author: DOWNEY, Chief Judge.

text:
    CITY OF FORT LAUDERDALE, Florida, a Municipal Corporation of the State of Florida, and Richard E. Anderson, as City Manager of the City of Fort Lauderdale, Florida, Petitioners, v. Charles J. CAMPBELL, Respondent.
    No. 78-557.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1978.
    Rehearing Denied Oct. 17, 1978.
    Sydney H. McKenzie III, City Atty., and Bryson K. Lovejoy, Asst. City Atty., Fort Lauderdale, for petitioners.

      Richard L. Kopel, Hollywood, for respondent.
   DOWNEY, Chief Judge.

Pursuant to Rule 9.030(b)(2)(B), Fla.R. App.P., the City of Fort Lauderdale and Richard E. Anderson have filed a petition for writ of certiorari seeking review of a final order of the Circuit Court of Broward County granting certiorari and directing reinstatement of respondent with payment of all back pay since the date of his discharge by the petitioners.

Respondent was hired as a participant under the Comprehensive Employment and Training Act of 1973 (CETA), 29 U.S.C. § 801, et seq. by the City of Fort Lauder-dale on February 14, 1975, to be a Community Service Police Aide for the City of Fort Lauderdale Police Department. At the time of employment respondent was advised that the term of his employment was for approximately one year which coincided with the CETA funding period. However, apparently by mistake the Personnel Director sent respondent a form letter welcoming respondent to City employment and advising him that at the end of a year he would become a regular city employee.

To implement the Comprehensive Employment and Training Act the Department of Labor promulgated certain rules and regulations which in pertinent part required that each prime sponsor (the City here) shall establish a procedure for resolving any issue arising between it and a participant (respondent here) under the act. The procedure envisioned required certain steps to be taken before a participant could be discharged.

On October 25, 1976, the City Manager wrote respondent notifying him that his employment was terminated due to incompetency and inefficiency in the performance of his duties. At that time the City had not promulgated any discharge procedures as required by Section 98.26 of Department of Labor Rules and Regulations. After respondent’s counsel demanded a hearing concerning respondent’s discharge, the City Personnel Director on March 2, 1977, notified all City Department Heads of termination procedures to be followed in terminating CETA participants. On March 22,1977, the City Personnel Director notified respondent as follows:

“In accordance with Section 98-26 of the Federal Register and per your attorney’s request, an informal hearing has been scheduled for Friday, March 25, 1977, at 10:00 a. m. in the Civil Service Conference Room, 8th floor, City Hall, regarding your recent termination from employment with the City of Fort Lauderdale. Those in attendance at the hearing will be the City’s Personnel Director (and/or his representative), the Affirmative Action Officer, and your former supervisor. “Please be advised of your rights to bring any witnesses (and/or documents) to speak on your behalf.
“If further information is required concerning your scheduled informal hearing, kindly contact me at the above stated address.”

Thereafter a full scale hearing was held which respondent attended and participated in through counsel. The City’s Affirmative Action Officer notified the City Manager of the hearing and furnished a resumé of what took place and advised the City Manager that the recommendation was that respondent’s termination be upheld. The City Manager in due course notified respondent that his dismissal was confirmed.

Respondent then filed a petition for writ of certiorari in the Circuit Court as a result of which that court found respondent had been denied procedural due process because 1) no procedure had been set up by the City for handling termination of CETA employees as required by the Rules and Regulations Department of Labor and 2) the termination of respondent from employment deprived respondent of a property interest without sufficient notice as to what actions respondent took that constituted incompetency or inefficiency in the performance of duties and failed to provide respondent an opportunity to respond prior to his termination.

It is our conclusion from reviewing the record presented here that, while the City failed to set up the required termination procedures before respondent was terminated, the City did, at respondent’s urging, set up such procedure and did furnish respondent adequate notice and a hearing to determine whether his termination was justified. Unquestionably, the termination hearing is more properly held before a person’s employment is terminated. However, procedural due process requirements are met, where, as here, after the fact adequate notice is given and a full-blown hearing is held. If the evidence adduced does not justify the employee’s termination then he is entitled to reinstatement and to payment of accrued compensation. However, if the evidence supports a finding that the employee should be terminated and the termination order is reaffirmed, the employee has received everything to which he is entitled. The mere fact that the notice and hearing are held after the fact does not itself constitute a denial of procedural due process. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974); Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Taylor v. Simmons, 406 F.Supp. 1019 (S.D.Fla.1975).

In Purdy v. Cole, 317 So.2d 820 (Fla. 3rd DCA 1975), the employee Cole was discharged and no hearing was provided because the County Director of Public Safety felt Cole was not entitled to a hearing as a probationary police officer, pursuant to the Metropolitan Dade County Personnel Rules. The trial court found that Cole was discharged for constitutionally protected conduct and thus ordered him reinstated. On appeal the District Court of Appeal found that some of the charges involved constitutionally protected conduct and thus, regardless of the Personnel Rules, a hearing was required. The court also found that some of the charges were admitted by Cole and thus as to them the Director was entitled to terminate him without a hearing. However, because some of the charges in effect charged Cole with dishonesty or immorality damaging his standing in the community and some were based on constitutionally protected activity, he was entitled to a hearing. Thus, the District Court reversed the order in part and remanded the cause with directions to afford Cole an administrative hearing:

“[I]n order to clear his name after which it shall be left to the Public Safety Department to reinstate Cole or to affirm the discharge as of the original date of discharge.”

We agree with the resolution of that case as it appears to us the aggrieved employee was afforded procedural due process even though the hearing was held after he was discharged.

Accordingly, the petition for writ of cer-tiorari is granted and the order under review is quashed and the Circuit Court is directed to reinstate the order of the Petitioner City of Fort Lauderdale terminating respondent’s employment.

CROSS and DAUKSCH, JJ., concur.

      . “§ 98.26 Procedures for resolving issues between grantees and complainants.
      “(a) Each prime sponsor or eligible applicant shall establish a procedure for resolving any issue arising between it including any subgran-tee or subcontractor of the prime sponsor) [sic] and a participant under any Title of the Act. Such procedures shall include an opportunity for an informal hearing, and a prompt determination of any issue which has not been resolved. When the prime sponsor or eligible applicant takes an adverse action against a participant, such procedures shall also include a written notice setting forth the grounds for the adverse action and give the participant an opportunity to respond.
      “(b) Each prime sponsor or eligible applicant shall establish informal review procedures including an opportunity for an informal hearing to deal with issues arising between it and any of its sub-grantees or contractors.
      “(c) Each prime sponsor or eligible applicant should establish informal review procedures such as informal hearings or some other process, to deal with issues arising between it and any aggrieved party.
      “(d) Final determinations made as a result of the review process shall be provided to the complainant in writing. Such notice shall include the procedures by which the complainant may appeal the final determination, set forth in Sub-part C of this Part. No individual or organization subject to the issue resolution requirements of this section may initiate the hearing procedures of sub-part C of this Part until all remedies under this section have been exhausted.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William Glenn BROOKER, Appellant, v. STATE of Florida, Appellee.
    No. 77-1832.
    District Court of Appeal of Florida, Second District.
    Sept. 27, 1978.
    Jack 0. Johnson, Public Defender, and James R. Wulchak, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court. However, we agree with appellant that there are imperfections in his sentence. The present sentence does not specify the amount of credit for time served as Section 921.161(1), Florida Statutes (1977), requires. Knight v. State, 349 So.2d 232 (Fla.2d DCA 1977). Moreover, the phrase “at hard labor” in the sentence is improper. Knight v. State, supra. Therefore, we remand the case for correction of the sentence, and appellant need not be present at that time.

BOARDMAN, Acting C. J., and SCHEB and OTT, JJ., concur.


author: DANAHY, Judge.

text:
    TOWN OF LONGBOAT KEY, Florida, Appellant, v. CARL E. WIDELL & SON, Appellee.
    No. 78-20.
    District Court of Appeal of Florida, Second District.
    Sept. 27, 1978.

      I. W. Whitesell, Jr., of Wood, Whitesell & Karp, Sarasota, for appellant.
    Andrew D. Owens, Jr. and G. Hunter Gibbons, of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, Sarasota, for ap-pellee.
   DANAHY, Judge.

Appellant/defendant (the town) and ap-pellee/plaintiff (the contractor) entered into a contract for the construction of a pumping station and a lift station as part of a central wastewater system for the town. After completion of construction and acceptance by the town, the contractor brought this suit to recover the balance due it under the contract plus costs incurred by the contractor over and above the contract price in constructing the lift station by the caisson method. The contractor claimed that the caisson method of construction, which does not require a dry excavation, was made necessary by the fact that the excavation at the construction site could not be kept dry by dewatering, as the contractor had anticipated in submitting its bid.

The town disputed the contractor’s claim for the extra costs and asserted an offset for delay beyond the completion date specified in the contract, including extensions. The contract provided that the town was entitled to a credit in the amount of $150 per day for delay. The town claimed a delay of 98 days, resulting in an offset of $14,700. The contractor argued that the delay was for only 33 days, so that the proper credit was $4,950.

After a nonjury trial, the trial judge entered a final judgment in favor of the contractor for the balance due under the contract plus the extra cost of the caisson method of construction, less a credit to the town for the delay in the amount of $4,950.

The town appeals from that part of the judgment which awards the extra costs and that part which allows a credit of $4,950 for delay. By cross-assignment of error, the contractor asserts that the trial judge erred in failing to award the contractor prejudgment interest on the sums found to be due the contractor, computed from the day that construction was completed.

We find no error in the final judgment except as to the matter of prejudgment interest. Therefore, we affirm in part and reverse in part, and remand with instructions to enter an amended final judgment awarding the contractor interest on the sums found to be due it, computed from July 4, 1975, thirty days following the date of acceptance by the town.

