author: DAUKSCH, Judge. MOORE, Judge,

text:
    Steven Craig HOFFMAN, Appellant, v. STATE of Florida, Appellee.
    No. 78-627.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1979.
    H. Bryant Sims of Moore, Winkel, Sims, Kenney & Crosswell, Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a conviction of unarmed robbery. The appellant has alleged three errors only one of which we will comment upon.

The principal error alleged in this appeal is the trial court’s granting of a motion to amend a statement of particulars at trial. We affirm.

Appellant was charged with armed robbery and false imprisonment. It was alleged in the information that these crimes took place on June 1,1977. In response to a motion from the appellant the state filed a statement of particulars saying the crimes took place between 11:00 A.M. on June 1, 1977 and 11:00 A.M. on June 2, 1977. Fla. R.Crim.P. 3.140(n). The state also responded by properly demanding notice from the appellant as to his intention to rely upon an alibi defense. The appellant gave no notice of intention to rely upon alibi as a defense.

After the opening statements at trial, which is after the jury was sworn and jeopardy attaches, the appellant pointed out to the court that during opening statements the jury was told the crime occurred on May 31, 1977 and early on June 1, 1977. The appellant urged the court to require the state to prove the crime occurred on the date set out in the statement of particulars because “my défense through (sic) June 1, 11:00 A.M. and June 2, 11:00 A.M. is alibi.” The court then inquired of appellant’s counsel if he knew before trial that the proof was going to relate to an hour preceding 11:00 A.M., June 1, 1977 and he replied he did know that but that “I don’t have to tell the state their defects in their case,.until a jury is sworn.”

The state moved to amend the statement of particulars which the trial court granted and the case proceeded to conviction of unarmed robbery.

The granting of the state’s motion to amend the statement of particulars did not so prejudice the appellant as to hinder him in the preparation or presentation of his defense. To allow the defendant in a criminal case, with full knowledge of the crime alleged against him and with knowledge of a technical error of one day’s date on a pleading, to wait in ambush for the state until the jury is sworn then spring hi¡v trap is tantamount to asking the court to referee a game of hide and seek.

This is not to say the state should not be bound by its allegations and that prosecutors should not be diligent in the preparation of their cases and that the accused persons should not be always fully advised as to what the state alleges. To the contrary we abide by the principle that no trial, especially one where a person is accused by the state of a crime, should be by surprise attack. That did not occur in this case and we follow the general principle we set out in Howlett v. State, 260 So.2d 878 (Fla. 4th DCA 1972) that a defect as to date of the offense may not be a fatal defect. This principle was also recognized in Lackos v. State, 339 So.2d 217 (Fla.1976) where our supreme court held that a showing of prejudice must precede the “kind of procedural niceties” the appellant seeks here.

The appellant has not demonstrated one bit of prejudice to him on account of the error of one date in the information and statement of particulars. To the contrary, he was not prejudiced. First, he knew of the mistake before trial; second, although his lawyer said at trial the appellant had an alibi he did not file the requisite notice of intention to claim alibi (and thus would have been prevented, most likely, from presenting that defense because of his failure); third, although we have not been provided with a transcript of appellant’s testimony we know from the record he did testify and we know from a statement of counsel at trial that the “. . . heart of the defense. The defense is that this man, this Donald Benson, so-called victim, sold and attempted to sell to my client T.H.C.” Thus the appellant did not claim an alibi at the time the crime was committed, but evidently claimed that it was some kind of drug transaction rather than a robbery. The jury found there was a robbery. The appellant received a fair trial. The conviction and sentence are

AFFIRMED.

CROSS, J., concurs.

MOORE, J., concurs specially with opinion.

MOORE, Judge,

concurring specially.

I concur in the conclusion reached by the majority because I feel that Howlett v. State, 260 So.2d 879 (Fla. 4th DCA 1972) mandates such a conclusion. I have difficulty, however, reconciling our position for several reasons.

In State v. Beamon, 298 So.2d 376 (Fla.1974), a case involving an issue regarding double jeopardy, the Supreme Court peripherally addressed the issue involved herein where it said in dicta:

“When there is a bill of particulars, and when it specifies only an exact date upon which the offense occurred, the prosecution is limited, if objection be made, to proof of an offense occurring on that date and no other under that particular Information; ... Nor may the State remedy an erroneous date specified in the bill of particulars, if there is an objection, by amending it to conform to the evidence adduced after presentation of the evidence.” at 378, 379.

Additionally, Fla.R.Crim.P. 3.140(n) provides for a statement of particulars upon motion of the defendant. The last sentence of the rule states: “Reasonable doubts concerning the construction of this rule shall be resolved in favor of the defendant.” Our Standard Jury Instructions in Criminal Cases, as approved by the Supreme Court, provide that the effect of a statement of particulars is to require the State to prove the exact date beyond a reasonable doubt.

Notwithstanding the above, the modern trend is to excuse technical defects which have no bearing on the substantial rights of the parties. Lackos v. State, 326 So.2d 220 (Fla. 2nd DCA 1976), cert. den. 339 So.2d 217 (Fla.1976). In the instant case, although counsel for the appellant stated at trial that his defense was alibi, he had failed to respond to the State’s demand for notice of intention to rely upon alibi as a defense. In fact, the proof demonstrated the lack of an alibi. To the contrary, the defense involved an alleged drug deal between the appellant and two other individuals.

The statement of particulars specified the crime to have occurred between the hours of 11:00 A.M. on June 1 and 11:00 A.M. on June 2. The proof showed the crime to have occurred at approximately 1:00 A.M. on June 1. I fail to see where any substantial rights of the appellant were prejudiced as a result of this technical defect contained in the statement of particulars.

In my opinion, however, we should clearly acknowledge that we will not condone the manner in which the statement of particulars was handled in this case, where the slightest prejudice to a defendant may be shown. In attempting to deprive one of his liberty by reason of alleged criminal activity, it is not too much to require the State to be technically correct. Here, had the State merely referred to the time indicated on the victim’s statement as given to an investigating police officer, the error in the statement of particulars would not have occurred.

The other matters raised by the appellant are without merit. Accordingly, I concur in the conclusion reached by the majority.

      . We could order it transcribed and filed here but deem that unnecessary. Fla.R.App.P. 9.200(f).

      . “3.140(n) Statement of Particulars. The Court, upon motion, shall order the prosecuting attorney to furnish a statement of particulars, when the indictment or information upon which the defendant is to be tried fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense. Such statement of particulars shall specify as definitely as possible the place, date, and all other material facts of the crime charged that are specifically requested and are known to the prosecuting attorney, including the names of persons intended to be defrauded. Reasonable doubts concerning the construction of this rule shall be resolved in favor of the defendant.”

      . Fla.Std. Jury Instr. (Crim.) 2.09.


source: Caselaw Access Project

author: DAUKSCH, Judge.

license: Public Domain

text:
    Don Warren SMITH and Brenda Smith, his wife, v. ALLSTATE INSURANCE COMPANY, a Foreign Corporation doing business in the State of Florida, Appellee.
    No. 78-1118.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1979.
    Mark P. Lang of T. G. LaGrone, P. A., Orlando, for appellants.
    Reinald Werrenrath, III, of Akerman, Senterfitt & Aidson, Orlando, for appellee.
   DAUKSCH, Judge.

