author: GRIMES, Judge.

text:
    Larry MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. 76-1355.
    District Court of Appeal of Florida, Second District.
    April 15, 1977.

      Jack 0. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   ON MOTION TO DISMISS

GRIMES, Judge.

Pending his appeal the appellant escaped from custody. He was recaptured several days later in Alabama and subsequently returned to jail in Florida. Thereafter, the state filed a motion to dismiss this appeal predicated upon his escape.

Historically, the appellate courts of Florida as well as those throughout the nation have declined to process appeals of persons who have escaped and are beyond the jurisdiction of the court. As our supreme court explained in Woodson:

“The rule is well settled that an appellate court will refuse to hear a criminal case on a writ of error when the plaintiff in error has escaped and is not within the control of the court below, either actually, by being in custody, or constructively, by being out on bail. In the case of The People v. Genet, 59 N.Y., the court in discussing this question use this language: ‘When a person charged with felony has escaped out of custody no order or judgment, if any should be made, can be enforced against him, and courts will not give their time to proceedings which, for their effectiveness, must depend upon the consent of the person charged with crime.’ * * * ‘All the cases which consider the question seem to concur in the view that an escaped prisoner cannot take any action before the court.’ In Commonwealth v. Andrews, 97 Mass., 543, BIGELOW, C. J., speaking for the court, says: ‘The defendant, by escaping from jail, where he was held for the purpose of prosecuting these exceptions, and abiding the judgment of the court thereon, has voluntarily withdrawn himself from the jurisdiction of the court. He is not present in person, nor can he be heard by attorney. A hearing would avail nothing. If a new trial should be ordered, he is not here to answer further; if the exceptions are overruled, a sentence cannot be pronounced and executed upon him.’ The Supreme Court of the United States in Smith vs. United States, 94 U.S.R., 97, adopted the same rule holding that the court will refuse to hear a criminal case unless the convicted party suing out the writ if error is where he can be made to respond to any judgment which may be rendered. . . .”

The unique feature in this case is that appellant is now back within the jurisdiction of the court, albeit involuntarily. The question then is whether he “waived” his right of appeal by escaping or whether the appeal should proceed now that he is amenable, to further order of the court. The only Florida decision shedding any light on this issue is Mitchell v. State, supra, in which a defendant who was subsequently apprehended sought to reinstate his appeal which was dismissed following his escape. The court held that the appeal once dismissed when the defendant was beyond the jurisdiction of the court should not be reinstated simply because he was later apprehended. There is language in the opinion which could be construed to mean that the court felt that the defendant had waived his right of appeal at the time of his escape, but there is other language reiterating the principle that the reason an appeal is dismissed upon an escape is because the fugitive is no longer available to answer the further order of the court.

The recent case of Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975), demonstrates that there is no federal constitutional prohibition to dismissing appellant’s appeal. In that case the defendant had escaped and was caught two days later. The Texas Court of Appeals dismissed his appeal under a Texas statute which provides for automatic dismissal of pending appeals by escaped felons who do not return voluntarily within ten days. The defendant then pursued his rights in the federal courts. The Fifth Circuit Court of Appeals in Dorrough v. Estelle, 497 F.2d 1007 (5th Cir. 1974), held that because of certain exceptions stated therein the statute violated the equal protection clause of the federal constitution. The U. S. Supreme Court reversed. The court held that the statute was constitutional because the exceptions were based upon reasonable classifications. At the same time, the court observed that there was no federal constitutional right to state appellate review of state criminal convictions and pointed out that the U. S. Supreme Court, itself, had long followed the practice of declining to review the convictions of escaped criminal defendants.

The Texas ease is the only one called to our attention in which an escapee’s appeal has been dismissed pursuant to a statute. Our study of the many other cases on the subject indicates that the predicate for dismissal has always been the fact that the defendant was beyond the jurisdictional reach of the court. A number of the courts have disposed of the question by entering an order directing that the appeal shall stand dismissed at the end of a stated period of time unless the defendant is then back in custody. E. g., Bonahan v. Nebraska, supra; People v. Redinger, supra; State v. Scott, supra. In Knight v. State, 190 Tenn., 326, 229 S.W.2d 501 (1950), the state’s motion to dismiss the appeal was not made until the escapee was back in custody. The court denied the motion upon the premise that since the defendant was presently in custody, the ultimate judgment of the court could be enforced against him.

Our Florida Constitution guarantees convicted persons of the right of appeal, and we have no statute like the one in Texas which provides that an escape shall constitute a waiver of that right. Moreover, our legislature has established escape as a separate crime for which a person can receive a sentence of up to fifteen years. In view of the foregoing and the fact that the return of appellant to the court’s jurisdiction has undercut the historical premise upon which the appeals of escapees have been traditionally dismissed, the motion to dismiss this appeal is hereby

DENIED.

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

      . Woodson v. State, 19 Fla. 549 (1882); Mitchell v. State, 294 So.2d 395 (Fla. 1st DCA 1974); Bretti v. State, 210 So.2d 472 (Fla. 3d DCA 1968); Decree v. State, 180 So.2d 667 (Fla. 1st DCA 1965).

      . E. g., Molinaro v. New Jersey, 396 U.S. 365, 90 S.Ct. 498, 24 L.Ed.2d 586 (1970); Allen v. Georgia, 166 U.S. 138, 17 S.Ct. 525, 41 L.Ed. 949 (1897); Bonahan v. Nebraska, 125 U.S. 692, 8 S.Ct. 1390, 31 L.Ed. 854 (1887); Sanford v. State, 75 Okl.Cr. 362, 131 P.2d 770 (1942); Tyler v. State, 3 Okl.Cr. 179, 104 P. 919 (1909); State v. Scott, 70 Kan. 692, 79 P. 126 (1905); McGowan v. People, 104 Ill. 100, 44 Am.Rep. 87 (1882); People v. Redinger, 55 Cal. 290, 36 Am.Rep. 32 (1880); Wilson v. Commonwealth, 10 Bush 526, 19 Am.Rep. 76 (Ky.1874); People v. Genet, 59 N.Y. 80, 17 Am.Rep. 315 (1874).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Florida, Appellant, v. Woodrow PAYTON, Appellee.
    No. 76-1792.
    District Court of Appeal of Florida, Second District.
    April 15, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and Robert H. Grizzard, II, Asst. Public Defender, Bartow, for appellee.
   GRIMES, Judge.

This is a state appeal from an order granting a motion to suppress tangible evidence and incriminating statements. The appellee is charged with grand larceny.

On August 19, 1976, at about midnight, several police units were maintaining surveillance of an automobile containing two persons. The record does not reflect why this automobile was under surveillance. Officers Holthusen and Feathers were following the car in their unmarked vehicle in an industrial area when they momentarily lost contact with it. They saw the car again about two minutes later parked in front of Zaun Equipment Company. After they passed, Holthusen got out of the vehicle and proceeded back toward the parked car to observe it. He saw two men running toward the car from a nearby fence which surrounds Zaun Equipment Company. He did not see anything in their hands, but he heard two or three thudding noises and the car door slam. The car then immediately left the scene. Officer Holthusen went to the fence and observed that the wire on top was bent down. Holthusen alerted other police units to follow the vehicle.