The contractor asserted that in making its bid, it relied upon a subsurface soil analysis and investigation prepared for the town by Ardaman & Associates, consulting engineers, which was included by the town in the bid packet. The contractor claimed that this report, which was based on test borings, showed that the excavations for both the pumping station and the lift station could be kept dry by using the well pump method for dewatering. The specifications called for dewatering by the well pump method. However, when the contractor began excavation for construction of the lift station, it encountered a water level which rose and' fell with the tides. The contractor concluded that, therefore, it was not possible to dewater for construction by the dry method and suggested to the town’s project engineer that construction be accomplished by the caisson method. The engineer redesigned the lift station for construction by the caisson method and submitted the new plans to the contractor. The contractor then proceeded with construction of the lift station by the caisson method and thereby incurred additional costs. The town refused payment.

The town first argues that the contractor was not justified in relying on the Ardaman report in basing its bid on the cost of construction by the dry method, on the assumption that the construction site could be dewatered. The trial judge must have come to a contrary conclusion, and we find no error in that regard since the evidence supports such a conclusion. The town next argues that, in any event, the contract provided that each bidder was held responsible for having examined the proposed construction site and for having satisfied himself as to conditions, including the nature of the ground water table conditions. The town asserts that, having failed to make test borings which would have revealed the water level conditions which the contractor encountered, the contractor “assumed the risk” of those conditions which he actually found. The contractor counters that the test borings would have been very expensive and, furthermore, only actual excavation would have revealed the water level conditions which were found. Whether or not these contentions by the contractor are justified by the record in this case, we hold that, for reasons hereinafter expressed, the contractor’s recovery is not precluded by its failure to make test bor-ings at the construction site.

The town argues that this case is on all fours with Bumby & Stimpson, Inc. v. Peninsula Utilities Corp., 169 So.2d 499 (Fla. 3d DCA 1964), which involved a contract between private parties for the laying of pipe in the construction of a sewage collection system. The contractor’s bid contemplated the use of clay pipe. Because of the existence of soft sand, the contractor found he could not use clay pipe but was required to use more expensive cast iron pipe. The court pointed out that the contractor had failed to make tests which would have revealed the existence of soft sand, and held that the contractor was not entitled to recover the additional costs.

Whether or not we agree with the result reached in the Bumby case, we find that decision clearly distinguishable because it involved a different factual situation and because it did not involve a contract with a governmental unit having a provision peculiar to public works contracts. That provision, as it appears in the contract involved in this case, is as follows:

During the progress of the work, should a contractor encounter, or the engineer or owner discover, subsurface or latent conditions at the site differing materially from those shown on the drawings or indicated in the specifications, or unknown conditions of an unusual nature differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the drawings and specifications, the engineer’s attention shall be called immediately to such conditions before they are disturbed. The engineer will thereupon promptly investigate the conditions, and if he finds that they do materially differ, with the written approval of the owner, the contract will be modified to provide for the increase or decrease of costs and difference in time resulting from such conditions.

The above language has a forty year history and is generally referred to as a “changed conditions clause.” The wording is identical to one of the early forms appearing in United States government construction contracts. The clause was designed to provide for an adjustment between the public works contractor and the government because of increases or decreases in costs resulting from the encountering of conditions differing materially from those contemplated in the contract. Governmental units other than the United States government have adopted the changed conditions clause (including, in this case, the town). The purpose of the clause is to assure that a bidder will not include in his bid a sum to protect him against loss resulting from unforeseen conditions, but will rely on the governmental unit’s promise to grant him an equitable adjustment if the unforeseen occurs.

A substantial body of law has been developed, primarily in the federal courts, construing the above quoted language. Those decisions are comprehensively treated in an annotation at 85 ALR 2d 211 (1962). There being no Florida cases construing a changed conditions clause, we choose to follow the lead of cases decided elsewhere, as reported in the annotation. We find it unnecessary, in view of the comprehensive treatment in the annotation, to cite specific cases. Suffice it to say that the reported decisions support recovery of the contractor in the case before us. It has been held that, where conditions are in fact materially different from those contemplated by the contract, relief is not to be denied because of the presence in the contract of one or more of various admonitory or exculpatory clauses, such as one requiring the contractor to examine the construction site. Furthermore, we are not inclined to view the requirement that the contractor examine the construction site, under the circumstances of this case, as contemplating that the contractor make its own separate test borings before submitting its bid.

The town takes the position that the contractor is nevertheless precluded from recovery because of provisions in the contract requiring that any modification of the contract terms or the contract price must be in writing. We do not agree. It is clear that the only burden on the contractor under the changed conditions clause was to call the attention of the town’s engineer to the unexpected conditions and the contractor did so. 85 ALR2d at 233.

We conclude, therefore, that the trial judge was eminently correct in determining that the contractor was entitled not only to the balance of the contract price, but to the additional costs incurred by the contractor in using the caisson method of construction. We also have no quarrel with the trial judge’s conclusion as to the number of days of delay. This leaves only the question whether the contractor was entitled to prejudgment interest on those amounts.

With respect to the Florida rule on entitlement to prejudgment interest in actions ex contractu, this court has recently had occasion to cite with approval a decision of the United States District Court for the Middle District of Tennessee in Tampa Electric Company v. Nashville Coal Company, 214 F.Supp. 647 (M.D.Tenn.1963). In that case, the federal court concluded that Florida follows the traditional rule of allowing prejudgment interest where a claim is liquidated, but not where a claim is unliqui-dated. The court pointed out, however, that in Florida, as in other jurisdictions, the distinction between liquidated and unliqui-dated damages has been substantially blurred insofar as the allowance of interest is concerned. The test in Florida, as noted in the Tampa Electric case, seems to be that a claim is unliquidated when the amount of the damages cannot be computed except on conflicting evidence, inferences and interpretations.

In this case, the contractor promptly advised the town that the additional costs it ■ incurred in using the caisson method totaled $33,269.22. This is the exact amount alleged and proved by the contractor in this suit and this is the exact amount which the final judgment awarded to the contractor. The town does not dispute that figure on this appeal, nor does it dispute the contractor’s entitlement to the balance of the contract price. Under these circumstances, we decline to classify any part of the contractor’s demand as “unliquidated” for purposes of determining the allowance of prejudgment interest. We hold that the contractor is entitled to interest on the total amount awarded to it in the final judgment, computed from July 4, 1975. Snead Construction Corp. v. Langerman, Nos. GG-199 and HH-395 (Fla. 4th DCA, June 12, 1978); annot., 60 ALR 3d 487 (1974).

Affirmed in part, reversed in part, and remanded.

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

      . We note that the contract does not contain a clause, usually found in public works contracts, providing that no extra work be done unless authorized in writing. Even so, it is at least questionable whether such a clause would apply to extra work occasioned by conditions being other than as represented to the contractor. See annot., 76 ALR 268, 276.

      . Gulfport Guaranty & Fidelity Corp. v. Jones Plastering & Stucco, Inc., 360 So.2d 1098 (Fla. 2d DCA 1978).


text:
    Robert A. MAERKLE, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-392, 78-393.
    District Court of Appeal of Florida, Second District.
    Sept. 27, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The trial court failed to specify the exact amount of credit appellant is to receive for time served. Therefore, we remand this case with instructions that it now do so. Knight v. State, 349 So.2d 232 (Fla.2d DCA 1977). Appellant need not be present for this purpose.

BOARDMAN, Acting C. J., and SCHEB and OTT, JJ., concur.


author: BOARDMAN, Acting Chief Judge.

text:
    Andrea Billy SWIFT, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-490, 78-491 and 78-492 Consolidated.
    District Court of Appeal of Florida, Second District.
    Sept. 27, 1978.

      Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant contends that the trial court erred in revoking his probation and in sentencing him to a total of eleven years in prison. We affirm in part and reverse in part.

Appellant pled guilty to three separate charges: leaving the scene of an accident involving an injury, forgery, and uttering a forged instrument. On December 2, 1976 the trial court placed him on three concurrent five-year terms of probation. Subsequently the court revoked his probation for violations of the conditions of probation allegedly committed by appellant on December 21, 1977 and January 11, 1978. Appellant was sentenced to a one-year term of imprisonment for leaving the scene of an accident, a five-year term for forgery, and a five-year term for uttering a forged instrument. This appeal timely followed.

Two established and accepted principles of law control this case. The first is that a term of probation cannot exceed the maximum sentence which a court may impose. Watts v. State, 328 So.2d 223 (Fla.2d DCA 1976). The other is that the court may only revoke probation for violations which occur during the term of that probation. See generally Bouie v. State, 360 So.2d 1142 (Fla.2d DCA 1978); Wrich v. State, 350 So.2d 1114 (Fla.2d DCA 1977).

Applying these propositions to the facts here we hold that the trial court erred in placing appellant on probation for five years for leaving the scene of an accident. The maximum punishment which the court could have imposed under Section 316.027 Florida Statutes (1975) for leaving the scene of an accident was one year. Consequently, the term of probation for that offense could not exceed one year, and appellant’s probation therefore ended on December 2, 1977. As a result, we believe the court erred in revoking appellant’s probation for leaving the scene of an accident since the violations which served as a basis for the revocation occurred after December 2, 1977.

We have considered the remaining point raised by appellant, but we need not discuss it for it is clearly refuted by the record.

Accordingly, we affirm the judgments and sentences for forgery and uttering a forged instrument and reverse the judgment and sentence for leaving the scene of an accident. We remand the case to allow the trial court to set aside the judgment and sentence for leaving the scene of an accident.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED WITH DIRECTIONS.