AFFIRMED on the authority of Dewberry v. Auto-Owners Insurance Company, 363 So.2d 1077 (Fla.1978).

CROSS and BERANEK, JJ., concur.


author: MOORE, Judge.

text:
    STATE of Florida, Appellant, v. Nancy Ann JOHNSON, Appellee.
    No. 78-2608.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1979.
    David H. Bludworth, State’s Atty., and Debra E. Pole, Asst. State’s Atty., West Palm Beach, for appellant.
    Ronald E. Jones, West Palm Beach, for appellee.
   MOORE, Judge.

The State seeks reversal of an order granting appellee's motion to suppress evidence obtained pursuant to execution of a search warrant. We reverse.

Appellee’s motion to suppress evidence was grounded upon an alleged violation of Section 901.19 and Section 933.09, Florida Statutes (1977) which require law enforcement officers to announce their authority and purpose prior to breaking into any premises. If such access is denied, they are then authorized to use all necessary and reasonable force in gaining such access.

At approximately 4:00 o’clock A.M., pursuant to a search warrant, six police officers surrounded appellee’s second story apartment. Two of the officers, armed with sledge hammers, stationed themselves at the front door while a third officer provided protection. Another officer was assigned to turn off the water to the apartment while the remaining two officers were stationing a truck (a cherry picker), equipped with a crane and bucket, at the rear of the apartment. One officer was raised in the bucket to the level of the bathroom window. His function was to “secure” the bathroom in order to avoid the destruction of any evidence. As soon as he was in position, the officers at the front door commenced to enter the apartment by means of hammering in the door. At no time prior to hammering the door did any one of the officers knock and announce his authority and purpose. They did, however, announce the fact that they were police officers as they were proceeding to hammer in the front door. The appellee, who had been asleep in the apartment, immediately ran to the bathroom and threw a quantity of cocaine into the toilet. Her efforts to flush the toilet were thwarted by the officer in the cherry picker, who held her at bay through the use of a long pole. Nineteen “decks” of cocaine were subsequently retrieved from the toilet.

In discussing Section 901.19(1), the Florida Supreme Court, in Benefield v. State, 160 So.2d 706 (Fla.1964), developed four exceptions to the knock and announce requirement: (1) where the person within already knows of the officers’ authority and purpose; (2) where the officers are justified in the belief that the persons within are in imminent peril of bodily harm; (3) if the officer’s peril would have been increased had he demanded entrance and stated the purpose, and (4) where those within are made aware of the presence of someone outside and are then engaged in activities which justify the officers in the belief that an escape or destruction of evidence is being attempted. It is generally recognized that absent one of these exceptions, the failure to knock and announce mandates suppression of any evidence so obtained. State v. Kelly, 287 So.2d 13 (Fla.1973). The fourth exception in Benefield, supra, was expanded by this Court in State v. Clarke, 242 So.2d 791 (Fla. 4th DCA 1971), cert. den. 246 So.2d 112 (Fla.1971), which held that the police may enter unannounced, not only when they are aware of an attempt to destroy evidence, but also where the facts show reasonable grounds to fear destruction of the evidence. See also Earman v. State, 265 So.2d 695 (Fla.1972).

The search warrant in the instant case was founded upon an affidavit which recited two recent controlled buys of cocaine from the suspect at the subject residence. Upon completion of the second “buy”, the suspect stated, “Here it is. I’ve got plenty more. Come back whenever you want it.” There is no contention that probable cause for the issuance of the search warrant was lacking. The sole contention is the manner in which the warrant was executed. Approximately five months prior to the issuance of the search warrant, the same residence was the subject of another search warrant, at which time the appellee was then arrested for possession of marijuana and narcotics paraphernalia. During the execution of that warrant, one of the officers testified that after having announced their authority and purpose, the officers were thwarted in their attempts to obtain additional contraband because allegedly it had been flushed down the toilet. The officer heard the toilet “running” before being granted entrance. On that occasion, the appellee stated to the officers: “You’ll never get me. I’m too slick.” The same officer also testified that because of the way in which the entrance door was constructed and the type of locks utilized on the door, there was additional time for an occupant to destroy evidence before entry could be obtained. It was therefore necessary to proceed in the manner described above. The modus operandi of executing the search warrant in the instant case was described to, and orally approved by, the judge who signed the warrant. We feel it is preferable, although not now required, that a transcript of such proceedings before the approving judge be made a part of the record whenever such methods of execution are deemed appropriate.

The action of the police officers in failing to knock and announce was proper. The officers knew what they were looking for, the amount of contraband involved was small, there were readily accessible means of disposing of the contraband, and based upon previous experience and the construction of the facilities, the officers had reasonable grounds to fear the destruction of the evidence if they were to knock and announce their authority and purpose. The facts in this case clearly fall within the exception of Clarke, supra.

We are not unmindful of our recent decision in Berryman v. State, 368 So.2d 893 (Fla. 4th DCA 1979). There, however, it was noted that the police had no knowledge or even a suspicion regarding the quantity or type of drug present. Appellee’s reliance on Berryman is therefore misplaced.

The order granting the motion to suppress the evidence in the instant case is reversed and this cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

DOWNED C. J., and CROSS, J., concur.

      . § 901.19(1) “If a peace officer fails to gain admittance after he has announced his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, he may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.”
      § 933.09 “The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of his authority and purpose he is refused admittance to said house or access to anything therein.”

      . Another group of police officers simultaneously commenced execution of a search warrant at another apartment in the same complex.


author: PER CURIAM.

text:
    Curtis Melvin HAYDEN, by and through his Mother and next friend, Norma Jean Hayden, Petitioner, v. C. W. MILLER, in his official capacity as Sheriff of Brevard County, Florida, Respondent. Curtis Melvin HAYDEN, by and through his Mother and next friend, Norma Jean Hayden, Appellant, v. C. W. MILLER, in his official capacity as Sheriff of Brevard County, Florida, Appellee.
    Nos. 78-2741, 79-227.
    District Court of Appeal of Florida, Fourth District.
    June 29, 1979.
    Joan H. Bickerstaff, Cocoa Beach, for petitioner.
    Edna L. Caruso, West Palm Beach, for Health & Rehabilitative Services.
   PER CURIAM.

In these proceedings consolidated by the court on its own motion, the appellant, Curtis Melvin Hayden, a minor, seeks to overturn a circuit court paternity judgment and subsequent order and sentence for contempt on the grounds that the trial court failed to comply with the provisions of Fla.R.Civ.P. 1.210(b) pertaining to the appointment of a guardian ad litem. Oral argument was heard in the habeas corpus proceedings and has been dispensed with in the appeal proceedings, upon the court’s conclusion that the interests of justice warrant the prompt and consolidated disposition of these proceedings.

While agreeing that the trial court failed to comply with the provisions of Rule 1.210(b), appellee contends that appellant is precluded from attacking the subsequent judgment and order of contempt. We disagree. Brown v. Ripley, 119 So.2d 712 (Fla. 1st D.C.A. 1960). In addition the parties have informed the court that another paternity action has been filed in the trial court against the appellant, who has now reached his majority, arising out of the same circumstances that are the subject of the proceedings now before this court. Upon the record before the court we find that because of the failure of the trial court to comply with the provisions of Rule 1.210(b), the final judgment was subject to being set aside upon subsequent application by the minor. Brown v. Ripley, supra. That being so, the appellant’s application for writ of habeas corpus, filed when he was incarcerated for being in contempt of the final judgment, should have been granted.