While it is unclear upon whose order, one of the police cruisers overtook the automobile and stopped it. Appellee and another man were in the vehicle. Shortly thereafter Officer Holthusen arrived at the scene and immediately advised appellee of his Miranda rights. After some discussion appel-lee said that the other occupant of the car had gone over the fence and taken some equipment. Two large boxes were plainly visible in the back seat. Both persons were then placed under arrest. The boxes were opened and found to contain lawn edgers. It was later determined that these edgers were the property of Zaun Equipment Company.

Officer Feathers testified that when they were first following the vehicle and as they passed it at Zaun Equipment Company, there were no boxes in the back seat. He said that as the car passed him after pulling away from Zaun’s, he could see some boxes in the back seat. Another officer reported over the radio that the boxes could be seen in the back seat.

At the conclusion of the hearing, the court granted the motion to suppress on the grounds that the arrest was unlawful because there was an insufficient showing of probable cause for the officers to believe that a crime had been committed. We hold that the court erred in the sense that it measured the officers’ conduct by the wrong standard.

After the car was stopped, the appellee admitted that his accomplice had gone over the fence and taken some equipment from Zaun Equipment Company. The boxes which were in plain sight in the back seat had not been there before. At this point, the officers clearly had probable cause upon which to make an arrest and to remove the boxes from the vehicle incident to the arrest. The real issue is whether the officers had a right to stop the car in the first place.

In a number of recent cases, our court and others have held that under the proper circumstances the police may stop a motor vehicle for investigation upon something less than probable cause to believe that the occupants have committed a crime. Thus in State v. Othen, 300 So.2d 732 (Fla.2d DCA 1974), our court quashed an order on the ground that probable cause was an excessively rigid standard by which to measure the authority of a police officer to make a reasonable detention of a motorist for the purpose of ascertaining his identity and inquiring into circumstances justifiably arousing suspicion. The standard has been characterized as a “well-founded suspicion.” State v. Spanierman, 267 So.2d 102 (Fla.2d DCA 1972). The principle is analogized to the right of the police to stop a suspicious person for interrogation on less than probable cause under Terry v. Ohio. State v. Holmes, 256 So.2d 32 (Fla.2d DCA 1971). The right to stop an automobile for reasonable interrogation of the occupants, under suspicious circumstances, ought not be more restrictive than the right to stop an individual on the street. As the court said in Wilson v. Porter, 361 F.2d 412 (9th Cir. 1966), while passing upon the propriety of the police to stop an automobile:

“. . .A line between reasonable detention for routine investigation and detention which could be characterized as capricious and arbitrary cannot neatly be drawn. But due regard for the practical necessities of effective law enforcement requires that the validity of brief, informal detention be recognized whenever it appears from the totality of the circumstances that the detaining officers could have had reasonable grounds for their action. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.”

If the police had a well-founded suspicion that the occupants of the vehicle in which appellee was riding might be involved in criminal activity, they had a right to stop the vehicle for reasonable investigation and interrogation. If the circumstances were suspicious enough, it was not necessary that they know that property had been stolen from Zaun’s. Since the court did not apply this standard in measuring the officers’ conduct, the order of suppression must be reversed. The case is remanded for further proceedings in which the court will have the opportunity to determine the motion by the application of the proper guidelines.

REVERSED and REMANDED.

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

      . 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


author: PER CURIAM.

text:
    Willard L. CARROLL, Appellant, v. Agatha Ann CARROLL, Appellee.
    No. DD-249.
    District Court of Appeal of Florida, First District.
    April 18, 1977.

      W. Paul Thompson, Defuniak Springs, for appellant.
    W. Flemming Ward, Defuniak Springs, for appellee.
   PER CURIAM.

The “acrimonious” conduct of these parties mentioned in our prior opinion continues. By this appeal, appellant-father challenges the trial court’s order adjudging him in contempt for failure to give the legal custodian of the child, the maternal grandmother, proper notice prior to exercising his summer visitation rights.

Factual matters adduced during the hearing do not support the trial court’s finding that appellant violated the previous order of the trial court granting custody to the maternal grandmother. The order appealed is

REVERSED.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.

      . Carroll v. Carroll, 336 So.2d 130 (Fla. 1st DCA 1976).

      . As punishment for his contempt, appellant was ordered to pay appellee’s attorney a fee of $150.00 and $7.50 costs.

      . The trial court observed:
      “It [order] doesn’t say a thing about notifying Mrs. Burkett [maternal grandmother] but that’s what I meant for it to say when I made it, because she is the one that has custody of the child ... I think this should be amended so that it is to Mrs. Burkett. I am going to find that he [appellant] has violated the order and that he is in contempt.”


author: ERVIN, Judge.

text:
    Ann Neter HEARD, Appellant, v. Benjamin L. MATHIS, Appellee.
    No. BB-13.
    District Court of Appeal of Florida, First District.
    April 19, 1977.

      Don Peters, Ray S. Brill Jr., Gainesville, for appellant.
    Stephan P. Mickle, of Mickle, Harris, Green & Woolfork, Gainesville, for appellee.
   ERVIN, Judge.

This is an appeal by defendant-counter-claimant Heard from a judgment favoring Mathis in the sum of $200.00, plus costs and attorney’s fees.

Heard, a student at the University of Florida borrowed $200.00 from Mathis, an assistant to the Vice-President for Student Affairs. The transaction was oral, unsecured and with no interest charged. It was Mathis’ understanding that the loan would be repaid by Heard once she received her allotment check from her husband. When his understanding failed to be realized, Mathis contacted several persons, including one Bill Simmons, described as an intimate personal friend of Heard’s, and informed them of the debt. Finally Mathis filed a statement of claim against Heard in county court. Heard filed her answer and a counterclaim, alleging Mathis’ violation of the Consumer Collection Practices Act, and seeking statutory and punitive damages in excess of the minimum jurisdiction of the court. Subsequently the cause was transferred to the circuit court. The case was tried non jury and upon its conclusion the court entered final judgment for Mathis on his claim, denied Heard’s counterclaim and assessed attorney’s fees against Heard in the amount of $400.00.

Heard raises two points on appeal:

(1) The court erred in entering judgment against Heard on her counterclaim since the word “family” as used in Section 559.72(5), Florida Statutes (1975), could not be reasonably construed to include an intimate friend who is not living with Heard.
(2) The court erred in assessing attorney’s fees against Heard.pursuant(to Section 559.71(1) because Heard’s claim was neither ill-founded nor brought for the purposes of harassment.

Mathis, in response to Heard’s argument, replies that since the loan to Heard was made without interest, the disclosure of the debt to a person not a member of Heard’s family was not prohibited by Section 559.-72(5).