SCHEB and DANAHY, JJ., concur.


text:
    Walter F. GUTH, Appellant, v. Nell F. HOWARD, Appellee.
    No. 78-502.
    District Court of Appeal of Florida, Second District.
    Sept. 27, 1978.
    Walter S. McLin, III of McLin, Burnsed & Cyrus, Leesburg, for appellant.
    William F. Brewton of Brewton, Council & Swann, Dade City, for appellee.
   PER CURIAM.

Petitioner/appellant seeks to appeal an order which reads “that [respondent’s] motion to dismiss be and the same is hereby granted.” This is not a final order within the contemplation of Fla.R.App. P. 9.030(b)(1)(A). Likewise, this is not a non-final order which may be reviewed by an interlocutory appeal. Fla.R.App. P. 9.130(a)(3). Since we have no jurisdiction, the appeal, sua sponte, is dismissed. Arnold v. Brady, 178 So.2d 732 (Fla.2d DCA 1965); Renard v. Kirkeby Hotels, 99 So.2d 719 (Fla.3d DCA 1958).

GRIMES, C. J., and RYDER and DAN-AHY, JJ., concur.


text:
    CITY OF TAMPA, Petitioner, v. Earl J. LONG and Leila Long, husband and wife and as legal guardian of Tanya Estes, Respondents.
    No. 78-1006.
    District Court of Appeal of Florida, Second District.
    Sept. 27, 1978.

      Thomas K. Morrison, Asst. City Atty., Tampa, for petitioner.
   PER CURIAM.

The petition for writ of certiorari is denied without prejudice to the right of petitioner to seek review of the matters therein by way of an appeal from the final judgment. Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla.2d DCA 1973).

BOARDMAN, Acting C. J., and SCHEB and OTT, JJ., concur.


text:
    Levi CALHOUN, Appellant, v. STATE of Florida, Appellee.
    No. JJ-75.
    District Court of Appeal of Florida, First District.
    Sept. 29, 1978.
    Levi Calhoun, in pro per.
    Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

This is an appeal from a denial of a motion to vacate a judgment and sentence after a conviction of attempted robbery and in the course of committing the robbery carrying a firearm. The trial judge denied the motion without an evidentiary hearing. The order issued by the court asserted that the records and files refuted the claims of the defendant, but no portion of the record or file was attached to the order.

Rule 3.850, Fla.R.Crim.P. requires that when the denial of a motion for post conviction relief is not based on the legal insufficiency of the motion, “a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the [order]” or an evidentiary hearing should be granted. Accordingly, this case is reversed and remanded with instructions for the trial court to attach that portion of the case file and record which refutes appellant’s allegations or to conduct an evidentiary hearing.

McCORD, C. J., and BOYER and MILLS, JJ., concur.


text:
    Jose SANTANA, Appellant, v. STATE of Florida, Appellee.
    No. 77-953.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1978.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Clark v. State, 363 So.2d 331 (Fla.1978).

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


author: HOBSON, Judge.

text:
    Ronald KING, Appellant, v. Larry Winfred NELSON, Joan Scott Nelson and Sentry Insurance, a Mutual Corporation, Appellees.
    No. 77-1352.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1978.
    Peyton T. Jordan, Jr., Tampa, for appellant.
    Rick B. Levinson, of Levine, Freedman, Hirsch & Levinson, Tampa, for appellees.
   HOBSON, Judge.

This appeal arises out of a dispute as to attorney fees payable to plaintiff King’s attorneys under a contingent fee contract. The lower court entered its order determining that the contingent fee contract was a valid and binding contract and that the attorneys were entitled to 40% of any settlement or recovery. The ultimate recovery was the amount of $9,000, 40% of which the lower court awarded as attorney fees. This order is the order on appeal. We affirm in part and reverse in part.

The lower court correctly found that the contingent fee contract was valid and binding. In order to determine whether or not the ultimate amount of $9,000 was the correct amount upon which to base the fee, we must set forth the facts.

Mr. King’s attorneys negotiated a settlement of $8,000. Mr. King, as well as his parents, accepted the $8,000 settlement, but prior to the disbursement of the funds Mr. King consulted with another attorney. At this point there arose a dispute as to the disbursement of the funds and the first attorneys filed a motion for disbursement of funds. After the filing of said motion Mr. King informed his first attorneys that he was discharging them without cause.

The first attorneys then filed a motion to withdraw as counsel for Mr. King and for a charging lien for their fees. The court entered its order granting the first attorneys the right to withdraw and a charging lien for the fees to the extent of either 40% of the first $8,000 derived in settlement or trial or the reasonable value of services performed by the said attorneys, such value to be determined by the court at a future proceeding.

Mr. King’s second attorney then filed a motion to determine the amount of the charging lien. Approximately twelve days after filing said motion the second attorney filed an amended motion, at which time he challenged the validity of the contingent fee contract. Thereafter the court entered the order appealed.

As to the amount of the attorney fees, the second attorney takes the position that the first attorneys were only entitled to a reasonable fee based on quantum meruit and relies on Milton Kelner, P.A. v. 610 Lincoln Road, Inc., 328 So.2d 193 (Fla.1976), wherein it was held:

“Quantum meruit may well be the proper standard when the discharge under a contingent fee contract occurs prior to the obtaining of the full settlement contracted for under the attorney-client agreement, with the cause of action accruing only upon the happening of the contingency to the benefit of the former client.” 328 So.2d 193 at 196.

Mr. King had agreed to the $8,000 settlement and it was subsequent to and not prior to his agreement to the settlement that he advised his first attorneys that he was discharging them.

Under these facts we hold that the attorney fee should not be based on quantum meruit but should be based on the contingent fee contract. Even though Mr. King agreed to accept the $8,000 which his first attorneys had negotiated as a settlement, he received an additional $1,000 through the efforts of his second attorney.

Therefore, we affirm the order appealed with the exception that the first attorneys are only entitled to 40% of $8,000.

AFFIRMED in part and REVERSED in part.

GRIMES, C. J., and DANAHY, J., concur.


author: GRIMES, Chief Judge.

text:
    Richard T. CONARD, M.D., Petitioner, v. Vernon P. MORA, Respondent.
    No. 77-2105.
    District Court of Appeal of Florida, Second District.
    Sept. 29, 1978.

      William C. Blake, Jr. of Blake & Ford, P. A., Tampa, for petitioner.
    John W. Boult of Rood, Hapner, Boult & Dekle, Tampa, for respondent.
   GRIMES, Chief Judge.

This is a petition for certiorari from an order terminating jurisdiction of a medical mediation panel.

The respondent (claimant) filed a medical mediation claim against the petitioner (defendant) in the Circuit Court of Hillsbor-ough County. Thereafter, the parties stipulated that venue was improper and pursuant to order a transfer of the mediation panel to Manatee County was effected eighty-two days later. Ninety-two days after the transfer, the Manatee County judicial referee entered an order on stipulation of the parties extending the jurisdiction of the mediation panel for ten months from the time the claim was originally filed in Hillsborough County. The panel was then selected and a hearing on the merits was scheduled to be heard within the extended term. A few days before the hearing the claimant moved to dismiss the proceedings asserting that jurisdiction had automatically expired 120 days from the date the claim was filed in Hillsborough County and that the order thereafter entered which extended the mediation period to ten months was void. In granting the motion the judicial referee stated:

6. Although the order of the Judicial Referee extending jurisdiction in the cause was entered for good cause shown and within and inside a 120-day period commencing with the date that this court acquired jurisdiction, it was not entered within 120 days of the date that the claim was filed in the Circuit Court for Hills-borough County, and, accordingly, on the authority of Mercy Hospital, Inc. v. Badia, 348 So.2d 631 (Fla.3d DCA 1977) jurisdiction was lost automatically, by operation of § 768.133, Florida Statutes (now 768.44), as no hearing on the merits had been held within 120 days of the filing of the, claim nor order entered extending jurisdiction.

It is now well settled that there must be strict compliance with the time deadlines prescribed by the medical mediation statute. Febles v. Abercrombie, 358 So.2d 568 (Fla.2d DCA 1978); Aldana v. Holub, 354 So.2d 1272 (Fla.1st DCA 1978); Perkins v. Pare, 352 So.2d 65 (Fla.4th DCA 1977). In Mercy Hospital, Inc. v. Badia, supra, the court held that after the passage of 120 days from the filing of the claim the judicial referee was without jurisdiction to extend the term of mediation. However, the issue here is not over the fact that the order extending time had to be entered within the first 120 days but rather a determination of when the 120 days began to run.

In Largen & Clontz, et al. v. Greenfield, 363 So.2d 573 (Fla.2d DCA 1978), this court recently concluded that the venue for a medical mediation claim lay in the same forum in which the subsequent malpractice action was required to be filed. In order to give effect to that decision, the proper mediation panel must have sufficient time to act upon a case transferred to it by virtue of having been originally filed in the wrong venue. Therefore, we construe the reference to the clerk in Section 768.44(3), Florida Statutes (1977), to mean that the hearing must be held or extension granted within 120 days of the date the claim was filed with the clerk of the circuit court oí the proper venue. There is nothing in the medical mediation rules which dictates a contrary conclusion. To hold otherwise would sanction the possibility of claimants purposely filing their claims in the wrong venue in the hopes of using up some or all of the 120-day period before the transfer was effected.

Certiorari is granted, and the order terminating the jurisdiction of the medical mediation panel is hereby quashed.

HOBSON and DANAHY, JJ., concur.


author: KEHOE, Judge.

text:
    Odell Aaron HICKS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1117.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 1978.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.

       HAVERFIELD, C. J., participated in the decision in this case but did not hear oral argument.

   OPINION ON REHEARING

KEHOE, Judge.

