author: MIETTE K. BURNSTEIN, Associate Judge.

text:
    CITY OF RIVIERA BEACH, Florida, Appellant, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY and Winnie L. Simpkins, Appellees.
    No. 78-842.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1979.
    Charles W. Musgrove, West Palm Beach, and Allan V. Everard, Riviera Beach, for appellant.
    Kenneth H. Hart, Jr., Gen. Counsel, Tallahassee, and Ollie L. Evans, Miami, for appellee-Florida Dept, of Commerce.
    Winnie L. Simpkins, in pro. per.
   MIETTE K. BURNSTEIN, Associate Judge.

This is an appeal from an Order of the Board of Review, affirming the Department of Commerce Unemployment Compensation Appeals Referee, and allowing Ms. Simpkins unemployment compensation benefits. The Referee held that under the circumstances, Ms. Simpkins’ failure to report for work did not constitute misconduct in accordance with Section 443.06 F.S.A.

Ms. Simpkins was employed by the City of Riviera Beach, Florida, as a cashier clerk in the Utilities Billing Department until March 9, 1977, when she was fired. Although her personnel file indicated that she had, from time to time, been reprimanded for a generally “. . . uncooperative attitude . . . her dismissal was based upon “. . . [a]bsence from duty without leave, or failure to report after leave of absence has expired”.

The testimony of the utility billing supervisor showed that on February 23, the Appellee, Ms. Simpkins, asked for and got a one week paid vacation from February 28 through March 4. On March 4, she again requested a vacation for another week. She was given two additional days, March 7 and March 8, and instructed by certified mail and verbally by telephone to return to work on March 9. Ms. Simpkins phoned the supervisor for the purpose of yet another extension, but notwithstanding that she did not reach her supervisor, failed to report for work.

Ms. Simpkins excuses her requests for vacation on the basis that she had just adopted a baby and needed some time to “. . get adjusted to her”. The City, through its personnel director and utilities billing supervisor, justifies its refusal of additional vacation time on the basis that late requests made it difficult to get replacements and otherwise plan for her absence. Additionally, out of the 47 working days immediately preceding March 9, 1977, Ms. Simpkins took 9 days sick leave and 7 days vacation time (all the vacation time to which Ms. Simpkins was entitled).

An employer has a right to expect reasonable work habits from an employee. Continued absenteeism, which hampers the operation of a business, constitutes an intentional disregard of the employer’s vital interests, and of the employee’s duties, and amounts to misconduct per se. Castillo v. Florida Department of Commerce, 253 So.2d 162 (Fla. 2nd D.C.A. 1971).

This Court, in Citrus Central v. Detwiler, 368 So.2d 81 (Fla. 4th D.C.A. 1979) held that “. . . flagrant and intentional disobedience to a valid work order by a supervisor on the job should indeed be characterized as misconduct on the job and that the ruling of the Board of Review to the contrary is not in accord with the law”.

The Order of the Board of Review is hereby reversed.

LETTS and MOORE, JJ., concur.


source: Caselaw Access Project

author: MOORE, Judge. LETTS, Judge,

license: Public Domain

text:
    Florence DONOVAN, Appellant, v. ENVIRONS PALM BEACH, Appellee.
    No. 78-1192.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1979.

      Lynn M. LoPucki of LoPucki & LoPucki, Gainesville, for appellant.
    Richard B. Burk of Scott, Burk, Royce & Harris, P. A., Palm Beach, for appellee.
   MOORE, Judge.

This is the fourth appearance of this case in the Appellate Court. In a landlord-tenant action, the tenant ultimately prevailed and was awarded a judgment for attorney fees, pursuant to statutory authorization. Subsequently, the tenant was required to endure extensive proceedings in an effort to collect her judgment. She then filed a motion to amend the final judgment, seeking additional attorney fees for the efforts expended by her attorneys in attempting to collect the original judgment. The trial court’s order on the motion to amend, wherein appellant was granted additional attorney fees, was appealed to this Court. We reversed because the motion to amend the final judgment was served more than ten days after the entry of the judgment and was therefore untimely. The cause was remanded to the trial court for appellant to make application to said court for such fees as may be permitted under the law. Prior thereto, the trial court had not had an opportunity to rule as to the existence of a legal basis for awarding additional attorney fees, except as requested pursuant to the motion to amend the final judgment.

On remand, appellant motioned the trial court for additional attorney fees. Finding that said motion was without legal authority and that no legal basis existed for such an award, appellant’s motion was stricken with prejudice by the trial court. The order striking appellant’s motion is the subject of this appeal. We agree that the trial court correctly found no legal basis for awarding additional attorney fees and therefore affirm.

In awarding the original attorney fees, the trial court entered an order which ■recited:

“ORDERED AND ADJUDGED that the Defendant shall recover an attorney’s fee of $2,200.00 from the Plaintiff within ten (10) days hereof, or this Order shall act as a judgment thereupon for which let execution issue.”

This was a final judgment without a reservation of jurisdiction for any purpose. Upon entry of the final judgment all judicial labors were completed and, except for timely motions (lacking here), the trial court no longer retained jurisdiction over the matter in controversy. As stated by our sister court in Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3rd DCA 1976):

“The Court retains the power to modify by subsequent order the time and manner of the enforcement of a final judgment after it becomes final, but it does not retain the power, unless provided by statute or rule, to amend, modify or alter the provisions of a final judgment.”

See also Church v. Church, 338 So.2d 544 (Fla. 3rd DCA 1976); cf. Monzon v. Monzon, 349 So.2d 195 (Fla. 3rd DCA 1977).

The trial court having failed to retain jurisdiction, it therefore lacked jurisdiction to enter a subsequent order awarding attorney fees. The order appealed is AFFIRMED.

DAUKSCH, J., concurs.

LETTS, J., concurring specially with opinion.

LETTS, Judge,

concurring specially:

I see no way to dissent, but I would if I could for it is obvious that the appellee has deliberately and, as it turns out, successfully evaded the intent of the trial court’s rulings. Perhaps it is not too late to do something about all this in a separate law suit.


author:
DAUKSCH, Judge.
      LETTS, Judge,

text:
    Richard WILLIAMS, Robert French, William Kirchhoff, John Alexander and Harry Kwiatkowski, as and constituting the Board of County Commissioners of Seminole County of Florida, Appellants, v. Paula F. HAWKINS, William T. Mayo and Robert T. Mann, as and constituting the Florida Public Service Commission, Appellees.
    No. 78-1204.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1979.
    Harry A. Stewart, County Atty., Sanford, for appellants.
    Prentice P. Pruitt, Legal Director and William E. Sundstrom, Staff Counsel for Florida Public Service Commission, Tallahassee, for appellees.
   DAUKSCH, Judge.

There is a genuine issue of material fact which was improperly decided by summary judgment in this case. The lawsuit is centered around whether a license fee the county would impose by ordinance was in fact an illegal tax. If the license fee was unconnected with the cost of regulating the utilities which would pay the fee then it is a tax and illegal. Bateman v. City of Winter Park et al. 37 So.2d 362 (Fla.1948); Broward County v. Janis Development Corp., 311 So.2d 371 (Fla. 4th DCA 1975). While it may appear from the pleadings the fee was a tax there is no evidence to support such a conclusion and a trial of the matter may reveal otherwise. The motion and order for summary judgment are totally unsupported by testimony, by affidavit or otherwise, and the only evidence in our record is the ordinance itself. The error is in granting a summary judgment without an evidentiary foundation to support it. It is not a question of whether or not the fee was a tax. That question cannot be decided by a review of the ordinance and the pleadings. There must be evidence to support the proposition the fee was in fact a tax. Perhaps affidavits and depositions may support a similar summary judgment later but there are none of record yet. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

REVERSED and REMANDED.

DOWNEY, C. J., concurs.

LETTS, J., dissents with opinion.

LETTS, Judge,

dissenting:

I dissent.

This is most obviously a tax, not a license fee. In fact the ordinance prior to the one at issue, called it a “tax”; however, a new ordinance has been substituted which uses the magic phrase “license fee.” I can discern nothing in this ordinance which renders it anything more than a revenue raising measure and there are no additional conditions to be performed by the utility company (see Bateman, supra) sufficient to raise an issue of material fact. I would affirm.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Grayson W. MAYFIELD, Appellee.
    No. 78-2191.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1979.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles W. Musgrove, Asst. Atty. Gen., West Palm Beach, for appellant.
    Leon Stromire of Stromire, Westman, Lintz, Baugh, McKinley, Antoon, Clifton & Pearce, Cocoa, and Louis V. Cianfrogna of Cianfrogna, Telfer & Evans, P. A., Titus-ville, for appellee.
   PER CURIAM.

This case has been considered on the briefs of the parties without oral argument. This is an appeal by the State from an order rendered October 11, 1978, transferring a case to the County Court. We find this case to be governed by this Court’s decision in State v. Zimmerman, 370 So.2d 1179 (Fla. 4th DCA 1979). The .decision of the trial court transferring the cause to County Court is, therefore, reversed on the basis of the aforementioned authority and the matter remanded for further proceedings consistent herewith.

DAUKSCH and BERANEK, JJ., and SCHWARTZ, ALAN R., Associate Judge,. concur.


text:
    BLACK, CROW & EIDSNESS, INC., Petitioner, v. ASPHALT PAVING COMPANY OF FLORIDA, INC., Respondent.
    No. 78-2266.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1979.
    Stephen M. Bull of Lawrence, Bull, Palmer & Dick, Orlando, for petitioner.
    Larry R. Leiby and Stewart J. Bellus of Kavanaugh & Leiby, Miami, and Trotter, Bondurant, Griffin, Miller & Hishon, Atlanta, Ga., for respondent.
   PER CURIAM.

This cause commenced upon the filing of a notice of appeal from an interlocutory order denying a motion for summary judgment. Pursuant to petitioner’s motion to amend the notice of appeal the cause has been treated as a petition for writ of common law certiorari. As such, certiorari is denied. See Chalfonte Development Corp. v, Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979).

CERTIORARI DENIED.