Initially we agree with Heard that Mathis was not privileged under the statute to make the disclosure to Simmons since Simmons was neither a member of Heard’s family nor did he have any legitimate business need for such information. Florida courts have construed the word “family” primarily in the context of homestead. Thus the meaning of family has been extended beyond marital or blood relationships to include families “in fact.” See Beck v. Wylie, 60 So.2d 190 (Fla.1952) and Johns v. Bowden, 68 Fla. 32, 66 So. 155 (1914). The tests of a family for homestead purposes, which must be met either singly or in combination, are: (1) A legal duty to maintain arising out of the relationship and (2) a continuing communal living by at least two individuals under circumstances where one is regarded as the person in charge. See, e. g., In re Wilder, 240 So.2d 514 (Fla. 1st DCA 1970); Brown v. Hutch, 156 So.2d 683 (Fla. 2nd DCA 1963); Crosby and Miller, Our Legal Chameleon, The Florida Homestead Exemption, 2 U.Fla.L.Rev. 12 (1949). Under neither of the above tests, could Bill Simmons, a close personal friend of Heard who neither lived with nor assumed any responsibility for support of Heard, be considered a member of Heard’s family. We therefore conclude that the communication made by Mathis to Simmons was not privileged since it was not one made to the debtor’s family.

We also reject Mathis’ contention that the Consumer Collection Practices Act does not apply to him, a private individual making an oral, non-interest bearing loan to a friend. The statute clearly prohibits any person from making such communication to anyone with certain stated exemptions. The word “person” has been held to include not just collection agencies regulated under Part Five of Chapter 559, but is applicable to persons generally. Cook v. Blazer Financial Services, Inc., 332 So.2d 677 (Fla. 1st DCA 1976). The word creditor is defined as “any person to whom a consumer claim is owed, due, or alleged to be owed or due.” Section 559.55(3). Moreover, a consumer claim as defined in Section 559.55(1) is

“. . . any obligation for the payment of money or its equivalent arising out of a transaction wherein credit has been offered or extended to a natural person, and the money, property or service which was the subject of the transaction was primarily for personal, family, or household purposes. . .

Chapter 559 cannot be afforded the restrictive construction which Mathis urges. We therefore conclude that a non-interest bearing loan, either oral or written, and whether paid to a commercial institution or to any individual, is subject to the regulation of the Act.

We reject, however, Heard’s contention that if Simmons is not a member of Heard’s family then the lower court erred in denying the counterclaim because every other element required by the statute was shown. The final judgment of the court did not state any reasons in support of its conclusion that Heard failed to establish by the greater weight of evidence Mathis had violated any provision of the Consumer Collection Practices Act. While a trial court is not required to state findings of fact or grounds of reasoning in its judgments or orders, fairness to both the parties and appellate courts make this desirable. E. g., State v. Bruno, 104 So.2d 588 (Fla.1958); Surratt v. Fleming, 309 So.2d 614 (Fla. 1st DCA 1975). Nevertheless an appellate court will not substitute its judgment for that of the trier of facts unless the record clearly reflects the findings or conclusions reached were erroneous. Cf.: Beavers v. Conner, 289 So.2d 462 (Fla. 3rd DCA 1974); Walker v. Connolly, 299 So.2d 67 (Fla. 1st DCA 1974).

It is necessary for Heard to show, since her action is based upon a statute, that the conduct complained of comes within the terms of such statute. 1 Fla.Jur. Actions Section 16 (1955). Thus where a particular remedy is conferred by statute, it can be invoked only to the extent and in the manner prescribed. Dorman v. Jacksonville, 13 Fla. 538 (1870). The essential elements of any cause of action, whether derived from tort, contract, or imposed by statute, are the existence of a legal right in plaintiff, with a corresponding duty in defendant, coupled with a violation of that duty which results in injury or damages to the plaintiff. 1 Fla.Jur. Actions at sections 22-23. Either nominal or statutory damages may be awarded a plaintiff where the evidence is insufficient to reveal the extent of any injury, which, from the nature of the case, was inflicted upon the plaintiff. Wynn v. Atlantic Coast Line R. Co., 66 Fla. 604, 64 So. 232 (1914). An analogy may be made to cases involving defamations which are actionable per se. General damages are allowed to a plaintiff upon proof of the publication without regard to any establishment of actual pecuniary loss since damages are conclusively presumed as a matter of law from the use of words actionable per se. Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906). The reason for the allowance of such damages is that the immediate tendency of the words is to impair the plaintiff’s reputation without regard to proof of loss. Ross v. Gore, 48 So.2d 412 (Fla.1950). While the Act does not require that plaintiff establish proof of actual damages less than $500.00, Section 559.77(1), it does require plaintiff to show the invasion of a legal right.

We construe the statute as requiring the debtor to show the following elements necessary for a good cause of action against Mathis: (1) that there was a disclosure of information to a person other than a member of debtor’s family, (2) .that such person does not have a legitimate business need for the information, and (3) that such information affected the debtor’s reputation. We find that Heard has presented adequate proof of the first two elements, but not as to the third. We fail to see how, on the basis of this record, the disclosure of a $200.00 debt owed by Heard to Mathis, which disclosure was made to Simmons, an intimate personal friend of Heard, affected the debtor’s reputation. Heard has failed to present proof necessary to sustain her claim that her reputation was affected. Reputation is what is reported or understood from reports to be the community’s estimate of the person’s character. Fine v. State, 70 Fla. 412, 70 So. 379 (1915). It is difficult to conclude on the basis of one unprivileged communication that the community’s estimate of the debtor’s character was affected. We interpret the statute as requiring — unlike causes for per se defama-tions which are complete upon publication — a showing that the debtor’s reputation was adversely affected following the publication. We find no error in the lower court’s denial of the counterclaim.

We do, however, feel that the court was incorrect in assessing attorney’s fees in favor of Mathis. Section 559.77(1), Florida Statutes (1975) states in pertinent part:

“If it appears to .the court that the suit brought by the plaintiff was ill-founded or brought for purposes of harassment, the plaintiff shall be liable for court costs and reasonable attorney fees incurred by the defendant.”

We fail to find that Heard’s counterclaim, being one of first impression under the statute, was either ill-founded or brought for the purposes of harassment. We agree with Heard that if the legislature had intended to make the award of attorney’s fees contingent upon the outcome of the suit, it would have specifically said so as it has done in analogous situations. Cf. Section 501.210, Florida Statutes (1975). While we have found no definition for ill-founded in either the legal dictionaries or in Webster’s, ill is defined as “bad; defective in law; null; nought; the opposite of good or valid.” Black’s Law Dictionary, 882 (Rev. 4th ed. 1968).

Neither do we feel that Heard’s counterclaim was brought for the purpose of harassment. To harass means to worry, to annoy, usually in a repeated manner. Webster’s New Collegiate Dictionary, 522 (1976).

Cases involving malicious prosecution actions are instructive to a determination whether Heard’s counterclaim was ill-founded. An indispensable element to an action for malicious prosecution is want of probable cause for the institution of the original proceeding. E. g., Hower v. Lewton, 18 Fla. 328 (1881); Tatum Bros. Real Estate and Inv. Co. v. Watson, 92 Fla. 278, 109 So. 623 (1926). Probable cause in malicious prosecution actions is defined as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious person in the belief that the person accused is guilty of the offense charged. Goldstein v. Sabella, 88 So.2d 910 (Fla.1956). Moreover the standard of conduct required for a person beginning or continuing any proceeding is that of a reasonable or ordinary prudent person. Florida East Coast R. Co. v. Groves, 55 Fla. 436, 46 So. 294 (1908). When we apply those tests to Heard’s counterclaim, we cannot reasonably conclude that her action was ill-founded. She proved a disclosure had been made to a person other than a member of her family and that such person did not have a legitimate business need for the information disclosed. She established all elements to her cause of action with the exception of the requirement that the disclosure affect her reputation. We do not find on the basis of this record that she acted either unreasonably or that her claim was ill-founded.