Accordingly, the petition for writ of ha-beas corpus filed in this court is denied; but the order of the trial court denying the appellant’s petition for writ of habeas corpus is hereby reversed with directions that an order be entered discharging the appellant from the custody of the sheriff and setting aside the final judgment of paternity and any orders predicated thereon.

CROSS, ANSTEAD and BERANEK, JJ., concur.


text:
    Donna Jean RUBINO, Appellant, v. Richard Gene RUBINO, Appellee.
    No. MM-47.
    District Court of Appeal of Florida, First District.
    June 29, 1979.
    Elise F. Judelle, of Bryant, Miller & Olive, Tallahassee, for appellant.
    Jerome M. Novey, of Novey & Blanton, Tallahassee, for appellee.
   PER CURIAM.

Mrs. Rubino contends that the trial court erred by failing to require her husband to pay one-half of the ownership expenses on the jointly owned home during the use and occupancy by the wife and children; by awarding rehabilitative alimony rather than permanent alimony, or in not reserving jurisdiction to consider a later award of alimony; and by denying the wife the husband’s interest in the marital home as lump sum alimony. The wife’s first point has merit; the other points are affirmed. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Robinson v. Robinson, 366 So.2d 1210 (Fla. 1st DCA 1979).

The trial court’s order is, in pertinent part, as follows:

“The parties shall own the marital residence at 2521 Harriman Circle, Tallahassee, Florida, as tenants in common, however, the wife shall so long as she remains unmarried have the right to reside in and have possession and use of the house and lot until such time as all of the minor children of the parties has reached the age of eighteen (18) years, married or become self-supporting, died, or further order of this court, if she will pay the mortgage, reasonable maintenance, insurance and tax payments pertaining to the house for the time she resides there. After such time or if she chooses to_move out earlier, the parties as tenants in common shall become equally responsible for the mortgage, reasonable maintenance, insurance and tax payments, and shall share equally in any proceeds from the home.”

A wife who pays all of the mortgage, taxes, insurance, and expenses on jointly— owned property is entitled to credit against the husband’s one-half of the proceeds upon the sale of the property. See Schatz v. Schatz, 356 So.2d 892 (Fla.3d DCA 1978). It is impermissible to require the wife to increase the equity of the husband by her own payments. Singer v. Singer, 342 So.2d 861 (Fla. 1st DCA 1977). The wife here is entitled to either credit or is entitled to have the husband pay one-half of the expenses. Accordingly, the case is remanded to the trial court for clarification of the above quoted portion of the judgment in accordance with this opinion. Appellant’s motion for attorney’s fees on appeal is denied.

ERVIN, Acting C. J., and MELVIN and BOOTH, JJ., concur.


text:
    Jerry Thomas GRACE, Appellant, v. STATE of Florida, Appellee.
    No. II-215.
    District Court of Appeal of Florida, First District.
    June 29, 1979.
    Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Jerry Thomas Grace was adjudged guilty of the crime of first degree murder by the Circuit Court of Walton County, Florida, and he has perfected his appeal from the judgment and sentence imposed.

The victim was a man named Ray Aris. Jerry Thomas Grace admitted that he killed Aris by shooting him with a gun. The defendant contended that such act was done in self-defense and there was ample evidence presented by the State upon which the jury could have found and by their verdict did find that the killing was an unlawful killing and that the same was not done in self-defense. The trial court approved the findings of fact made by the jury and so do we. The only point presented on appeal that had any possible merit was the appellant’s contention that the court had unduly limited him in the cross-examination of a witness. We have carefully examined the briefs and the record in that regard and, while we find that the appellant did not receive a perfect trial, he was not entitled to one. He was entitled to a fair trial and he received that. It is not the function of this Court to substitute its judgment for that of the jury or the trial judge where the evidence is legally sufficient to support the verdict, the judgment and sentence. The appellant having failed to demonstrate reversible error, it follows that the judgment and sentence appealed from is AFFIRMED.

McCORD, C. J., and MELVIN and LARRY G. SMITH, JJ., concur.


text:
    G. J. E., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-335.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Bennett H. Brummer, Public Defender, and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Susan Minor, Asst. Atty. Gen., and Clifford M. Miller, Legal Intern, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed. See Codie v. State, 313 So.2d 754 (Fla.1975) and Martinez v. State, 346 So.2d 1209, 1210 (Fla. 3d DCA 1977); Carr v. State, 45 Fla. 11, 34 So. 892 (1903).


text:
    Matthew B. HORWEEN, Appellant, v. Barbara HORWEEN, Appellee.
    No. 78-984.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Pertnoy & Greenberg, Bailey & Dawes and John W. Kearns, Miami, for appellant.
    Anne T. Peskoe, Miami, for appellee.

      Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The husband Matthew B. Horween appeals a final judgment and an order supplementing motions both entered April 28, 1978 in a marriage dissolution action. The final judgment and order appealed from were entered after the trial court had struck the husband’s pleadings and granted a default against the husband after finding the husband in contempt for non-payment of certain monies previously ordered by the court.

We reverse the final judgment and order appealed from upon a holding that (a) the husband was not afforded a fair opportunity to establish his financial inability to pay the monies previously ordered by the court, and (b) the husband was not accorded a hearing at all on his motion to modify temporary relief filed March 2, 1978. As such, the final judgment and order appealed from, resting as it does on the striking of the husband’s pleadings and the granting of a default, must be reversed and the cause remanded for further proceedings. Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977).

Reversed and remanded.


text:
    Pilar VEGA, Appellant, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Appellee.
    Nos. 78-1439, 78-1536.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Horton, Perse & Ginsberg and Edward A. Perse, Dunn & Johnson, Miami, for appellant.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Thomas J. Caldwell, Miami, for appellee.
    Before HENDRY, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Allstate Ins. Co. v. Dougherty, 197 So.2d 563 (Fla. 3d DCA 1967); Aetna Casualty and Surety Co. v. Simpson, 128 So.2d 420 (Fla. 1st DCA 1961); compare Allstate Ins. Co. v. Crawford, 365 So.2d 408 (Fla. 3d DCA 1978).


text:
    R. A. MUELLER, Individually, and R. A. Mueller Riteway, Inc., a Florida Corporation, Appellants, v. Norman Bruce WETMORE and Maria S. Wetmore, his wife, Appellees.
    Nos. 78-1587, 78-1588.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Raskin & Weinstein, Miami, for appellants.
    Reichenthal & Schillinger and Lee H. Schillinger, Coral Gables, for appellees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Paul v. State, 209 So.2d 464 (Fla.3d DCA 1968); Kline v. Pyms Suchman Real Estate Company, 303 So.2d 401 (Fla.3d DCA 1974); Klepper v. J. C. Penney Company, Inc., 340 So.2d 1170 (Fla.4th DCA 1976); Brown v. Coates, 102 U.S.App.D.C. 300, 253 F.2d 36 (1958).


text:
    Robert R. FRANK, Appellant, v. INTERCONTINENTAL BANK OF MIAMI BEACH, etc., Appellee.
    No. 78-1906.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellant.
    Salley, Barns & Pajón and Maxwell Gra-bove, Miami, for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and KEHOE, JJ.
   PER CURIAM.

