granted.


author: TATE, J.,

text:
    Phyllis DAVIS, Individually and as Administratrix of the Estate of her minor child, Kimberly Davis v. ALLSTATE INSURANCE COMPANY.
    No. 60123.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Phyllis Davis, etc. et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 1111.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in its judgment.

TATE, J.,

dissents, for the reasons assigned by the dissenting opinion in the Court of Appeal.

DIXON, J., dissents.


text:
    CITY OF BATON ROUGE v. Alfred CUMMINGS.
    No. 60125.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Alfred Cummings, applying for writ of certiorari.

Writ denied. No merit in application.

DIXON, J.,

dissents from the denial, being of the opinion the writ should be granted.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Earl HARDOUIN.
    No. 60155.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: State of Louisiana through the District Attorney, Harry Connick, applying for writs of certiorari, mandamus and stay order.

Writ denied. No abuse of discretion shown.

SANDERS, C. J., and SUMMERS, J., are of the opinion that a writ should be granted.


text:
    FIRST NATIONAL BANK OF COMMERCE, NEW ORLEANS, LOUISIANA v. William LeBOUEF.
    No. 60162.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: William LeBouef applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 884.

Application denied; no error of law in the judgments below.


text:
    Ms. Caroline S. BLUM and Ms. Nancy P. Steinhardt v. Louis H. MARRERO and Seale Pest Control Corp.
    No. 60140.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Seale Pest Control Corporation applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 356.

Application denied; no error of law in the court of appeal opinion.


text:
    STATE of Louisiana v. George W. ROTHERMEL.
    No. 60139.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: George W. Rothermel applying for supervisory writs of certiorari, prohibition and mandamus.

Writ denied: Adequate remedy by review in the event of conviction.


text:
    LAFOURCHE PARISH WATER DISTRICT NO. ONE v. CARL HECK ENGINEERS, INC.
    No. 60134.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Lafourche Parish Water District No. One applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Lafourche. 346 So.2d 769.

Writ refused. On the facts found by the court of appeal, the result is correct.


text:
    Allen C. PARTNER v. T. E. MERCER TRUCKING CO. et al.
    No. 60116.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Allen C. Partner, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 345 So.2d 966.

Writ denied. On the facts found by the Court of Appeal there is no error of law in its judgment.


text:
    STATE of Louisiana ex rel. Charles BURKINS, Jr. v. Matthew S. BRANIFF, Judge, Criminal District Court.
    No. 60059.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Charles Burkins, Jr., applying for writ of mandamus.

Writ denied: Since the trial court has set the hearing for October 7th, the mandamus petition is moot.


text:
    STATE of Louisiana v. Evans BROWN.
    No. 60626.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Evans Brown, applying for remedial writs.

Writ not considered. Applicant must first apply for the relief sought in the District Court.


text:
    Robert M. DUPAS, Jr. v. CITY OF NEW ORLEANS, Travelers Insurance Co., and William O. Brown.
    No. 60163.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   Whereas, Robert M. Dupas, Jr. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, the Parish of Orleans, 346 So.2d 322.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Doris RUSH.
    No. 60124.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Doris Rush applying for writs of certiorari, prohibition and mandamus.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable John P. Navarre, Judge of the City Court of Oakdale, Court for the Parish of Allen, to transmit to the Supreme Court of Louisiana, on or before the 30th day of September, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this Court, on a date to be fixed by this Court why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Claude J. BREAUX.
    No. 60379.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: State of Louisiana applying for rehearing.

Rehearing denied. As we construe the record, the trial judge revoked bail solely because relator had qualified as an indigent.


text:
    STATE of Louisiana v. Brian A. FUTRELL.
    No. 60145.
    Supreme Court of Louisiana.
    Sept. 16, 1977.
   In re: Brian A. Futrell applying for writs of certiorari, prohibition, mandamus, review and stay order.

Writ denied. Assuming that the sentences imposed are concurrent (La.Code Crim.P. art. 883), we find insufficient showing to exercise our supervisory jurisdiction.