Accordingly it is directed that the lower court delete that portion of the final judgment assessing attorney’s fees in favor of Mathis.

MILLS, Acting C. J., and DURDEN, J. ROBERT, Associate Judge, concur.

      . The material portion of the judgment appealed states:
      “2. Counterclaimant/Defendant, Ann Neter Heard, should take nothing because she failed to establish by the greater weight of the evidence that the Plaintiff-Counter/Defendant violated any provision of the Consumer Collection Practices Act, and failed to show the necessary malice, moral turpitude, wantonness, outrageous aggravation or reckless indifference to the rights of others to be entitled to punitive damages.”

      . Section 559.72(5), Florida Statutes (1975), provides:
      “In collecting consumer claims, whether or not licensed by the division, no person shall:

        (5) Disclose to a person other than the debt- or or his family information affecting the debtor’s reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false; . . ”

      . While collection practices are regulated in several states, we have found none so broad in scope as Florida’s. E.g., Prohibiting practices of collection agencies only are Ariz.Rev.Stat.Ann. §§ 32-1002-1057 (1976); Me.Rev.Stat.Ann., tit. 32, §§ 573-83 (Supp.1973); Mass.Gen.Laws Ann., ch. 93, §§ 24-28, 49 (1976). Wisconsin law regulates all dealings of merchants involving installment payments or finance charges. Wis.Stat.Ann. §§ 427.101-.105 (1973).

      . Parenthetically, unlike defamations in libel and slander causes which are actionable per se, and where the courts presume malice from the words used, no such presumption may be indulged here since the statute does not require the disclosure to be false if made to a person other than the debtor or his family when such person does not have a legitimate business need for the information. •


author: SMITH, Judge.

text:
    Albertha Doris KINER, Petitioner, v. STATE BOARD OF EDUCATION, Respondent.
    No. BB-292.
    District Court of Appeal of Florida, First District.
    April 19, 1977.
    Herbert T. Schwartz, of Schwartz & Dearing, Gainesville, for petitioner.

      Brian T. Hayes, Tallahassee, for respondent.
   SMITH, Judge.

This petition for certiorari seeks review of the respondent Board’s order revoking petitioner’s teaching certificate on the ground she “entered a plea of guilty to a felony, to wit: Manslaughter.” Petitioner killed her husband with a shotgun. She was placed on probation after adjudication of guilt was withheld. Although the Board’s order does not in terms recite that petitioner was “guilty . . . of an act involving moral turpitude,” her plea of guilty is prima facie evidence of that fact. Section 231.28(3), Florida Statutes (1975). No evidence was offered significantly mitigating the apparent turpitude of the acknowledged offense. Petitioner’s certificate was therefore revocable under Section 231.28(1). We do not reach petitioner’s constitutional arguments which are based on other, more drastic conceptions of the meaning and application of the statute. The petition is

DENIED.

RAWLS, Acting C. J., and McCORD, J., concur.


author: McCORD, Judge.

text:
    Caissius Q. VIATOR, Jr., and Cynthia K. Viator, his wife, Appellants, v. MORGAN CONSTRUCTION COMPANY, a Massachusetts Corporation, Appellee.
    No. EE-282.
    District Court of Appeal of Florida, First District.
    April 19, 1977.
    Anthony I. Provitola, Deland, for appellants.
    Robert W. Elton of Smalbein, Eubank, Johnson, Rosier & Bussey, Daytona Beach, for appellee.
   McCORD, Judge.

This is an appeal from an order granting appellee’s motion to dismiss for lack of jurisdiction over the person. Appellants filed suit against appellee, a Massachusetts corporation, and attempted substituted service which was not effected. Thereafter, appel-lee’s counsel filed a “Notice of Appearance” and approximately six months later moved to dismiss the complaint upon the ground, among others, of lack of jurisdiction over the person. The motion was granted by the trial court on that sole ground on December 8, 1976. Thereafter, on December 15, 1976, the opinion of this court was filed in Royal Industries, Inc. v. Birdsong, 340 So.2d 526 (Fla. 1 DCA 1976), in which we ruled that such an appearance is a general appearance which waives defects in service and subjects the defendant to the jurisdiction of the court.

Reversed and remanded with directions to vacate the order which granted appel-lee’s motion to dismiss.

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


text:
    The FLORIDA HARDWARE COMPANY, Appellant, v. CITY OF JACKSONVILLE, Appellee.
    No. EE-486.
    District Court of Appeal of Florida, First District.
    April 19, 1977.
    Rehearing Denied May 2, 1977.
    A. Graham Allen, of Freeman, Richardson, Watson, Slade, McCarthy & Kelly, Jacksonville, for appellant.
    William L. Coalson, Jacksonville, for ap-pellee.
   PER CURIAM.

Affirmed. Travis v. Department of Transportation, 333 So.2d 86 (Fla. 1 DCA 1976); Jacksonville Expressway Authority v. Milford, 115 So.2d 778 (Fla. 1 DCA 1959); City of Tampa v. Texas Company, 107 So.2d 216 (Fla. 2 DCA 1958).

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


author: CALOGERO, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Billy Ray JACOBS.
    No. 57629.
    Supreme Court of Louisiana.
    Sept. 13, 1976.
    Dissenting Opinion April 6, 1977.

      Charles S. Smith, Hayes, Harkey, Smith & Cascio, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., James A. Norris, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

In May of 1975, two men broke into the home of Mary Davis in Monroe, Louisiana, beat Mrs. Davis, an elderly woman, and robbed her of twenty dollars, several items of jewelry, a radio, and a gun. None of the stolen property was ever recovered, but police arrested Charles Overton and Billy Ray Jacobs for committing the aggravated burglary, a violation of La.R.S. 14:60. The state severed the trials of the two defendants, and defendant Jacobs, whose appeal is now before the Court, was found guilty as charged and was sentenced to serve twenty years at hard labor. In his appeal of that conviction and sentence, defendant Jacobs argues that there were five errors made at his trial which require this Court to reverse his conviction and to order him retried for the offense. Because we agree with the defendant that a trial error was committed which demands reversal of his conviction and sentence, we shall discuss only that issue, which he has assigned as error number three.

Assignment of error number three involves the introduction of hearsay evidence. It arose in this manner. Mrs. Davis, the victim of the crime, testified for the state but failed to positively identify defendant Jacobs as one of the men who beat and robbed her, although she did state several times that Jacobs “looked very much like” the perpetrator. She was not asked whether she had ever previously identified the accused, or whether she had ever been asked to identify him at a pre-trial photographic showup. Subsequent to her testimony, the state attempted to introduce evidence that Mrs. Davis had, in fact, chosen Jacobs’ picture from a group of five photographs shown to her several weeks after the crime, and had identified Jacobs as one of her attackers. Andrew Milstead, a member of the Monroe Police Department, was asked about the photographs he had shown Mrs. Davis and he replied:

“The defendant’s picture at this time was numbered number two (2), and she looked at the picture very carefully at this time. When she got to picture number two (2), she indicated and pointed out—
Mr. Smith: I’m going to object to hearsay, Your Honor.
* * * * * *
“Q. And would you describe how she examined them?
A. Yes sir. She looked at the photographs and she examined them, number one, and she moved to the number two picture and she looked at it and examined it, and at this time she pointed out that this was definitely one of the subjects—
Mr. Smith: I’m going to object to hearsay. The detective is expressing his opinion and he is also possibly stating comment she made, now.
The Court: Sustained.
* * * * * *
“A. Detective Milstead, did Mrs. Davis point out any particular photograph as being significant?
Q. Yes sir, she pointed out photograph number two, the defendant, as definitely being one of the suspects.
Mr. Smith: I’m going to object again, Your Honor. This ‘definitely’, that is hearsay.
Mr. Norris: Your Honor, the fact that Mrs. Davis — Mrs. Davis, now I grant it, you can testify to a fact. He saw Mrs. Davis pick a certain ¡photograph, but he can’t testify—
The Court: —Sustained.”

