text:
    TARPON TEMPORARY SEWER COMMITTEE, INC., a Florida Corporation, et al., Appellants, v. The CITY OF TARPON SPRINGS, a Municipal Corporation operating under the laws of the State of Florida, et al., Appellees.
    No. 76-892.
    District Court of Appeal of Florida, Second District.
    May 4, 1977.

      Dale L. Gross, Graham, Hodge, Swan & Larson, P. S., Largo, for appellants.
    Harold S. Wilson, Clearwater, for appel-lees.
   McNULTY, Acting Chief Judge.

In this interlocutory appeal we reverse an order dismissing with prejudice Count IV of appellants’ four-count complaint.

The various appellants were developers of condominium communities in and about the City of Tarpon Springs. They incorporated into a committee (appellant Tarpon Temporary Sewer Committee, Inc., hereinafter Committee) so as to enter into a contract with the appellee City, which contract forms the underlying basis of this action.

Essentially, the subject contract provided that in return for the City agreeing to grant preference in the issuance of building permits and sewer tap permits to the developer members of the Committee, the Committee agreed to construct a temporary sewage treatment plant and disposal system. The contract further contemplated that the temporary system ultimately would tap into the City’s existing permanent sewage treatment plant. Accordingly, Section 4 of the contract provided that

“. . . it is understood that any improvements to the City collector system which are required to accommodate the increased flow from the taps authorized hereunder are to be made and paid for at the expense of the Committee or its participants, and the sewer taps for a particular location may be withheld until the work on the portion of the collector system which serves that particular location has been paid for.”

Pursuant to the contract, the temporary sewage treatment plant was constructed and paid for by the Committee. Thereafter, however, the City enacted certain ordinances which increased sewer tap fees. Additionally, the City began billing the Committee’s participants at the rate of 28 cents per gallon of daily flow into the existing permanent system, which monies were earmarked for improvements to the permanent system as contemplated by the aforequoted Section 4. '

Appellants initiated this action assailing both the increased regular tap-in fees and the aforesaid 28 cents per gallon surcharge for improvements to the permanent system. The First two counts of the complaint relate to the increased tap-in fees; and motions addressed against those two counts were denied. Counts III and IV relate to the 28 cents per gallon surcharge, Count III seeking a declaratory decree and injunctive relief and Count IV seeking damages. Motions addressed to Count III met the same fate as those addressed to the first two counts; but a motion to strike Count IV in its entirety, based on the ground that plaintiffs/appellants failed to allege that they had performed all conditions precedent on their part to be performed, was granted. Specifically, the motion lamented the failure expressly to allege payment or tender of sufficient monies to improve the City’s temporary system as may be necessary to accommodate any increased flow from taps authorized by the contract. This appeal ensued.

We parenthetically interpose to say here that many of the damages sought under Count IV may not be recoverable; but assuming a breach on the part of the City and assuming the payment by some or all of the Committee’s participants of an unauthorized surcharge, recovery may be had for return thereof. We allude to this only for the reason that, had there been no damages alleged at all which were legally recoverable, the count was amenable to an order striking it in its entirety in any event; and the order so striking it would have to be affirmed even though it perhaps was predicated on the wrong reasons.

Concerning now the merits of the grounds upon which Count IV was indeed stricken, a reading of that count clearly reveals that appellants did allege generally that they “had complied with all their duties and obligations under the above-referenced contract . . . .” Additionally, a copy of the contract to which reference may have been made so as to ascertain these “duties and obligations” was appended to the complaint. We think those general averments together with the appended copy of the contract were sufficient under the Fla.R.Civ.P. 1.120(c), which provides:

“(c) Conditions precedent. — In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.”

In any case, even if the court thought them insufficient, dismissal of the entire Count IV ought not have been with prejudice. Leave should have been given to amend.

In view whereof, the order appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

GRIMES, J., and DREW, E. HARRIS (Ret.), Associate Judge, concur.

      . See Hadley v. Baxendale, 9 Exch. 341, 156 Eng.Rep. 145 (1854). See also 9 Fla.Jur., Damages § 20 et seq., relating to the duty to prevent or minimize damages, at page 367, and § 31 relating to foreseeability of damages as being within the contemplation of the parties, at page 376.

      . See, e. g., Weich v. Cook, 250 So.2d 281 (Fla. 1st DCA 1971).


source: Caselaw Access Project

author: OTT, Judge.

license: Public Domain

text:
    JAPANESE GARDENS LOT RENTERS PROTECTIVE ASSOCIATION OF CLEARWATER, INC., a Florida Corporation, et al., Appellants, v. JAPANESE GARDENS MOBILE ESTATES, INC., a Florida Corporation, Appellee.
    Nos. 76-1156, 76-1157.
    District Court of Appeal of Florida, Second District.
    May 4, 1977.
    Rehearing Denied May 26, 1977.

      John T. Allen, Jr., St. Petersburg, for appellants.
    Adrian S. Bacon, Bacon & Hanley, St. Petersburg, for appellee.
   OTT, Judge.

This ease involves the construction and application of Chapter 83, enacted by the legislature to prescribe the rights and duties of mobile home park operators and tenants.

The case was well tried below and exhaustively briefed and argued before this court.

The trial court heard all the evidence and entered a well written disposition of the case. We affirm the final judgment rendered in favor of the mobile home park operator who was the defendant below and the appellee in this court. We believe it may be helpful, however, for this court to deal with certain questions presented by this litigation.

Section 83.760, Florida Statutes (Supp. 1976) (formerly Section 83.695, Florida Statutes) requires a mobile home park operator to tender a written lease for a specified term to a tenant. Such lease must, among other things, disclose all charges, assessments, rent, fees and other financial obligations of the tenant; must specifically incorporate the park’s rules and regulations and must be offered upon the same terms and conditions (certain rental variations excepted) as to all other tenants. This section allows the tenants 60 days after tender of the lease within which to sign. Until the park operator makes a bona fide tender of the required lease he can not terminate a tenancy for any reason. This section also limits the grounds for termination of a mobile home tenancy to the statutory grounds set forth in Section 83.759, Florida Statutes (Supp.1976) (formerly Section 83.69, Florida Statutes) and authorizes the tenant to defend any eviction proceeding brought on any ground other than those set forth in Section 83.759, Florida Statutes.

A detailed lease was offered in this case but rejected by the tenants on several grounds one of which was the inclusion of a right to evict “upon 12 months notice” (a ground for eviction not specifically contained in Section 83.759).

We hold that the addition of the right of the park operator to evict “upon 12 months notice” is both reasonable and not prohibited by Section 83.759. We recognize the peculiar character of a mobile home park tenancy and the constitutionality of Section 83 of the Florida Statutes as enunciated by the supreme court in Stewart v. Green, 300 So.2d 889 (Fla.1974) and Palm Beach Mobile Homes, Inc. v. Strong, 300 So.2d 881 (Fla.1974). However, as stated by the supreme court in Strong:

perpetual occupancy rights on another’s property cannot ... be granted by law . . .. [Tjherefore . it is not inconceivable that one rule adopted by a mobile home park owner be that the landlord can terminate the tenancy after a substantial duration and . we cannot say that a rule requiring vacancy on at least twelve months or more notice would be unreasonable. 300 So.2d at 888.

In our opinion, the fact that the vacancy on 12 months notice was here contained in the lease rather than a rule is not material to its validity or reasonableness.

Another point we feel it helpful to discuss is the provision in the lease and the park owner’s rules that “[t]he tenant agrees-to abide by all the rules and regulations of the landlord and that violation thereof shall be grounds for eviction.” The failure to modify this provision with the requirement that all rules and regulations be “reasonable” is alleged to be fatal to its inclusion.

Violation of “any reasonable rule” is specifically recognized by Section 83.759, Florida Statutes as a ground for eviction. This section further requires all rules to be delivered to the tenant prior to his signing the lease or entering into a rental agreement. The statute gives the tenant 60 days to review the lease and rules. The statute clearly contemplates the right of the tenant to contest the reasonableness of any rule either in the first instance or at the time of eviction predicated on the breach thereof. No provision of the lease can act to obviate or “waive” this right. The statutory requirement that rule or rules be reasonable is a part of the lease contract whether or not so stated therein. The lease in this instance — as required by Section 83.760(3)— contains the specific provision that part III of Chapter 83, shall govern the rights of the parties under the lease. We note in passing that the courts generally impose a requirement of reasonableness even without a statutory specification to this effect.

Nothing in the trial court’s final judgment nor in this opinion is to be construed as holding that the tenant is foreclosed from appropriately contesting the reasonableness of any park rule. The provision of paragraph 8 of the lease that the tenant acknowledges a copy of the “current rules and regulations” and agrees that all such rules “as from time to time amended” are reasonable obviously can only apply, at best, to those rules then in existence, supplied to the tenant prior to execution of the lease and attached or incorporated into the lease as required by the statute.