DIXON, J., dissents from denial on the drunk charge.


text:
    STATE of Louisiana v. Warren HARRIS, Jr.
    No. 60664.
    Supreme Court of Louisiana.
    Sept. 19, 1977.
   In re: Warren Harris, Jr. applying for remedial writ and stay order.

Application granted; a severance is ordered and the trial on one count may proceed for the reason that a fair determination of defendant’s guilt or innocence of each offense would not be promoted by the joinder of offenses as provided in C.Cr.P. 495.1; or the State may show cause to the contrary at 10:00 a. m., Thursday, Sept. 22.

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

dissent from the granting of the writ. There was no abuse of discretion in the ruling of the trial judge.


text:
    STATE of Louisiana v. David ROME.
    No. 60129.
    Supreme Court of Louisiana.
    Sept. 20, 1977.
   In re: David Rome applying for writs of certiorari, prohibition, mandamus and for stay order.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Thomas McGee, Judge Ad Hoc, 24th Judicial District Court for the Parish of Jefferson, to transmit to the Supreme Court of. Louisiana, on or before the 4th day of October, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this Court, on a date to be fixed by this Court why the relief prayed for in the petition of the relator should not be granted.


author: SANDERS, C. J.,

text:
    STATE of Louisiana v. Thomas O. WEST, Eldred A. Saxton and Paul K. Starr.
    No. 60186.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Thomas 0. West, Eldred A. Saxton and Paul K. Starr applying for writs of certiorari, mandamus and prohibition.

Writ application of petitioners West and Saxton are denied. No merit in their applications.

Application of petitioner Paul K. Starr is granted; a contradictory hearing is ordered to determine whether defendant’s rights as explained to him at time of underlying DWI conviction, and as to which court minutes indicate waiver, included the right to have an attorney represent him.

SANDERS, C. J.,

dissents from the granting of the writ as to Starr, being of the opinion that the court minutes adequately show a waiver of counsel.


author: DENNIS, J.,

text:
    Gail Marie Dedman, wife of Michael Lane ROUSSEL v. Michael Lane ROUSSEL.
    No. 60187.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Gail Marie Dedman, wife of Michael Lane Roussel applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 346 So.2d 860.

Writ denied. We agree with the court of appeal that the trial judge did not abuse his discretion.

DIXON, J., dissents from the denial.

CALOGERO, J., is of the opinion the writ should be granted.

DENNIS, J.,

concurs in the writ denial. On the basis of the fact found by the court of appeal, there was no abuse of the trial court’s discretion.


text:
    Luis HERNANDEZ v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 60188.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Luis Hernandez applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 304.

Writ denied. There is no merit in the single assignment urged.

DIXON, J., is of the opinion the writ should be granted for reasons stated by the dissenting judge in the court of appeal.


text:
    STATE of Louisiana ex rel. Frank SMITH v. Hon. Matthew S. BRANIFF, Judge, Criminal District Court, Parish of Orleans.
    No. 60514.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Frank Smith applying for writ of mandamus.

Writ denied. No merit in relator’s application. Relator’s appeal is presently pending preparation for appeal in the trial court.

DIXON, J.,

concurs in the denial at this time. Returns indicate the record is in the trial judge’s office awaiting his preparation of per curiams, which may or may not be needed.


text:
    STATE of Louisiana ex rel. Jimmy L. TAYLOR v. Hon. M. BRANIFF, Judge, Section "B", Criminal District Court, Orleans Parish.
    No. 60614.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Jimmy L. Taylor applying for remedial writ.

Writ denied. The matter is moot. The remand order was granted August 30, 1977.


text:
    STATE of Louisiana ex rel. Joseph O. JENKINS v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 60597.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Joseph Jenkins applying for writ of habeas corpus and remedial writ.

Writ refused. No merit in application.


text:
    STATE of Louisiana ex rel. Homer Ray BRAZIEL v. Hon. John S. COVINGTON, Judge, 19th Judicial District Court, East Baton Rouge, Louisiana, et al.
    No. 60591.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Homer Ray Braziel applying for writs of habeas corpus, mandamus.