The jury was removed and the trial judge explained that, while the state was entitled to introduce evidence that Mrs. Davis picked out a particular picture, it was not entitled to editorialize that she “definitely” chose the accused’s picture. When the jury was returned to the courtroom, the trial judge, on request of defense attorney, admonished the jury members to disregard the word “definitely” in the witness’ testimony. When asked again to describe what Mrs. Davis did while examining the photographs, Detective Milstead stated:

“[S]he examined [picture number two], she looked at it closely, and she pointed to the picture at this time and stated that this—
Mr. Smith: —I’m going to object.
The Court: Overruled.
A. And stated that this was one of the subjects in picture number two — to us, that this was one of the subjects.”

The issues raised by the preceding testimony and rulings are two: first, was it error for the judge to allow the policeman to testify as to the conduct of a third party (Mrs. Davis) in selecting a particular picture; and second, was it error to allow the policeman to testify as to the statement of a third party?

We have recently dealt with the hearsay issue in State v. Ford, 336 So.2d 817 (La.1976), where we held that the testimony of a police officer describing the conduct of a witness who identified a defendant is inadmissible because it is assertive hearsay. In that case the admission of the hearsay evidence was found not to be reversible error because it merely corroborated the witness’ own prior direct testimony that he had indeed previously identified defendant as the perpetrator. Under the Ford rationale, the policeman’s testimony as to Mrs. Davis’ conduct in choosing defendant Jacobs’ picture was inadmissible assertive hearsay because the witness was testifying as to the out-of-court communication of a third person and the third person, Mrs. Davis, had not testified that she had made a pre-trial identification of the accused. However, this error was neither briefed nor assigned and was, in fact, specifically waived by defense counsel at trial. The error, therefore, is not before this Court, and we turn to the second type of hearsay admitted at the trial — Detective Milstead’s testimony that Mrs. Davis had “stated that this was one of the subjects in picture number two.”

Hearsay evidence is an out-of-court statement made by a third party who made the statement while he was not under oath and not subject to cross-examination. McCormick, Law of Evidence 225 at 449 (Hornbook ed. 1954); II Wharton’s Criminal Evidence 265, at 3 (13th ed. 1972) [hereinafter Wharton’s]; 21 Loy.L.Rev. 279 (1975). The validity of hearsay evidence rests in part on the truthfulness of the third person. Hearsay evidence is excluded from trials because the safeguards which tend to insure that a person speaks truthfully and on the basis of his own knowledge are lacking: the third person was not under oath when he made the statement; there was no opportunity to cross-examine him at the time he made the statement; and the jury cannot observe his demeanor so as to judge his credibility, Wharton’s, id. See generally, Edmund M. Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177 (1948). Moreover, there is a chance that the witness is consciously or unconsciously misrepresenting what he was told by the third person. Wharton's id. at 6. For these reasons, hearsay evidence is inadmissible in Louisiana criminal trials unless otherwise provided by law. R.S. 15:434.

The evidence at issue in this case is undisputably hearsay. Detective Milstead (the witness) testified that Mrs. Davis (the third party) stated that picture number two was a photograph of her attacker. Mrs. Dávis’ statement was not made under oath nor while she was subject to cross-examination. It was presented to the jury to prove the truth of the matter asserted, i. e., that it was the accused who attacked Mrs. Davis. The officer’s testimony went far beyond Mrs. Davis’ testimony because she did not definitely identify Jacobs at the trial and was not even asked about a pre-trial photographic identification. It was only through the testimony of the police officers that the state attempted to establish that Mrs. Davis had previously identified Jacobs as the man who had beaten her. Detective Milstead’s testimony injected new evidence into the trial; it did not merely repeat what had already been established.

We have previously held that when hearsay identification testimony is admitted into evidence, we will not find the error reversible if the witness’ testimony repeated the third party identifier’s own testimony that he had made a pre-trial identification. State v. Ford, supra; State v. Smith, 285 So.2d 240 (La.1973); State v. Vassel, 285 So.2d 221 (La.1973); State v. Wilkerson, 261 La. 342, 259 So.2d 871 (1972); State v. Maiden, 258 La. 417, 246 So.2d 810 (1971). However, when this Court has reviewed an officer’s testimony which related that the accused had been identified as the guilty party by a third person and the officer’s testimony was introduced as substantive evidence (not corroboration) of that fact, we have consistently reversed the conviction. State v. Murphy, 309 So.2d 134 (1975) (noted with approval at 36 La.L.Rev. 673 [1976]); State v. Hayden, 243 La. 793, 147 So.2d 392 (1962); State v. Kimble, 214 La. 58, 36 So.2d 637 (1948); State v. Garon, 158 La. 1014, 105 So. 47 (1925); State v. Cole, 145 La. 900, 83 So. 184 (1919). Moreover, we have held that a trial judge’s refusal to admit an unsworn out-of-court statement made by a witness who had already testified was correct because that evidence was inadmissible. State v. Hamilton, 302 So.2d 267 (La.1974); see State v. Nero, 319 So.2d 303, 310 (La.1975). Our jurisprudence is consistent with that of the overwhelming number of states which likewise disallows the testimony of a witness who states that a third person has identified the accused as the perpetrator of the crime, especially if there has been no previous testimony about that pre-trial identification. We hold, therefore, that the state may not bolster its case with an inadmissible extrajudicial identification when the identifier has not testified that she made such a pre-trial identification.

It has been suggested that this rule should not be applied in a case such as the present where the identifying witness could have been recalled by the accused for cross-examination about the pre-trial identification procedure. We can find no reason for such an exception. Mrs. Davis was at the trial as a witness for the state. It was the state, not the defendant, which wanted to present evidence to the jury of her previous identification of defendant Jacobs. It was the state which was charged with presenting its evidence through the legally acceptable vehicle, the witness herself, instead of choosing to replace her live testimony with the hearsay testimony of other persons.