The remainder of the points were adequately and properly disposed of by the trial court.

The final judgment of the trial court is affirmed.

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


author: GRIMES, Judge.

text:
    UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Appellant, v. GORGEI ENTERPRISES, INC., d/b/a Gorgei Wheels of Fun, Appellee.
    No. 76-1481.
    District Court of Appeal of Florida, Second District.
    May 4, 1977.
    Rehearing Denied May 26, 1977.
    George A. McKendree, of Miller & McKendree, Tampa, for appellant.
    Ted L. Wells, Tampa, for appellee.
   GRIMES, Judge.

Appellee sued appellant for the payment of a fire loss to property owned by appellee. The appellee also alleged bad faith and sought punitive damages. Appellant admitted the coverage under the insurance policy issued to appellee. Appellant further admitted that losses had been sustained, though the amount of the loss was in controversy. With respect to the claim of bad faith, appellant contended that payment was originally withheld pending an arson investigation involving appellee which was being conducted by the police.

Appellee’s claims were settled on the day set for trial for $65,000. Of this sum, the parties allocated $57,500 to fire damages and $7,500 to punitive damages. The settlement agreement provided that the court would set a reasonable attorney’s fee for the insured’s attorney pursuant to Section 627.428, Florida Statutes (1975). Following a hearing, the court, awarded appellee’s attorney a fee of $25,000.

The sole issue raised by this appeal is whether the amount of the attorney’s fee was excessive.

Initially, appellee entered into a contingent fee contract with his attorney whereby upon the filing of suit the attorney would receive 40% of any recovery, When the case was settled and the parties submitted the determination of the fee to the court, appellee’s attorney agreed to waive hi? claim under the contract. However, the fee contract was introduced as evidence to be considered by the court in setting the fee. The appellee’s attorney estimated that he had spent a minimum of 111 hours on the case and asked that he be awarded $26,500. Another attorney testified for appellee that in his opinion a reasonable fee would be $25,500. Nevertheless, he admitted that competent counsel could be hired for this type of case at an hourly rate of $75. An attorney testified on behalf of the appellant that in his opinion a reasonable fee was $10,000.

A contingent fee in a claim against one’s own insurance carrier is something of an anomaly since the law, itself, calls for the assessment of attorney’s fees against the carrier should the action be successfully maintained. Nevertheless, we know of nothing which would preclude a contingent fee contract for the prosecution of such a claim in which a party could agree to pay a fee which might exceed the amount awarded by the court. However, the terms of a contingent fee contract cannot bind the court in its determination of the amount of a reasonable fee. Thus, the court in Ronlee, Inc. v. P. M. Walker Co., 129 So.2d 175 (Fla. 3d DCA 1961), said:

“ . . . The amount which a person may agree to pay as a contingent fee ordinarily is not a fair measure of the value of the legal services involved. This is true because, in the case of a contingent fee where nothing will be payable in the absence of recovery, the fee to be paid in the event of recovery usually is set higher than it would be a flat fee for the services actually performed. Also, if a party to a contract such as the one involved in this case could require the defaulting party to pay any fee which the former might arrange with his attorney, he would be inclined to be liberal in contracting with his attorney. . . .”

In Insurance Company of North America v. Welch, 266 So.2d 164 (Fla. 4th DCA 1972), the plaintiff’s attorney prosecuted a claim against an insurance carrier on a 33V3% contingency basis. Attorney’s fees in the amount of $17,000 were awarded on a $52,000 claim. Reasoning that the fee was almost exactly one-third of the total recovery, our sister court concluded that the award was based on the contingent fee contract rather than on the reasonableness of the fee for the services actually performed and reversed. The court quoted with approval from the opinion in Travelers Insurance Co. v. Davis, 411 F.2d 244 (5th Cir. 1969), which stated:

“ ‘Thus the amount to be awarded as attorney’s fees under the Florida statute is to be determined not from the point of view of the lawyer and client, but from that of the presiding trial judge. The court may, of course, take into consideration the nature of the suit, the amount in controversy, any unusual features of the case, such as the lengthiness of a trial or the complexity of the evidentiary detail involved, New York Cent. Mut. Fire Ins. Co. v. Diaks, 69 So.2d 786 (Fla. 1954), and the contingency or certainty of the compensation, Penn-Florida Hotels Corp. v. Atlantic Nat. Bank, 126 Fla. 344, 170 So. 877, 880 (1936); F. L. Stitt & Co. v. Powell, 94 Fla. 550, 114 So. 375 (1927). In doing so, the court should assess only such amount as “public standards will approve for the work done, the time consumed, and the skill required.” Brickell v. Di Pietro, supra [152 Fla. 429, 12 So.2d 782] at 783. There must be a showing of need made for the services of all attorneys engaged by a party in order for such to fall within the statutory recognition.’ ”

There is a limit to the amount of attorneys’ fees which the public can be expected to accept as being reasonable. The purpose of Section 627.428 is not one of punishment but to encourage the prompt payment of valid claims. Meeks v. State Farm Mutual Automobile Insurance Company, 460 F.2d 776 (5th Cir. 1972). While the opinion of expert witnesses who testify on attorneys’ fees is persuasive, it is not binding upon the court in its determination of a reasonable fee. Evors v. Bryan, 77 Fla. 399, 81 So. 513 (1919).

As in Welch, supra, the amount of attorney’s fees in this case approximated the 40% figure contemplated by the contingent fee contract. The fact that the attorney was working on a contingency basis may properly be weighed in determining the amount of a reasonable fee. However, this is only one of a number of criteria which should be considered. See Manatee County v. Harbor Ventures, Inc., 305 So.2d 299 (Fla. 2d DCA 1974). None of the remaining criteria would support an award of this amount.

The question of how much is a reasonable fee in a given case cannot be precisely answered. Even within established guidelines, reasonable men and reasonable judges can differ in opinion. At best, there is a range of reasonableness within which a trial court’s determination should not be disturbed. After a careful review of the file, it is our judgment that the highest reasonable fee which could be properly awarded to appellee’s attorney in this case is $15,000. Accordingly, the judgment for attorney’s fees is hereby reduced to that amount.

BOARDMAN, C. J., and McNULTY, J., concur.

      . We need not pass on the propriety of the recovery of punitive damages for bad faith in refusing to pay a first party insurance claim since the parties agreed to the settlement of this claim. See Allstate Insurance Company v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976).

      . As worded, the contract provided for the attorney to receive not only 40% of the recovery on the insurance claim but also 40% of any court awarded fee. Thus, the attorney’s claim under the contract, in light of the $25,000 fee determination, would have been for $36,000 (40% of $65,000 plus 40% of $25,000).


text:
    James Robert SCOTT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-1718.
    District Court of Appeal of Florida, Second District.
    May 4, 1977.

      Richard A. Belz, Florida Legal Services, Inc., Prison Project, Gainesville, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

The issue presented by this case is whether the rule of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which gives an accused the constitutional right to represent himself should be given retroactive application.

Appellant was charged with robbery and kidnapping. Prior to trial, he filed a pro se motion to dismiss his appointed public defender in order to defend himself. The motion was denied. Appellant was represented by the public defender during his trial at which he was convicted. He took a direct appeal in which the issue of the denial of self representation was specifically raised. This court affirmed the appellant’s conviction by a decision without opinion in Scott v. State, 308 So.2d 213 (Fla. 2d DCA 1975).

Several months later, the United States Supreme Court held that a criminal defendant has a right to knowingly and intelligently decide to represent himself. Faretta v. California, supra. Appellant subsequently filed a motion for post-conviction relief in which he asserted the retroactivity of the Faretta decision. The court below ruled that Faretta is not retroactive. This is an appeal from the denial of that motion.

The United States Supreme Court has set forth the criteria to be used in determining whether a newly adopted constitutional ruling is retroactive. These criteria are: (1) the purpose of the new standard; (2) the extent» of reliance upon the old standard; and (3) the effect upon the administration of justice of a retroactive application of the new standard. Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).

The Purpose of the New Standard

New rules have been held to be retroactive where the major purpose of the new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth finding function and so raises questions about the accuracy of guilty verdicts in past trials. Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972); Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). Retroactivity has been denied where the court has been unable to conclude that the newly proscribed practice of the past presents a substantial likelihood that the results of a number of those trials were factually incorrect. Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971); see Williams v. United States, supra. Applying this criteria to Faretta, the decision should not be applied retroactively.

The Supreme Court in Faretta tacitly acknowledged that ordinarily the rights of a criminal defendant will be better protected through the assistance of counsel when it said:

“There can be no blinking the fact that the right of an accused to conduct his own defense seems to cut against the grain of this Court’s decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel. . . . For it is surely true that the basic thesis of those decisions is that the help of a lawyer is essential to assure the defendant a fair trial. .
******
“It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts. . . .”