The appellant (an attorney) executed a note to the appellee-bank in exchange for a note previously given to the bank by a client of his. He also directed who would be named in an assignment of final judgment, which the bank had previously recovered on the client’s note. He subsequently renewed the obligation to the bank by the execution of an additional note which was labeled “renewal note”. This renewal not being paid when it became due, the bank brought suit for collection. After the cause was at issue, the parties stipulated that the only issue to be tried was consideration to the appellant, Frank, at the time of the execution of his original note.

At the time of trial, appellant attempted to raise a defense not pled, relating to his being an accommodation endorser or maker for the benefit of the bank. This defense was objected to. After hearing, the trial court found consideration and rendered judgment accordingly. This appeal ensued, the appellant contending, first, there was no consideration for his original note and, second, that he executed same merely as an accommodation to the bank and not to accommodate his client. We find no merit in either contention. See: Section 673.3-408, Florida Statutes (1973), 19B F.S.A. 206 and comment thereon; Fla. R.Civ.P. 1.190(b). Further, the note being sued on being a “renewal note”, neither defense was available to the defendant, Frank, in the trial court. See: Padgett v. Lewis, 54 Fla. 177, 45 So. 29 (1907); Hurner v. Mutual Bankers Corporation, 140 Fla. 435, 191 So. 831 (1939); Watson v. Central Florida Properties, Inc., 172 So.2d 608 (Fla.2d DCA 1965).

Therefore, the final judgment under review is affirmed.

Affirmed.


author: KEHOE, Judge.

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Tommie Lee Burton, and Mitchell Cress, Appellants, v. Lourdes MENDEZ, Appellee.
    Nos. 78-2078, 78-2100.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and R. Owen Ricker, Jr., Miami, for appellants.
    Michael A. Lipsky, Miami Beach, for ap-pellee.
    Before HAVERFIELD, C. J., and BARK-DULL and KEHOE, JJ.
   KEHOE, Judge.

Appellants, defendants below, bring these consolidated appeals from an order, as amended, entered by the trial court denying their motion to dismiss for insufficiency of service of process and lack of personal jurisdiction. We reverse.

In May of 1978, appellee filed suit against appellants alleging that the individuals owned and operated a vehicle which was insured by appellee GEICO. Appellee further alleged that appellant Mitchell Cress had negligently operated the vehicle causing it to collide with her car, resulting in severe physical injuries to herself. Service was obtained on only appellant Tommie Lee Burton who was served by substituted service through the Florida Secretary of State pursuant to Section 48.171, Florida Statutes (1977). Subsequently, appellants’ motion to dismiss for insufficiency of service of process and lack of personal jurisdiction was denied by the trial court in the order appealed. In our opinion this constituted reversible error because the record reflects that, at the time the order was entered, there was insufficient evidence before the trial court to establish the ground that the party served by substituted service was secreting himself. See Bird v. International Graphics, 362 So.2d 316 (Fla. 3d DCA 1978); Bejar v. Garcia, 354 So.2d 964 (Fla. 3d DCA 1978); and § 48.171, Fla.Stat. (1977). Accordingly, the order appealed is reversed.

Reversed.


text:
    The STATE of Florida, Appellant, v. Daisy Ruth MAYCOCK, Appellee.
    No. 78-2106.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

This is an appeal by the state of Florida from an order dismissing the second count of an information which charged the defendant with being a convicted felon unlawfully carrying a concealed weapon.

The trial court ruled that if the Department of Offender Rehabilitation had complied with the provisions of Section 944.293 Florida Statutes (1974) it is quite possible that the defendant would have had her civil rights restored which would have given her an absolute defense to the charge. The trial court further ruled that the department’s failure to assist the defendant in applying for restoration of her civil rights prior to the time of her release from supervision, as provided for by Section 944.293, estops the state from prosecuting the defendant on count two of the information, i. e., that she was a convicted felon carrying a concealed weapon.

We hold that the trial court erred in granting the motion to dismiss count two for the reasons stated in State v. Hadden, 370 So.2d 849 (Fla.3d DCA 1979).

Reversed and remanded for further proceedings.


text:
    ALLIED FIDELITY INSURANCE COMPANY, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2279.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Stone, Sostchin & Gonzalez and Gisela Cardonne and David Stone, Miami, for appellant.
    Janet Reno, State’s Atty. and John P. Durant, Asst. State’s Atty., for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Section 903.27(2), Florida Statutes (1977); Resolute Insurance Company v. Brinker, 338 So.2d 861 (Fla. 3d DCA 1976).


author: SCHWARTZ, Judge.

text:
    The STATE of Florida, Appellant, v. Jackie BELCHER, Appellee.
    No. 79-3.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Janet Reno, State’s Atty. and Milton Robbins, Asst. State’s Atty., for appellant.
    Markus & Winter and Laurie S. Silvers, Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The trial judge discharged the defendant under the speedy trial rule and the state appeals. The record shows that when the case was timely called for trial within 60 days after the defendant had demanded a speedy trial under Fla.R.Cnm.P. 3.191(a)(2), the defendant’s attorney could not proceed at that time because he was in the midst of trying another case. It is well-established that, under these circumstances, the defendant may not be considered to have been “continuously available for trial” during the pertinent period and is therefore, by the express terms of Fla.R.Crim.P. 3.191(a)(2) and 3.191(e), not entitled to discharge. State v. McCoy, 369 So.2d 1027 (Fla. 3d DCA 1979); State v. Exposito, 327 So.2d 836 (Fla. 3d DCA 1976); Savinon v. State, 277 So.2d 58 (Fla. 3d DCA 1973); cf. State ex rel. Hanks v. Goodman, 253 So.2d 129 (Fla.1971). Accordingly, the order of discharge under review is reversed and the cause is remanded for further proceedings consistent herewith.

Reversed and remanded.


author: PER CURIAM. HAVERFIELD, Chief Judge,

text:
    GUARANTEE RESERVE LIFE INSURANCE COMPANY OF HAMMOND, Petitioner, v. William J. DUNN, Respondent.
    No. 79-128.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for petitioner.
    Walton & Garrick and Wallace I. Garrick, Miami, for respondent.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   PER CURIAM.

This cause having heretofore been submitted to the court on petition for writ of certiorari to review the order of the Circuit Court for Dade County, Florida (Case No. 76-12678) dated January 12, 1979 and the court having considered same, it is ordered by the majority of the court that said petition be and the same is hereby denied without prejudice to raise on direct appeal.

HAVERFIELD, Chief Judge,

dissenting.

I am constrained to dissent.

Guarantee Reserve Life Insurance Company (hereinafter Reserve Life), defendant in the trial court, by way of petition for common law certiorari seeks review of an order denying its motion to schedule jury trial.