Our procedure does allow the state to introduce in transcript form the previous testimony of a witness who is unavailable at trial, because the testimony is inherently trustworthy (it was initially given while the speaker was under oath and subject to cross-examination) and is especially needed. C.Cr.P. art. 295; McCormick, supra at § 231. When the witness who has testified at a preliminary. hearing is unavailable at the trial because of death or other acceptable reason, then an extrajudicial identification which was part of that previous testimony could be admitted into evidence, but when the witness is available, then there is no need to introduce the evidence in the form of hearsay testimony. In that case the element of necessity upon which exceptions to the hearsay rule are usually founded is lacking. Martin A. Dyer, Extrajudicial Identification, 19 Md.L.Rev. 201 (1959). When the witness is available at trial, as Mrs. Davis was at defendant’s trial, there was no necessity for having her extrajudicial identification of defendant introduced in hearsay form. The state has chosen to ignore its own available witness who could presumably have related her own extrajudicial identification, and has presented the identification through hearsay testimony. It has therefore chosen to inject into the trial hearsay testimony— with its lack of safeguards and possibility of unreliability — in a situation in which the problem of hearsay need not ever have arisen. Whether the state’s action was a purposeful choice or mere neglect to question Mrs. Davis carefully, the state cannot now be heard to ask this Court to fashion a new exception to the hearsay rule which would allow hearsay testimony to be introduced in place of the testimony of its own available witness. The notion that the accused bore the burden of recalling Mrs. Davis so as to either dispute the state’s hearsay evidence or to corroborate it assumes that this Court is willing to shift the burden of calling an available witness, to the defendant, so that he must cure the hearsay error by a risky questioning of the witness. We do not recognize such an exception to the hearsay rule.

Moreover, we cannot agree with the state’s position that the admission of the hearsay identification in the absence of the identifying witness was harmless error. Mrs. Davis’ identification was the crux of the state’s case against Billy Jacobs, and she failed to positively identify him in coui’t. The ingredient necessary to convince thé jury that defendant Jacobs should have been convicted may well have been the testimony of Detective Milstead as to Mrs. Davis’ out-of-court identification of him.

Therefore, for the reasons assigned, we reverse defendant’s conviction and sentence, and remand the case to the trial court for re-trial.

DIXON, J., concurs, but is of the opinion that when it becomes a disputed issue that a witness did or did not identify a picture as a defendant, evidence of what the witness said may become a verbal act and as such admissible.

DENNIS, J., dissents and will assign reasons.

DENNIS, Justice,

dissenting.

As I read the majority opinion in this case it formulates an inflexible rule that whenever a witness relates the fact of another’s extrajudicial identification of the accused as the offender, reversible error will have been committed unless the other party has also testified as to the fact of his extrajudicial identification or has positively identified the offender at trial. The cases cited by the majority do not, in my view, support the formulation of such a mechanical and technical rule.

State v. Murphy, 309 So.2d 134 (La.1975), involved a police officer’s testimony as to the substance of an informer’s tip which led to the accused’s arrest. This Court held that the officer’s testimony relating what the informer told him was hearsay, and was improperly admitted. However, in Murphy, the informant did not appear to have been a witness at trial, and was apparently unidentified and unavailable for cross-examination by the accused. Thus, Murphy clearly presents a different question than that posed by the present case, where the victim was a witness at trial and was readily available to the defendant for cross-examination. In deciding Murphy this Court was clearly influenced by the informant’s apparent unavailability for cross-examination. We therein observed,

“In the instant case there was no opportunity for the defendant to cross-examine the informer who had identified him as the perpetrator of the crime. Absent circumstances justifying or mitigating this departure from defendant’s constitutional right of confrontation, we have held this violation to be reversible error. * * 309 So.2d at 136.

State v. Hayden, 243 La. 793, 147 So.2d 392 (1962), involved testimony by a deputy sheriff that other officers, in the presence of the defendant, told him that certain physical evidence which was admitted at trial had been taken from the accused. This Court held that the defendant’s custodial silence was not a tacit admission that the evidence was taken from him, and that the evidence was admitted without sufficient foundation. Defendant’s conviction was therefore reversed. Hayden is distinguishable on its facts from the present ease. The officers whose hearsay statements were related by the testifying deputy were not witnesses at the defendant’s trial, and were not readily available to the accused for cross-examination.

In State v. Kimble, 214 La. 58, 36 So.2d 637 (1948), we held it was reversible error to allow officers to testify as to the substance of prior complaints by unnamed persons that the defendant was violating state liquor laws. The unnamed complainants were not witnesses at trial, and were not available to be cross-examined by the defendant.

Likewise, State v. Garon, 158 La. 1014, 105 So. 47 (1925), is readily distinguishable from the present case. In Garon a police officer was asked whether a witness had previously identified the defendant as the perpetrator of the crime charged. The officer answered affirmatively. This Court held that the officer’s answer was hearsay, and that reversible error was committed by admitting it. However, a careful reading of this Court’s opinion reveals that the testifying officer was not present at the time the other party made the identification which the officer’s testimony related. Given that fact, this Court reached the conclusion that the officer could not testify properly as to the other party’s identification of the accused. In the instant case the testimony objected to was given by the officer who conducted the photographic showing; he was relating his own observation of the witness’ identification, not, as in Garon, what the witness (or some other person) told him about the witness’ extrajudicial identification.

This Court held in State v. Cole, 145 La. 900, 83 So. 184 (1919), that the res gestae of an offense is limited to the time frame immediately surrounding the offense. Testimony given by the prosecutrix’s mother in a rape prosecution relating statements made by her daughter two or three days after the crime were not admissible as part of the res gestae. Cole did not involve an extrajudicial identification of the defendant as the offender. The objectional evidence was apparently not offered to corroborate any identification by the victim of the accused.

I cannot agree with the position taken by the majority that the officer’s testimony in the present case relating to Mrs. Davis’ prior extrajudicial identification of the defendant was not offered to corroborate “direct testimony of a trial witness which iden-tifie[d] the accused” as the offender. At trial, on direct and cross-examination, Mrs. Davis testified that the defendant looked like one of the offenders. Admittedly her in-court identification was not positive. She remembered her assailant as somewhat heavier than the defendant, as he appeared at trial. Other testimony offered by the State showed the defendant had lost a substantial amount of weight during the interim between the offense and the date of trial. This change in the defendant’s appearance may explain Mrs. Davis’ reluctance to identify him positively at trial.

In my view evidence of Mrs. Davis’ extrajudicial photographic identification of the accused clearly corroborated her in-court identification. The photographic identification took place in closer proximity to the alleged criminal act than did the trial identification.

“A reason frequently assigned for the admission of evidence as to a prior identification of the accused is that it is ordinarily more reliable than an identification at the trial, its closer relation to the criminal act in point of time affording less opportunity for deterioration or fading of the identifier’s impressions or recollection and for changes in the appearance of the accused or guilty party, and thus enabling the identifier to be more certain or positive as to the identification. * *" Annotation, Admissibility of Evidence as to Extrajudicial Identification, 71 A.L. R.2d 449, 454 (1960).

In State v. Ford, 336 So.2d 817 (La.1976), this Court held harmless the introduction of evidence corroborating a transcript of a deceased witness’ preliminary examination testimony describing his extrajudicial identification of the defendant. In Ford the deceased witness who made the identification was unavailable for cross-examination at trial, yet we allowed evidence of an extrajudicial identification corroborating his preliminary hearing testimony that the accused committed the crime. In the present case the witness whose extrajudicial identification was introduced was present at trial, and readily subject to cross-examination.