Nevertheless, the court held that the defendant’s free choice to defend himself must be honored.

Thus, in applying the first criterion, we agree with the Supreme Court of California in People v. McDaniel, 16 Cal.3d 156, 127 Cal.Rptr. 467, at 473, 545 P.2d 843 at 849 (1976), cert. denied, McDaniel v. California, 429 U.S. 847, 97 S.Ct. 131, 50 L.Ed.2d 119 (1976) when it declined to give Faretta retroactive effect and stated:

“. . . the purpose of the rule is to secure to an accused the personal freedom to choose how and by whom he will defend against a criminal charge. It is manifest . . . that compliance with the rule is not intended by the majority of the court in Faretta to enhance the reliability of the truth-determining or fact-finding process, as the majority anticipate and indeed concede, that such compliance will most likely have the directly opposite effect.”

The Extent of Reliance Upon the Old Standard

In considering the second criterion, we find that prior to Faretta, the rule in Florida was that an accused who was mentally competent and sui juris had the right to conduct his own defense in the absence of unusual circumstances. Cappetta v. State, 204 So.2d 913 (Fla. 4th DCA 1967), reversed on other grounds, State v. Cappetta, 216 So.2d 749 (Fla.1968); Hammond v. State, 264 So.2d 463 (Fla. 1st DCA 1972). The unusual circumstances included, but were not limited to:

“. '. . whether the accused by reason of age, mental derangement, lack of knowledge, or education, or inexperience in criminal procedures would be deprived of a fair trial if allowed to conduct his own defense, or in any case, where the complexity of the crime was such that in the interest of justice legal representation was necessary. . . . ” Cappetta v. State at 918.

The determination of whether there were unusual circumstances rested in the sound discretion of the court and was not to be disturbed absent an abuse of that discretion. Cappetta v. State, supra.

In denying the request for self representation, the court acknowledged that the appellant was sui juris and mentally competent. The reasons given for the denial were that the appellant lacked the formal or practical education in the law necessary to conduct his own defense and that the case was one of great complexity which involved numbers of witnesses and tangible items of evidence far in excess of the norm. We upheld the discretion of the court in denying the appellant the right to represent himself when we affirmed the judgment in his direct appeal. Our affirmance in that case was in reliance upon the law of Florida as it existed at that time.

The Effect Upon the Administration of Justice of a Retroactive Application of the New Standard

We cannot know for certain, but we assume that there are a sizeable number of persons in Florida who have been convicted following the denial of their requests to represent themselves. Should Faretta be applied retroactively, these persons would have to be retried. The retroactive application might also prompt the contention that unless a person was advised that he had the right to represent himself, it could not be said that he has knowingly and intelligently decided not to do so. Finally, since a retroactive application of Faretta would allow convicted persons without adequate legal training to be granted new trials in which they could defend themselves, it seems evident that the great majority of these cases would be concluded with the same result. Such acquittals as might obtain would more logically be attributable to the absence or failing memory of witnesses rather than the legal skills of the individual defendants.

Since all three criteria mitigate against it, we hold that Faretta should not be applied retroactively in this state. Accord, People v. McDaniel, supra; Houston v. Nelson, 404 F.Supp. 1108 (C.D.Cal.1975); contra, People v. Holcomb, 395 Mich. 326, 235 N.W.2d 343 (1975).

AFFIRMED.

BOARDMAN, C. J., and McNULTY, J., concur.


author: SCHEB, Judge.

text:
    The TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND, Appellant, v. Robert J. MIRLENBRINK et al., Appellees.
    No. 76-2049.
    District Court of Appeal of Florida, Second District.
    May 4, 1977.
    Richard C. Stoneman of Stoneman, Matt-son & McGrady, St. Petersburg, for appellant.
    William B. Blackwood, of Blackwood & Fernandez, Clearwater, for appellees.
   SCHEB, Judge.

Appellees brought suit for benefits under an automobile insurance policy which appellant Travelers contended had lapsed for nonpayment of premium. Summary judgment on the issue of coverage was entered in favor of appellees. This interlocutory appeal by Travelers ensued. We reverse.

Travelers issued an automobile policy to appellee Robert J. Mirlenbrink in 1974. The contract was written on a continuing basis with premiums due for each successive six-month period of coverage. Premiums were paid for the period ending December 1, 1975. Travelers mailed Mirlenbrink a statement in November for the premium due December 3 to renew coverage from December 1, 1975 to June 1, 1976. Mirlen-brink did not make the required payment; nevertheless, Travelers wrote him on January 12,1976, offering to reinstate his coverage if he made the necessary payment within twenty days. Mirlenbrink did not respond. Travelers subsequently sent a notice to the bank which held the lien against Mirlenbrink’s vehicle, notifying the lien-holder that effective March 8, 1976, coverage was cancelled.

On March 15,1976, Mirlenbrink and other members of his family were injured in an automobile accident. Thereafter, on March 24, Mirlenbrink sent Travelers a check for the renewal premium. Travelers cashed it and on April 14, 1976, issued its own check with the notation that it was a return of the premium on the instant policy. Mirlen-brink’s name was misspelled on the insurance company’s draft, so a second draft was issued by Travelers on September 14, 1976.

Travelers refused payment on appellees’ claim for benefits arising out of the March 15 accident on the ground that the policy had lapsed for nonpayment of the premium prior to the accident. Appellees sued and each side moved for summary judgment. The trial court granted appellees’ motion and denied Travelers’ motion. In granting summary judgment for the Mirlenbrinks, the trial judge held that the policy went into effect on December 1, 1975, and that payment of the premium was not a condition precedent to its effectiveness. Further, the court found that Travelers was bound to follow the cancellation provisions of the insurance contract and those procedures mandated by Section 627.728, Florida Statutes (1975), relating to cancellation of coverage. Additionally, the court held that Travelers was estopped from denying coverage. The finding of estoppel was based on Travelers having cashed the premium check and not having returned the money until September 14, 1976.

Two questions are presented by this appeal:

(1) Whether Travelers was required to comply with the provisions of its policy and Section 627.728(3), Florida Statutes, relating to cancellation; and
(2) Whether Travelers’ conduct in handling the insured’s check estopped it from asserting that coverage had lapsed.

We answer each question in the negative. We agree that a summary judgment was appropriate in this case; however, it should have been granted in favor of the insurer. The policy was issued on a continuing basis, and payment of renewal premiums was, in absence of some waiver by, or estoppel against, the insurer, a prerequisite to the insured’s continued coverage. Thus, when Mirlenbrink failed to pay the renewal premium, it was not incumbent on Travelers to comply with the provisions of the policy which relate to cancellation during the policy term.

For the same reason, there was no requirement that Travelers comply with Section 627.728(3), Florida Statutes (1975), relating to cancellation. In a somewhat similar case, Safeco Insurance Co. of America v. Oehmig, 305 So.2d 52 (Fla. 1st DCA 1974), the court stated that where the insured failed to pay the necessary renewal premium, there was an expiration rather than a cancellation of coverage, and for this reason it was unnecessary to comply with this statute.

Section 627.728(3), Florida Statutes (1975), which requires notice of cancellation of a policy, is inapplicable here by virtue of Section 627.728(3)(b), which provides: “Nothing in this subsection (3) shall apply to nonrenewal.” Section 627.728(4)(a) requires notice of refusal (by the insurer) to renew, but goes on to provide:

This subsection shall not apply:

1. If the insurer has manifested its willingness to renew; or
2. In case of nonpayment of premium.

Travelers’ intention at the time the premium-payment notice was sent was to renew the policy. It was not renewed simply because the premium was not received by Travelers on a timely basis. Travelers never cancelled the policy; it lapsed for nonpayment of the premium.

The question concerning estoppel must also be resolved against Mirlenbrink. Estoppel can only be invoked against an insurer when its conduct has been such as to induce action in reliance upon it. Mutual of Omaha Insurance Co. v. Eakins, 337 So.2d 418 (Fla. 2d DCA 1976). The premium payment was tendered to the insurance company by appellee Mirlenbrink some four months after he first received the renewal statement, and some ■ nine days after the accident for which appellees claim benefits. Travelers’ issuance of a check on April 14 returning the premium negated any intent to effectuate a renewal of the lapsed policy.

If the accident had happened after the payment of the premium, there may well have been a question of fact on the estoppel issue, as there may then have been some damage or prejudice to the appellees. Here we perceive no issue of any material fact. Travelers’ delay in not sending a proper check until September may have been neglectful, and we may question the wisdom of Travelers in cashing the premium check tendered to it; however, we find no estop-pel.

Accordingly, summary judgment in favor of the appellees is vacated and the cause remanded with directions that trial court enter summary judgment in favor of appellant.