On June 19, 1978, by order of this court, wé granted appellant’s and appellee’s petitions for a rehearing in regard to our previous opinion in this cause filed May 16, 1978. Upon re-argument of the cause, we now withdraw our opinion in Hicks v. State, Case No. 77-1117 (Fla. 3d DCA, opinion filed May 16,1978), and enter the following opinion:

Appellant, Odell Aaron Hicks, was found guilty by a jury of “ . . Involuntary Sexual Battery, threatening to use actual physical force likely to cause serious personal injury,” and was sentenced to thirty years imprisonment. This appeal is from the judgment and sentence.

Appellant’s first point questions the correctness of the trial court’s order finding him competent to stand trial. Our review of this record convinces us that the evidence fully supports the trial judge’s decision. See Julious v. State, 271 So.2d 807 (Fla. 3d DCA 1973). See also Brown v. State, 245 So.2d 68 (Fla.1971).

The second point presented urges error upon the court’s denial of appellant’s motion for a mistrial because a witness made a reference to the possibility that there was another victim. This revelation occurred upon appellant’s cross-examination of the victim and the record clearly shows that the answer could have been anticipated by the defendant and was, in fact, invited by him. Cf. Sullivan v. State, 303 So.2d 632 (Fla.1974). Further, the trial court recognized the impropriety of the answer and tendered a curative instruction which the appellant refused. We hold that the trial court properly denied the motion for mistrial.

Appellant’s third point urges error upon an order of the trial court denying his motion to reduce the charge against him to involuntary sexual battery with the use of force not likely to cause serious bodily injury. This point requires a review of the evidence to determine whether there was sufficient evidence to go to the jury upon the charge of involuntary sexual battery with the use of force likely to cause serious bodily injury (the crime with which defendant was charged). The victim, a sick fifty-year-old woman, was first hit from behind to cause her to fall to her knees. She tried to run, but when she failed to escape, appellant said, “Now, I’m really going to beat you up.” There was also evidence that she was hit again and suffered a split lip. We hold that the evidence was sufficient to present a jury question of whether the force used was likely to cause serious bodily injury. See Garmise v. State, 311 So.2d 747 (Fla. 3d DCA 1975); and Brown v. State, 294 So.2d 128 (Fla. 3d DCA 1974).

Appellant’s fourth point urges that the trial court committed reversible error when it denied his request for an instruction on the lesser included offense of assault. In light of the Supreme Court of Florida’s recent decision in State v. Abreau, 363 So.2d 1063 (Fla.1978), we hold that the point is without merit.

Appellant for his fifth point on appeal contends that he was convicted of an offense not charged in the information. The information charged in this case charges appellant with an involuntary sexual battery as proscribed by Section 794.-011(3), Florida Statutes (1975), which provides that:

“A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury shall be guilty of a life felony.”

The information filed in this case reads in part as follows:'

“ . . Odell Aaron Hicks
did unlawfully and feloniously commit sexual battery upon [victim’s name omitted], a person over the age of eleven (11) years, by inserting his penis into her vagina without her consent, and in the process thereof used actual physical force likely to cause serious personal injury . ” [Emphasis added.]

Appellee requested that the trial court instruct the jury upon sexual battery pursuant to Section 794.011(4)(b), Florida Statutes (1975), which provides that:

“(4) A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, under any of the following circumstances shall be guilty of a felony of the first degree . . . :
(b) When the offender coerces the victim to submit by threatening to use force or violence likely to cause serious personal injury on the victim, and the victim reasonably believes that the offender has the present ability to execute these threats.” [Emphasis added.]

The trial court gave this requested instruction over the objection of appellant.

Subsequently, the jury returned a verdict finding appellant guilty as follows:

“We, the jury, at Miami, Dade County, Florida, this 12th day of April A.D. 1977, find the defendant, Odell Aaron Hicks, as to Involuntary Sexual Battery, threatening to use actual physical force likely to cause serious personal injury:
Guilty.” [Emphasis added.]

Thus, appellant was actually convicted of the offense of involuntary sexual battery with the use of threats of actual physical force likely to cause serious personal injury. These facts give rise to the question of whether the offense for which appellant was convicted was a lesser included offense of the offense with which he was actually charged in the information.

In the landmark decision of Brown v. State, 206 So.2d 377 (Fla.1968), the Supreme Court of Florida recognized four separate categories under which instructions on lesser included offenses should be given.

“(1) Crimes divisible into degrees.
(2) Attempts to commit offenses.
(3) Offenses necessarily included in the offense charged.
(4) Offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence.” Id. at 381.

In the instant case, appellee does not contend that a category two or three lesser included offense is involved. Further, ap-pellee concedes that, because the information does not allege the use of threats, but merely relies upon the actual use of force, the use of threats under the facts of this case is not a category four lesser included offense. However, appellee does contend that Section 794.011, Florida Statutes (1975), is a degree crime, i. e., under category one of Brown.

Appellee cites no authority in support of this contention. Further, the Florida Legislature has not designated Section 794.011 as a degree crime. Additionally, our independent research has not revealed any basis upon which Section 794.011 could be so interpreted. Therefore, the conviction of appellant in this case, upon the offense of involuntary sexual battery with the use of threats of force of serious personal injury, constitutes a conviction for a crime not charged; accordingly, for that reason, we reverse. See Minor v. State, 359 So.2d 30 (Fla. 2d DCA 1976); Falstreau v. State, 326 So.2d 194 (Fla. 4th DCA 1976); and Priester v. State, 294 So.2d 421 (Fla. 4th DCA 1974).

As stated above, appellant’s point one, two, three, and four on appeal are affirmed. However, in regard to appellant’s fifth point on appeal, because of the improper instructions to the jury in regard to offense with which appellant was charged in the information, we reverse the judgment and sentence appealed and remand the cause for a new trial.

Reversed and remanded for a new trial.


author: PER CURIAM. SUMMERS, Justice

text:
    DYNAMIC EXPLORATION, INC., et al. v. J. Burton LeBLANC et al.
    No. 62379.
    Supreme Court of Louisiana.
    July 3, 1978.
    Dissenting Opinion Sept. 12, 1978.
    David M. Ellison, Jr., Baton Rouge, for defendants-applicants.
    Thomas J. Kliebert, Patterson, Michael K. Heltz, Baton Rouge, for plaintiffs-respondents.
    SUMMERS, J., dissents and will assign reasons.
    DIXON, J., concurs. (See Per Curiam)
   PER CURIAM.

Writ granted. The court of appeal decision is affirmed, for reasons similar to these set forth in Shell Oil Company v. Board of Commissioners of Pontchartrain Levee District, 336 So.2d 248 (La.App. 1st Cir. 1976), certiorari denied, 338 So.2d 1156 (La.1976).

La.Const. of 1921, Art. 4, Section 2, provided “In all cases the mineral right on any and all property sold by the State shall be reserved * * * Decisions of this court, have consistently held that, for purposes of this article, levee districts were a state agency, performing a state function and administering state lands; they were therefore subject to this constitutional provision prohibiting alienation after 1921 of mineral rights owned by the state. Accordingly this constitutional prohibition of any alienation of mineral rights by the state after 1921, Lewis v. State, 244 La. 1039, 156 So.2d 431 (1963), likewise bars after 1921 divestiture through acquisitive prescription of a levee district’s mineral interest in (state) lands owned by and administered by it. Shell Oil Co. v. Board of Com’rs. of Pontchartrain Dist., 336 So.2d 248 (La.App. 1st Cir. 1976), cert. denied, 338 So.2d 1156 (La.1976) (“No error of law.”), Noted, 37 La.L.Rev. 317-18 (1977).

Accordingly, we affirm the decisions of the previous courts, at the cost of the defendants-appellants-relators.

AFFIRMED.

SUMMERS, J., dissents and assigns reasons.

DIXON, J., does not agree with the explanation of Stokes v. Harrison but otherwise subscribes to the opinion.

SUMMERS, Justice

(dissenting).

The instant concursus suit is a controversy between private landowners, J. Burton LeBlanc and Jesse LeBlanc, and the Pontchartrain Levee District over the ownership of mineral royalties and mineral rights underlying a tract of land containing approximately 325 acres in East Baton Rouge Parish.

The State of Louisiana acquired the property from the United States of America under the “Swampland Act” in December 1854. By Act 95 of 1890 the Louisiana Legislature created the Pontchartrain Levee District and pursuant to that Act the property in question was transferred to the Pontchartrain Levee District by the State of Louisiana on January 20, 1898. The Board of Commissioners of the District was organized as a “body politic or political corporation invested with all the powers inherent in such corporations” with authority “to sue and be sued.” Authority was also delegated by the Act “to buy and sell property”. With respect to the lands transferred by the State and involved here, the Board of Commissioners was granted “authority to mortgage and sell such lands, and otherwise dispose of them, in such manner as it may provide, in order to raise funds.”

No reservation of mineral interest was contained in the transfer of these lands from the State to the District, nor was any limitation imposed upon the District in selling these lands.

Acting pursuant to the provisions of Act 215 of 1908 the District caused these lands to be sold by the sheriff to the last and highest bidder, at which time J. Burton LeBlanc and Jesse E. LeBlanc were the successful bidders. By the terms of Act 215 of 1908 at the time of the sale the Sheriff was required to furnish a provisional deed to the last and highest bidder, who, upon surrender of said deed to the President of the Levee Board, was entitled to a patent signed by the President of the Levee Board and the Governor. This record indicates that such a patent was issued on February 15, 1929. This record is silent concerning whether the provisional deed was issued before or after the adoption of the Constitution of 1921. Since the title to the property vested in the LeBLancs at the time of the Sheriff’s sale, that date is significant. The issuance of the patent in such cases is purely a ministerial act. La.Rev.Stat. 41:10; La Terre Co. v. Billiot’s Shell Island, 103 F.2d 53 (5th Cir. 1939); Douglas v. State, 208 La. 650, 23 So.2d 279 (1945).