DOWNEY, C. J., and ANSTEÁD and MOORE, JJ., concur.


author: ROBERT P. SMITH, Jr., Judge.

text:
    Donald Ray KEENAN, Appellant, v. STATE of Florida, Appellee.
    No. LL-156.
    District Court of Appeal of Florida, First District.
    July 12, 1979.
    Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   ROBERT P. SMITH, Jr., Judge.

The evidence supporting this prosecution for possession of marijuana was seized by a police officer who stopped appellant, a white male, while driving his automobile in a black section of Jacksonville, described as a high crime area, late at night. The officer lacked specific, objective facts indicating that appellant was an unlicensed motorist, or that the automobile was unregistered, or that either the vehicle or appellant was subject to seizure for violation of law. Stopping the automobile and detaining appellant in order to check his driver’s license was therefore an unreasonable seizure, proscribed by the Fourth Amendment to the Constitution of the United States. Delaware v. Prouse, - U.S. -, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Brown v. Texas, - U.S. -, 99 S.Ct. 2637, 60 L.Ed.2d 357 (1979). That appellant was previously observed in conversation with a person reputed or known to sell sexual services did not justify the detention.

REVERSED.

MILLS, C. J., and HENRY CLAY MITCHELL, Jr., Associate Judge, concur.


author: ROBERT P. SMITH, Jr., Acting Chief Judge. BOOTH, Judge,

text:
    STATE of Florida ex rel. Ronald Wainwright LEE, Petitioner, v. Honorable George L. HARPER, Circuit Judge, Second Judicial Circuit, Respondent.
    No. KK-99.
    District Court of Appeal of Florida, First District.
    July 13, 1979.

      Charles Friend, Tallahassee, for petitioner.
    David L. McGee, Asst. State’s Atty., Tallahassee, for respondent.
   ROBERT P. SMITH, Jr., Acting Chief Judge.

The determinative issue here is whether a continuance of trial granted the state in the exceptional circumstance of the prosecutor’s sudden illness removes a criminal case from the strict time limitations imposed by Fla.R.Cr.P. 3.191, and permits a trial to be had at any “reasonable time,” notwithstanding that the trial date was not fixed during the period of the speedy trial rule. Following King v. State, 303 So.2d 389 (Fla. 3d DCA 1974), we hold that a Rule 3.191(f) extension or continuance, granted either the state or the defendant because of “exceptional circumstances” preventing a scheduled trial within the speedy trial period, permits a trial within a “reasonable time,” even if that time is ascertained and fixed after the date on which the speedy trial period would otherwise have expired.

Lee’s petition for writ of prohibition seeks to prevent his trial on four counts of grand larceny. On March 1, 1977, during the period in which Rule 3.191’s 180-day speedy trial period concededly was running, the prosecuting attorney was suddenly taken ill and, in that exceptional circumstance, the state secured a continuance and extension of the speedy trial period a stated period of 45 days. Challenging that 45-day extension order, and contending that the speedy trial period ran unabated and enti-tied him to discharge on March 4, 1977, Lee filed his first petition for writ of prohibition in this court. No. FF-288. On April 1, 1977, we issued a rule nisi staying further proceedings pending our decision. We discharged the rule and denied the petition on May 20, 1977, and the Supreme Court denied certiorari on March 15,1978. The trial court reset the trial for June 5, 1978.

By this second petition for writ of prohibition Lee contends that the balance of the 45-day extension period expired without further extension, following the Supreme Court’s order denying certiorari. See State ex rel. Mullen v. Swigert, 352 So.2d 962 (Fla. 1st DCA 1977).

An order by the trial court is required to extend the time for speedy trial on grounds stated in Rule 3.191(d)(2). Stuart v. State, 360 So.2d 406, 413 (Fla.1978). When as here the trial court’s order is one of extension, rather than waiver on waiver grounds stated in Rule 3.191(d)(2), the plain implication of Rule 3.191(d)(2) is that the trial must ordinarily commence within the period as extended, unless another extension is timely ordered. But when the ground for extension under Rule 3.191(d)(2) is one of the exceptional circumstances particularly treated in Rule 3.191(f), that subsection entirely removes concern for strict time periods prescribed by the rule or established by the extension order. In that event, “The Court may set a new trial date within a reasonable time.” We previously reserved the question, when the trial court has granted an extension or continuance for exceptional circumstances, whether the court is empowered, outside of the period of extension, to reset the trial for another and later date. State ex rel. Wilhoit v. Wells, 356 So.2d 817, 825 (Fla. 1st DCA 1978). We now hold that, when for exceptional circumstances the trial court grants an extension or continuance, neither the original speedy trial period nor the precise period of the extension or continuance is of significance in determining the accused’s speedy trial rights. In that event, the trial court may act at any reasonable time to “set a new trial date within a reasonable time.” Fla.R.Cr.P. 3.191(f).

Thus, even assuming that Mullen would in other circumstances commence the running of the balance of the 45-day extension period upon the termination of Lee’s first prohibition proceedings on March 15, 1978, the exact length of the extension period was inconsequential, and the trial court’s subsequent order setting the case for trial on June 5,1978, was not beyond “a reasonable time” as authorized by Rule 3.191(f) and United States v. Davis, 487 F.2d 112 (5th Cir. 1973), cert. den., 415 U.S. 981, 94 S.Ct. 1573, 39 L.Ed.2d 878 (1974).

The petition for prohibition is DENIED.

ERVIN, J., concurs.

BOOTH, J., specially concurs.

BOOTH, Judge,

specially concurring.

I concur in the result of this opinion for the reasons stated in King v. State, 303 So.2d 389 (Fla. 3d DCA 1974) and State v. Kurtz, 354 So.2d 890 (Fla. 4th DCA 1978).

      . Rule 3.191(f) provides that “the court may order an extension of time or continuance where exceptional circumstances are shown to exist,” such circumstances including the “unexpected illness or unexpected incapacity or unforeseeable and unavoidable absence of a person whose presence ... is uniquely necessary for a full and adequate trial. . . . ”

      . The rule provides that “The periods of time established by this Rule for trial may at any time be waived or extended by order of the court . . . (iii) with good cause shown by the accused upon waiver by him or on his behalf . .


author:
DANAHY, Judge.
      BOARDMAN, Judge,

text:
    Edgar Lee KIMBLE, Appellant, v. STATE of Florida, Appellee.
    No. 78-885.
    District Court of Appeal of Florida, Second District.
    July 13, 1979.

      Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Kimble appeals his conviction for manslaughter, alleging that the trial court erred in denying his motion to suppress a confession without making a specific finding of voluntariness. We affirm.

The record before us shows the trial judge, based on the totality of the circumstances surrounding the confession, concluded that the confession was voluntary. We find there is sufficient evidence to support that conclusion. The judge’s conclusion that the confession was voluntary must appear in the record with unmistakable clarity. Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967). Appellant correctly says that the mere denial of a motion to suppress is not a sufficiently specific finding of voluntariness, when coercion is alleged, to permit a confession to go to the jury. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); McDole v. State, 283 So.2d 553 (Fla.1973). However, such a denial is sufficiently specific when the defendant does not allege coercion. Wilson v. State, 304 So.2d 119 (Fla.1974); Green v. State, 363 So.2d 188 (Fla. 1st DCA 1978); Bullard v. State, 358 So.2d 48 (Fla. 4th DCA 1978); Hester v. State, 357 So.2d 481 (Fla. 3d DCA 1978). In the case at bar appellant made no allegation of coercion before the trial court. On this record then, the denial of his motion to suppress constituted a sufficiently clear finding of voluntariness to permit the jury to hear the issue.

Appellant argues further that his appointed counsel must be notified of his interrogation, despite appellant’s waiver of counsel’s attendance after full Miranda warnings were given. We find that contention without merit. State v. Brown, 261 So.2d 186 (Fla. 2d DCA 1972).

Affirmed.

GRIMES, C. J., concurs.

BOARDMAN, J., concurs specially.

BOARDMAN, Judge,

concurring specially.

For the reasons set forth in Peterson v. State, 372 So.2d 1017 (Fla. 2d DCA 1979) I concur in the result only.


author: SCHEB, Judge.

text:
    Jerry REEVES, Appellant, v. STATE of Florida, Appellee.
    No. 78-1430.
    District Court of Appeal of Florida, Second District.
    July 13, 1979.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

In this appeal we hold that the trial court’s imposition of restitution as a condition of probation was improper since there was no prior notice to the defendant, thus denying him an opportunity to be heard on that issue.

After the defendant, Jerry Reeves, was convicted of two counts of grand larceny of cattle, the trial court placed him on probation for five years and ordered him to serve six months in the county jail. Additionally, the court ordered Reeves to make restitution of $5,000.

Neither the state nor trial court notified Reeves of any proposed restitution; rather, the matter was included at the state’s suggestion at the conclusion of the sentencing hearing. Reeves protested. Since there was no notice to the defendant, the order requiring restitution was improper. Fresneda v. State, 347 So.2d 1021 (Fla.1977); Latti v. State, 364 So.2d 828 (Fla.2d DCA 1978).

Section 948.03(l)(g), Florida Statutes (1977), expressly provides that restitution may be made a condition of probation. In imposing restitution, however, a court is required to consider a defendant’s financial resources and the burden that payment will impose upon him. Section 775.089, Florida Statutes (1977). In this case Reeves was understandably not prepared to face the issue of restitution. His counsel protested, contending that Reeves was indigent and unable to make restitution. The trial court’s determination to proceed without notice and over defendant’s objection deprived Reeves of full consideration by the court of the factors contemplated by Section 775.089.

We have examined the other points urged by defendant and find them to be without merit.

Accordingly, we affirm the judgment of conviction and amend the order of probation by striking the requirement of restitution. Otherwise, the order of probation is affirmed. We remand to the trial court which may, upon adequate notice to Reeves, reconsider the question of whether restitution should be imposed as a condition of his probation.