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


author: DENNIS, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Joseph CAPPO.
    No. 58547.
    Supreme Court of Louisiana.
    Feb. 28, 1977.
    Rehearing Denied April 7, 1977.
    Dissenting Opinion May 16, 1977.
    Risley C. Triche, Napoleonville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Francis Dugas, Dist. Atty., Walter K. Naquin, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant, Joseph Cappo, was charged by bill of information with the simple burglary of Paul W. Lefort’s residence, a violation of La.R.S. 14:62. At the conclusion of a five day trial, the jury found defendant guilty as charged, and he was subsequently sentenced to serve a term of nine years in the custody of the Louisiana Department of Corrections. On appeal, he urges ten assignments of error for reversal of his conviction and sentence. We reverse on the ground that defendant was improperly prevented from attempting to show corruption of the State’s principal witness, Robert Tal-lent.

Tallent freely admitted that he had been convicted of a bank robbery- in Opelousas, Louisiana, for which he had been sentenced in federal and State courts to serve terms of twenty-two and forty years, respectively; he also acknowledged that he had an agreement with the State whereby, in exchange for his testimony against defendant, he would serve no additional time for his involvement in the Lefort burglary. Tallent testified that he and Everett Crawford had burglarized the Lefort residence and that although defendant had not physically participated in the crime, he had provided information about the Leforts and the money which was to be found in their home, and shared in the stolen property. According to Tallent the defendant, a resident of Orleans Parish, said he obtained part of the information from a former public official of LaFourche Parish.

In his opening statement to the jury, defense counsel asserted that Robert Tal-lent was a professional criminal and a deviously brilliant man who in scheming his crimes developed alternate plans to meet every contingency. Counsel claimed that Tallent’s ultimate plan, in case of arrest, was to implicate innocent men and obtain leniency from the State in exchange for assisting in their prosecution. Tallent had allegedly demonstrated a pattern of falsely accusing prominent local citizens of involvement in his crimes throughout the State, and the entire defense was predicated upon proving that Tallent’s charges against defendant were part of that pattern.

The State carefully confined Tallent’s testimony to a discussion of the Lefort burglary. However, during a lengthy cross-examination, defense counsel questioned the witness about his numerous offenses' in this State, including other burglaries in La-Fourche Parish allegedly involving defendant, and focused upon Tallent’s identification of the participants in those crimes. The defense then attempted during the presentation of its case to discredit Tallent’s testimony, first by showing that he had misrepresented material facts of the other crimes. The State objected on the basis of La.R.S. 15:494 which provides that “[i]t is not competent to impeach a witness as to collateral facts or irrelevant matter.” After thoughtfully studying the problem, the court ruled that defense counsel, having elicited testimony as to collateral matters on cross-examination, would not be permitted to contradict that testimony by the production of other witnesses.

Defense counsel was thereafter prevented from introducing evidence to show that Tallent had wrongly accused individuals of participation in other crimes, for the purpose of placing himself in a stronger bargaining position as a potential prosecution witness.

We have previously held that a witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue merely for the purpose of contradicting him by other evidence. State v. Martin, 310 So.2d 544 (La.1975); State v. Wiggins, 50 La.Ann. 330, 23 So. 334 (1898); Cf. State v. Savoy, 170 La. 803, 129 So. 209 (1930). The rule is designed to avoid unnecessarily prolonging trials and confusing the issues by extended inquiries into extraneous matters. State v. Martin, supra ; 3A Wigmore, Evidence § 1002 (Chadbourn rev. 1970). Our fundamental difference with the trial court in this instance relates to the determination of which matters are “collateral.”

Facts which could have been shown in evidence for any purpose independently of the contradiction are not collateral. Thus, facts relevant to some issue in the case or otherwise receivable for the purpose of impeaching the witness are provable in contradiction. 3A Wigmore §§ 1003-1005; C. McCormick, Evidence, § 47, pp. 98-99 (Cleary ed. 1972). Defendant argues that the testimony he sought to adduce would have tended to show Tallent’s corrupt testimonial intent. La.R.S. 15:492 provides:

“When the purpose is to show that in the special case on trial the witness is biased, has an interest, or has been corrupted, it is competent to question him as to any particular fact showing or tending to show such bias, interest or corruption, and unless he distinctly admit such fact, any other witness may be examined to establish the same.” (Emphasis supplied.)

If the excluded testimony was relevant to the impeachment of the witness on one of the grounds enumerated in La.R.S. 15:492 it was not collateral and should have been admitted.

A witness’ corruption may be evidenced by conduct indicating a general scheme to make false charges or claims. 3A Wigmore, Evidence, § 963; State v. Foster, 153 La. 154, 95 So. 536 (1923). As noted above, defendant sought to establish Tallent’s disposition to make false charges by producing witnesses who would testify: 1) that Tallent had erroneously related details of other crimes in which he had been involved; and 2) that Tallent had falsely implicated innocent citizens in other crimes. We find that the first category of testimony was properly excluded. Although proof that Tallent was in error on these points might tangentially have suggested a willingness to manufacture testimony, its impeachment value was substantially reduced by the other possible explanations for such errors, e. g., poor memory and inability to observe accurately. Because it could not be inferred from a contradiction of Tallent’s recital of the details of his other crimes that he was corrupt, we conclude that these matters were collateral and that an investigation into each alleged error in Tallent’s testimony would unnecessarily consume the trial court’s time and confuse the issues.

However, defendant’s second line of attack, to show that Tallent had previously brought false accusations in connection with other crimes, bore directly on the witness’ corrupt intention .for the case in hand. To any objection that establishing a witness’ general disposition to make false charges would not indicate a direct or personal bias against the opposing party, Wig-more would respond:

“It is time that the courts took warning here, and became more liberal. They know, and all know, that the court-room has its quota of false claimants and pretended victims of wrongs; some are children, some eccentrics, some hysterics, some insane, some nymphomaniacs, some conscious blackmailers. It is hard enough, at last, to detect and expose them. To hamper this exposure with the shibboleth ‘res inter alios acta’ is unpractical. And the injustice of the situation is often intensified by this maddening prohibition of the very evidence to which a common-sense tribunal would most quickly resort.” 3A Wigmore, Evidence, § 963, p. 811. (Footnote omitted.)

Since it might reasonably be inferred that if Tallent had a history of bringing false accusations, his testimony against defendant might be manufactured, facts tending to establish such conduct had an impeachment value independent of the contradiction and hence were not collateral. The trial court’s failure to permit evidence of the witness’ possible corruption was contrary to La.R.S. 15:492, and constitutes reversible error. See, State v. Guidry, 319 So.2d 415 (La.1975); State v. Wilson, 163 La. 29, 111 So. 484 (1927).

We pretermit discussion of the other issues raised on appeal.

For the reasons assigned, defendant’s conviction and sentence are reversed, and the case is remanded to the district court for a new trial in accordance with the principles set forth herein.

SANDERS, C. J.„ and MARCUS, J., dissent.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice

(dissenting).

I do not agree that the issue here is whether the testimony sought to be impeached related to collateral matters. As I understand this record, defense counsel conceded that the testimony he sought to impeach was collateral in nature. I base this finding upon defense counsel’s argument prior to the ruling by the trial judge. Therefore, this position cannot be changed on appeal, and the Court cannot properly turn the decision on an issue the trial judge has had no opportunity to rule upon.

Defense counsel cross-examined the State’s witness Robert Tallent at length concerning his knowledge and participation in other crimes. These were the Sako robbery, the Melancon and Oil and Gas Building burglaries, and. others. At no time in its direct examination of State witnesses or any other witness had the State alluded to these collateral crimes. Because the State failed to object to this cross-examination by the defense, it was contended at the trial that the State had forfeited its right to object to the subsequent defense effort to impeach Tallent’s testimony relating to those collateral matters. Defense counsel argued that he had questioned Tallent on these “collateral” matters for the specific purpose of laying the predicate to impeach his testimony. This was the sole issue presented to the trial judge.

In my view the defense deliberately sought to do exactly what Section 494 of Title 15 of the Revised Statutes prohibits. The defense effort was contrary to the rule that “It is not competent to impeach a witness as to collateral facts or irrelevant matter.” Since the issue is so clearly drawn and the rule of Section 494 is so plainly stated, I find no difficulty in agreeing with the ruling of the trial judge.

The defense contention fails in its logic. The argument presented to the trial judge was, in effect, that because the defense was allowed to cross-examine the State’s witness on collateral matters, the defense should be permitted to impeach that witness’ testimony on those collateral matters. If such an argument were sustained there would be no reason for the rule of Section 494. Invariably the attempt to impeach a witness’ testimony is a result of facts elicited from that witness by the party seeking to impeach. Thus, if the defense contention were upheld, one who is permitted to cross-examine on collateral matters could always impeach that testimony. Such a result would, of course, render Section 494 meaningless.