No reservation of minerals was contained in these documents transferring title to the lands to the LeBlancs.

Notwithstanding that no reservation of mineral interest was contained in the transfers of the lands to the LeBlancs, the Levee District contends that Section 2 of Article IV of the Constitution of 1921 prohibited alienation of minerals by the Levee District. The Constitution of 1921 provides that “in all cases the mineral rights of any and all property sold by the State shall be reserved, except where the owner or other person having the right to redeem may buy or redeem property sold or adjudicated to the State for taxes.”

In 1959 this Court in Stokes v. Harrison, 238 La. 343, 115 So.2d 373, observed that the word “State” as used in Section 2 of Article IV of the Constitution of 1921 appears alone in that provision; whereas, elsewhere in that same Article, dealing with other subjects, Section 12 refers to the “State, or any of its political corporations”, and Section 13 refers to the “State, or to any parish or municipal corporation thereof.” From these obvious differences, the Court concluded that the framers of the Constitution intended that the mandatory reservation of minerals in sales of lands applied only where the sale was by the State proper, holding that the constitutional requirement that minerals be reserved was inapplicable where lands were sold by “political corporations.” In that case a 1926 sale of land by a school board was held to convey mineral rights in the absence of a reservation in the deed. Therefore, Section 2 of Article IV of the Constitution was held to be inapplicable to sales by school boards.

In Stokes v. Harrison this Court was of the opinion that to apply Section 2 of Article IV of the Constitution to political corporations or subdivisions of the State would have the effect of extending or amending the Constitution beyond its plain meaning, which the Court would not do.

In my view the decision in Stokes v. Harrison squarely decided the issue before this court and that case is controlling here. No other decision by this Court on this issue has changed that holding. The per curiam decision of the majority in the case at bar overruling the unanimous decision in Stokes v. Harrison, ex parte, without a hearing, in a matter of such statewide importance, does little service to the law. It is certain that it adds no stability to land titles. No application for rehearing has been filed here and hopefully this decision will not prove authoritative. I would uphold Stokes v. Harrison and apply that holding to the case at bar.

      . Our earlier constitutions provided no such prohibition against alienation of state minerals. The 1974 constitution continues this prohibition and adds — confirming levee district jurisprudence (cited below) and overruling a school board decision (Stokes v. Harrison, 238 La. 343, 115 So.2d 373 (1959)) — that “mineral interests of the state, of a school board, or of a levee district shall not be lost by prescription.” It also prohibits loss by prescription of the “lands” of such agencies, the chief transferees of large quantities of state lands.

      . See, e. g., State ex rel. Board of Com’rs, etc. v. Grace, 161 La. 1039, 1044, 109 So. 830, 832: “The district is a state agency, created and continued in existence by the state with the foregoing [state function] in view. The state, should it transfer the land to the district, including the mineral rights, in accordance with the grant made by it, would not be parting with the property within the meaning of the constitutional section cited, but would only be placing it under the control of one of its agencies . . . . The land would, to all practical intents and purposes, still be the property of the state.”
      We recognized the invalidity of any post-1921 alienation of mineral rights by a levee board, in a series of decisions which permitted the alienation or loss of the levee district rights only because we held that the mineral rights were effectively alienated before 1921. Lum Chow v. Board of Com’rs, etc., 203 La. 268, 13 So.2d 857 (1943); Schwing Lumber & Shingle
        Co., Inc. v. Board of Com’rs, etc., 200 La. 1049, 9 So.2d 409 (1942); Standard Oil Co. of Louisiana v. Allison, 196 La. 838, 200 So. 273 (1941); Barnett v. State Mineral Board, 193 La. 1055, 192 So. 701 (1939).
      See also: Yiannopoulos, 37 La.L.Rev. 317-18 (1977); Hardy, 24 La.L.Rev. 228-29 (1964); Note, 24 La.L.Rev. 416 (1964).
      Decisions such as Board of Com’rs, etc. v. Hardtner, 164 La. 632, 114 So. 494 (1927); State v. Standard Oil Co., 164 La. 334, 113 So. 867 (1927), and Ellerbe v. Grace, 162 La. 846, 111 So. 185 (1927) held that, because of the grant of the land to the levee district with the power of alienation, the levee district was empowered to convey the land or grant mineral leases and receive mineral royalties rather than some other officer or agency of the state. The court’s holdings are summarized by the conclusion of the opinion in Hardtner, 164 La. 651, 114 So. 500: “* * * so long as these grants remain unrepealed by an act of the Legislature, the lands in the levee district and belonging to the state [Italics in the opinion], with all of the mineral rights and timber on such lands, remain subject to acceptance and sale or other disposition by the boards of commissioners of the levee districts, respectively, and are not subject to any other disposition by the register of the state land office . . . under the general land laws of the state.” The Hardtner decision recognized that the sale by the levee board after 1921 of such state lands nevertheless, by virtue of La.Const. Art. 4, Section 2, (1921), reserved the mineral rights. 164 La. 640, 114 So. 494.

      . This decision correctly distinguished Stokes v. Harrison, 238 La. 343, 115 So.2d 373 (1959), as inapplicable to the loss of mineral rights after 1921 by a state agency, performing a state function, as to state lands administered by it and in its name. Despite some broad language in the decision, Stokes concerned only the effect of the constitutional provision upon private land purchased by a local school board in the ordinary course of commerce and soon thereafter reconveyed to a private owner. See 24 La.L.Rev. 421 (1964). The effect of this decision was only to hold that La.Const. Art. 4, Section 2, did not apply to lands acquired by a local subdivision in the ordinary course of commerce from a private purchaser for a non-state purpose, when those non-state lands were placed back into private ownership without having been used for a state purpose.


author: TATE, Justice.

text:
    STATE of Louisiana v. David P. RACHAL.
    No. 61619.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Andrew Jack Bennett, Jr., Bennett & McLaughlin, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   TATE, Justice.

The defendant appeals his conviction of manslaughter, La.R.S. 14:31 (1973), and his sentence (as a multiple offender, La.R.S. 15:529.1) of thirty-two years at hard labor.

Upon his appeal, the defendant relies upon his Assignments of Error Nos. 18, 20, and 23. These assignments arise out of the prosecutor’s mid-trial misuse of the district attorney’s investigative subpoena powers under La.C.Cr.P. art. 66. By use of such subpoena powers not authorized by statute, the prosecutor secured unilateral discovery of the test results and test data of a psychologist retained by the defendant in connection with his plea of “not guilty by reason of insanity.”

Context Facts

The defendant had been charged with first-degree murder. La.R.S. 14:30 (1976). He pleaded not guilty and not guilty by reason of insanity.

No sanity commission was requested or ordered. Apparently, the state conducted no mental examination of the accused prior to the trial in connection with the charge.

The defense, however, retained Dr. Linda Floyd, a psychologist, to examine the accused and conduct certain psychological tests upon him. She spent about 18 hours of time interviewing and testing him. As a result, she had formulated prior to trial the test results on numerous psychological tests, including both objective and subjective data.

The trial of the case commenced on June 20, 1977. The defendant’s list of witnesses disclosed that Dr. Floyd was to be subpoenaed along with the test results of her examinations.

On June 22, 1977, during the jury selection process (but of course out of the pres-

ence of the selected and prospective jurors), the prosecutor filed a motion to require the defendant to submit to a psychiatric examination by Dr. Frank Silva. La.C.Cr.P. art. 646. See Note of evidence lc, Volume III. The defendant objected to this as untimely. The district attorney said it was necessary because the defendant’s expert, Dr. Floyd, had refused to inform him of her test results when he had telephoned her. The trial court overruled the objection, and the examination was ordered.

At the same hearing, the district attorney moved for a subpoena to obtain Dr. Floyd’s test data and tests results, so that they could be turned over to a psychologist selected by the state for his evaluation and opinion. The defendant’s objection to this motion was likewise overruled.

At this point, we should note that the subpoena was requested by alleged authority of La.C.Cr.P. art. 66, which requires the person subpoenaed to respond directly to the district attorney. It was not sought under the authority of La.C.Cr.P. art. 732, which orders the person subpoenaed to produce documents or exhibits at the trial or hearing before the judge (who then might rule upon questions of privilege and work product (such as here urged, before ordering the documents turned over to the opposing party).

In execution of the subpoena, two investigators appeared at Dr. Floyd’s apartment while she was dressing, preparing for lunch, and attempting to meet a twelve noon professional appointment. The investigators requested her test results, which she had at the apartment, and also the testing data, which was located elsewhere. They insisted upon her turning over the material subpoenaed without delay, so the psychologist felt obliged to cancel her noon appointment and to go with the investigators while they copied her test results and data. Note of evidence lb, Volume III.

The prosecutor secured the materials from his investigators and turned them over for evaluation to Dr. Richard Rolston, a practitioner of clinical psychology. Over defense objection that his testimony was on the basis of illegally seized matter, this psychologist testified for the state on rebuttal; his opinion was based primarily upon Dr. Floyd’s test results, although partially upon a pre-offense interview with the accused in connection with another matter.

Applicable Legal Principles

La.C.Cr.P. art. 66 authorizes the district attorney to secure a subpoena or subpoena duces tecum ordering a person to appear before questioning at a time and place set by the prosecution “concerning any offense under investigation by him.” The official revision comment concerning this power, available to the prosecutor in only a few American states, indicates that its contemplated use was during the investigation of an offense prior to a formal charge, in lieu of grand jury examination of the witness. See Bennett, The 1966 Code of Criminal Procedure, 27 La.L.Rev. 175, 177-78 (1967). At least one decision indicates, however, that the use of this exceptional power has been extended to requiring pre-trial appearance of witnesses, in connection with a continuing investigation of the offense prior to its trial. State v. Whitsell, 262 La. 165, 262 So.2d 509 (1972).