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

      . Restitution serves a two-fold purpose in the criminal justice system: it aids the victim and forces the offender to consider the injury he has caused the victim as well as the state. See L. H. DeWolf, Crime and Justice in America 191-95 (1975).


author:
BOARDMAN, Judge.
      GRIMES, Chief Judge,

text:
    Anton Kevin PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1750.
    District Court of Appeal of Florida, Second District.
    July 13, 1979.
    Jack 0. Johnson, Public Defender, James R. Wulchak, Asst. Public Defender, and Charles L. Stutts, Research Asst., Bartow, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Anton Kevin Peterson appeals his conviction and sentence for robbery, contending that the trial court erred in two respects in denying his motion to suppress his confession or admissions: (1) in failing to find his statements involuntary, and (2) in failing to make its ruling on the voluntariness issue with unmistakable clarity, as required by McDole v. State, 283 So.2d 553 (Fla.1973). Finding no error on either ground, we affirm.

Appellant’s motion to suppress, filed prior to trial, was heard when the statement he sought to suppress was proffered at trial. The written motion appears to be a form motion alleging in general terms all conceivable grounds for suppressing a confession or statement; the only issue under serious consideration on proffer, however, was whether the statement appellant gave to the police was voluntary. That this was the sole issue before the court was stated explicitly at least twice by the prosecutor and once by defense counsel during the hearing.

On proffer Officer Robert Boyden of the Fort Myers Police Department testified that while transporting appellant to the police station the night of December 22, 1977, he read the standard Miranda warning and asked whether appellant understood. Appellant did not answer even after Boyden repeated the question, but did request that he be allowed to lie down, as his head hurt and his lip was cut. He asked to have these injuries taken care of and was told that they would be. At the station, appellant acknowledged that he understood his constitutional rights and was frisked. A note was removed from his pocket on which was written “Give me the money or I will kill you.”

Shortly after 11:00 that evening, Sergeant John, Millican removed appellant to another room and began to question him. Prior to the interrogation appellant verbally acknowledged that he understood his Miranda rights. Millican testified that he had the impression that appellant was afraid and did not wish to incriminate himself. In response to appellant’s question as to what a person could expect for talking, Millican urged appellant to cooperate as it could not hurt his position. Appellant initialed the form indicating that he understood his rights, but gave no statement at that time. In response to a request from appellant, Millican said he would talk with an assistant state attorney about appellant’s case.

After midnight, appellant was taken to the emergency room of a local hospital in response to his earlier request for medical treatment. En route, appellant asked Officer Taylor, who was driving the vehicle, if Taylor knew anyone he could talk to and get something off his chest. The officer guaranteed that he would find someone for appellant to talk to who would help as much as possible and take care of him.

Millican next saw appellant at 2:45 a. m. when appellant returned from the hospital. Millican had been informed by the transporting officer that appellant wanted to talk, and subsequently greeted appellant by saying, “ T understand you want to talk to us now, Anton.’ ” Appellant acknowledged that he did because “it would go easier on” him. Millican advised appellant of his rights and informed him that the interview would be taped. Appellant signed a second “waiver of rights” form at 2:57 a. m. He indicated that he was tired and sleepy and felt drugged from the Novacaine given him at the hospital, but said he did not feel “high” or intoxicated. He gave a statement which was essentially in accordance with the testimony given by the state’s witnesses at trial. During questioning, the first tape broke and appellant asked whether the questioning could be completed the following day. Millican replied that it would take only a few minutes to prepare another tape. The tape was replaced and the interrogation was completed that night. Upon completion of the questioning, appellant voluntarily accompanied the officers to the crime scene to point out the area where he had thrown a gun into a ditch.

Before the trial court, counsel for appellant argued first that appellant’s initial failure to acknowledge his rights precluded further questioning. Counsel further argued that the totality of the circumstances, particularly in view of appellant’s physical condition, rendered the confession involuntary. Finally, counsel urged that direct and implied inducements or promises warranted suppression of the statement. The trial judge denied the motion to suppress, stating his ruling as follows: “The Court having considered the totality of the circumstances and the testimony in the proffer, will deny the motion to suppress the statement.”

On this appeal appellant first urges that the totality of the circumstances shows that his confession was involuntarily obtained and that the trial court thus erred in refusing to suppress the testimony concerning it. After a careful review of the record, we conclude that appellant’s confession was voluntarily and advisedly made after appellant had been fully advised of his constitutional rights. Ashley v. State, 265 So.2d 685 (Fla.1972).

Appellant further contends that the trial court erred in admitting the confession without making a specific finding of volun-tariness, citing Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967) and McDole v. State, supra.

In Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the Supreme Court of the United States held that criminal defendants are entitled to a separate hearing on whether a confession is voluntary and admissible. In approving the Massachusetts procedure for such hearings, the Court noted that “the judge’s conclusions are clearly evident from the record since he either admits the confession into evidence if it is voluntary or rejects it if involuntary.” 378 U.S. at 378-79, 84 S.Ct. at 1782, 12 L.Ed.2d at 917. The Supreme Court went on to find the New York procedure, in which the jury considered the vol-untariness of a confession along with the issue of the defendant’s guilt without a separate determination of voluntariness having first been made by the trial judge, to be improper.

Later in Sims v. Georgia, supra, the United States Supreme Court considered a Georgia procedure in which, once the state presented a prima facie case that the alleged confession was freely and voluntarily made, the jury could then determine on conflicting evidence whether the confession was voluntary. The court found the procedure lacking because the judge did not determine voluntariness before submitting the confession- to the jury:

[I]t is not for the jury to make the primary determination of voluntariness. Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity. Here there has been absolutely no ruling on that issue and it is therefore impossible to know whether the judge thought the confession voluntary .

385 U.S. at 544, 87 S.Ct. at 643, 17 L.Ed.2d at 598.

In 1970, the Supreme Court reviewed a holding of the Eighth Circuit Court of Appeals, Parker v. Sigler, 413 F.2d 459 (8th Cir. 1969) which found a simple overruling of an objection to the admission of a confession to be an inadequate finding of volun-tariness. The state standard followed in determining voluntariness had been stated by the supreme court of that state (Nebraska) as follows:

“In laying a foundation in a criminal case for the admission of a confession in evidence, it is sufficient to establish affirmatively all that occurred immediately prior to and at the time of the making of the confession, provided such affirmative proof shows it to have been freely and voluntarily made and excludes the hypothesis of improper inducements or threats.”
It is true that foundational or negative evidence adduced on behalf of the defendant was in conflict with the affirmative evidence, but for the purpose of determining foundation for admissibility under the rule in this jurisdiction only the affirmative evidence requires consideration.

Parker v. State, 164 Neb. 614, 83 N.W.2d 347, 352 (1972). The United States Supreme Court affirmed, agreeing with the Eighth Circuit that the record did not justify a conclusion that the trial judge had made his own determination of voluntariness. Sigler v. Parker, 396 U.S. 482, 90 S.Ct. 667, 24 L.Ed.2d 672 (1970).

The effect of the cases discussed above is not that a simple denial of suppression by the judge is an inadequate finding, but that if such a general denial .is made, the record of the proceeding must disclose that the ruling was based on a finding by the judge that the confession was voluntary. Thus the unexplicated denial of a motion to suppress has been found to be an inadequate finding of voluntariness, despite voluntariness being the subject of the motion, when state procedure directed the trial court to submit the issue of voluntariness to the jury without itself making an initial independent determination that the confession was voluntary. This is so because in such a situation the ruling admitting the confession might not include a finding of voluntariness. Stidham v. Swenson, 443 F.2d 1327 (8th Cir. 1971), rev. on other grounds, 409 U.S. 224, 93 S.Ct. 359, 34 L.Ed.2d 431 (1972); Reizenstein v. Sigler, 428 F.2d 702 (8th Cir. 1970). It has also been held that the record must contain a ruling that shows a judicial determination of voluntariness. Smith v. Texas, 395 F.2d 958 (5th Cir. 1968). Nevertheless, where state procedure requires an initial independent finding of voluntariness by the trial judge, as is the case in Florida, there is no reason to find a denial of a motion to suppress inadequate when the record shows clearly that voluntariness was the basis of the ruling. United States v. Garrett, 521 F.2d 444, 447 n. 3 (8th Cir. 1975); United States v. Gardner, 516 F.2d 334 (7th Cir.), cert. denied, 423 U.S. 861, 96 S.Ct. 118, 46 L.Ed.2d 89 (1975); Sheer v. United States, 414 F.2d 122 (5th Cir. 1969), cert. denied, 396 U.S. 946, 90 S.Ct. 387, 24 L.Ed.2d 249 (1969). The determination that the ruling was based on voluntariness must be ascertainable from the record as a whole. Javor v. United States, 403 F.2d 507 (9th Cir. 1968), cert. denied, 404 U.S. 864, 92 S.Ct. 44, 30 L.Ed.2d 107 (1971). But see United States v. Goss, 484 F.2d 434 (6th Cir. 1973); Green v. United States, 128 U.S.App. D.C. 408, 389 F.2d 949 (1967); Evans v. United States, 375 F.2d 355 (8th Cir. 1967), rev’d on other grounds sub nom. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), cases holding that the trial judge must specifically state in his ruling that the confession is found to be voluntary.

We find further support in decisions of other state courts for the position that the trial judge need not recite a finding of voluntariness if his having made such a finding is apparent from the record. Cork v. State, 50 Ala.App. 670, 282 So.2d 107 (1973); Clay v. State, 122 Ga.App. 677, 178 S.E.2d 331 (1970); People v. Cousins, 65 Mich.App. 709, 238 N.W.2d 378 (1975); Hebb v. State, 31 Md.App. 493, 356 A.2d 583 (1976); Williams v. State, 542 P.2d 554 (Okl. Cr.1975), overruled on other grounds, Riggs v. Branch, 554 P.2d 823 (Okl.Cr.1976). But see State v. O’Dell, 108 Ariz. 53, 492 P.2d 1160 (1972); State v. McDonald, 187 Neb. 752, 194 N.W.2d 183 (1972); State v. Utsler, 21 Ohio App.2d 167, 255 N.E.2d 861 (1970); Commonwealth v. Herge, 436 Pa. 542, 260 A.2d 787 (1970); McKittrick v. State, 535 S.W.2d 873 (Tex.Cr.App.1976), cases holding that a specific recitation that the trial court finds the statement voluntary is necessary to a denial of a motion to suppress a confession.