In February, 1966 Reserve Life issued to plaintiff, William J. Dunn, an accident and health insurance policy which provided for return of 80% of the premiums to Dunn if no benefits were paid under the policy for ten years. In 1969 Dunn’s policy along with other similar policies were purchased by Underwriters National Assurance Company and Dunn began to tender his premiums to Underwriters. After ten years passed with no claims under his policy, Dunn made written demand upon Reserve Life for return of 80% of the paid premiums. Reserve Life refused to pay on the ground that it was relieved of liability as a result of the purchase of the policy by Underwriters. Dunn sued for breach of contract. Reserve Life answered, pled novation as an affirmative defense and demanded trial by jury. In November, 1976 the cause was set for a jury trial, but several continuances were granted at the request of both parties. Subsequently, Dunn filed a motion for summary judgment. The trial judge denied the motion on October 18, 1978 and scheduled the cause for a non-jury trial. Reserve Life moved for a jury trial as requested in its answer. The judge entered the following denial order:

“THIS CAUSE came on to be heard upon Defendant’s Motion to Schedule Jury Trial and the Court having heard argument of counsel and being further advised in the premises, it is
“ADJUDGED that the Motion be and the same is hereby denied. This matter will proceed for a Non Jury Trial on the Trial Calendar for the one week period commencing January 22, 1979. The Court will determine at that time if there are any fact issues which should be determined by a jury.”

Reserve Life argues that it has been deprived of a litigant’s fundamental right to a jury trial. I agree.

In Prucha v. Guarantee Reserve Life Ins. Co., 358 So.2d 1155 (Fla. 3d DCA 1978) which involved another insured, James T. Prucha, whose policy with Reserve Life was also purchased by Underwriters, this court held that there was no novation as a matter of law and an Indiana court judgment absolving Reserve Life of liability for return of premiums was not binding upon Prucha. Dunn argues that the Prucha case is dispos-itive of the issues in the case sub judice and, therefore, no jury trial is necessary. On the other hand, Reserve Life contends that the facts in the instant case substantially differ from those in the Prucha case as to require the jury trial which it timely requested.

Implicit in the denial of Dunn’s motion for summary judgment is the trial judge’s finding of existence of genuine issues of fact. There being issues of fact to be tried, Reserve Life was entitled to jury trial of those factual issues in light of its timely demand therefor. See Boston Rug Galleries, Inc. v. William Iselin & Co., Inc., 212 So.2d 58 (Fla. 4th DCA 1968); Napolitano v. H. L. Robertson and Associates, Inc., 311 So.2d 757 (Fla. 3d DCA 1975).

I, therefore, would grant the petition for certiorari, quash the denial order and remand the cause to the trial court for jury trial.

      . Decided while the present cause was pending in the trial court.


text:
    MAJESTIC II, ENTERPRISES, INC., a Florida Corporation, Appellant, v. Christopher BUTLER, etc., Appellee.
    No. 79-547.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Smathers & Thompson and John W. Keller, III, Miami, for appellant.
    Joe N. Unger, Walter & Bernstein, Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The defendant has appealed, pursuant to Fla.R.App.P. 9.130(a)(3)(A), from an order denying its motion to “abate” the action because venue was improperly laid in Dade County. We reverse.

The plaintiff sued the defendant, a Florida corporation which operates a charter fishing boat from a berth in Key Largo, Monroe County, in the Dade County Circuit Court, for personal injuries he received while aboard the vessel in Monroe County waters. Among other things, the defendant contended that the venue selected by the plaintiff was improper, on the ground that under Section 47.051, Florida Statutes (1977), the corporation had no “office for transaction of its customary business” in Dade County. An affidavit attached to its motion to abate alleged:

“That I am Thomas Mulcahy, President of Majestic II, Enterprises, Inc.”
“The vessel ‘Miss Majestic’, is owned and operated by Majestic II, Enterprises, Inc.
The vessel ‘Miss Majestic’ operates from its berth located in Key Largo, Monroe County, Florida at the Holiday Inn Docks.
Majestic II, Enterprises, Inc. has its only office for the transaction of its customary business in Key Largo, Monroe County, Florida at the Holiday Inn Docks.”

In response, the plaintiff submitted an affidavit of his attorney which stated:

“That the Defendant, MAJESTIC II ENTERPRISES, INC., has registered with the Secretary of State, State of Florida, as having a Dade County address: 19791 S.W. 302nd Street, Homestead, Florida.
That a Certified copy as set forth in the Corporate Charter of MAJESTIC II ENTERPRISES, INC., filed with the Secretary of State, shows that the Defendant lists its office address in Dade County. Said corporate information, as listed in the Corporate Charter, is attached hereto.
That the Defendant, MAJESTIC II ENTERPRISES, INC., has registered its Resident Agent for service of process, •Thomas Mulcahy, at a Dade County address: 19791 S.W. 302nd Street, Homestead, Florida.
That the Resident Agent, Thomas Mul-cahy, was served at the above address in Dade County, as registered with the Secretary of State.”

On this record, the trial court’s determination that the action could be maintained in Dade County was incorrect.

The applicable statute, Sec. 47.051, provides in full:

“Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a'county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located.”

Since it is undisputed that the action arose in Monroe County and that there is no property in litigation, venue may be sustained only if the defendant corporation in fact has “an office for transaction of its customary business” in Dade County. It was conclusively demonstrated below that it does not. The defendant’s affidavit which affirmatively said that it does not was not rebutted by the plaintiff’s showing in opposition to the motion. His attorney’s affidavit showed only that the designated “corporate headquarters” and the location of its resident agent, Mr. Mulcahy, were in Dade County; it pointedly did not suggest the existence even of any “office” at all in Dade County, much less one at which the corporation’s customary business was transacted. While the existence merely of an agent, for service of process or otherwise, in a particular county would establish the propriety of venue in that county as to a foreign corporation, Sec. 47.051, supra, it does not satisfy the more stringent statutory venue criterion for a Florida corporation like the present appellant. See Permenter v. Bank of Green Cove Springs, 136 So.2d 377, 379 (Fla. 1st DCA 1962) (dictum), where it was said:

“Even if it were established that the defendant is licensed to do business in Green Cove Springs, Clay County, Florida, and was served with process in that county, such factors have no bearing on the question of venue under the statute.”

As the court summarized the applicable law in Tribune Co. v. Approved Personnel, Inc., 115 So.2d 170, 173-174 (Fla. 1st DCA 1959):

“For a corporation to transact business in a county within the meaning of such a statute, the business transacted by it in the county must be a part of its usual or ordinary business and must be continuous in the sense of being distinguishable from mere casual, occasional or isolated transaction.
In Okeechobee Company v. Rambo [103 Fla. 687, 138 So. 761 (1931)] suit was commenced in Dade County, whereas the cause of action sued upon accrued and the defendant’s principal place of business was located in Okeechobee County. It was shown by the evidence that defendant never had or kept an office for the transaction of its customary business in Dade County. An office in the latter county had previously been opened and temporarily maintained by defendant’s agents for their own convenience, but had been closed before suit was commenced. In reversing the decree of the trial court our Supreme Court held that ‘an office for the transaction of its customary business’ as applied to a domestic corporation must have reference to its home office, permanent office, or office through which its principal business is transacted. It would not apply to a temporary office conducted by an agent for his convenience which is subject to abandonment at any time.
A domestic corporation may be sued in any county where it maintains a branch office for the transaction of any substantial part of its customary business.” [emphasis supplied]

Since the defendant thus carried its burden of timely establishing the impropriety of venue, e. g., Inverness Coca-Cola Bottling Co. v. McDaniel, 78 So.2d 100 (Fla.1955), and the plaintiff did not contravene that showing, the trial court had no discretion to permit the cause to continue to be maintained in Dade County. Bingham v. Manson, 363 So.2d 370 (Fla. 1st DCA 1978). The order under review is therefore reversed and the cause remanded with directions either to abate the cause, to dismiss it without prejudice, or, at the plaintiff’s option, to transfer it to Monroe County.