Neither the wording nor the indicated intent of the code article contemplate its use for the purposes here shown: to discover, after the trial has commenced, the test results, test data, and conclusions of an expert witness (a psychologist) who examined the defendant in preparation for trial in connection with his defense of insanity. The exceptional subpoena power granted the district attorney by Article 66 for purposes of pre-charge investigation of an offense was not intended to afford the prosecutor a private examination of the heart of the evidence secured by the defendant, after prosecution has been instituted, in preparation for his defense at the trial of his guilt or innocence.

The state’s unauthorized compulsory discovery of details of the defense case by this illegal seizure of test data and test results thus raises several serious issues. These include:

The exploitation of this illegal seizure by turning over (for counter-evaluation by a state psychologist) of the test results, test data, and conclusions derived by the defendant’s psychologist from her eighteen hours of examination, see Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920);

The state’s misuse of La.C.Cr.P. art. 66 so as to give it unilateral discovery of details of the defense case, when at the time the defendant had no reciprocal discovery rights, see Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973); and

The violation of due process rights to proper presentation of a defense through the potential intimidation of a key defense witness (the psychologist) by the arbitrary and illegal seizure from her of the test results and test data, cf. Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972).

Assignments of Error

Nevertheless, despite the arbitrary misuse of La.C.Cr.P. art. 66 by the state in this case, we find no reversible error to be presented by the defendant’s assignments, for the following reasons:

Assignments 18 and 23: As the defendant contends, the state was not authorized to secure in the manner shown the defense psychologist’s test data and test results for counter-evaluation by the state psychiatrist, at least prior to proper subpoena or until the defense psychologist testified and the material was introduced into evidence, by cross-examination or otherwise. However, prior to the testimony of the state’s psychologist, the defendant himself introduced the test results into evidence, see Tr. 299, 403, and the state psychiatrist’s testimony (even though based upon a pre-introduction analysis of this material) was thus based upon his analysis of material properly in evidence by reason of such introduction.

Assignment 20: We find no error in the trial court ruling that the defendant’s due process defense rights were not prejudiced by the improper harassment of the defense psychologist, nor the trial court’s finding that this witness’s testimony was not influenced or impaired by the intimidating action of the prosecutor in inconveniencing her by the illegal subpoena because she had refused to cooperate with the prosecution and to disclose her test data and test results prepared for the accused in connection with his defense.

Conclusion

We find no reversible error for the reasons stated, nor any need to invoke or enforce an exclusionary rule in the absence of repetition or further abuse of the investigative subpoena powers granted prosecutors by La.C.Cr.P. art. 66.

We therefore affirm the conviction and sentence.

AFFIRMED.

SUMMER, J., concurs.

DIXON, J., dissents.

      . Dr. Silva testified for the state on rebuttal as to the results of his psychiatric examination. No further objection to his testimony was made on the basis that this belated request had deprived the accused of an opportunity to secure rebutting psychiatric evaluation or testimony; the defendant apparently being content to rely upon his own psychologist’s evaluation.

      . La.C.Cr.P. art. 66 provides in full:
      “Upon written motion of the attorney general or district attorney setting forth reasonable grounds therefor, the court may order the clerk to issue subpoenas directed to the persons named in the motion, ordering them to appear at a time and place designated in the order, for questioning by the attorney general or district attorney respectively concerning any offense under investigation by him. The court may also order the issuance of a subpoena duces tecum.
      “The contumacious failure or refusal of the person subpoenaed to appear is punishable as a contempt of court.
      “The attorney general or district attorney, respectively, may determine who shall be present during the examination and may order all persons excluded, except counsel for the person subpoenaed.”

      . After the prosecution has been instituted by a formal charge, the code apparently contemplates that subpoenas for either party should ordinarily be issued under La.C.Cr.P. arts. 731— 37, which require the witness to appear (not, as in La.C.Cr.P. art. 66, before the prosecutor without the presence of a judge).

      . We do not necessarily disapprove at this time Whitsell’s implied construction of Article 66 so as to permit the state to subpoena witnesses for questioning even after the prosecution has been instituted by formal charge. Nevertheless, Wardius v. Oregon, 412 U.S. 470, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973), seems to require reciprocal discovery rights for the defendant, where the state is afforded formal discovery. If this be so, we are uncertain that, if the implied construction by Whitsell is correct, the statute’s failure to afford similar pre-trial discovery rights to a defendant (or, for instance, to permit his counsel (as well as the subpoenaed witness’s) to be present for the compulsory private examination by the district attorney) does not raise valid issues of unconstitutionality, despite Whitsell’s (pre-Wardius) rejection of them.

      .Although this case was tried before formal criminal discovery was enacted by Act 515 of 1977, we note that, even under the (thus far limited) discovery provided by that act, the state was not authorized to proceed as it did. La.C.Cr.P. art. 725 (1977) authorizes the state to secure results of physical and mental examinations of a defendant only if he has previously moved for and secured an order under La.C. Cr.P. art. 718 (1977) for the results of similar examinations in the state’s possession.


text:
    Doris BONADONA, Plaintiff-Appellee-Relator, v. Mary Viola Collins GUCCIONE, Leroy E. Kane and Mary F. Kane, Individually and Mary Viola Collins Guccione, Leroy E. Kane and Mary F. Kane, d/b/a DeLuxe Motel and the Travelers Insurance Co., Defendants-Appellants-Respondents.
    No. 61734.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.

      J. Terrell Heath, New Orleans, for plaintiff.
    Grayson H. Brown, New Orleans, for defendants.
   TATE, Justice.

An insurance policy covered liability for injuries arising out of operation of a motel. The policy was originally issued with the owners and then-operators of the motel as named insureds. When the motel was leased to tenant-operators, the policy was renewed, with the tenants paying the premiums, but with no formal change or addition to the named insured (although the policy covered the same premise and risks). A motel guest was injured during the tenant’s operation of the motel, and he sues the insurer to recover damages thereby sustained.

The issue is whether the liability insurer, which accepted premiums from the tenant knowing of the change of motel operators, may nevertheless deny coverage because there had been no formal endorsement naming the tenants as operators of the motel instead of the owners.

The trial court had held the policy covered the tenant’s liability and had granted judgment to the injured plaintiff. The court of appeal reversed, holding that the plaintiff had not proved a reformation of the policy by clear and convincing evidence. 354 So.2d 715 (La.App. 4th Cir. 1978).

We granted certiorari, 356 So.2d 436 (La. 1978), because we felt that the intermediate court had overlooked jurisprudence to the effect that, under the circumstances here shown, the insurer is estopped from denying liability for identical risks insured, when it has accepted premiums with knowledge of a change or addition of insureds.

(1)

The plaintiff, Mrs. Bonadona, was a guest at the DeLuxe Motel. While there, she was attacked by a black German shepherd dog maintained on the premises as a watchdog. After trial by jury, the plaintiff was awarded $9,500 for damages, including scarring.

The damages were awarded against the insurer (“Travelers”) of the premises under an Owners, Landlords, and Tenants coverage of a general liability policy. By the policy, Travelers agreed to pay within stated limits all sums which the insured should become legally obligated to pay as damages arising out of the ownership, maintenance, or use of the motel premises.

The named insureds were “Mr. and Mrs. Sam Guccione d/b/a DeLuxe Motel.” They had first obtained the insurance from the Travelers agent in 1958 and annually renewed the policy during their operation of the motel from 1958-70.

In 1970, however, they leased the motel for a term of five years to their daughter and her husband (the Kanes). (When the Gucciones left the premises, they left their German shepherd watchdog with the Kanes. For present purposes, we will accept the defendant’s argument that they intended to transfer their ownership of the dog to the Kanes at that time.)

The insurance was renewed annually thereafter by the Kanes, but without the insurer’s agent making any change formally naming the insureds as the tenants or without adding any endorsement showing that the tenants were now operating the motel. By her amended petition, however, the plaintiff had alleged that the policy issued to the Gucciones also insured the Kanes in their operation of the motel.

The accident occurred in May, 1974, while the Kanes were operating the motel. (Mr. Guccione had died in 1973, although the Travelers policy (paid for by the Kanes) still listed him as named insured, along with Mrs. Guccione.) No issue is raised as to the liability of the operators of the motel (the Kanes) for the damages caused by their watchdog.

The sole defense raised by Travelers is that it is not liable, since it insured solely the Gucciones (and not the Kanes) against liability arising out of the operation of the motel.

In rejecting this defense, the trial jury apparently accepted the undisputed testimony of Mrs. Guccione as to her conversations with the insurance agent and as to the subsequent actions by the Kanes.

From her testimony, admittedly skimpy but nevertheless undisputed, the jury could reasonably find that the Travlers agent informed her that the same insurance coverage as before was afforded the motel against injuries through the annual renewal of the policy by the Kanes. Tr. 13-14, 109-110. Her testimony additionally shows that the Kanes continued to pay the annual premiums for renewal of the liability coverage and indicates that the Travelers agent accepted these payments, knowing that they were made by the Kanes. Tr. 16-17, 113-14.

The defendant insurer did not introduce evidence disputing these facts. Nor did it, for instance, produce any evidence that its risk was increased or substantially different because the Kane-tenants rather than the Guccione-owners operated the same motel. See Taylor v. Audubon Insurance Company, 357 So.2d 912, 914-15 (La.App. 4th Cir. 1978), certiorari denied, 359 So.2d 1307 (La. 1978).

Instead, the defendant insurer relies only upon its technical argument that the Guc-ciones were the sole named insured stated in the written policy and that therefore the policy could be reformed to show mutual mistake only by clear and convincing evidence, i. e., a degree of proof substantially greater than by the preponderance of evidence normally required in civil cases. In reversing the trial court, the intermediate court accepted this argument.