Furthermore, such a result would amount to a total disregard of this Court’s recent expression on the subject in State v. Martin, 310 So.2d 544 (La.1975).

“This Court has often held that a party who elicits from a witness on cross-examination testimony as to a collateral matter cannot contradict that testimony by the production of other witnesses. The rule is designed to avoid unnecessarily prolonging trial by extended inquiries into extraneous matters.”

See also State v. Savoy, 170 La. 803, 129 So. 209 (1930); State v. Dundas, 168 La. 95, 121 So. 586 (1929); State v. Haab, 105 La. 230, 29 So. 725 (1901); State v. Wiggins, 50 La.Ann. 330, 23 So. 334 (1898).

I respectfully dissent.


author: SUMMERS, Justice. TATE, Justice, PER CURIAM:

text:
    STATE of Louisiana ex rel. Simon SMITH, Jr. v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 58457.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearing Denied May 13, 1977.

      Robert Glass, New Orleans, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Don K. Carroll, Dist. Atty., S. E. Lee, Jr., Asst. Dist. Atty., for defendant-respondent.
   SUMMERS, Justice.

Simon Smith, Jr., was charged on June 2, 1973 by affidavit in the Mayor’s Court of the town of Winnsboro in Franklin Parish with aggravated assault, displaying dangerous weapons in a public place and disturbing the peace. The Winnsboro ordinances upon which these charges are based provide in pertinent part as follows:

“Article 5. Assault:
“The attempt to commit a battery, or the intentional placing of another in reasonable apprehension of receiving a battery is assault . . ..” Ordinance No. 473.
“. . . it shall be unlawful for any person to draw, display, present or exhibit with intent to commit any crime or misdemeanor, or to intimidate any person, a pistol, gun, knife or any other dangerous weapon within the corporate limits of the Town of Winnsboro . ..”
Ordinance No. 332.
“Article 13. Disturbing the Peace:
“Is the doing of any of the following in such a manner as would forceably disturb or alarm the public:
(1) Engaging in a physical encounter; or
(2) Using of any unnecessarily loud, offensive, or insulting language; or
(3) Appearing in an intoxicated condition;
(4) Engaging in any act in a violent and tumultuous manner'by any three or more persons; or
(5) Interruption of any lawful assembly of people; or
(6) Commission of any act in such a manner as to unreasonably disturb or alarm the public.” Ordinance No. 473.

After trial in the Mayor’s Court on June 25, 1973 Smith was found guilty and sentenced to pay a fine of $35 or serve 30 days imprisonment for assault; $75 or 60 days for displaying a dangerous weapon; and $35 or 30 days for disturbing the peace, plus 30 days in jail. There was no transcript of these proceedings; no application for writs was taken from the conviction and sentence; and, the sentence having been executed, the matter became final.

Thereafter, on January 29, 1974 the District Attorney charged Simon Smith, Jr., by bill of information with kidnapping Shirley Ann White in violation of Section 45 of Title 14 of the Revised Statutes, which provides in pertinent part:

“A. Simple kidnapping is:
(1) The intentional and forcible seizing and carrying of any person from one place to another without his consent; or
“B. Whoever commits the crime of simple kidnapping shall be fined not more than two thousand dollars or be imprisoned, with or without hard labor, for not more than five years, or both.”

In a trial by jury in the Fifth Judicial District Court on April 8, 1974 defendant was found guilty as charged and sentenced to imprisonment for four years at hard labor and incarcerated in the State Penitentiary.

When Smith complained that his appeal from the conviction of April 8, 1974 in the district court had not been perfected, we granted an out-of-time appeal. He also applied to the district court for a writ of habeas corpus based upon a contention that his trial in the district court for kidnapping placed him in jeopardy for the second time, because it was based upon the same offenses for which he was tried and convicted in the municipal court. When the application was denied in the district court, Smith applied here on August 28, 1975, and consideration of the application for habeas corpus was consolidated with the out-of-time appeal. We affirmed the conviction on appeal. However, finding that the trial judge had denied the application for habeas corpus without a hearing to determine the evidence, issues and testimony which were the basis for the convictions in the municipal court, the case was remanded for this purpose to the district court for an eviden-tiary hearing on Smith’s application for a writ of habeas corpus. State v. Smith, 323 So.2d 797 (La.1975).

On remand an evidentiary hearing was held in the district court on March 22, 1976 to determine whether the evidence, issues and testimony in the municipal court trial of June 25, 1973 were such that double jeopardy occurred when Smith was tried for kidnapping on April 8, 1974. Considerable difficulty was experienced in an effort to reconstruct the evidence and testimony offered almost three years before at the municipal court trial. However, the witnesses who testified at the June 25,1973 trial, and who were available, testified at the hearing. Smith was present, represented by counsel and testified.

After hearing the witnesses the trial judge decided:

“If in the city court there was any evidence of kidnapping it was not an essential part of the charge for which he was being tried in the city court. In the assault charge, an assault is not an essential element of the kidnapping charge. The gravamen of the kidnapping is the asportation of one person against his will to another place — the transportation of one person against his will from one place to another. That was not an essential element of the assault charge. When the gun was pulled in the store that could constitute an assault. That was all that was necessary. In my opinion double jeopardy would not apply in this case.
For these reasons the application for habeas corpus is denied.”

Smith then applied here for review of the trial court ruling, and the case has been briefed and argued.

A review of the evidence adduced at the hearing to reconstruct the municipal court record on the charges of assault, displaying a dangerous weapon and disturbing the peace and the evidence heard in the district court on the kidnapping charge results in the following findings:

In mid-afternoon on June 2, 1973 Shirley Ann White, the estranged common-law wife of the defendant Simon Smith, Jr., was shopping in the T. G. & Y. store in the town of Winnsboro. She was accompanied by her mother Iola Grimble and her sister Carolyn Thomas. Carolyn was waiting in the car outside while Shirley Ann and her mother were at a jewelry counter in the store. Smith entered the store and confronted Shirley Ann. In a conversation which ensued Smith demanded that Shirley Ann come with him, and when she refused he grabbed her around the neck, drew his pistol and pointed it at her head as he forced her through the front door and out into the parking lot where his car was parked. When Shirley Ann’s mother sought to intercede, Smith pointed the gun at her and threatened to shoot if “anyone moved.” When this disturbance began the store manager was summoned by the clerks, but before Smith could be detained he had succeeded in forcing Shirley Ann outside, all the while maintaining his hold as he backed to his car in order that he might watch for and guard against possible pursuers. The store manager then phoned the police.

When he had forced Shirley Ann into the car he drove off at a high rate of speed to the town of Waterproof, then through Fer-riday to Clayton where he parked the car and compelled her to spend the night in the car with him.

Protection against double jeopardy is guaranteed by the Federal and State Constitutions. U.S.Const. amend. V; La. Const, art. I, § 15 (1974); State v. Cotton, 341 So.2d 362 (La.1976); State ex re] Wikberg v. Henderson, 292 So.2d 505 (La.1974). It is the guarantee against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction; and against multiple punishments for the same offense.

The principle is stated in Article 591 of the Code of Criminal Procedure:

“No person shall be twice put in jeopardy of life or liberty for the same offense, except when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.”

and by the terms of Article 596,

“Double jeopardy exists in a second trial only when the charge in that trial is: (1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.”

Louisiana applies the “same evidence” test in determining if a second trial constitutes double jeopardy. This test holds that offenses are the same if the elements required to support conviction upon one of the offenses would have been sufficient to warrant conviction upon another. That is to say, where the gravamen of the second offense is essentially included within the offense for which first tried the second prosecution is barred because of former jeopardy. State v. Cotton, 341 So.2d 362 (La.1976); State v. Smith, 323 So.2d 797 (La.1975); City of Baton Rouge v. Jackson, 310 So.2d 596 (La.1975); State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974).

The “same evidence” rule is not intended to indicate that an offender, who goes on a crime spree and violates more than one criminal statute within a short time span, cannot be prosecuted for more than one offense without violating the prohibition against double jeopardy. State ex rel Wikberg v. Henderson, supra.

Examples of valid prosecutions for multiple crimes committed within a narrow time span may be found in this Court’s decisions. E. g. State v. Cotton, 341 So.2d 362 (La.1976); State v. Pettle, 286 So.2d 625 (La.1973); State v. Richmond, 284 So.2d 317 (La.1973); State v. Ysasi, 222 La. 902, 64 So.2d 213 (1953); State v. Cannon, 185 La. 395, 169 So. 446 (1936).

The true test to be applied in the case at bar is set forth in State ex rel. Wikberg v. Henderson, supra. The test is “where the gravamen of the second offense is essentially included within the offense for which first tried, the second prosecution is barred because of the former jeopardy.”