In State v. Ford, supra, we observed, * * * while some jurisdictions still hold that testimony as to an out-of-court visual identification made by another in the witness’s presence is inadmissible hearsay under almost all circumstances, by far the greater number of jurisdictions now permit admission of such testimony, at least when offered in corroboration of direct testimony of a trial witness which identifies the accused. See: Annotation, Admissibility of Evidence as to Extrajudicial Identification, 71 ALR2d 449 (1960), and especially Later Case Service (through 1976); 1 Wharton’s Criminal Evidence, Section 187 (13th ed., Torcía, ed.; 1972).” 336 So.2d at 822.

See also, McCormick on Evidence, § 251 (2d ed. 1972) (recognizing a modern trend toward admitting — despite its technical hearsay character — evidence of prior extrajudicial identifications of the accused by witnesses).

In considering whether the admission of hearsay testimony by an observer to an extrajudicial identification mandates reversal, we admittedly have considered whether the identifying party also testified as to the fact of the extrajudicial identification. E. g., State v. Ford, supra; State v. Smith, 285 So.2d 240 (La.1973). The fact that we have previously considered this factor does not make it sacramental to a finding of harmless error.

There is no mechanical requirement, in Ford, Smith, or in the other cases relied on by the majority that, as a predicate for finding harmless the introduction of evidence by a witness to an extrajudicial identification, the person making the identification, rather than an observer, testify to the fact of his having made it. All that is required, in my view, is an identification of the accused by the witness whose extrajudicial identification is subsequently introduced, provided that witness is available for cross-examination by the accused. In the present case Mrs. Davis made an in-court identification of the defendant as the offender. The Ford case does not require that such an identification be positive before corroborating evidence is introduced.

For the foregoing reasons, I respectfully dissent.

      . This decision follows a line of cases which includes State v. Smith, 285 So.2d 240 (La.1973), State v. Maiden, 258 La. 417, 246 So.2d 810 (1971), and State v. Garon, 158 La. 1014, 105 So. 47 (1925), but it overrules State v. St. Amand, 274 So.2d 179 (La.1973) which had held to the contrary.

      . With its next witness, Officer Deen, the state again attempted to bolster its case with evidence of Mrs. Davis’ pretrial identification. On this occasion the witness stated that Mrs. Davis looked at accused’s picture, “knew it was the subject that attacked her and said so.” That testimony raised the identical legal issue here in dispute, but on this occasion the trial judge correctly ruled, as he should have done in the first instance, that the officer’s testimony was inadmissible and should be disregarded by the jury.

      . Many states, of course, do not allow even the identifier himself to testify as to a pre-trial identification that he made of the accused. See cases collected at 71 A.L.R.2d 449, § 7 et seq. and 1 Wharton’s Criminal Evidence, § 187 at n. 56 (13th ed. 1972).

      . Jackson v. State, Tex.Cr.App., 507 S.W.2d 231 (1974); Jones v. State, 17 Md.App. 209, 300 A.2d 424 (1973); People v. Smith, 105 Ill.App.2d 8, 245 N.E.2d 23 (1969); People v. Caramante, 32 A.D.2d 821, 302 N.Y.S.2d 374 (1969); People v. Townsend, 111 Ill.App.2d 316, 250 N.E.2d 169 (1969); People v. Weis, 32 A.D.2d 856, 301 N.Y.S.2d 186 (1969), cert. denied 397 U.S. 1047, 90 S.Ct. 1377, 25 L.Ed.2d 659; State v. Zaragosa, 6 Ariz.App. 80, 430 P.2d 426 (1967); Blankenship v. State, 1 Tenn.Cr.App. 178, 432 S.W.2d 679 (1967); Lyons v. State, Tex.Cr.App., 388 S.W.2d 950 (1965); and other cases collected at 1 Wharton’s Criminal Evidence § 187, nn.82, 87 (13th ed. 1972) and 71 A.L.R. 449, § 13 et seq.

      .A very few states do allow hearsay evidence concerning identification to be admitted if the identifying witness is available for cross-examination. 71 A.L.R.2d 449, §§ 14, 16.


author: SUMMERS, Justice

text:
    STATE of Louisiana v. Bernard ANTOINE, Jr.
    No. 59116.
    Supreme Court of Louisiana.
    Jan. 19, 1977.
   In re: Bernard Antoine, Jr. applying for supervisory and remedial writs.

Writ granted in part: Although hearsay is admissible at a preliminary examination, the state’s witness is subject to full cross-examination as to the facts so relied upon to show probable cause. La.C.Cr.P. art. 294. The magistrate’s finding of probable cause is set aside, and the case is remanded for further hearing in accordance with these principles.

SUMMERS, J., dissents for the reasons assigned.

SUMMERS, Justice

(dissenting).

The sole issue in such a proceeding is whether there is “probable cause to charge” the accused. La.Code Crim.Pro. art. 296. In my view this requirement was satisfactorily established by the testimony of a police officer who investigated the case and identified defendant as the perpetrator of the murder. He testified also that eyewitnesses to the murder positively identified the defendant as the killer. The victim was named, the cause of death was given, the murder weapon was described, the locality of the crime was made known and the fact that defendant demanded money from the victim at the time of the killing was sustained by the officer’s testimony. Some of this testimony was based upon hearsay whereas other parts were based upon facts within the knowledge of the investigating officer who testified.

The hearing was filled with objections by the State’s attorney, but defense counsel did have an opportunity to conduct, and did succeed in conducting, an extensive cross-examination of the State’s only witness covering 43 pages of testimony. It was quite apparent to me, and to the trial judge, that defense counsel sought to use this preliminary hearing as a discovery device, and the cross-examination went far beyond the scope of the direct examination.

This writ is granted on the defense contention that the cross-examination was unduly restricted. There is no basis for such a contention and, therefore, no basis for ordering another hearing in this matter to permit a more extensive cross-examination. The right to a preliminary examination does not permit inquiry beyond a determination of whether there is probable cause to charge the accused. The scope of such an inquiry is far narrower than the proof of guilt at a trial on the merits, and the limitation applies to cross-examination as well as direct examination.

In my view the trial court did not unduly restrict cross-examination; to the contrary, his rulings granted ample latitude to the defense.

I would deny this writ.


author: SANDERS, C. J.,

text:
    STATE of Louisiana v. David Lee LUKEFAHR (a/k/a Jack Johnson).
    No. 59663.
    Supreme Court of Louisiana.
    April 13, 1977.
   In re: David Lee Lukefahr, applying for writs of certiorari, mandamus and prohibition.

Writ granted. Bond reduced to $40,000.

SANDERS, C. J.,

dissents from the reduction of the bond, being of the opinion that under all the circumstances the trial judge did not abuse his discretion.

SUMMERS, J., dissents from the reduction of this bond.


author: SANDERS, C. J., SUMMERS, J.,

text:
    STATE of Louisiana v. Isadore I. ROSEN.
    No. 59660.
    Supreme Court of Louisiana.
    April 13, 1977.
   In re: Isadore I. Rosen applying for writs of certiorari, prohibition, mandamus and habeas corpus.

Application granted; Total bond on these charges reduced to $100,000.

SANDERS, C. J.,

dissents from the reduction of the bond based on the showing made.

SUMMERS, J.,

dissents from the reduction of this bond. On the facts shown, there is no abuse of discretion in the ruling of the trial judge.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Douglas C. BENNETT.
    No. 59687.
    Supreme Court of Louisiana.
    April 13, 1977.
   In re: Douglas C. Bennett applying for Writs of Certiorari, Prohibition and Mandamus and Stay Order.