(2)

In reversing, the court of appeal overlooked jurisprudence which holds to the following effect:

Where an insurance policy is issued to cover certain risks of a named insured, if these risks are transferred to or assumed by another person who continues to pay the insurance premiums for their coverage, the insurer is bound by the knowledge of its agent and is estopped to deny its liability or the reformation of its policy to cover such risks incurred by the other person, when it has accepted the payment of premiums from or for him knowing of the change or addition of insured expressly or impliedly intended (even though there has been no formal endorsement reflecting the change or addition of insured) — at least in the absence of proof that the risks thus insured would be different in nature or substantially greater than those initially covered by the policy.

See: Richard v. United States Fidelity and Guaranty Company, 247 La. 943, 175 So.2d 277 (1965); Perry v. Law, 334 So.2d 523 (La.App. 1st Cir. 1976), cert. denied, 337 So.2d 529 (La.1976); Anderson v. Sciambra, 310 So.2d 128 (La.App. 4th Cir. 1975), cert. denied, 313 So.2d 835 (La.1975); Herbert [Herbert] v. Breaux, 285 So.2d 829 (La.App. 1st Cir. 1973); Thibeau v. LeBlanc, 198 So.2d 707 (La.App. 1st Cir. 1967); Maggio v. State Farm Mutual Automobile Insurance Company, 102 So.2d 505 (on exception) and 123 So.2d 901 (on merits) (La.App. 1st Cir. 1958), cert. denied. See also: Taylor v. Audubon Insurance Company, 357 So.2d 912 (La.App. 4th Cir. 1978), cert. denied, 359 So.2d 1307 (La.1978); Diaz v. Cherokee Insurance Company, 275 So.2d 922 (La.App. 4th Cir. 1973); Urania Lumber Co. v. Insurance Co. of North America, 177 So.2d 640 (La.App. 3d Cir. 1965).

In reaching a contrary conclusion (i. e., in favor of non-coverage), the intermediate court relied upon decisions which held that clear and convincing evidence of mutual mistake or fraud was required to reform an insurance contract so that it covered a risk not covered or excluded by its terms: Ferguson v. Belcher and Son, 230 La. 422, 88 So.2d 806 (1956); Adams v. Ross, 300 So.2d 192 (La.App. 1st Cir. 1974); Rougeau v. State Farm Mutual Insurance Co., 262 So.2d 803 (La.App. 3d Cir. 1972).

These last-cited decisions — unlike the situation in the present case and those in the jurisprudence previously cited — do not involve claims against the insured only for a risk for which it had in fact accepted premiums (although from a person other than the named insured, in implied addition or substitution of that person as insured for the identical risk of the original named insured which the policy was initially issued to cover). Instead, these latter decisions involve instances where, after an accident, the insurer was sought to be held liable for an additional substantive risk than those covered by the policy, upon the contention that the insurer had by mistake not included it within the policy’s coverage.

Ferguson, for instance, involved an insured’s attempt to reform a policy so as to delete an explicit exclusion from liability for damages done through demolition work. Adams involved an attempt to reform a policy so as to void a clause providing that the policy did not apply to the use of non-owned automobile used by a person other than the named insured. Rougeau concerned an attempt by a wife to reform an accidental death indemnity clause which showed (only) her as the beneficiary so that, instead, it insured her accident-killed husband — despite the testimony of the insurance agent, found credible by the trier of fact, that the wife herself had requested the change of beneficiary.

In these last cited instances, after an accident, the contention was made that the policy insured an additional risk, which was not within its coverage as issued, and for which greater risk substantially different insuring or premium factors were applicable than those applicable to the risk actually insured by the written policy. In such an instance, clear and convincing evidence of mutual error or fraud should indeed be required to prove that the company had insured a substantially different risk than that expressed by the written policy.

The jurisprudence upon which we rely, however, concerns a distinguishable type-situation. Where in fact the insured is held liable for the identical risk for which it issued the policy (as here, for damages arising out of the operation of the motel), its consent to the change or addition of the person who pays the premiums as an insured is implied from its agent’s knowledge of the substitution or addition of the risk-bearer and premium-payer. To fail to recognize this substitution of coverage, even though no formal endorsement was issued by the agent in order to protect the person for whom the premium is paid, would permit the insurer to receive a windfall of the premiums received without its affording the coverage reasonably expected by the premium-payer to the actual or presumed knowledge of the insured’s agent; and this, the jurisprudence holds, the insurer is es-topped from claiming. Nor does the jurisprudence require these facts to be proved by other than a preponderance of the evidence, the normal burden of proof in civil cases.

(3)

No issue is raised as to the quantum of the jury award. It appears to be within the discretion of the trier of fact.

Accordingly, for the reasons stated, we reverse and set aside the judgment of the court of appeal, and we reinstate and affirm the judgment of the district court. All costs are to be paid by the defendant-appellant-respondent.

COURT OP APPEAL JUDGMENT SET ASIDE, TRIAL COURT JUDGMENT REINSTATED.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Gilbert Feigado GUZMAN.
    No. 61328.
    Supreme Court of Louisiana.
    Sept. 5, 1978.

      Eugene P. Cicardo, Camille J. Giordano, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Edward E. Roberts, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Gilbert Guzman was indicted for possession of heroin with intent to distribute, in violation of R.S. 40:966(A)(1). The original indictment charged defendant jointly with his wife, Alma Guzman, and Robert Rodriguez. On motion of defendants, a severance was granted and, on September 20, 1977, defendant proceeded to trial alone. On September 23, 1977 the jury found him guilty by an eleven to one vote. Subsequently he was sentenced to life imprisonment at hard labor.

On appeal, defendant relies upon seven assignments of error for reversal of his conviction and sentence.

Assignment of Error No. 1

In defendant’s most serious assignment of error, he alleges that the warrantless search of the automobile which uncovered the heroin violated his constitutional right against unreasonable searches and seizures, and he argues that the trial judge erred in overruling the motion to suppress.

The heroin was seized about 10:00 o’clock at night on December 16,1976 after the car in which defendant was a passenger was stopped by police about four miles north of Glenmora on Highway 165. The car was stopped because the police suspected it contained a pound of heroin in transit from San Antonio, Texas to Alexandria, Louisiana. The police had actually arranged for the delivery of the heroin seized and possessed substantial information concerning the shipment, but did not believe they knew enough to obtain a search warrant of the car based on probable cause. That belief was proved correct by the evidence, as well as their conclusion that suspicion ripened into probable cause when Guzman was identified as an occupant of the car.

What the police knew began with the July, 1976 vacation trip by Tom Bates, a communications worker employed by the Louisiana State Police. On his return from a camping trip in Texas, Bates reported to a police narcotics officer an encounter in San Antonio with one Joel Garcia, who offered to sell Bates marijuana, and expressed interest in distributing drugs in Alexandria. When the first report failed to generate any activity, Bates told his story to Noel Hood Reed, a young State Police narcotics officer. Reed began to communicate, through Bates, with Garcia, who had given his phone number to Bates. Reed and Bates made two trips to San Antonio to purchase drugs, and on one trip bought two and one-half ounces of heroin from Garcia. Hood communicated with federal Drug Enforcement Administration officials in San Antonio.

In December of 1976 Garcia called Bates in Alexandria about selling a pound of heroin. Two bus tickets were sent to Garcia for him to come to Alexandria to make arrangements for the sale. Garcia came alone, however, bringing a very small quantity of what he said was a sample of the heroin. Garcia and Reed both purported to represent undisclosed principals. $16,000 in cash was displayed to Garcia, who then called his man in San Antonio, identified by him as “Mr. G.” or “Gene.” When the deal was about closed, Garcia’s principal told him to send, to demonstrate good faith, $200.00 by Western Union in San Antonio, payable to Gilbert Guzman. This demand aroused suspicions in Reed that the police involvement had been discovered. Reed told Garcia the deal was off, and that he would escort Garcia to the bus station to return to San Antonio. Reed and Garcia then left Bates’ apartment; instead of taking Garcia to the bus station, Reed took him to the police station where Garcia was booked.

During this time, “Gene” from San Antonio called Bates’ apartment for Garcia; Bates told “Gene” the deal was off because of the $200.00 demand; “Gene” asked Bates to intercept Garcia at the bus station and await another call from “Gene” at 7:00 o’clock. At 7:00 o’clock, “Gene” called again, and Bates convinced him that Garcia was out of the apartment for a brief time. “Gene” responded that the demand for the $200.00 advance was abandoned and that “they” would leave San Antonio around noon the next day and drive to Alexandria to consummate the transaction. Garcia had previously indicated that “Gene” would probably be accompanied by “Uncle,” an older Mexican male with silver hair.

On the morning of December 16 Reed contacted special agent Rudy Gonzales of the Drug Enforcement Administration, told him the situation, and sought any information he might have on Gilbert Guzman. Gonzales surmised (his reasons are not explained) that the sellers would probably be driving either a late model silver 2-door Chevrolet coupe or a blue 1972 Lincoln with a white top. Gonzales did not have license plate numbers, but knew that both cars had Texas plates and that license numbers issued in the San Antonio area began with an “E.” Additionally, Gonzales was able to supply a description of both Guzman and “Uncle.”

On the afternoon of December 16 Reed and other officers set up surveillance at the intersection of Highways 113 and 165 in Glenmora, Louisiana, believing this to be the most likely route for travelers from San Antonio to Alexandria. Reed and Trooper Burnes, the driver, were positioned on the shoulder of the intersection at Glenmora’s only traffic light. At about 10:00 p. m., a silver 2-door Chevrolet coupe stopped at the traffic light. The officers observed a driver and a passenger in the front seat who fit the descriptions they had been given. When the car subsequently proceeded through the green light, they noticed that it had a Texas license plate with an “E” as the first letter.