In McDole, relied upon by appellant, the trial judge denied the defendants’ motion to suppress their confessions with the simple statement, “The motion will be denied.” The judge then announced that each side could present evidence on the issue of vol-untariness to the jury so that they could give the confession whatever weight they considered appropriate. The Florida Supreme Court in reversing held that the record did not show with unmistakable clarity that the ruling was on voluntariness, and that a specific finding of voluntariness is necessary before a trial judge may allow a confession to be considered by a jury.

However, Jackson v. Denno, supra; Sims v. Georgia, supra, and McDole, supra, do not require that the determination of voluntariness be worded in any specific fashion. This court held in Trolinger v. State, 300 So.2d 310 (Fla.2d DCA 1974), cert. denied, 310 So.2d 740 (Fla.1975), that as long as it is unmistakably clear from the record that the trial judge’s ruling is predicated upon his conclusion that the confession is voluntary, the requirement that the trial judge make the initial determination of voluntariness is met.

Moreover, in the later case of Wilson v. State, 304 So.2d 119 (Fla.1974), a case similar to McDole, but without allegations of coercion, our supreme court found denial of a motion to suppress to be a sufficiently specific finding of voluntariness, stating at 120-121:

Under the circumstances advanced for review, we can only conclude that the trial judge correctly determined that the confession was “voluntary” by virtue of his denial of appellant’s motion to suppress.
Also, a review of the record as a whole in this cause deems it unnecessary to relinquish jurisdiction to the trial court for a specific finding and/or ruling on this issue of voluntariness.

See also Bunch v. State, 303 So.2d 705 (Fla. 1st DCA 1974), cert. denied, 314 So.2d 778 (Fla.1975); Green v. State, 363 So.2d 188 (Fla. 1st DCA 1978).

In the instant case, the issue before the trial court on the motion to suppress was clearly and explicitly stated at least three times prior to and during the proffer. Furthermore, the trial judge’s understanding of his duty to make a separate and independent finding of the voluntariness of the confession is shown by his decision to require the proffer rather than to rely on the determination previously made on the basis of the same facts by another judge in a separate case pending against appellant. Under the circumstances, we believe that the trial court’s finding of voluntariness appears on the record with unmistakable clarity and that the mandates of both Sims and McDole have been fully satisfied. We therefore affirm.

We are aware, however, that another panel of this court and two other district courts have apparently interpreted McDole and Wilson to require a specific recitation that the trial court has found the defendant’s statement to be voluntary, at least where coercion is alleged (as is the case here). Kimble v. State, 372 So.2d 1017 (Fla.2d DCA 1979); McCloud v. Wainwright, 359 So.2d 10 (Fla. 4th DCA 1978); Melero v. State, 306 So.2d 603 (Fla.3d DCA 1975). We do not so interpret McDole and Wilson, but in view of the apparent conflict the instant opinion creates, we deem it advisable to certify the following question to the Florida Supreme Court as a matter of great public interest:

WHERE THE VOLUNTARINESS OF A DEFENDANT’S STATEMENT HAS BEEN CHALLENGED AND COERCION HAS BEEN ALLEGED, MUST THE TRIAL JUDGE SPECIFICALLY STATE ON THE RECORD THAT HE FINDS THE STATEMENT TO BE VOLUNTARY BEFORE PERMITTING THE CONFESSION TO BE SUBMITTED TO THE JURY?

Accordingly, appellant’s judgment and sentence are affirmed and the question certified.

RYDER, J., concurs.

GRIMES, C. J., concurs specially with opinion.

GRIMES, Chief Judge,

specially concurring.

I concur with the decision in this case because I do not believe that the allegations of implied promise relied upon by the appellant to invalidate his confession would constitute coercion even if proved. Therefore, I think the facts of this case fall within the rationale of Wilson rather than McDoIe.

Furthermore, I concur in certifying to the supreme court the question posed in the majority opinion because I believe that McDole represents an unfortunate interpretation of earlier United States Supreme Court decisions. Judge Boardman has ably explained that where the record reflects that the trial judge has clearly made a separate and independent finding of volun-tariness based upon competent and substantial evidence, his decision should not be overturned even where coercion is alleged simply because he did not use the magic words.

      . In jurisdictions following this rule, including Florida, the judge hears the confession evidence, himself resolves evidentiary conflicts and gives his own answer to the coercion issue, rejecting confessions he deems involuntary and admitting only those he believes to be voluntary. Confessions found to be voluntary are heard by the jury, which may find the confession involuntary and ignore it. 378 U.S. at 377, 84 S.Ct. at 1781, 12 L.Ed.2d at 916 n. 8,


text:
    Michael ROSENBERG, Appellant, v. Melody ROSENBERG, Appellee.
    No. 76-1628.
    District Court of Appeal of Florida, Third District.
    July 16, 1979.
    Charles R. Lipcon, Miami, for appellant.
    James 0. Nelson, Miami, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on October 25, 1977 (352 So.2d 867), affirming in part and reversing in part the final judgment of the circuit court of Dade County, Florida, in the above styled cause; and *

WHEREAS on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment 371 So.2d 672 filed May 31, 1979 and mandate now lodged in this court, quashed this court’s judgment and remanded the cause for further proceedings.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued on December 7, 1977 is withdrawn, the judgment of this court filed October 25, 1977 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the judgment of the trial court appealed from is reinstated and affirmed and the trial court is directed to set attorney’s fees for appellee’s counsel. Costs allowed shall be taxed in the trial court (Rule 3.16, Florida Appellate Rules).


text:
    COMMERCIAL CARRIER CORPORATION and Merchants Mutual Insurance Company, Appellants, v. INDIAN RIVER COUNTY and State of Florida, Department of Transportation, Appellees.
    No. 76-326.
    District Court of Appeal of Florida, Third District.
    July 18, 1979.

      Gerald M. Walsh and Gilbert E. Theissen, Fort Lauderdale, for appellants.
    Stephens, Schwartz, Lynn & Chernay and Robert M. Klein, Miami, Larry K. White and H. Reynolds Sampson, Tallahassee, for appellees.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on February 22, 1977 affirming the order of the Circuit Court of Dade County, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed April 19, 1979 and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause March 23, 1977 is withdrawn, the judgment of this court filed February 22,1977 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed herein is reversed and the cause is remanded for further proceedings not inconsistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16(b), Florida Appellate Rules).


author:
MARCUS, Justice.
     DIXON, Justice DENNIS, Justice. TATE, Justice,

text:
    STATE of Louisiana v. Gerald HATCHER.
    No. 62767.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    On Rehearing June 25, 1979.

      John M. Standridge, Louis A. Heyd, Jr., Miriam G. Waltzer, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Gerald Hatcher was charged in the same information in separate counts with forcible rape in violation of La.R.S. 14:43.1 and aggravated crime against nature in violation of La.R.S. 14:89.1. After trial by jury, he was found guilty of aggravated crime against nature and sentenced to serve ten years at hard labor. The jury was unable to agree on a verdict as to the charge of forcible rape. On appeal, defendant relies on fifteen assignments of error for reversal of his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in allowing the state to introduce hearsay evidence at the hearing on the state’s notice of intent to introduce similar acts of defendant to prove system, knowledge or intent. He argues that the introduction of such hearsay evidence deprived him of the right to cross-examine the victims of the alleged prior offenses.

At the pretrial hearing on the state’s notice of intent to introduce similar acts of defendant to prove system, knowledge or intent, an assistant district attorney testified, over defendant’s objection on the ground of hearsay, as to interviews he had conducted with the victims of the three prior offenses and the victim of the offense forming the basis of the instant prosecution. He recited in detail the facts and circumstances of the offenses as described to him by the victims during their interviews. He was cross-examined by defendant. The testimony of the assistant district attorney was the only evidence adduced at the hearing. The trial judge, finding that the offenses exhibited identical modus oper-andi, ruled the evidence of the other crimes admissible.

As a prerequisite to the admissibility of evidence.of other crimes, the state must within a reasonable time before trial furnish in writing to defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. State v. Prieur, 277 So.2d 126 (La.1973). The state must also make a showing that the evidence of other crimes is not merely repetitive and cumulative, is not a subterfuge for depicting defendant’s bad character or his propensity for bad behavior, and that it serves the actual purpose for which it is offered. State v. Prieur, supra. However, a pretrial evidentiary hearing as to whether extraneous other-crime evidence may be admissible is not required. State v. Lukefahr, 363 So.2d 661 (La.1978).

Clearly, the evidence offered by the state at the pretrial Prieur hearing was hearsay. However, we are satisfied that the testimony of the assistant district attorney adequately informed defendant of the nature and factual content of the other-crime evidence sought to be introduced by the state. Moreover, the testimony of the victims of the prior offenses at trial conforms substantially to the details of the offenses as described by the assistant district attorney. . Additionally, this testimony afforded the trial judge a sufficient basis from which he could rule on the admissibility of the other-crime evidence. Accordingly, we are unable to say that the trial judge erred in overruling defendant’s objection to the testimony of the assistant district attorney at this pretrial Prieur hearing.

Assignment of Error No. 1 is without merit.

ASSIGNMENTS OF ERROR NOS. 2, 5 AND 14

Defendant contends the trial judge erred in overruling his objections to the state’s introduction of evidence of other crime allegedly committed by defendant (Assignments of Error Nos. 2 and 5) and in denying him motion for a new trial grounded on the contention that, even if the evidence of other crimes was relevant to prove forcible rape, it was irrelevant to prove aggravated crime against nature, thereby causing prejudice to defendant (Assignment of Error No. 14).