The gravamen of the assault charge in the district court was established when Smith grabbed Shirley Ann around the neck. The gravamen of the charge that Smith displayed a dangerous weapon in a public place was proven when he drew his pistol and threatened Shirley Ann’s mother. Disturbing the peace occurred when his actions in the store, forcing Shirley Ann to the outside, alarmed the clerks and the manager.

The essential element of the kidnapping charge “carrying of any person from one place to another without his consent”, La. Rev.Stat. 14:45A(1), occurred when Smith left the store with Shirley Ann, forcing her into his car without her consent, and driving her to Clayton, many miles away.

If the facts we have found were supported by the evidence at both trials, despite testimony at the hearing that the trial in municipal court pertained solely to the occurrences within the store, the same evidence was not used to convict in both courts. Assuming that there may have been evidence of kidnapping at the municipal court trial, not relevant or essential to the charges there, the State was not for that reason barred from prosecuting for the offense of kidnapping which the irrelevant evidence did support. The evidence used to prove kidnapping was, therefore, unnecessary to prove violations of the municipal ordinances. And, on the other hand, it was not necessary to use any of the evidence supporting the activities offensive to the municipal ordinances to establish the kidnapping. Occurrences subsequent to leaving the store proved the “intentional and forcible seizing and carrying of [Shirley Ann] from one place to another without [her] consent.” La.Rev.Stat. 14:45A(1)

For the reasons assigned, the ruling of the trial judge denying the application for a writ of habeas corpus based upon a claim of double jeopardy is affirmed.

TATE, J., dissents and assigns written reasons.

DIXON and CALOGERO, JJ., dissent.

TATE, Justice,

dissenting.

The defendant Smith was initially convicted of aggravated assault, displaying dangerous weapons in a place of business, and disturbing the peace (all violations of municipal ordinances), and sentenced to serve six months in jail. Subsequently, arising out of the same conduct, he was charged with simple kidnapping and sentenced to four years in the state penitentiary-

The issue is whether the subsequent felony conviction for the identical conduct for which punished by misdemeanor penalties offends double jeopardy provisions of the state and federal constitutions. As we noted in State v. Didier, 262 La. 364, 263 So.2d 322 (1972), the identical conduct cannot be twice prosecuted by the state by labeling it as separate crimes.

The majority cites jurisprudence to the effect that, without offending double jeopardy, prosecutions may be had for multiple crimes committed within a limited time span. See State v. Nichols, 337 So.2d 1074 (La.1974). The majority likewise correctly notes that the test is “where the gravamen of the second offense is essentially included within the offense for which tried, the second prosecution is barred because of the former jeopardy.”

The majority then finds that the essential element of the subsequent kidnapping charge, “[the] carrying of any person from one place to another without his consent”, did not occur until the accused left the store with the victim, forced her into his car without her consent and drove her to Clayton, several miles away. The majority therefore includes that this asportation element did not form part of the evidence by which the accused was convicted of the prior charges.

Nevertheless, as the majority itself indicates in its statement of the facts, the as-portation in fact was part of the evidence upon which the accused had earlier been criminally punished for the identical conduct: “The gravamen of the assault charge in the district court was established when Smith grabbed Shirley Ann around the neck. The gravamen of the charge that Smith displayed a dangerous weapon in a public place was proven when he drew his pistol and threatened Shirley Ann’s mother. Disturbing the peace occurred when his actions in the store, forcing Shirley Ann to the outside, alarmed the clerks and the manager.” (Italics ours.)

Smith committed the crime of kidnapping —“carrying of any person from one place to another without his consent” — at the least by the time he had forced the victim to leave the store. Had he been then arrested (instead of after he drove her to Clayton), he was guilty of kidnapping, no less than when he was apprehended several miles away.

The earlier convictions of assault, displaying a dangerous weapon, and disturbing the peace were thus the components of the crime of kidnapping for which, dissatisfied with a six month sentence, the state now reprosecutes the accused in order to send him to the penitentiary.

Our constitutional prohibitions against placing an accused in double jeopardy historically exist to protect an individual from re-prosecution or re-punishment by the state for the identical criminal conduct for which he has previously been placed in jeopardy, whether the occasion of the second prosecution is governmental dissatisfaction with an acquittal on the first prosecution, or whether it results from governmental dissatisfaction with a less severe criminal penalty for the first conviction than desired by the governmental prosecutors.

I therefore respectfully dissent.

ON MOTION FOR REHEARING

PER CURIAM:

In his motion for rehearing, defendant interprets the language of the majority opinion as holding that the segment of the asportation of the kidnap victim occurring within the store was an essential element of the municipal disturbing the peace charge.

The principal language relied on is as follows:

“Disturbing the peace occurred when his actions in the store, forcing Shirley Ann to the outside, alarmed the clerks and the manager.” (Emphasis supplied.)

Although the language is ambiguous, we did not intend to state that asportation of the person was an essential element of disturbing the peace. More precisely stated, the thrust of the language was that the violent actions of the defendant in the store alarmed the clerks and the manager.

The rehearing is denied.

TATE and CALOGERO, JJ., are of the opinion a rehearing should be granted.

DIXON, J., dissents from the denial.

The Per Curiam does not correct the inaccuracy of the majority opinion.


author: SUMMERS, Justice.

text:
    STATE of Louisiana v. Victor Hubert LINKLETTER and Kathleen McKenzie.
    Nos. 58596 and 58893.
    Supreme Court of Louisiana.
    April 11, 1977.
    Rehearings Denied May 13, 1977.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Dracos D. Burke, Asst. Dist. Atty., for plaintiff-appellee.
    Owen J. Trahant, Jr., Jefferson, for defendants-appellants.
   SUMMERS, Justice.

Defendant Linkletter was charged by bill of information with the September 7, 1975 simple burglary of the City Pharmacy in Jeanerette, Louisiana, in violation of Article 62 of the Criminal Code. After trial the jury returned a verdict of guilty. Linklet-ter was then charged as a multiple offender, found guilty and sentenced to serve 18 years at hard labor. He appeals, assigning five errors to rulings of the trial judge.

Assignment 1

Defendant filed a motion for a bill of particulars in which he asked if the State had in its possession any “Brady v. Maryland ” evidence material to the issues of the case which might be favorable to the defense. The defense motion also requested authority to inspect and copy all such evidence in the possession of the State. The State answered that it was unaware of any evidence within the purview of Brady v. Maryland.

At a hearing on February 2, 1976 to determine the sufficiency of the State’s answers, defendant requested that the trial judge make an in-camera inspection of the State’s file. When the request was denied by the trial judge, defense counsel objected and assigned the ruling as error.

On a number of occasions this Court has made clear that the decision in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), while requiring the prosecution to inform the defendant of exculpatory evidence, does not require the State to open its files to the defendant to search and decide what is exculpatory. State v. Nix, 327 So.2d 301 (La.1976), cert. denied, Fulford v. Louisiana, 425 U.S. 594, 96 S.Ct. 1732, 48 L.Ed.2d 198 (1976); State v. Major, 318 So.2d 19 (La.1975); State v. Williams, 310 So.2d 528 (La.1975); State v. Ranker, 263 La. 914, 269 So.2d 812 (1972).

These cases do not construe Brady v. Maryland to permit the defendant unlimited pretrial discovery. No fishing expedition is authorized by that decision and a pretrial in-camera inspection of the State’s file is not required. However, the cases do understand Brady v. Maryland to hold, in effect, that the State must, upon request, furnish the defense with evidence which is material to the issues and favorable to the defense. And, if it can be shown that the State, after request, has deliberately withheld from the trial specific evidence favorable to. the defense, the error would warrant reversal of the conviction. State v. Tyler, 342 So.2d 574 (La.1977). On the basis of the facts before him, the ruling of the trial judge was correct.

Assignment 2

On February 3,1975, the day following the hearing on the motion for bill of particulars referred to in Assignment 1, the State’s attorney notified defense counsel by letter, received on February 4, 1975, that in the initial stages of the investigation into this burglary, a suspect other than Linklet-ter had been arrested but was later released when additional inquiry established his innocence.

Thereafter, on February 9, 1976, defendant filed a motion for a continuance in which it was set forth that the name of the innocent suspect referred to in the State’s letter was not learned until February 5, 1976, no contact had been made with that individual and further investigation could not be carried out prior to February 11, 1976, the date set for trial.

The motion was summarily fixed for hearing on February 9, the day it was filed, for the trial judge was concerned with the numerous delays already experienced in getting the ease to trial and because the jurors had been summoned. The State’s attorney advised the trial judge at the hearing that defense counsel’s predecessor, who had represented the defendant, was aware of the innocent suspect. He stated that the letter of February 3, 1976 informing defense counsel of the innocent suspect was written out of an abundance of caution, not because he felt that it was Brady v. Maryland, evidence material to the defense.