Writ refused. Since the bond has been reduced, a charge filed and the case set for trial, no further relief under our supervisory jurisdiction is indicated.


text:
    STATE of Louisiana v. John Paul KIMBLE.
    No. 60371.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: John Paul Kimble applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. The matter is moot. Conditional stay order is recalled.


text:
    STATE of Louisiana ex rel. Robert J. HOFFMAN v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 60315.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Robert J. Hoffman applying for writ of habeas corpus.

Writ denied. The allegations do not justify the relief sought.


text:
    Harry L. SMITH, Jr. v. QUALITY TRANSPORT, INC., et al.
    No. 60254.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Harry Smith, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 346 So.2d 787.

Writ denied. On the facts found by both lower courts, and considering the absénce of legal error, the application has no merit.


text:
    STATE of Louisiana ex rel. Robert H. MURRAY v. C. Paul PHELPS, Director, Ross Maggio, Warden.
    No. 60223.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Robert H. Murray applying for writs of certiorari, mandamus and prohibition.

Writ denied. All assignments alleged are reviewable on appeal, and an appeal has been taken.


text:
    STATE of Louisiana ex rel. Charles Paul WEATHERS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary and 32nd Judicial District Court, Parish of Terrebonne.
    No. 60193.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Charles Paul Weathers applying for writ of certiorari and habeas corpus.

Writ denied. The contentions raised by this post-conviction proceeding were decided adversely to the relator upon his appeal from the conviction.


text:
    Paul E. GEISLER v. LOUISIANA POWER AND LIGHT CO. and J. Melton Garrett.
    No. 60185.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Paul E. Geisler applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 346 So.2d 339.

Application denied; the result is correct.


text:
    LACASSAGNE SHIP SUPPLIES, INC. v. ORLEANS PARISH SCHOOL BOARD.
    No. 60184.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Lacassagne Ship Supplies, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 297.

Writ denied. The result is correct.


text:
    Rose Boe, wife of Charles BONOMO, et al. v. LAKE FOREST, INC.
    No. 60180.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Lake Forest, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 358.

Writ denied. Since the court of appeal has remanded the case for trial on the merits, the judgment is not final.


text:
    Mrs. Mabel WALKER v. STATE of Louisiana, Through the DEPT. OF CORRECTIONS.
    No. 60176.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Mrs. Mabel Walker, etc., et al., applying for certiorari or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 346 So.2d 794.

Writ denied. On the facts found, the result is correct.


text:
    Harry L. SMITH, Jr. v. QUALITY TRANSPORT, INC., et al.
    No. 60173.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: United States Fidelity and Guaranty Company applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 346 So.2d 787.

Writ denied. On the facts found by both lower tribunals, and considering the absence of legal error, the application has no merit.


text:
    STATE of Louisiana v. Leslie Page WESTBROOK.
    No. 60172.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Leslie Page Westbrook applying for writs of mandamus, prohibition and supervisory writs.

Application denied; on the assignments of error presented, there is insufficient showing to warrant-the exercise of our supervisory jurisdiction.


text:
    Mrs. Nancy Siepman, wife of Ronald HOTZ v. Ronald HOTZ.
    No. 60171.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Ronald Hotz applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 326.

Writ denied. The result is correct.


text:
    Jeanette POWE v. CITY OF NEW ORLEANS.
    No. 60168.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Jeanette Powe applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 886.

Writ denied. On the facts found, the result is correct.


text:
    STATE of Louisiana v. Conley T. JONES.
    No. 60167.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Conley T. Jones applying for writs of certiorari, prohibition, mandamus and stay order.

Writ denied. No error of law. Stay order recalled.


text:
    Leonard R. BOURQUE v. OLIN CORPORATION et al.
    No. 60165.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Leonard R. Bourque applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu. 346 So.2d 1373.

Denied. On the facts found by the court of appeal, its judgment is correct.


text:
    Witham DUFOUR, Sidney A. Rovira, et al. v. Houston L. WOOD, Jr., et al.
    No. 60159.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Houston L. Wood, Jr., et al. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 863.