In order for evidence of similar acts committed by defendant to be admissible under La.R.S. 15:445 and 446, the other crimes must first be so distinctively similar as to preponderantly demonstrate that their perpetrator must be the same person. State v. Mitchell, 356 So.2d 974 (La.1978); State v. Jackson, 352 So.2d 195 (La.1977); State v. Slayton, 338 So.2d 694 (La.1976). The proof of the other crimes must be relevant to prove a fact of consequence to the accused’s present innocence or guilt (independent of the inadmissible purpose to infer that the accused committed the present crime because he had committed the other one). State v. Mitchell, supra; State v. Frederick, 340 So.2d 1353 (La.1976). Finally, the probative value of the evidence of the other crimes must outweigh any prejudicial effect. State v. Jackson, supra; State v. Moore, 278 So.2d 781 (La.1973) (on rehearing).

At trial, X, a victim of the crimes charged, testified that as she was walking home from school on August 30, 1976, she was approached by defendant who asked her name and age (she was fourteen years old at the time) and whether she would be interested in being in the movies. Defendant informed her that he was a talent scout looking for people to be in movies that were being made in New Orleans. He showed her a newspaper containing a photograph of himself talking to a local disc jockey and an application form to be filled out by those interested in obtaining parts in movies. X indicated that she was interested. He then convinced her to go with him in his car to his aunt’s house. No one was in the house when they arrived. Defendant handed X an application form for her inspection as well as a pad on which he told her to write certain information. Although defendant knew she was fourteen years old at the time, he instructed her to write down that she was twenty, explaining that this would help her get the job. Thereafter, defendant ordered X to remove her clothes and lie on the bed in a certain position in the nude. When she refused, he threatened her with physical violence. As a result, she complied with his instructions. Defendant then produced a camera and ordered her to smile while he photographed her. After the photographs were taken, defendant raped her and forced her to perform an act of fellatio upon him. The victim maintained that she was constantly threatened with physical violence if she refused to comply with defendant’s demands.

After X’s testimony, the victims of three prior forcible rapes or aggravated crimes against nature allegedly perpetrated by defendant testified. This testimony reveals that these prior offenses and the attack upon X occurred within a three-month period of time. All of the victims were teenagers and were attacked in the same general area of New Orleans. Defendant told each victim that he was a talent scout for the movies and that he was going to assist them in obtaining a part in the movies. To substantiate this claim, he showed each victim a newspaper containing a photograph of himself talking to a local disc jockey. Each victim was taken to a secluded place and, by use of force and threats, forced to remove her clothes. Defendant photographed each victim and instructed each to smile while the photographs were being taken. All of the victims were either raped by defendant or forced to perform an act of fellatio upon him. Each victim maintained that defendant constantly employed acts of physical violence and -threats during the occurrences.

The evidence of other crimes introduced by the state described in clear and simple terms occurrences extraordinarily similar in nature to the incident forming the basis of the instant prosecution. We consider that the modus operandi of all the described offenses is so peculiarly distinctive that one must logically say that they are the work of the same person, i. e., they are “signature crimes.”

Next, we must determine whether the evidence of the other crimes- is relevant to prove a fact of consequence to defendant’s innocence or guilt.

Forcible rape is defined as

sexual intercourse without the lawful consent of the victim where the victim is prevented from resisting the act by force or threats of physical violence wherein the victim reasonably believes such resistance would be useless.

La.R.S. 14:43.1. Defendant testified that he knew all of the victims of the alleged forcible rapes or aggravated crimes against nature. He also stated that he had had sexual intercourse with each of the victims but maintained that all had freely and voluntarily given their consent (defendant denied that fellatio was performed with any of the victims) and that no force or threats of physical violence was ever employed by him. Defendant also offered testimony of witnesses who indicated that several of the victims were seen in public places with defendant and appeared friendly and relaxed with him.

Clearly, the testimony offered by defendant sought to contradict the proof offered by the state that sexual intercourse in the instant case had occurred without the lawful consent of the victim where the victim was prevented from resisting the act by force or threats of physical violence wherein the victim reasonably believed that such resistance would be useless. The use of force or threats of physical violence is an essential element of the crime of forcible rape. The evidence of other crimes introduced by the state relative to the force used by defendant in the prior acts strengthens the testimony of the victim in the instant case on that issue. Hence, the evidence of the prior offenses was relevant to prove facts of consequence (use of force) to defendant’s guilt or innocence of the crime of forcible rape in the instant case. State v. Mitchell, supra; see also State v. Cass, 356 So.2d 936 (La.1977).

In addition, we believe the probative value of the evidence of other crimes relating to the use of force in the instant case clearly outweighs any prejudicial effect. Hence, the evidence offered by the state relating to prior offenses committed by defendant was admissible as similar acts pursuant to La. R.S. 15:445 and 446. Accordingly, the trial judge did not err in overruling defendant’s objections to the introduction of such evidence.

Finally, in his motion for a new trial, defendant argues that, even if the evidence of other crimes was relevant to prove forcible rape, it was irrelevant to prove aggravated crime against nature, thereby causing prejudice to defendant.

This contention should have properly been raised in a motion for severance of offenses brought either before trial or during the trial. See La.Code Crim.P. art. 495.1. As defendant did not bring the requisite motion for severance, we consider this contention to have been waived. Cf. State v. Mallett, 357 So.2d 1105 (La.1978).

Assignments of Error Nos. 2, 5 and 14 are without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in finding the state’s answers to his motion for a bill of particulars sufficient. He argues that he was not adequately informed of the location of the other crimes that he allegedly committed.

Prior to trial, defendant filed a motion for a bill of particulars requesting, inter alia, information as to the time and place defendant allegedly committed the prior offenses. In answer to defendant’s motion for a bill of particulars, the state provided the dates and times of the prior offenses and indicated the locations of the three prior offenses as: “Uptown by the river,” “around Annunciation-Bridge,” and “Terpsichore.” At a pretrial hearing on the bill of particulars, defendant expressed dissatisfaction with the specificity of the locations provided in the state’s answers. The state, in response, indicated that the victims of the prior offenses were unable to provide a more exact description of the locations of the prior offenses. The trial judge ruled the state’s answers designating the general locations of the prior offenses sufficient. Defendant objected to this ruling.

In State v. Prieur, 277 So.2d 126 (La.1973), this court held that, as a prerequisite to the admission of evidence of other crimes, the state must within a reasonable time before trial furnish in writing to defendant a statement of the acts or offenses it intends to offer, describing same with the general particularity required of an indictment or information. The place of the commission of the offense need not be alleged in the indictment or information unless the place of commission is essential to the offense. La.Code Crim.P, art. 469; State v. Hamilton, 307 So.2d 329 (La.1975).

The place of commission of the offense is not an essential element of the crimes"of forcible rape or aggravated crime against nature. See La.Code Crim.P. art. 469, Official Revision Comment (c). Hence, a designation of the general location of the prior offenses does not constitute insufficient compliance with the guidelines established in State v. Prieur, supra. See State v. Flowers, 337 So.2d 469 (La.1976). Moreover, the victims of the prior offenses were unable to recall the exact locations of the prior offenses and their testimony at trial corresponded to the locations provided by the state in its answers. It is thus apparent that the state did not withhold this information from defendant and then introduce it at trial to defendant’s surprise; rather, the state supplied defendant with all available information concerning the place of commission of the prior offenses. See State v. Cramer, 358 So.2d 1277 (La.1978). Defendant was able to adequately prepare his defense with the information supplied him. Accordingly the trial judge did not err in finding the state’s answers as to locations of the prior offenses sufficient.

Assignment of Error No. 3 is without merit.

ASSIGNMENTS OF ERROR NOS. 7 AND 8

Defendant contends the trial judge erred in denying his motions for a mistrial grounded on the state’s introduction of evidence of other crimes not mentioned in the Prieur notice.

At trial, Y, victim of a prior offense allegedly committed by defendant, testified that on July 10, 1976, she met defendant who, during the course of a conversation, identified himself as a talent scout for the movies. Defendant showed her a newspaper containing a photograph of himself talking to a local disc jockey and asked her if she wanted to be in the movies. Thereafter, defendant induced her to accompany him to a secluded location and, by use of force and threats of violence, ordered her to remove her clothing and pose for nude photographs. Defendant then forced her to perform an act of fellatio upon him. Y further testified that the next day she again encountered defendant who, by use of force and threats of violence, forced her to have sexual intercourse with him. Defendant moved for a mistrial, contending that Y’s testimony related to evidence of another crime not mentioned in the Prieur notice, i. e., that Y was forced to have sexual intercourse with defendant on a date after that indicated in the Prieur notice. The trial judge denied the motion (Assignment of Error No. 7).

The Prieur notice filed by the state prior to trial indicated the state’s intent to introduce evidence that defendant took Y to a secluded location where “he forced her to pose for nude photographs, undergo sexual intercourse and perform an act of oral copulation upon the person of the defendant.” It is thus apparent that the state’s notice adequately informed defendant of the state’s intent to produce evidence showing that defendant had forced Y to perform acts of sexual intercourse and fellatio. It is true that the notice gives no indication that the acts of sexual intercourse and fellatio occurred on separate days. However, a review of the record convinces us that defendant suffered no prejudice from the introduction of evidence at trial establishing that the acts of fellatio and sexual intercourse occurred a day apart. Defendant fully cross-examined Y as to both offenses. We do not find that defendant was surprised or misled in any way by the evidence adduced at trial concerning the offenses allegedly committed by defendant against Y. Accordingly, the trial judge did not err in denying defendant’s motion for a mistrial.

Z, another victim of a prior offense allegedly committed by defendant, testified that defendant informed her that he was a talent scout for the movies and requested her name, address and telephone number. Thereafter, defendant telephoned her and requested that she accompany him to meet a movie producer. When she refused, defendant threatened to kill her little sister if she continued to refuse. At this point, defendant moved for a mistrial, contending that Z’s testimony related to evidence of another crime not listed in the Prieur notice, L e., threats made to Z to kill her sister. The trial judge denied the motion (Assignment of Error No. 8). Thereafter, Z testified that she accompanied defendant in his car to a' secluded location where he forced her to remove her clothes and smile as he photographed her in the nude. He then forced her to have sexual intercourse with him and perform an act of fellatio upon him.