State v. Nix, 327 So.2d 301 (La.1976), cert. denied, 425 U.S. 954, 96 S.Ct. 1732, 48 L.Ed.2d 198 (1976), accepted as valid an argument that false leads followed out by the police certainly are not evidence tending to negate the guilt of the defendant. See also Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972).

There was no error in the ruling of the trial judge.

Assignment 3

Prior to trial the defense filed a motion to suppress evidence in the State’s possession seized by police officers of the city of Kenner and the parish of Iberia in a search of premises at 272 Auburn Street, Apartment “N”, Kenner, Louisiana, on or about September 17, 1975. The grounds alleged were that the search and seizure were unconstitutional because the search was carried out incidental to a warrantless arrest of the defendant made without probable cause; and, further because the search and seizure were conducted in reliance upon the written consent of defendant obtained without the benefit of counsel to advise him.

The trial judge found probable cause to arrest and that defendant consented to the search and seizure. Defense counsel objected and assigned this ruling as error.

The Warrantless Arrest

By the express terms of Article 213(3) of the Code of Criminal Procedure, “[a] peace officer may, without a warrant, arrest a person when . . . [t]he peace officer has a reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer. . . . ”

Reasonable cause may be likened to reasonable belief or probable cause, terms which were defined and explained in State v. Johnson, 249 La. 950, 192 So.2d 135 (1967);

“Reasonable belief — or ‘probable cause’, as it is termed under the federal standard — -to make an arrest without a warrant exists when the facts and circumstances within the arresting officer’s knowledge, and of which he has reasonably trustworthy information, are sufficient in themselves to justify a man of average caution in the belief that a felony has been or is being committed. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); State v. Green, 244 La. 80, 150 So.2d 571 (1963); State v. Aias, 243 La. 945, 149 So.2d 400 (1963); State v. Calascione, 243 La. 993, 149 So.2d 417 (1963).
“Compliance with these standards is, in the first instance, a substantive determination to be made by the trial court from the facts and circumstances of the case. Ker v. State of California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. McIlvaine, 247 La. 747, 174 So.2d 515 (1965).
“And in determining compliance with these standards it is not the proof required for conviction which concerns us. Proof required to satisfy the requirement of reasonable belief or probable cause is less and is what the terms imply: probabilities and practical considerations of everyday life on which reasonable men could reasonably be expected to act. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); State v. Bourg, 248 La. 844, 182 So.2d 510 (1966).
“In such cases, because only factual issues are presented by the contentions, the setting in which the arrests took place becomes a factor of prime importance; facts and circumstances known to the arresting officers from which they might draw conclusions warranted by their training and experience become the focus of our attention with due allowance for the discretion vested in the trial court.”

See also State v. Dell, 258 La. 1024, 249 So.2d 118 (1971); State v. Pebworth, 251 La. 1063, 208 So.2d 530 (1968); State v. Ahrens, 250 La. 391, 196 So.2d 250 (1967), cert. denied, 389 U.S. 871, 88 S.Ct. 156, 19 L.Ed.2d 152 (1967).

This right of a peace officer to arrest upon probable cause does not depend upon his inability to obtain an arrest warrant. In the recent case of Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the United States Supreme Court declared that “. . .it has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant.” See also United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). Louisiana cases have held to the same effect. State v. Johnson, 319 So.2d 786 (La.1975); State v. Terracina, 309 So.2d 271 (La.1975); State v. Shaffer, 260 La. 605, 257 So.2d 121 (1971); State v. Johnson, 255 La. 314, 230 So.2d 825 (1970).

In determining the existence vel non of probable cause, the Court is concerned with the “facts and circumstances within the arresting officer’s knowledge, and of which he has reasonably trustworthy information,” State v. Johnson, 249 La. 950, 192 So.2d 135. It is not particularly significant that the officer received information that was not firsthand; what is important is the nature of the information, whether it was such that “reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Thus, observations and reports of fellow peace officers engaged in related investigations clearly provide a reliable basis for an arrest. Cf. United States y. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

In applying these principles to the case at hand, we find there was probable cause to arrest Linkletter for the burglary of the City Pharmacy in Jeanerette. Captain Horace Comeaux had personally examined the scene of the burglary within a short time after its occurrence. He interviewed several witnesses who had seen two suspects and a particularly described 1970 green Oldsmobile near the scene. It was obvious that the burglary had been committed by someone with considerable experience in safecracking. The suspects seen leaving the City Pharmacy just before discovery of the crime were carrying large bundles to the 1970 green Oldsmobile.

Within a few days, Captain Comeaux was notified by a fellow peace officer that a drug store in the nearby town of Kaplan had been burglarized in a similar manner approximately six weeks earlier. ' The Ka-plan officer gave Captain Comeaux the name of a suspect — Victor Linkletter— which he had received from an F.B.I. agent.

Pursuing this lead, Captain Comeaux, assisted by Officer Duplantis, obtained a copy of Linkletter’s driver’s license from the Motor Vehicle Bureau in Baton Rouge, as well as a description of an automobile registered in Linkletter’s name. From Linkletter’s photograph on the driver’s license Captain Comeaux learned that he fit the description of the male suspect seen by witnesses leaving the scene of the crime. In addition, the motor vehicle registered in Linkletter’s name fit the description of the Oldsmobile seen parked, in front of the burglarized pharmacy, the vehicle into which the suspects deposited the large bundles carried by them from the pharmacy.

About the same time Captain Comeaux received the arrest and conviction record with a criminal history of Linkletter from the State police and F.B.I. This official information revealed Linkletter’s past history of safecracking, a long list of arrests and several felony convictions for burglary.

With this information, Captain Comeaux proceeded to the address in Kenner, Louisiana, shown on Linkletter’s driver’s license. He found this to be a large apartment complex with a parking area where Linklet-ter’s automobile was located.

Inquiry of the apartment complex manager disclosed that a young woman occasionally visited Linkletter in his apartment, the last time on September 8, the day after the burglary. The manager’s description of this woman matched the description of the female suspect seen at the scene of the Jeanerette burglary.

Comeaux then proceeded to the Kenner Police Department where he enlisted their assistance. Not knowing whether, at that hour of the night, there was time to seek out a magistrate and obtain a warrant, the officers proceeded to Linkletter’s apartment. They knpcked on the door and Link-letter opened the door, leaving the chain latch secure. When the officers identified themselves Linkletter opened the door and let them in. After informing him of his rights, they arrested Linkletter. His automobile was towed to the police station and impounded.

The “facts and circumstances within the arresting officer’s knowledge, and of which he had reasonably trustworthy information” were sufficient to provide reasonable cause for Linkletter’s arrest.

The Consent to Search

After his arrest Linkletter was taken into custody and booked. The following morning he was interviewed by Detective Sergeant Congemi of the Kenner Police Department. During the interview Sergeant Congemi asked Linkletter to consent to the search of his automobile and apartment, explaining that he had the right to refuse and if he did Congemi would obtain a search warrant. However, Congemi explained that he was asking for Linkletter’s consent in order to save the time and trouble involved in obtaining a search warrant.

Linkletter did not then consent to the search, asking instead for permission to contact his lawyer. He was permitted to use the telephone and tried several times to reach his attorney without success. He did however contact an unidentified person by telephone and thereafter, in order to expedite the investigation, he decided to grant consent to the searches without discussing the matter with his attorney. He thereupon signed a prepared form authorizing the police to search the apartment and his automobile after proposing certain changes. The searches were then carried out and the incriminating evidence obtained was used at the trial.

At the hearing on the motion to suppress, Linkletter contradicted portions of the testimony given by the officers but the trial judge accepted the officers’ version of what occurred, finding that Linkletter gave his consent voluntarily, without coercion, force, threats, or promises. The motion to suppress was therefore denied.

In the absence of a warrant, a search conducted pursuant to a valid consent is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The validity of such consent is dependent upon it having been voluntarily given, free of duress or coercion either express or implied. The test to determine consent, either custodial or non-custodial, is the same. Volun-tariness is a question of fact to be determined from all the surrounding circumstances, and custody, like the subject’s knowledge of a right to refuse, is only one factor that should be taken into account. United States v. Garcia, 496 F.2d 670 (5th Cir. 1974), cert. denied, 420 U.S. 960, 95 S.Ct. 1347, 43 L.Ed.2d 436 (1975).

Recently this Court upheld consent searches where the suspect granting the consent was in custody, both cases involving — as does this case — the consent to search a vehicle which had already been impounded by law enforcement officers. State v. Rogers, 324 So.2d 403 (La.1975); State v. McMellon, 295 So.2d 782 (La.1974).

Thus, even if the arrest was without probable cause, a subsequent voluntary consent renders the search and seizure valid.

There is no merit to this assignment.