Writ denied. On the facts found by the court of appeal, the result is correct.


text:
    STATE of Louisiana v. Gregory G. GAFF.
    No. 59996.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Gregory G. Gaff applying for remedial writs.

Treating the “appeal” from a probation revocation as a writ application, it is denied; there is no merit in the assignment of errors.


text:
    Samuel Richard EXNICIOS v. J. L. MILLER and North River Insurance Company.
    No. 60280.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Samuel Richard Exnicios, Individually and as father of his minor son, Valery P. Exnicios applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Washington. 346 So.2d 729.

Not considered. Not timely.


text:
    STATE of Louisiana v. Charles Wilferd EZEB, Jr.
    No. 60226.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Charles W. Ezeb, Jr. applying for remedial writs.

Writ not considered. Relator must first exhaust his remedies in the trial court.


text:
    STATE of Louisiana v. Erroll L. MANUEL
    No. 59458.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Erroll L. Manuel applying for remedial writs.

Writ Denied:

Per Curiam. The defendant had no right of appeal from the revocation of his probation. State v. Haynes, 255 La. 52, 229 So.2d 697 (1969); cf., La.Const. of 1975, Art. 5, Section 5(D). Treating this appeal as an application for a supervisory writ, Louisiana Supreme Court Rule 1, Section 11 (1975), we have examined the specifications of error and find them to be without merit. The application is therefore denied.


text:
    CITY OF BATON ROUGE v. Johnny R. AVANTS.
    No. 60142.
    Supreme Court of Louisiana.
    Sept. 21, 1977.
   In re: Johnny -R. Avants applying for remedial writs.

Writ denied. There is some evidence of each element of the offense, applicant’s construction of statute relative to driver’s license expiration is incorrect, and prosecution of State DWI at time of this trial was not legally impermissible.

TATE, J.,

concurs in the denial. From the evidence, a valid suspension for at least one year beyond the offense of March 11, 1976, may be inferred; See La.R.S. 32:412, subd. A, so the offense in question occurred during the period of suspension.


text:
    Eskar L. POCHE v. Vivian Louise JENKINS Poche (Hutchinson).
    No. 60670.
    Supreme Court of Louisiana.
    Sept. 22, 1977.
   In re: Eskar L. Poche applying for Supervisory Remedial Writs.

Writ granted. The stay order previously issued herein is continued in effect until relator’s appeal to the First Circuit Court of Appeal is finally disposed of. It is further ordered that the Court of Appeal expedite the hearing of the appeal.

DIXON, J.,

dissents from issuance of stay order, for the reason that no showing has been made that the Court of Appeal was in error in holding that applicant’s remedy is by appeal.

CALOGERO, J., dissents from issuance of the stay order.


text:
    STATE of Louisiana v. Robert MITCHELL and Jack Holt.
    No. 60687.
    Supreme Court of Louisiana.
    Sept. 22, 1977.
   In re: Robert Mitchell and Jack Holt applying for supervisory writs and stay order.

Denied. Applicants have an adequate remedy by review in the event of conviction.


text:
    Robert CRITNEY v. GOODYEAR TIRE AND RUBBER COMPANY.
    No. 60675.
    Supreme Court of Louisiana.
    Sept. 22, 1977.
   In re: Robert Critney applying for writ of prohibition and mandamus.

Writ denied. No abuse of discretion.


text:
    STATE of Louisiana v. Warren E. GAMBINO, Jr.
    No. 60671.
    Supreme Court of Louisiana.
    Sept. 23, 1977.
   In re: Warren E. Gambino, Jr. applying for supervisory writ.

Writ denied. There is no such irreparable injury shown as to justify the exercise of our supervisory jurisdiction, save however, that defendant is entitled to return of all copies of the controverted publication except one copy may be returned by the state for evidentiary purpose.