The Prieur notice filed by the state indicated its intent to introduce evidence showing that defendant took Z to a secluded location where “he forced the victim to pose for nude photographs, undergo sexual intercourse and perform an act of oral copulation.”

We first note that Prieur notice is required only where the state intends to offer evidence of other offenses under the exceptions provided in La.R.S. 15:445 and 446. Here, the evidence of defendant’s threat was not introduced for the purpose of any of these exceptions. Rather, the evidence was part of the proof necessary to establish that defendant used force or threats of physical violence to compel Z to have sexual intercourse with him and perform an act of fellatio upon him.' Hence, it was a part of that offense and consequently, no Prieur notice was required. See State v. McDaniel, 336 So.2d 841 (La.1976).

Assignments of Error Nos. 7 and 8 are without merit.

ASSIGNMENTS OF ERROR NOS. 10 AND 11

Defendant contends the trial judge erred in overruling his objections to certain testimony of state witnesses grounded on the claim that the testimony was hearsay.

The sister of the victim of the instant prosecution testified that, after the occurrence of the crimes charged, the victim came to her home crying and told her that a man had done something to her. When she asked her what had happened, defendant objected on the ground of hearsay. The objection was overruled (Assignment of Error No. 11). The sister then testified that the victim told her that a man had attacked her.

Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court assertor. State v. Drew, 360 So.2d 500 (La.1978); State v. King, 355 So.2d 1305 (La.1978). Hearsay evidence is inadmissible except under one of the statutory or well-recognized exceptions. La.R.S. 15:434.

This court has consistently recognized an exception to the hearsay rule allowing admission of the early complaints of rape victims. State v. Elzie, 351 So.2d 1174 (La.1977); State v. Brown, 302 So.2d 290 (La.1974); State v. Pace, 301 So.2d 323 (La.1974). When there is no unexplained lapse of time between the rape and the victim’s complaint, and when the utterance is spontaneous, the person to whom the complaint was made is allowed to repeat the complaint in court. State v. Eizie, supra.

The record herein reflects that, after the alleged incident, the victim (age fourteen) rode a bus home, took a bath, and lay down on her mother’s bed for a short period of time. Her mother testified that the victim appeared noticeably upset, but would not respond to the mother’s inquiries. Thereafter, the victim immediately went next door to her sister’s home. Her sister testified that, when the victim arrived at her house, she was upset and crying. The testimony of the victim and the sister indicates that approximately one-half to one hour elapsed from the time the victim first arrived home until she informed her sister of the incident.

We are convinced that the complaint of this fourteen-year-old victim of sex offenses to her sister was spontaneous and made under the immediate pressure of the occurrence. Under these circumstances, the sister’s testimony as to the victim’s statement was properly admitted into evidence.

A second sister of the victim testified that, after learning what had happened to her sister, she drove off on her bicycle in search of defendant. She stated that initially she went to the wrong location, but when her sister told her “where it happened,” she found defendant. Defendant objected on the ground of hearsay. The trial judge overruled the objection (Assignment of Error No. 10). The witness then testified that she returned home and reported defendant’s description to the police.

A well-known rule is that evidence is non-hearsay which is offered not to prove the truth of the facts recited, but to prove that the utterance occurred. State v. Drew, supra; State v. Mitchell, 356 So.2d 974 (La.1978); State v. Cass, 356 So.2d 936 (La.1977); State v. Williams, 341 So.2d 370 (La.1976); State v. Monk, 315 So.2d 727 (La.1975). The statement of the victim’s sister was not hearsay because, although it related to what another person told her, it was not offered to prove the truth of the facts recited but rather that the utterance occurred, demonstrating how she was able to locate defendant. Hence, the trial judge did not err in overruling defendant’s objection.

Assignments of Error Nos. 10 and 11 are without merit.

ASSIGNMENT OP ERROR NO. 12

Defendant contends the trial judge erred in sustaining the state’s objection to testimony defendant sought to elicit from a defense witness.

Theresa Watson was called as a defense witness. Ms. Watson testified that she had previously met defendant who told her that he was a talent scout for the movies. At this point, the state objected to any further testimony, contending that it was irrelevant. Defendant then indicated that Ms. Watson would testify that, in addition to informing her that he was a talent scout, defendant instructed her to. write down some information on a pad, and Ms. Watson falsified her age in order to impress defendant. Defendant also indicated that she would testify that she voluntarily allowed defendant to photograph her in the nude. Defendant argued that such testimony was relevant as to the state’s use of other-crime evidence. The trial judge sustained the state’s objection.

La.R.S. 15:441 provides:

Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.

This court has consistently held that the trial judge is vested with wide discretion in determining the relevancy of evidence and his ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Drew, 360 So.2d 500 (La.1978); State v. King, 355 So.2d 1305 (La.1978); State v. Russell, 352 So.2d 1289 (La.1977); State v. George, 346 So.2d 694 (La.1977). We are satisfied that neither defendant’s commission of the offenses in question nor the requisite intent would have been negatived by testimony as to what occurred between defendant and Ms. Watson. See State v. Shuff, 198 La. 67, 3 So.2d 278 (1941). Accordingly, the trial judge did not abuse his discretion in sustaining the state’s objection to Ms. Watson’s testimony on the ground that it was irrelevant.

Assignment of Error No. 12 is without merit.

DECREE

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

DIXON and CALOGERO, JJ., dissent.

DIXON, Justice

(dissenting).

I respectfully dissent.

If the testimony of X Y and Z is relevant to prove the victim did not consent, I do not understand why the testimony of Watson was not relevant to show that it was not defendant’s practice to force compliance.

ON REHEARING

DENNIS, Justice.

A rehearing was granted to reconsider defendant’s assertion that the trial court erred in allowing the introduction of other crimes evidence by the prosecution and in excluding evidence offered in rebuttal by the defendant. We reject the defendant’s contentions a second time but for reasons different from those originally given.

The defendant, Gerald Hatcher, was convicted by a jury of aggravated crime against nature, La.R.S. 14:89.1, and sentenced to ten years imprisonment at hard labor. In the same trial the jury was unable to reach a verdict on a separate charge of forcible rape arising from the same incident. The complainant, a girl in her early teens, testified that Hatcher forced her to perform fellatio and other sexual acts. Over the defendant’s objection the prosecution was allowed to introduce the testimony of three other female teenagers, each of whom claimed that Hatcher forced her to perform fellatio within three months of the charged offense. When the defendant proffered the testimony of a female witness in rebuttal, however, the court sustained a prosecution objection and excluded her testimony.

With respect to the exclusion of defendant’s evidence, we conclude that the trial court did not err because the evidence, as proffered, was irrelevant. According to the proffer by defendant’s trial counsel, who did not appear in this Court, the witness would have testified only that Hatcher represented himself to her as a talent scout, that she prepared a written employment application in which she falsified her age, and that she voluntarily allowed him to photograph her in the nude. Thus, the defense witness’s testimony would not have tended to rebut the testimony of the prosecution’s witnesses who claimed that the defendant had forcibly raped them and required them to perform fellatio. We recognize the possibility that the proffer may have been incomplete. The witness in fact may have been prepared to testify to additional facts which could have been relevant. However, the proffer did not contain any relevant facts, and the trial judge did not abuse his discretion by excluding the proposed evidence as it was presented to him.

This Court has held to be admissible, for limited purposes, proof of other crimes exhibiting almost the identical modus operan-di or system, committed in close proximity in time and place. State v. Jackson, 352 So.2d 195 (La.1977); State v. Jones, 332 So.2d 466 (La.1976); State v. Price, 325 So.2d 780 (La.1976); State v. Vince, 305 So.2d 916 (La.1974); State v. Lawrence, 294 So.2d 476 (La.1974).

In order to be admissible the extraneous offense evidence must meet several tests: (1) there must be clear and convincing evidence of the commission of the other crimes and the defendant’s connection therewith; State v. Prieur, 277 So.2d 126 (La.1973); see also, State v. Gaines, 340 So.2d 1294, 1298 (La.1977) (concurring opinion); McCormick on Evidence, § 190, pp. 451-52 (2d ed. 1972); (2) the modus operandi employed by the defendant in both the charged and the uncharged offenses must be so peculiarly distinctive that one must logically say they are the work of the same person; State v. Jackson, 352 So.2d 195 (La.1977); State v. Lee, 340 So.2d 1339, 1345 (La.1977) (concurring opinion); (3) the other crimes evidence must be substantially relevant for some other purpose than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. State v. Frederick, 340 So.2d 1353 (La.1976); (4) the other crimes evidence must tend to prove a material fact genuinely at issue; State v. Ledet, 345 So.2d 474 (La.1977); (5) the probative value of the extraneous crimes evidence must outweigh its prejudicial effect. State v. Sutfield, 354 So.2d 1334 (La.1978); State v. Jackson, 352 So.2d 195 (La.1977).

In the instant case the extraneous offenses evidence clearly meets the first two tests. The evidence of the commission of the extraneous crimes and defendant’s connection therewith was clear and convincing. The modus operandi employed by the defendant in both the charged and extraneous offenses were so peculiarly distinctive that one must logically say they are the work of the same person. See, State v. Lee, 340 So.2d 1339, 1345 (La.1977) (concurring opinion). In each instance a young teenage female victim was forced to perform fellatio after being lured into a bedroom or a car by the defendant who posed as a talent scout searching for potential movie actresses. Prior to each offense the victim was shown a newspaper clipping depicting Hatcher talking with a local disc jockey; asked to fill out an application for movie employment; urged to misstate her age on the application; and photographed in the nude. All of the extraneous offenses occurred within three months of the charged offense and in the same vicinity of the city of New Orleans.

Our initial impression in granting rehearing was that the other crimes evidence failed to meet the other tests. Indeed, if the defendant had been prosecuted only on the forcible rape charge and convicted, the introduction of the other crimes evidence more than likely would have constituted reversible error. However, since the defendant was not convicted of forcible rape or a lesser included offense, any prejudice he may have sustained in his defense to that prosecution is inconsequential to our present review.

When we view the case solely as a prosecution for aggravated crime against nature we conclude that the other crimes evidence meets all of the remaining tests for admissibility set forth above.