Assignment 4

Defendant filed a motion for a new trial setting forth that new and material evidence had been discovered about nine days after the trial. This new evidence, according to the motion, was to be the testimony of Kathleen McKenzie, Link-letter’s accomplice and the State’s principal witness at the trial. According to the motion and the attached affidavit of defense counsel, Kathleen McKenzie informed defense counsel since the trial that she would change her testimony. At the time of the trial, according to this recantation, she perjured herself by testifying that Linkletter was her accomplice in the burglary. In truth and in fact, the motion continues, her accomplice was not Linkletter but her “old man”. The motion for a new trial also relied upon the issues presented in the assignments of error considered in this opinion.

On the basis of the motion the trial judge fixed a date for the hearings, a week later, and defense counsel subpoenaed Kathleen McKenzie. On the date fixed for the hearing Kathleen McKenzie did not appear. Defense counsel then moved for a continuance which was denied.

Inasmuch as Kathleen McKenzie allegedly volunteered by telephone to recant her testimony and failed to appear at the hearing, little significance is to be attached to the fact that she was not served with the subpoena. Defense counsel informed the trial judge that he had been in touch with her by telephone since the hearing was fixed. She was undoubtedly aware that her appearance was required.

Furthermore, the trial judge found that Kathleen McKenzie’s recantation was not newly discovered evidence but was a position she took prior to trial, a position she rejected at the trial and reaffirmed after the trial. Without questioning defense counsel’s good faith, the State suggested the possibility that the phone call received by defense counsel may not have been from Kathleen McKenzie. At that time, no one present in court had seen her since the trial.

Recantations of trial testimony should be looked upon with the utmost suspicion. La. Code Crim.Pro. art. 851; State v. Tyler, 342 So.2d 574 (La.1977). A recantation at a new trial is a confession to perjury which destroys the credibility of the witness.

One of the rules for granting a new trial on the grounds of newly discovered evidence is that if the alleged newly discovered evidence had been introduced at the trial it would probably have changed the verdict. The proposed testimony of Kathleen McKenzie, referred to in the motion, when juxtaposed to her testimony on the same subject matter at the trial, would not be likely to impress the jury at another trial or produce a different result. State v. Doyle, 138 La. 350, 70 So. 322 (1915).

Because the circumstantial evidence pointing to Linkletter as the burglar was overwhelming and Kathleen McKenzie was positively identified as the accomplice, it cannot be supposed that injustice has been done the defendant. This being the case, the motion for a new trial should be denied, no matter upon what allegations it is grounded. La.Code Crim.Pro. art. 851. There is no error in the ruling of the trial judge.

This assignment of error has no merit.

Assignment 5

Because it is not argued in brief, this assignment is considered abandoned.

Assignment 6

On February 18, 1976 the District Attorney filed a multiple offender bill charging that defendant Linkletter had previously been convicted on a guilty plea on May 2, 1972 in the Thirtieth Judicial District, Vernon Parish, said conviction being for the crime of attempted simple burglary, for which defendant was sentenced to four and one-half years at hard labor. Two other previous convictions were also alleged. These were subsequently deleted because Linkletter received pardon for those crimes.

At the arraignment on this multiple offender bill the defendant chose to remain silent. The trial judge construed his silence as a denial of the allegations in the multiple bill, and the matter was heard on March 5.

At the hearing the State produced a certified copy of the minutes of court from the Thirtieth Judicial District as evidence of the May 2, 1972 guilty plea to attempted burglary.

Lieutenant Massey of the Leesville Police Department testified for the State, identifying Linkletter as the identical person convicted on May 2, 1972 in the Thirtieth Judicial District.

A certified copy of the records of the State Penitentiary at Angola pertaining to Linkletter was then introduced by the State. These documents, containing Link-letter’s fingerprints and photograph, show his sentence to be four and one-half years. An expert testified that the fingerprints on the penitentiary records matched those of the defendant in this case. The State then rested.

Thereupon Linkletter took the stand and testified that on the day fixed for his trial in the Thirtieth Judicial District Court in Vernon Parish his court-appointed attorney did not make an appearance. Although he moved for a continuance, it was denied, and he was ordered to proceed without the benefit of counsel. Selection of the jury began and after some time Linkletter requested and was granted permission to contact John W. King, an attorney in Winnfield who had represented him in St. Landry Parish on other felony charges. See State v. Linkletter, 286 So.2d 321 (La.1973); State v. Linkletter, 286 So.2d 330 (La.1973).

Selection of the jury continued the next day when King arrived. King arranged a plea bargain, and Linkletter entered a guilty plea to attempted simple burglary, which he now says was coerced. The conviction relied upon in this habitual offender trial is. therefore, according to the defense, invalid and cannot serve to support an enhanced penalty.

Linkletter also contended at the trial that the habitual offender statute, La.Rev.Stat. 15:529.1, was unconstitutional because of its discriminatory and unequal application to recidivist offenders. Some habitual offenders are charged under the law and some are not, he asserted. In addition, Linkletter argued that a charge under the Habitual Offender Law subjects the accused to double jeopardy, and is cruel and unusual punishment.

Finding the evidence supported the charge under the multiple offender bill, the trial judge rejected the collateral attack on the May 2, 1972 conviction in the Thirtieth Judicial District. After waiving the delay for sentencing, Linkletter was sentenced on March 5, 1976 to imprisonment at hard labor for eighteen years. This appeal followed.

The prima facie uncontested evidence of his prior conviction was sufficient to support the judgment of the trial court on the trial of the habitual offender charge. At the time of sentencing the trial judge informed Linkletter that his recourse to establish the invalidity of the May 2, 1972 conviction in the Thirtieth Judicial District Court was by application for a writ of habe-as corpus in that court. Accordingly, on May 14, 1976 Linkletter applied to the Thirtieth Judicial District Court for habeas corpus. At a hearing on this application on September 29, 1976 the State objected to the court’s venue, and the court found proper venue to be in the Sixteenth Judicial District. The case was therefore transferred to that district.

Linkletter then filed a new habeas application in Iberia Parish in the Sixteenth Judicial District on October 15, 1976. This application and the application transferred from the Thirtieth Judicial District were dismissed with prejudice on October 18, 1976, no hearing having been conducted.

Linkletter then applied in proper person to this Court for review of these rulings, and that matter is consolidated with this appeal.

In a well-drawn petition the substance of the application referred to is stated by Linkletter to be: At the trial in Vernon Parish on May 1 and 2, 1972 when he was convicted he did not knowingly or intelligently waive counsel at any stage of the prosecution. As a consequence his rights under the Sixth and Fourteenth Amendments to the United States Constitution and the doctrine enunciated in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) were violated. A conviction obtained in a case where the right to counsel was improperly denied, he alleges, cannot be used to enhance punishment. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).

Since neither of the trial courts will assume jurisdiction or venue of these issues and conduct an evidentiary hearing to determine the merit of his claim, Linkletter contends he is being denied due process of law. He asks this Court to resolve the question and decide which district court should conduct the hearing.

A habeas corpus application to this Court during the pendency of an appeal may not be granted. La.Code Crim.Pro. art. 363. Accordingly that application is denied insofar as it complains of the ruling in the Sixteenth Judicial District Court. Linkletter’s application to review the ruling in the Thirtieth Judicial District where venue lies to determine the validity of the May 2, 1972 conviction has been granted, and a hearing on that application is ordered. If successful there, a habeas corpus application to the Sixteenth Judicial District would then be in order to determine the validity of the enhanced penalty there.

The claim that the Habitual Offender Law is unconstitutional has been met in several decisions of this Court.

There is no showing in this record to warrant a finding that the Habitual Offender Law is applied unequally or in such a discriminatory manner, without regard to the merit of each case. No basis exists, therefore, for a finding that the Constitution is offended. State v. Vale, 252 La. 1056, 215 So.2d 811 (1968), rev’d on other grounds, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); State v. Bullock, 329 So.2d 733 (La.1976).

An enhanced penalty is not cruel and unusual punishment under repeated decisions of this Court. State v. Williams, 326 So.2d 815 (La.1976), and authorities cited there. The same is true of the claim that the law subjects a convicted offender to double jeopardy. State v. Boatner, 304 So.2d 661 (La.1974).

In our view the defense misreads the Habitual Offender Law when its brief asserts that the present conviction is not within the statutory five years since expiration of the maximum sentence resulting from the 1972 conviction, the period within which a subsequent offense must occur to permit the filing of an habitual offender charge. Defendant was convicted on May 2, 1972 to serve four and one-half years at hard labor. He was discharged from that incarceration on June 10, 1974. Obviously, then, five years had not expired since the expiration of the maximum sentence or Linkletter’s period of servitude and the September 7, 1975 burglary which formed the basis of the multiple offender charge. Therefore, the Habitual Offender Law is properly invoked here. La.Rev.Stat. 15:529.1 C.

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