Reversed and remanded.

      . So far as the record shows, the Homestead address was Mulcahy’s home.


text:
    H. A. CAESAR AND COMPANY, INC., Appellant, v. CHARLES OF MIAMI COMPANY, Appellee.
    No. 79-671.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Ronald Silver, Miami, for appellant.
    Weintraub, Weintraub, Seiden, Dudley & Press and Everett H. Dudley, Jr., Hialeah, for appellee.
    Before HENDRY, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Wm. E. Strasser Construction Corp. v. Linn, 97 So.2d 458 (Fla.1957); Horace v. American National Bank & Trust Co. of Fort Lauderdale, 251 So.2d 33 (Fla. 4th DCA 1971); cf. South Dade Farms, Inc. v. Investment Bank S.A.L. of Beirut, Lebanon, 244 So.2d 555 (Fla. 3d DCA 1971).


text:
    Robert Oliver GILLIARD, Appellant, v. The STATE of Florida, Appellee.
    No. 79-816.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    Robert Oliver Gilliard, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Petitioner Robert Oliver Gilliard, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla. R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    James BUTLER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1105.
    District Court of Appeal of Florida, Third District.
    July 3, 1979.
    James Butler, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and KE-HOE and SCHWARTZ, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


text:
    CITY OF BATON ROUGE v. Norman ROSS, Jr.
    No. 62785.
    Supreme Court of Louisiana.
    Oct. 20, 1978.
   PER CURIAM.

On April 27, 1977, the petitioner Norman Ross, Jr. was convicted in the City Court of Baton Rouge of having violated the provisions of La.R.S. 32:414 relative to surrender of a driver’s license after its suspension, cancellation or revocation. Sometime thereafter the petitioner filed an application for a writ of habeas corpus in the City Court of Baton Rouge, contending that he was wrongly convicted of the offense. The application was denied on July 21, 1978 on the ground that city courts are not empowered to grant writs of habeas corpus.

The city court’s ruling was erroneous. While Article 7, § 2 of the Louisiana Constitution of 1921 specifically limited the authority to issue writs of habeas corpus to judges of the supreme court, the courts of appeal and the district courts, see Kelly v. Kelly, 227 La. 275, 79 So.2d 307 (1955), the language in the 1974 constitution is broader. Article 5, § 2 of the Louisiana Constitution of 1974 provides, in pertinent part, that “[a] judge may issue writs of habeas corpus and all other needful writs, orders, and process in aid of the jurisdiction of his court.” It was the intent of the framers of the 1974 constitution that city court judges have the authority described in this section. See State of Louisiana Constitutional Convention of 1973 Verbatim Transcripts Aug. 15, 1973 at 11; Hargrave, The Judiciary Article of the Louisiana Constitution of 1974, 37 La.L.Rev. 765, 794 (1977). Thus the City Court of Baton Rouge has jurisdiction to consider an application for writ of habeas corpus based on allegation that a conviction obtained in that court was illegal. La.C.Cr.P. arts. 17, 352.

Petitioner’s writ of review is granted and the case is remanded to the City Court of Baton Rouge for further proceedings in accordance with law.

SUMMERS, J., dissents.


author: PER CURIAM. DENNIS, Justice.

text:
    STATE of Louisiana v. Leon GAINES.
    No. 62573.
    Supreme Court of Louisiana.
    Nov. 22, 1978.
    On Rehearing June 25, 1979.

      Clayton M. Perkins, Jr., Kilbourne & Dart, St. Francisville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., William E. Woodward, Asst. Dist. Atty., A. Z. Butterworth, Special Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

DIXON, J., dissents.

ON REHEARING

DENNIS, Justice.

Defendant Leon Gaines was indicted for the offense of simple escape, La.R.S. 14:110(A). After a jury of twelve persons found the defendant guilty as charged, he was sentenced to serve a term of four years imprisonment at hard labor, to run consecutively to his prior sentence. Defendant relies on four assignments of error in appealing his conviction and sentence.

On April 28, 1977, the defendant, an inmate of the Louisiana State Penitentiary, was assigned to work in the prison okra patch under the supervision of Cleveland Deshotel, a security guard. Deshotel placed the defendant and another trusted inmate at the end of a line of men stretched out across the okra patch. While Deshotel was occupied at the opposite end of the line, the defendant and the man next to him broke from the line and ran toward Lake Killar-ney located about a half mile away, although still on the prison grounds. Desho-tel called out for the men to halt and fired two shots, but the prisoners continued running.

Other security officers were immediately notified, and a “chase procedure” was set in motion. Upon discovering tracks leading into Lake Killarney, guard lines were set up around the lake. Just over two hours after the defendant had broken from the line of men in the okra patch, the defendant was apprehended as he emerged from the lake on the side opposite from the okra patch.

By his second assignment of error the defendant contends that the trial court erred in denying his motion for a new trial on the ground that there was no evidence to support a conviction for simple escape. It is the defendant’s position that his attempt to escape was not successful because he did not depart from the confines of the penitentiary grounds before he was apprehended. Defendant contends that his actions did not come within the definition of simple escape in effect at the time of the incident.

The issue of statutory interpretation raised by the defendant is based on a 1975 amendment to the simple escape statute. Prior to its amendment in 1975, the pertinent portion of the simple escape statute read as follows:

“A. Simple escape is:
“(1) The intentional departure of a person, while imprisoned, whether before or after sentence, under circumstances wherein human life is not endangered, from lawful custody of any officer of the Department of Corrections or any law enforcement officer or from any place where he is lawfully detained by any law enforcement officer; (emphasis added) * * * >>

This definition was amended by Act 450 of 1975 to read as follows:

“A. Simple escape is:
“(1) The intentional departure, under circumstances wherein human life is not endangered, of a person imprisoned, committed, detained, or otherwise in the lawful custody of any law enforcement officer or officer of the Department of Corrections, from any place where such person is legally confined; * * * ”

The latter version of the statute was in effect on April 28, 1977, when the defendant departed from the line of men in the okra patch.

A careful reading of the simple escape statute before and after the 1975 amendment reveals that an important change was effected by the amendment. Whereas the former law proscribed departure either from lawful custody or departure from a place where lawfully detained, the statute as amended in 1975 omitted the disjunctive “or” so that the statute proscribed departure of a person in lawful custody from anyplace where he is legally confined. The defendant argues that the amended statute required both departure from lawful custody and departure from a place of confinement. The defendant contends that there is no evidence of escape under this statute because he was confined not to the okra patch, but to the Angola penitentiary complex, and there is no evidence that he ever departed from the penitentiary grounds.

The statute in effect at the time of the occurrence clearly requires departure both from legal custody and from a place of confinement. Where the words of a statute are clear and free from ambiguity, they are not to be ignored under the pretext of pursuing their spirit. State v. Pierre, 320 So.2d 185 (La.1975); State v. Snyder, 277 So.2d 660 (La.1973). Moreover, even if the statute were found to be ambiguous, it is clear that any ambiguity must be construed favorably to the defendant. State v. Young, 357 So.2d 503 (La.1978). In the present case the simple escape statute must be construed as defendant contends, to require proof of departure from lawful custody and departure from a place of confinement.