Although the defendant admitted having coitus with the complainant, he consistently denied that fellatio occurred. Other than the complainant’s testimony there was no evidence which tended to establish this essential fact. Thus, the question of whether the act of fellatio happened was a material fact genuinely at issue. Accordingly, the other crimes evidence was relevant for some other purpose than to show a probability that Hatcher committed the crime on trial because he is a man of criminal character who has a propensity for this type of offense. The evidence was also relevant to prove that the defendant had a design, plan, system or scheme directed toward forcing young women to perform fellatio, as manifested by his particularly distinctive modus operandi, and did carry it out in the instance on trial. We are fortified in this conclusion because the evidence also meets the test as articulated by text writers; in the instant case “the very doing of the act” was a genuine issue at trial and the charged and uncharged offenses were not merely similar; there was “such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individualized manifestations.” 2 Wigmore, Evidence, § 304 (3d ed. 1940). See also, Wein-stein’s Evidence, § 404[09] pp. 404-61.

It may be argued that proof of a design, plan, system or scheme is completely foreclosed except where continuity of the offense, knowledge or intent is a material issue in the case. La.R.S. 15:446 provides that “where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.” However, it appears more likely that the legislature intended to prohibit the introduction of evidence of a design or scheme in cases in which the evidence has no substantial relevance other than to demonstrate criminal propensity. Since the occurrence of a crime is not genuinely at issue in most prosecutions, evidence of design, plan, system or scheme usually will be inadmissible except to show knowledge and intent. But in the few eases in which the actual occurrence of crime is genuinely at issue, the design evidence has relevance independent of the defendant’s propensity and should be admitted if it meets all of the other tests. In accord with general authority, Louisiana courts have admitted other crimes evidence for purposes other than those listed in the statutes. See, State v. Sutfield, 354 So.2d 1334 (La.1978).

For many of the same reasons that the evidence meets the first four tests, the trial judge was not clearly erroneous in his determination that the probative value of the other crimes evidence outweighed its prejudicial effect. It was not manifestly wrong to conclude that the likelihood that the jury would consider the evidence as tending to prove the very doing of the sexual act in question by virtue of inference from the existence of a general design or scheme manifested by peculiarly distinctive modus operandi was greater than the risk that the jury would short circuit the process and convict the defendant because of bad character or propensity toward crimes against nature.

Our opinion today is in some respects inconsistent with the language, but not the holdings, of State v. Frentz, 354 So.2d 1007 (La.1978); State v. Jackson, 352 So.2d 195 (La.1977); and State v. Ledet, 345 So.2d 474 (La.1977). Some of the statements in those opinions suggest that a defendant’s design, scheme, plan or system may be relevant to prove identity or intent, when either is an issue in the case, but that, it is never relevant to prove the very doing of the act charged. These statements were too broad in light of the well established principles set forth above. In an unusual ease, such as the present one, in which the defendant causes the very doing of the act to become a genuine issue, his design, scheme, etc., may be relevant to that issue. Nevertheless, Frentz, Jackson, and Ledet -were each decided correctly and remain solid precedent for the application of the basic principles un-dergirding the decisions.

In Frentz, this Court held that evidence of extraneous crimes of nature by the defendant were inadmissible. Although the charged and uncharged offenses were similar, they were not “so peculiarly distinctive that one must logically say that they are the work of the same person,” State v. Lee, supra, and they lacked “such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.” 2 Wigmore, Evidence, § 304 (3d ed. 1940). Although the differences between requiring similarity, for acts negativing innocent intent, and requiring common features indicating common design, for acts showing design, is a difference of degree rather than of kind, not always perceived by the courts, nevertheless the distinction is a real one. See, 2 Wig-more, Evidence, § 304, p. 204 (3d ed. 1940). Furthermore, the probative value of the other crimes evidence in Frentz was not nearly as great as that in the instant case and did not outweigh its prejudicial effect in that case.

In State v. Jackson, supra, the other crimes evidence was inadmissible because the offenses were “no more peculiarly distinctive in nature than are any other street transactions” and “the evidence was unduly prejudicial, without overriding probative effect.” 352 So.2d at 197. The offenses in State v. Ledet, supra, were “more noteworthy for their differences than for their similarities,” 345 So.2d at 478, and there clearly was no distinctive design or plan of which the crimes were individual manifestations. Moreover, in Jackson and Ledet, “the very doing of the act” was not a genuine issue at trial.

Accordingly, our original decree is reaffirmed.

SUMMERS, C. J., and BLANCHE, J., concur.

TATE, J., concurs and assigns reasons.

MARCUS, J., concurs, adhering to reasons in original opinion.

DIXON and CALOGERO, JJ., dissent.

TATE, Justice,

concurring.

I concur with the majority opinion. Because its holding may be misconstrued, I think it is important to note what the majority does not hold: Other-crime evidence may not be used to prove that the offender committed this crime, simply because he had committed similar crimes in the past. See especially footnote 1 of the present opinion.

However, in limited circumstances such as here present — where the accused concedes the operative facts (here, the sexual encounter with the victim), but denies that any crime occurred — other-crime evidence may be admissible, if it meets the other tests, to prove the affirmatively disputed doing of the criminal act in the course of admitted conduct closely in nature approximating the crime.

In summary, where the defense is in the nature of a confession and avoidance, other-crime evidence may be admissible, insofar as it might tend to show that in fact the crime occurred, just as it did on past occasions when the admitted (but sought to explained as innocent) conduct of the accused had occurred.

Similarly, where an accused denies knowing that his check was written without knowledge that there was insufficient money in his account, repeated past incidents of this nature may be used to negate his innocent explanation of admitted conduct. So, also, where the accused admits his possession of a substance that he denies he knew was an illegal drug, then other-crime evidence may be used to negate this confession-avoidance defense. State v. Frederick, 340 So.2d 1353 (La.1976).

The chief danger of the majority opinion is that prosecutors may construe it too broadly, despite the majority’s approval of the results in Frentz, Jackson, and Ledet, and the present opinion’s merely limited refinement of the principles therein expressed in instances where an affirmative confession-and-avoidance defense is presented.

In the present case, for example (see footnote 1 of the majority opinion), prior rapes could not be used to negate an accused’s claim of consent in this case, for they are not truly probative of consent or no-consent in this case and, moreover, their prejudicial effect far outweighs their probative value. Also, in the present case if the accused had admitted that he had brought the victim to his apartment, but had denied any sexual conduct whatsoever, then the other-crime evidence would not be admissible — for its primary and substantial purport would be to prove that the accused had committed this crime, because he had committed other such crimes in the past — a traditionally prohibited use of other-crime evidence — and thus does not fall within the confession-avoidance exception as merely an accused’s innocent explanation of conduct ambiguously, but not certainly, criminal.

The subtle difference, almost inarticula-ble, that permits admission of such evidence here — or at least constitutes no abuse of the trial court’s discretion (although it is borderline) — is that the accused admits the sexual encounter, but he denies certain aspects of it which could only be known by his victim and himself, under circumstances where this sexual encounter between strangers who had just met strongly suggests, but does not prove, sexual misconduct on the defendant’s part. Under this limited confession-and-avoidance situation, I can see the reason for the rule permitting other-crime evidence, subject to its usual stringent limitations, to prove that a crime had in fact occurred, which the accused (while admitting the sexual conduct between the victim and himself) affirmatively denies.

With some reservations, and fully realizing that this attempt to articulate the reasons for the confession-and-avoidance exception is not wholly satisfactory, the writer concurs.

       Chief Judge L. Julian Samuel participated in this decision as Associate Justice Ad Hoc sitting in the place of Chief Justice Sanders, retired.

      . Defendant has neither briefed nor argued Assignments of Error Nos. 4, 6, 9, 13 and 15. Hence, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . La.R.S. 15:445 provides:
      In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.
      La.R.S. 15:446 provides:
      When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged.

      . At the. pretrial Prieur hearing, the assistant district attorney indicated that the acts of sexual intercourse and fellatio had occurred “somewhere around July 9, 1976.” In answer to defendant’s motion for a bill of particulars, the state indicated that the offenses had occurred on July 10, 1976. At trial, during cross-examination, Y admitted that she was uncertain as to the exact dates of the offenses. We note that State v. Prieur, 277 So.2d 126 (La.1973) requires only that the state describe the prior acts or offenses with the general particularity required of an indictment or information. The date or times of the commission of the offenses need not be alleged in the indictment, unless the date or time is essential to the offense. La.Code Crim.P. art. 468. The date of the offense is not an essential element of either the crime of forcible rape or aggravated crime against nature.

      . Upon reconsideration we acknowledge probable error in the analysis contained in our original opinion. Where the only issue in a prosecution for rape is that of consent, other offenses are usually held to be inadmissible. See, 2 Wigmore, Evidence (Supp.1977). See, e. g., Lovely v. United States, 169 F.2d 386 (4th Cir. 1948); State v. Beaulieu, 116 R.I. 575, 359 A.2d 689 (1976); Setzer v. State, 29 Md.App. 347, 348 A.2d 866 (1975); State v. Davis, 239 S.C. 280, 122 S.E.2d 633 (1961). The lack of consent by other victims is not probative of lack of consent by the complainant of the charged offense. Lovely v. United States, supra, at 390. Some courts admit other crimes evidence for this purpose. See, Fisher v. State, 57 Ala.App. 310, 328 So.2d 311, writ denied, 295 Ala. 401, 328 So.2d 321 (1976); People v. Oliphant, 399 Mich. 472, 250 N.W.2d 443 (1976); State v. Hampton, 215 Kan. 907, 529 P.2d 127 (1974); Williams v. State, 110 So.2d 654 (Fla.1959); but their reasons are not persuasive. Furthermore, in the instant case in which the accused employed an elaborately seductive design or scheme, the defendant’s use of force as a final resort in committing the other crimes has little probative value to show that he was required to use force on the occasion in question. Nor was the other crimes evidence admissible to prove identity as in State v. Mitchell, 356 So.2d 974 (La.1978) because Hatcher’s identity was never a genuine issue.