DIXON, J.,

dissents, being of the opinion a prior judicial determination of “obscenity” is essential before an arrest, because of the vagueness of the term “ultimate sexual acts”.


text:
    STATE of Louisiana ex rel. Willie Dean JACKSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, Angola, La.
    No. 60191.
    Supreme Court of Louisiana.
    Sept. 23, 1977.
   In re: Willie Dean Jackson applying for remedial writs of habeas corpus, mandamus and/or other writs.

Writ refused. No merit in application in view of Boykin examination.

DIXON, J.,

dissents. There has been no evidentiary hearing to determine whether it is true that state-appointed defense lawyer promised that applicant would receive only two years if he pleaded guilty.

CALOGERO, J., dissents from writ refusal. Applicant is entitled to an evidentiary hearing.


text:
    Joseph JENNINGS v. HALLIBURTON CO., Imco Drilling Mud, Inc. and Highlands Ins. Co.
    No. 60206.
    Supreme Court of Louisiana.
    Sept. 23, 1977.
   In re: Joseph Jennings applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 268.

Writ denied. On the facts found by the trial and appellate courts, the result is correct.


text:
    CITY OF NEW ORLEANS v. Elvira Louise WIENER, wife of/and Lewis A. Giraud.
    No. 60205.
    Supreme Court of Louisiana.
    Sept. 23, 1977.
   In re: City of New Orleans applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 1113.

Writ denied. On the facts found, the result is correct.


text:
    Larry MARTINEZ v. THERMA-KING SALES & SERVICE DIVISION OF TRANSPORT REFRIGERATION OF LA., INC.
    No. 60204.
    Supreme Court of Louisiana.
    Sept. 23, 1977.
   In re: Therma-King Sales and Service, Division of Transport Refrigeration of Louisiana, Inc. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Assumption. 346 So.2d 798.

Writ denied. On the facts found by the court of appeal, there is no error of law.


text:
    Mrs. Rosemae Dillon JAMES v. Mr. Martin KAIN.
    No. 60200.
    Supreme Court of Louisiana.
    Sept. 23, 1977.
   In re: Martin Kain applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Writ denied. Under the facts found by the court of appeal, the result is correct.


text:
    Mary Frederick, wife of Arthur E. STEBER v. Arthur E. STEBER.
    No. 60197.
    Supreme Court of Louisiana.
    Sept. 23, 1977.
   In re: Arthur E. Steber applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 346 So.2d 315.

Writ denied. No error of law.


text:
    Sadie Gertler, wife of/and David GERTLER v. CITY OF NEW ORLEANS, Dept. of Safety and Permits of the City of New Orleans, Board of Zoning Adjustments and Miles J. Kehoe.
    No. 60169.
    Supreme Court of Louisiana.
    Sept. 23, 1977.
   In re: Sadie Gertler, wife of/and David Gertler applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 228.

Writ denied. Result is correct.


text:
    STATE of Louisiana ex rel. John FULFORD v. C. Paul PHELPS, Secretary, Louisiana Department of Corrections.
    No. 60194.
    Supreme Court of Louisiana.
    Sept. 23, 1977.
   In re: John Fulford applying for certio-rari, mandamus and habeas corpus.

Application denied; the showing made does not warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Leonard JOHNSON v. CLERK OF CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 59816.
    Supreme Court of Louisiana.
    Sept. 23, 1977.
   In re: Leonard Johnson applying for remedial writs.

Writ refused. The appeal, including a transcript of the trial evidence, is lodged in this court. Relator is represented by appointed counsel.


text:
    Rose J. HENDERSON v. TRAVELERS INSURANCE CO. et al.
    No. 60214.
    Supreme Court of Louisiana.
    Sept. 23, 1977.
   In re: Rose J. Henderson applying for certiorari or writ of review to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 346 So.2d 816.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Mrs. Vera Ruppel BAUMGARTNER et al. v. STATE FARM MUTUAL AUTOMOBILE INS. CO. et al.
    No. 60210.
    Supreme Court of Louisiana.
    Sept. 23, 1977.
   In re: Mrs. Vera Ruppel Baumgartner, et al. applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 346 So.2d 277.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.