The serious question remaining in this case is whether or not the defendant departed from a place where he was legally confined within the meaning of the statute. The defendant interprets place of confinement to mean the institution to which he was assigned by the Department of Corrections, i. e., the Louisiana State Penitentiary at Angola. It is apparently the state’s position that the place where the defendant was confined was the okra patch.

We do not think that the interpretation of either party expresses the legislative intent. “[A]ny place where ... legally confined,” as used in La.R.S. 14:110(A) must be construed as a place where the individual is actually confined, i. e., restrained by physical barriers sufficient to prevent him from going at large. See, State v. Marsh, 233 La. 388, 96 So.2d 643 (1957). Any less definitive or more ambiguous definition of place of confinement would render the statute unconstitutionally vague. See, Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); State v. Tucker, 354 So.2d 1327 (La.1978); State v. de la Beckwith, 344 So.2d 360 (La.1977); State v. Johns, 339 So.2d 801 (La.1976); Connick v. Lucky Pierre’s, 331 So.2d 431 (La.1976).

Applying this definition we conclude that there is no evidence in the record of this case to support a finding that the defendant departed from a “place of confinement” within the meaning of the escape statute. The record indicates that the okra patch was surrounded by a four strand barbed wire fence designed to keep cattle out and not prisoners in; no other natural or man-made barriers separated the okra patch from the rest of the Angola complex. Accordingly the defendant was not physically restrained or actually confined within the okra patch and his departure therefrom could amount to no more than an attempt to escape.

In United States v. Burks, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the United States Supreme Court held that the Double Jeopardy Clause of the Fifth Amendment precludes a second trial once a reviewing court has found the evidence to be insufficient to sustain a verdict of guilty. Accordingly, the defendant in the present case may not be retried for the offense of simple escape upon remand.

The defendant’s conviction and sentence are reversed, and the case is remanded to the district court for further proceedings not inconsistent with the views expressed herein.

REVERSED AND REMANDED.

SUMMERS, C. J., and MARCUS, J., dissent.

      . The statute was amended again by Act 177 of 1978 by adding the word “or”. The crime of simple escape can now apparently be committed by either departing from lawful custody or departing from a place of confinement.

      . It is not disputed that the defendant departed from lawful custody of an officer. When the defendant broke from the line of men in the okra patch, he was in the lawful custody of Cleveland Deshotel, a security guard and field foreman.


author: PER CURIAM. BLANCHE, Justice. DIXON, Justice DENNIS, Justice,

text:
    STATE of Louisiana v. Charles TAGUE.
    No. 62584.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    On Rehearing June 25, 1979.

      A. J. Boudreaux, Kenner, Indigent Defender Board, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., John M. Mamoulides, Dist. Atty., Clarence McMa-nus, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Charles E. Tague was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury, defendant was found guilty and sentenced to serve sixty-five years at hard labor without benefit of parole, probation or suspension of sentence. On appeal, defendant relies on one assignment of error for reversal of his conviction and sentence.

We have reviewed the record and find no merit to defendant’s assignment of error. Accordingly, we affirm his conviction and sentence.

DECREE

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

On Rehearing

BLANCHE, Justice.

In this rehearing, we again consider defendant’s assignment of error that the arresting officer failed to inform him of each of his constitutional rights. State v. Hollingsworth, 337 So.2d 461 (La.1976); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Defendant contends that the introduction of an inculpatory statement made by him after his arrest should not have been admitted into evidence, as the State had not overcome its heavy burden of proof establishing that Miranda rights were actually given and knowingly waived.

On original hearing we affirmed defendant’s conviction, and for the following reasons we conclude that our decision on that original hearing was correct.

In the hearing to determine whether the inculpatory statement would be admitted, the arresting officer was the only one to testify about when the accused allegedly made the inculpatory remark concerning the location of the cab. He stated that he read the defendant his Miranda rights after he apprehended him and before the alleged inculpatory statement was made. His testimony is as follows:

“Q Then you took them back to the car?
“A From the house we brought them to the car that is when I put the cuffs on them, that is when I advised them they were under arrest right there.
“Q You advised them they were under arrest?
“A Yes.
“Q For armed robbery?
“A I advised him for armed robbery.
“Q Did you give him the Miranda rights at that point?
“A That point behind the car by the trunk of the car.
“Q And this was before you asked where the cab was?
“A Yes, after I read him his rights before I asked him any questions I read him his rights and then I asked him the questions.
“Q What are the Mirandas, officer?
“A Off hand I couldn’t tell you, I had a card, I got a little white card, that’s what I read them off of.
“Q Do you have that card on you?
“A No, I don’t.
“Q Did you ask him if he understood his rights?
“A At that time I couldn’t recall if I did or not, like I said, I read him the card, I advised him that he was under arrest for robbery, and that is all I can remember really.
“Q So you really can’t say whether you rendered any tests to see if he understood or if he was illiterate or not to understand what you were saying or illiterate or not to understand the terminology if he was capable of understanding, you didn’t do anything along that line?
“A At this time I couldn’t remember, I couldn’t say yes or no.”

We are not willing to hold that the defendant was not informed properly of his constitutional right to remain silent because the arresting officer could not remember what “Miranda rights” were in the absence of the white card on which such rights were printed. In view of the officer’s inability to remember these rights independently without a card, we believe that any attempt by him to give such rights to an accused without reading therefrom would, indeed, have been suspicious as to adequacy of the advice.

In short, his failure on the witness stand to remember what Miranda rights were is not proof they were not given by the officer in the manner stated. On the hearing as to admissibility of defendant’s statement, defendant introduced no evidence to negate the arresting officer’s testimony that defendant was informed of his rights. The reading of the Miranda rights from a card was adequate, and has even been held to be preferable to giving an accused a copy to read for himself. United States v. Choice, 392 F.Supp. 460 (E.D.Pa.1975); cf. United States v. Bailey, 468 F.2d 652 (5th Cir. 1972).

Neither is an arresting officer compelled to give an intelligence test to a person who has been advised of his rights to determine if he understands them; an illiterate, or a person with a below-normal I. Q., even a mental retardate, can make a valid waiver of his Miranda rights and is not precluded from making a knowing and voluntary confession. State v. Neal, 321 So.2d 497, 499 (La.1975); State v. Washington, 321 So.2d 763, 767 (La.1975), vacated in part (re. death sentence), 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1213 (1976); State v. Ross, 320 So.2d 177, 179 (La.1975); State v. Nicholas, 319 So.2d 361 and 365 (La.1975) (two cases); State v. Edwards, 257 La. 707, 243 So.2d 806 (1971).

Absent a clear and readily apparent lack thereof, it can be presumed that a person has capacity to understand, and the burden is on the one claiming a lack of capacity to show that lack. LSA-C.C. arts. 25 and 1782; State v. Rankin, 357 So.2d 803 (La.1978); State v. Glover, 343 So.2d 118, 128 (La.1976). Even intoxication, when readily apparent, has been held to go only to the weight to be given an inculpatory statement. Rankin, supra. When there is nothing in the speech or manner of a person to call attention to a lack of capacity, we do not regard that an arresting officer has an obligation to take any special measures to be assured of that person’s capacity before proceeding to question him. There is no showing whatsoever in this record as to any lack of capacity on the part of defendant.