      . In Frentz the prosecution introduced the testimony of two eyewitnesses, other than the victim, to the unnatural sex act, whereas in the instant case the complainant was the state’s only witness who could dispute Hatcher’s testimony. In the present case the probative nature of the state’s other crimes evidence was further enhanced by the state’s need to disprove Hatcher’s persuasive story that the object of his design or scheme had been accomplished when he persuaded the complainant to consent to normal sexual intercourse. Frentz, on the other hand, despite the contrary testimony of two eyewitnesses, merely denied that any sexual conduct ever occurred.


author: MARCUS, Justice. CALOGERO, Justice, SUMMERS, Chief Justice

text:
    STATE of Louisiana v. Gerald PARKER.
    No. 63355.
    Supreme Court of Louisiana.
    April 9, 1979.

      Richard A. Thompson, Lawrence Blake Jones, Robert Altman, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Gerald Parker was charged in the same indictment with two separate counts of first degree murder in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty as charged on both counts. A sentencing hearing was conducted before the same jury that determined the issue of guilt, and the jury unanimously recommended that the sentence of death be imposed on defendant as to each count. The trial judge sentenced defendant to death in accordance with the recommendation of the jury. On appeal, defendant relies on sixty-one assignments of error for reversal of his convictions and sentences. Finding merit in one of the assigned errors, we need not consider the others.

Defendant contends the trial court erred in not sequestering the jurors as required by law (Assignments of Error Nos. 2 and 8).

La.Code Crim.P. art. 791 provides in pertinent part:

A jury is sequestered by being kept together in charge of an officer of the court so as to be secluded from outside communication.
In capital cases, after each juror is sworn, he shall be sequestered.

The purpose of the sequestration is to insulate the jurors from outside influence or the possibility thereof, even unconscious; and, in capital cases especially, the sequestration is strictly enforced so that, upon a separation of a juror after he is sworn, a presumption of misconduct arises and reversible error will presumed. State v. Martin, 329 So.2d 688 (La.1976); State v. Smith, 322 So.2d 197 (La.1975); State v. Luquette, 275 So.2d 396 (La.1973); State v. Craighead, 114 La. 84, 38 So. 28 (1905); State v. Hornsby, 8 Rob. 554 (La.1844). This jurisprudential rule is, however, limited by those cases holding that where circumstances are such as to reasonably overcome the presumption of prejudice and where it affirmatively appears that no prejudice to the accused could have resulted, the presumption may be rebutted, so that the mere separation of a juror briefly may be held to be insufficient ground to set aside a verdict. State v. Quincy, 363 So.2d 647 (La.1978); State v. Sheppard, 350 So.2d 615 (La.1977); State v. Smith, supra.

The record reflects that, after each juror was accepted by the state and defense, he or she was sworn as a juror. There is no showing (either in the minutes of court or on the record) that the oath taken by each juror included instructions as to their sequestration. After the first three jurors were sworn, there occurred a ten-minute recess. There is nothing before us to indicate that these jurors (already sworn) were instructed as to the requirements of sequestration or placed under the supervision of any court officer during this recess. Thereafter, the entire jury was selected and sworn, and the court recessed for lunch, informing the jurors that they would be allowed to make telephone calls to their homes or places of business. Although, at this time, the trial judge did instruct the jurors that they were not to discuss any aspect of the case among themselves or with anyone else, there again is no showing that the jurors’ lunch period or telephone calls were supervised by officers of the court.

The trial of this case lasted three days. On the second day of trial, jurors were again allowed to make unsupervised telephone calls to their homes or places of business. In addition, throughout the trial, several recesses were called, prior to which no instructions were given to the jurors as to their sequestration. Although the trial judge admonished the jurors that they were not to read the New Orleans newspapers, jurors were permitted to watch television (excluding news shows) without any apparent supervision by officers of the court. Further, as the trial judge permitted jurors to use their own private transportation to travel back and forth from the courtroom to their hotel, it is apparent that the jurors who used such private transportation were separated from their fellow jurors and under no supervision by court officers during the period of their travels.

Based upon the totality of the facts and circumstances here presented, we cannot say that the procedures employed by the trial court properly insulated the jurors from outside influences or the possibility thereof, even unconscious. In addition, it is clear that the instant case does not present a situation wherein an isolated violation of the sequestration can be considered harmless. Rather, there occurred a continuing and substantial failure to adhere to the sequestration mandated in a capital case. Moreover, the circumstances are not such as to reasonably overcome the presumption of prejudice to the accused nor are we satisfied that affirmative proof of an absence of prejudice was adequately established. Accordingly, we must reverse.

DECREE

For the reasons assigned, the convictions and sentences are reversed and the case is remanded fór a new trial in accordance with the views herein expressed.

SUMMERS, C. J., dissents and assigns reasons.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

Unlike State v. Martin, 329 So.2d 688 (La.1976) and State v. Luquette, 275 So.2d 396 (La.1973) upon which the majority relies, there was no significant violation of the sequestration rule. Rather the facts here are more like those in State v. Smith, 322 So.2d 197 (La.1975) wherein reversible error was found not to have occurred.

SUMMERS, Chief Justice

(dissenting).

I dissent for the reasons assigned by Mr. Justice CALOGERO.

      . Defendant’s contention, grounded upon the alleged failure of the trial court to sequester the jurors as required by law, is made for the first time on appeal. Defendant neither objected to the sequestration procedures at trial nor relied upon this alleged error in his motion for a new trial. In fact, several times throughout the trial, defense counsel expressly assented to the trial court’s sequestration procedures. We note, however, that the jurisprudence of this state has long recognized that it is not necessary for a defendant to complain of injury resulting from the failure of the trial court to sequester jurors as required by law, nor may an accused prejudice his rights by affirmatively consenting to such a method of conducting his trial. State v. Luquette, 275 So.2d 396 (La.1973); State v. Craighead, 144 La. 84, 38 So. 28 (1905). See also State v. Hornsby, 8 Rob. 554 (La.1844).


text:
    STATE of Louisiana v. Lena J. WATKINS.
    No. 63899.
    Supreme Court of Louisiana.
    May 30, 1979.

      Alton T. Moran, Director, Baton Rouge, Gail H. Ray, Asst. Public Defender, for defendant-appellant. •
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., David M. Miller, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appel-lee.
   PER CURIAM.

On appeal, defendant contends that his plea of guilty, entered on June 2, 1978, to the charges of simple robbery, La.R.S. 14:65, and attempted first degree murder, La.R.S. 14:27 (14:30), was not understanding and voluntary. Such a contention is not properly raised on appeal, but must be pressed by an application for a writ of habeas corpus in the district court. See State ex rel. Clark v. Marullo, 352 So.2d 223 (La.1977); State v. Crosby, 338 So.2d 584 (La.1976).

Accordingly, defendant’s conviction and sentence are affirmed.

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


text:
    Clarence S. COLEMAN v. The KROGER COMPANY.
    No. 64548.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Clarence S. Coleman applying for writ of certiorari, First Circuit Court of Appeal. Parish of East Baton Rouge. 371 So.2d 1186.

Writ denied.


text:
    STATE of Louisiana ex rel. Joseph SALISBERRY v. Frank C. BLACKBURN, Warden.
    No. 64876.
    Supreme Court of Louisiana.
    June 15, 1979.
   In re Joseph Salisberry applying for writ of mandamus. Parish of Iberville. No. 12,-389.

Writ denied. The trial court acted on the writ filed on October 16, 1978. See its order of October 20, 1978. The mandamus application is therefore moot.


text:
    STATE of Louisiana v. E. R. EDDLEMAN, John Eddleman, II, and Jerry Dyer.
    No. 64904.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re State of Louisiana through the District Attorney, Duncan Kemp, III, applying for writs of certiorari, prohibition, and mandamus. Livingston Parish. Nos. 2846-2847, 2848-2849, 2844-2845.

Writ denied. The minute entry has been corrected by judgment signed by the trial judge.


text:
    STATE of Louisiana v. Elliott WILLIAMS, Jr.
    No. 64891.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Elliott Williams, Jr., applying for remedial writs of certiorari, prohibition, mandamus and a stay order. Lincoln Parish. No. 25,260.

Denied.


text:
    STATE of Louisiana v. John R. PATTERSON, III.
    No. 64888.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re John R. Patterson, III, applying for supervisory writs. Parish of Orleans. No. 253-120.

Writ denied.


text:
    STATE of Louisiana ex rel. Jessie James WASHINGTON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 64887.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Jessie James Washington, applying for writ of habeas corpus. Parish of East Feliciana. No. A-14,926.

Writ denied.

DIXON, J., would grant the writ and order a hearing on the search warrant issue.

CALOGERO, J., would grant an eviden-tiary hearing.


text:
    STATE of Louisiana ex rel. Maurice GIBBS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 64886.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Maurice Gibbs, applying for writ of habeas corpus and remedial writs. Parish of Orleans. No. 225-403.

Denied; See Opinion on appeal. All issues voiced were either disposed of by attachments, treated on appeal, not supported by law, or waived.


text:
    STATE of Louisiana ex rel. George DONIVAN v. Frank BLACKBURN, Warden.
    No. 64878.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re George Donivan applying for writ of certiorari, prohibition, mandamus or ha-beas corpus. Parish of Orleans. No. 168-273.

Writ denied.

DIXON and CALOGERO, JJ., would grant an evidentiary hearing.


text:
    STATE of Louisiana ex rel. Willie CUMMINGS, Jr. v. Frank BLACKBURN, Warden.
    No. 64871.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Willie Cummings, Jr. applying for writs of certiorari, prohibition, mandamus or habeas corpus. Parish of Caddo. No. 110,848-HC.

Writ denied.


text:
    STATE of Louisiana v. David ALEXANDER.
    No. 64860.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re David Alexander, applying for supervisory and remedial writs. Parish of Caddo. No. 111,310.

Writ denied.

TATE, CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Douglas K. McCONKEY.
    No. 64854.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Douglas K. McConkey, applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. No. M-41138.

Writ denied. Relator has an adequate remedy by review in the event of conviction.