Application denied; although the trial judge was in error in holding that evidence cannot be taken on a motion to quash, there is an adequate remedy in the event of conviction.

SUMMERS, J.,

concurs in the denial. I am not prepared to rule that the trial judge was in error in refusing to permit evidence on the motion to quash in this case. Nor do I believe that there is an adequate remedy by appeal. However, I agree that the application should be denied for, assuming that applicant could prove what he alleged, the motion to quash should not be granted.


text:
    Keith L. DUMEZ v. HOUMA MUNICIPAL FIRE AND POLICE CIVIL SERVICE BD. et al.
    No. 59530.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: Keith L. Dumez, applying for certiorari, or writ of review, to the Court of Appeal, 341 So.2d 1206, First Circuit, Parish of Terrebonne.

Writ denied. No error of law.

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


text:
    Earl E. WALKER v. STATE PARKS AND RECREATION COMMISSION.
    No. 59527.
    Supreme Court of Louisiana.
    April 20, 1977.
   In re: Earl E. Walker, applying for Certiorari, or writ of review, to the Court of Appeal, 341 So.2d 1203, First Circuit (State Civil Service Comm.)

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

DIXON, J., dissents from denial.


text:
    STATE of Louisiana v. Andrew OWENS.
    No. 59479.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Andrew Owens, applying for supervisory writs.

Granted: Application is remanded to trial court for its determination under Rule 27, Sections 3 and 5, as provided by Rules of Supreme Court as amended on Oct. 14, 1976. See also La.Code of Cr.P. art. 359 (1976).


text:
    STATE of Louisiana ex rel. Archie Lee WILLIAMS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59539.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Archie Lee Williams applying for remedial writs.

Writ denied. The showing made does not warrant the exercise of this court’s supervisory jurisdiction. The issues urged here were disposed of in State v. Williams, 263 La. 755, 269 So.2d 232 (1972).


text:
    STATE of Louisiana v. Russell G. LOVE.
    No. 59657.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Russell G. Love applying for cer-tiorari, prohibition, mandamus and stay order.

Writ granted. The ruling of the trial judge is reversed. The motion to quash the bill of information is sustained, since the bill is deficient on its face. See LSA-C.Cr.P. art. 464; State v. Wells, La., 283 So.2d 245 (1973).


text:
    Earl BALONEY, Sr. v. Francisco BOQUER et al.
    No. 59591.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Earl Baloney, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of St. James.

Writ denied. We cannot say the court of appeal judgment erred.


text:
    CITY OF OAKDALE v. Delores Navarre BENOIT.
    No. 59589.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Delores Navarre Benoit applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Allen. 342 So.2d 691.

Writ refused. No error of law.


text:
    Evans NORRIS v. SOUTHERN CASUALTY INSURANCE CO.
    No. 59578.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Southern Casualty Insurance Co., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 342 So.2d 874.

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


text:
    STATE of Louisiana v. Jesse R. MARTIN.
    No. 59575.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Jesse R. Martin, applying for remedial writs.

Treating applicant’s appeal as a writ application, the writ is denied on the showing made.


text:
    STATE of Louisiana ex rel. James Wade GREEN v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59570.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: James Wade Green, applying for writ of habeas corpus.

Writ refused. No merit in application.


text:
    Hubert DECUIR v. OLD REPUBLIC LIFE INSURANCE COMPANY.
    No. 59569.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Old Republic Life Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Avoyelles. 342 So.2d 705.

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


text:
    Ida Mae BIENIEMY v. N. O. PUBLIC SERVICE, INC.
    No. 59568.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: New Orleans Public Service, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

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


text:
    Jimmy HANDY et al. v. Dewey LEJEUNE et al.
    No. 59566.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Dewey Lejeune, The Permian Corporation, and Employers Casualty Company applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Acadia. 341 So.2d 1386.

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


text:
    Kenneth BOAGNI, Jr., et al. v. Robert DEJEAN, Sr., et al.
    No. 59564.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Robert DeJean, Sr., et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 342 So.2d 270.

Writ denied. The result is correct.


text:
    CITY OF NEW ORLEANS v. James E. BARGAINEAR.
    No. 59563.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: James E. Bargainear, applying for writs of certiorari, prohibition, mandamus and a stay order.

Not considered. Not timely filed. The time for filing an application for writs could not be extended after the time set had expired.


text:
    STATE of Louisiana v. Thomas GILL.
    No. 59507.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Thomas Gill, applying for writs of review and/or certiorari.

On rehearing, upon a proper showing that this application was timely filed, the application has been considered on its merit and found to lack a proper basis to warrant the exercise of this Court’s supervisory jurisdiction.


text:
    STATE of Louisiana v. Rivious HARRINGTON, Jr.
    No. 59538.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Rivious Harrington, applying for remedial writs.

Treating the letter of relator as a writ application, the following action is taken. Writ refused. An appeal has been taken.


text:
    STATE of Louisiana v. Bert E. KING, Jr.
    No. 59545.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Bert E. King, Jr. applying for writs of certiorari.

Writ refused. The plea was entered as a result of a plea bargain and there is no merit in application.


text:
    STATE of Louisiana v. Janie Lou UNDERWOOD and C. J. Underwood.
    No. 59554.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Janie Lou Underwood and C. J. Underwood applying for writs of certiorari or review.

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


text:
    STATE of Louisiana v. Glenda GUM.
    No. 59555.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Glenda Gum, applying for writ of review.

Writ denied. On the showing made no error of law.


text:
    Nell Holden GOLSON v. James E. GOLSON.
    No. 59537.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Nell Holden Golson applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 341 So.2d 1229.

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


text:
    James L. HOLTZCLAW v. FALCO, INC., et al.
    No. 59536.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: James L. Holtzclaw applying for certiorari or writ of review, to the Court of Appeal, Second Circuit, Parish of Webster. 341 So.2d 1267.

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


text:
    STATE of Louisiana v. Roger Dale DOUCET.
    No. 59628.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Motion for reconsideration.

Our ruling that the application for writs should not be considered is set aside, and the application will be considered on the merits.


text:
    Jimmy HANDY et ux. v. Dewey LEJEUNE et al.
    No. 59625.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Jimmy and Virgie Handy, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Acadia. 341 So.2d 1386.

Application denied. No error of law in the judgment of the court of appeal.


text:
    STATE of Louisiana v. Timothy M. LANDRY.
    No. 59598.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Timothy M. Landry applying for writs of certiorari and review.

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


text:
    STATE of Louisiana v. Bradley Charles SMITH and Robert Charles Curtis.
    No. 59596.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: State of Louisiana through the District Attorney, Edwin 0. Ware, applying for remedial writs.

Writ denied. The ruling of the trial judge is correct.


text:
    Rodney LOPEZ v. Roland J. BERGERON, Jr., et al.
    No. 59593.
    Supreme Court of Louisiana.
    April 22, 1977.
   In re: Roland J. Bergeron, Jr., et al., applying for writs of certiorari, prohibition and mandamus.

Writ denied. For the reasons stated by the court of appeal, the ruling of the trial court is correct.