Burnes and Reed followed the suspects for several miles without a siren or flasher in order to allow the positioning of other police vehicles. About four miles north of Glenmora, they pulled the Chevrolet over to the shoulder of the road, parking their own marked police vehicle somewhat behind it. Fixing the Chevrolet in their spotlight, they noticed a third passenger, a woman, in the back seat. The driver of the Chevrolet hurried back to meet Burnes at the front of the police car and presented him with a California driver’s license identifying him as one Robert Rodriguez. At Reed’s direction the male passenger, the defendant, got out of the vehicle; Reed addressed defendant as “Mr. Guzman” and told him to move to the front of the car and produce his driver’s license, which confirmed his identification. Finally, the woman got out, was identified as defendant’s wife, Alma, and all were patted down and given a reading of Miranda rights.

Without seeking permission, the officers then searched the car. Taking the keys from the ignition, they opened the trunk but found nothing there. In the back seat they found a woman’s purse. They opened it and found a small amount of marijuana. When the woman identified the purse as hers, she was placed under arrest for possession of marijuana. They continued their search of the car and found a one pound packet of grayish powder inside a brown paper sack taped under the dashboard on the passenger side. The powder was shown to be heroin by a field test. All three were then arrested for possession of heroin with intent to distribute. Reed testified that none of those arrested had ever been free to leave after the car was stopped.

It is well established that warrantless searches and seizures are per se unreasonable under the Fourth Amendment of the United States Constitution and Article 1, § 5 of the Louisiana Constitution of 1974, unless they fall within a limited number of well delineated exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Parker, La., 355 So.2d 900 (1978); State v. Lain, La., 347 So.2d 167 (1977).

The only applicable exception has been termed the “automobile emergency exception” outlined in the United States Supreme Court case of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In Carroll the court recognized a distinction:

“. . . between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” 267 U.S. at 153, 45 S.Ct. at 285, 69 L.Ed. at 551.

Carroll, and subsequent United States Supreme Court cases, made clear that a warrantless search of an automobile may be justified by necessity arising out of the mobility and imminent disappearance of the vehicle. See Coolidge v. New Hampshire, supra; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The cases set out two conditions that must be satisfied before a warrantless search of a movable vehicle is authorized: (1) there must be probable cause to believe that the vehicle contained contraband or evidence of a crime; and (2) there must be “exigent circumstances” requiring an immediate warrantless search, i. e., the impracticability of obtaining a warrant due to the possibility that the car could be moved either by its occupants, if not arrested, or by someone else. An immediate warrantless search is, therefore, constitutionally permissible when “the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.” Chambers v. Maroney, supra, 399 U.S. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 428.

Defendant initially contends that the police officers had no probable cause to stop the vehicle. Alternatively he alleges that if probable cause were present, the police had ample opportunity to present the facts to a neutral magistrate in order to obtain a search warrant before bringing on the encounter.

The police officers had certain information for several hours before the stop: (1) an unidentified person had told Bates by phone that heroin was to be brought to Alexandria by car leaving San Antonio at an approximate time; (2) at one point in the negotiations money was to be wired to an individual named Gilbert Guzman; and (3) Drug Enforcement Administration agents told Reed that one of two vehicles with a license plate starting with an “E” would be used, a silver Chevrolet or blue Lincoln, and provided general descriptions of two men who would probably occupy the car, one of whom would be Gilbert Guzman, a known narcotics violator. Nonetheless, this information would not have been sufficient for a magistrate to find probable cause for a search. See State v. Hearn, La., 340 So.2d 1365 (1976). See also State v. Tant, La., 287 So.2d 458 (1974). The reliability of the identification of the suspected automobiles could not be supported by Reed; the identification of the automobiles was not specific; the route to be traveled and the arrival time were unknown.

Although the police could not have given a magistrate sufficient information to establish probable cause to search silver Chevrolets or blue Lincolns with Texas license plates probably beginning with “E,” the minute Noel Hood Reed saw Guzman and “Uncle” at the highway intersection in Glenmora, the suspicion which was the product of negotiations with Garcia, telephone conversations with “Gene,” surmises from some known facts and from inductive and deductive reasoning, became almost certain facts. It was far beyond a probability that the police saw a serious crime — the importation of a pound of heroin. Probable cause and exigent circumstances coincided, satisfying the requirements of the “automobile emergency exception” to the warrant requirement.

Defendant next argues that even if probable cause to search was present, there was lacking the exigent circumstances required to enable the police officers to search without first obtaining a search warrant. He alleges that, once the occupants of the vehicle were removed and detained by the police, no evidence could have been removed or destroyed. In essence, he suggests that the police officers should have seized the car and held it while seeking out a magistrate’s approval for a search.

There is substantial merit in the contention that police must obtain a search warrant for an automobile when they can do so without jeopardizing the contraband sought, but neither this court nor the United States Supreme Court has made that requirement. Although a search may be a greater intrusion into privacy than the sequestration, immobilization, impoundment or detention of the thing to be searched, and although a detached magistrate should be better able than the police to decide whether probable cause to search exists, the sequestration is itself a seizure. The validity of both seizures and searches is measured by the same constitutional standards. It would require an extension of constitutional law to permit the police to seize without a warrant, and then forbid them to search the thing seized unless a warrant is first obtained.

“For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.” Chambers v. Maroney, supra, 399 U.S. at 52, 90 S.Ct. at 1981, 26 L.Ed.2d at 428.

See also State v. McQueen, La., 278 So.2d 114 (1973).

Defendant further contends that even if the warrantless search was constitutionally valid under the “automobile emergency exception,” the police officers had no authority to break open the seal of the taped brown paper bag located under the dashboard in which was found the plastic bag of heroin. Defendant relies on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and not without some justification, because of the explanation in that opinion. There, after tracing a footlocker full of marijuana from a train station in San Diego to one in Boston, and then into an automobile, the police seized it and opened it without a warrant. The court found the search to be invalid because “[b]y placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would be free from public examination.” 97 S.Ct. at 2483.

If the defendant’s expectation of privacy determined the issue here, Guzman might go free. To say that Guzman did not expect, nor at least fervently hope for privacy for his paper sack with its pound of heroin would be to ignore facts. This court will probably not be the first to hold that what police can lawfully search for and seize without a warrant cannot be examined without a warrant. The Chadwick case essentially decided that the “automobile emergency exception” did not apply to Chadwick’s footlocker and did not eliminate the necessity for a search warrant.

Therefore, we hold that the warrantless search, conducted with probable cause and under exigent circumstances, was reasonable within the contemplation of our state and federal constitutions.

Other Assignments of Error

No. 2. Defendant does not allege, nor does the record show, that he was prejudiced by the State’s late response on September 13, 1977, to the motion for bill of particulars. All necessary information for defendant to prepare adequately his defense was available after the hearing on the motion to suppress on July 22, 1977 where the State virtually laid out its entire case. Therefore, the trial court was correct in denying defendant’s motion to quash on those grounds. Defendant’s alternative allegation in the motion to quash, that he was not brought before a judge for the purpose of appointment of counsel within one hundred forty-four hours of his arrest, as required by C.Cr.P. 230.1, is likewise without merit. Subsection (D) of that article specifically provides that: “The failure of the sheriff to comply with the requirements herein shall have no effect whatsoever upon the validity of the proceedings thereafter against the defendant.” See also State v. Brown, La., 322 So.2d 211 (1975).

No. 3. No reversible error was committed when Joel Garcia was asked by the prosecutor, “. . . approximately how long prior to December of 1976 did you work for Mr. Guzman in the distribution of drugs?” Assuming without deciding that same was a prohibited reference to another crime by defendant for which evidence is not admissible, defendant was not prejudiced by the remark, and the trial judge correctly overruled the motion for mistrial. There was no request for an admonition. The jury had already been exposed to the fact that Garcia had previously sold drugs for defendant by testimony introduced without objection earlier in the direct examination of this witness. Finally, the prosecutor withdrew his question about the relationship between Guzman and Garcia, limiting the inquiry to the pound of heroin here involved.

No. 4. No error was committed by admitting into evidence the incriminating heroin. A continuous uninterrupted chain of custody is not essential to enable the State to introduce physical evidence as long as the evidence as a whole establishes that it is more probable than not that the objects introduced were those purchased from the defendant. “Once this prerequisite for its admissibility is met, doubts as to the positive identification present a jury issue as to the sufficiency of the evidence, leaving it to the trier of fact to determine whether the weight of the evidence does or does not prove the identity of the objects introduced with those sold by the defendants.” State v. Lewis, La., 354 So.2d 566 at 568 (1978).

No. 5. Defendant contends the trial court erred in sustaining the State’s objection to the following question propounded to defendant about a statement made by his co-accused: “Did Robert Rodriguez tell you anything?” Defense counsel’s articulated reason to the trial judge for allowing defendant to answer the question was that the statement would not be hearsay because not offered to show the truth of the matter asserted. In brief, however, he abandons that argument, instead alleging that the testimony should have been allowed because it was pertinent. Neither the trial record nor defendant’s brief disclose the nature of the information sought, nor the reason for its relevance. There was no error in the trial judge’s ruling.

No. 6. There was no error in the trial judge’s refusal to read defendant’s four special requested jury charges. The substance of all was included in the general charge. C.Cr.P. 807.

No. 7. Defendant contends the State exceeded the bounds of rebuttal in closing argument. In rebuttal the prosecutor referred to Bates’ telephone number found in Guzman’s address book. The State had referred to it in first closing argument; the defense did not mention the item in closing argument, and, therefore, the objection should have been sustained. However, the prosecutor’s mention in rebuttal of an item of damaging evidence which had already been forcefully presented to the jury is not cause for reversal.

For these reasons, defendant’s conviction and sentence are affirmed.