DECREE

We find no merit to defendant’s assignment of error; and accordingly, for the reasons assigned on original hearing and herein, the conviction and sentence are affirmed.

AFFIRMED.

DIXON and CALOGERO, JJ., dissent.

DENNIS, J., dissents with reasons.

DIXON, Justice

(dissenting).

I respectfully dissent.

If the State couldn’t prove what the defendant was told (his “Miranda ” rights) the trial judge couldn’t possibly have found that defendant was informed of his rights and knowingly waived them.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Contrary to the explicit requirements of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966), the majority today creates a presumption that the defendant understood his constitutional rights and places the burden of proof upon the defendant, instead of the state, to demonstrate whether the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.

In Miranda the Supreme Court painstakingly put the burden of proof upon the government to show that the specific warnings were given and that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. In doing so, the court specifically rejected the idea that a defendant could be presumed to know his constitutional rights without a warning because of his education, background, or because of other circumstantial evidence:

“The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clearcut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.” 384 U.S. 468-69, 86 S.Ct. 1625, 16 L.Ed.2d 720.
"Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.” 384 U.S. 471-72, 86 S.Ct. 1626, 16 L.Ed.2d 722.
“If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, 378 U.S. 478,490, n. 14, 84 S.Ct. 1758,1764, 12 L.Ed.2d 977 [986]. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, [146 A.L.R. 357] (1938), and we reassert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.” 384 U.S. 475, 86 S.Ct. 1628, 16 L.Ed.2d 724.

The majority opinion today clearly violates the principles of Miranda and of Article 1, § 13 of the Louisiana Constitution of 1974.


text:
    In re Charles C. FOTI, Jr., Criminal Sheriff, Parish of Orleans.
    No. 64278.
    Supreme Court of Louisiana.
    March 28, 1979.
   JOINT MOTION

And, now into Court comes Charles C. Foti, Jr., Criminal Sheriff for the Parish or Orleans, and Matthew S. Braniff, Judge of Section B of the Criminal District Court for the Parish of Orleans, and moves this Honorable Court to dismiss the petition for writs of certiorari, prohibition and mandamus, so that movant, Matthew S. Braniff can recall the judgment of contempt against movant Charles C. Foti, Jr., for the reason that this resulted in a misunderstanding between your movers herein.

Respectfully submitted,

(s) MATTHEW S. BRANIFF Judge Section “B” Criminal District Court for the Parish of Orleans

(s) CHARLES C. FOTI, JR. Criminal Sheriff for the Parish of Orleans

ORDER

It is hereby ordered that the Petition for Certiorari, Prohibition and Mandamus be and is hereby dismissed.


author: SUMMERS, C. J., and MARCUS, J.,

text:
    STATE of Louisiana v. Ronnie WILLIAMS.
    No. 64463.
    Supreme Court of Louisiana.
    May 4, 1979.
   The writ is denied. On reconsideration of the common problem in State of Louisiana v. Dave Carter, 362 So.2d 510 (La.1978) and State of La. v. Rich, 368 So.2d 1083, 1979, a majority of the court has decided that the better treatment is found in State v. Rich. The unanimous verdict, the sequestration of the jury and other safeguards erected by statute for capital cases are too important to permit them to be retroactively erased. Therefore, the jury in an aggravated rape case, when the rape occurred prior to September 9, 1977, the effective date of Act 343 of 1977, should return a unanimous verdict.

SUMMERS, C. J., and MARCUS, J.,

dissent and would grant, being of the opinion that State v. Carter is correct.

DENNIS, J., concurs in the denial.


author: MARCUS, Justice.

text:
    Wallace NATHAN, Jr. et al. v. Henry Zac CARTER et al.
    No. 63935.
    Supreme Court of Louisiana.
    June 25, 1979.

      A. Remy Fransen, Jr., New Orleans, Paul Aucoin, Vacherie, for plaintiff-applicant.
    Terry Christovich Gay, A. R. Christovich, Jr., Christovich & Kearney, New Orleans, for defendant-respondent.
   MARCUS, Justice.

As a result of Wallace Nathan, Sr.’s death, his son, Wallace Nathan, Jr., and wife, Odessa Nathan (individually and as natural tutrix of her seven minor children) instituted this action to recover damages on August 6,1976, against certain named executive officers, directors and supervisory employees of Avondale Shipyards, Inc. Also named defendants are Highlands Insurance Company and American Employers Insurance Company, public liability and/or executive liability insurers of the officers and/or employees of Avondale.

Plaintiffs alleged in their petition that Wallace Nathan, Sr. was employed by Avondale as a labor leaderman. On November 5, 1970, as he was walking along a “gangplank” situated between a vessel on which he had been working and the dock, the “gangplank” suddenly and without warning collapsed, causing him to suffer serious injuries, fall into the water and drown. Plaintiffs contended that decedent’s death was caused by the negligence of the named executive officers, directors and employees of Avondale. Mrs. Nathan further averred that, at the time of her husband’s death, all of her children, including Wallace Nathan, Jr., were minors and that she allowed the one-year period of limitation (applicable to this action) to lapse before instituting súit because of misrepresentations and fraudulent conduct of certain employees and representatives of Avondale designed to prevent her from asserting her cause of action. She also claimed that she was pregnant with the last of her eight children at the time of her husband’s death and was under great strain and stress as well as being emotionally depressed when meeting with Avondale officials after her husband’s death.

Defendants’ answers generally denied the allegations of plaintiffs’ petition. Subsequently, a peremptory exception of prescription was pleaded by defendants grounded on the claim that plaintiffs’ action had prescribed on its face in that it was filed on August 6, 1976, which was more than one year after the date of the alléged accident (November 5, 1970). A hearing was set on the exception of prescription.

In opposition to the exception of prescription, plaintiffs, relying upon the doctrine of contra non valentem agere non currit (prescription does not run against a person who could not bring his suit), argued that the action was not barred by the one-year period of limitation because of acts of fraud and misrepresentation committed by defendants. In support of this contention, plaintiffs alleged (in their petition and affidavits filed by Mrs. Nathan and her brother) that, approximately two or three days after the death of her husband, Mrs. Nathan and her brother went to the offices of Avondale and met with Mr. Edward Bene-cech III (claims manager at Avondale). During this meeting, Mr. Benecech assured Mrs. Nathan that a full investigation would be made of her husband’s death, that she would be provided with a copy of the final report, that, once the investigation was completed, she would be given a large lump sum settlement as compensation for her husband’s death, and that Avondale would settle her claim without the necessity of her hiring an attorney. Mr. Benecech told Mrs. Nathan not to contact an attorney because, if she did, her workmen’s compensation benefits would be terminated, all benefits would be cut off while the matter was litigated in court, and the litigation might last five to seven years during which she would receive no benefits. In November 1975, foreclosure proceedings were instituted against Mrs. Nathan’s home because of her inability to make the mortgage payments. It was at this time that Mrs. Nathan contacted an attorney.

Defendants offered no evidence contradicting plaintiffs’ allegation of misrepresentation and fraudulent conduct. Instead, defendants contended that, even assuming (without admitting) that such conduct occurred, plaintiffs failed to exercise “reasonable diligence” in pursuit of their claim and thus were not barred from asserting it.

The trial court sustained the exception of prescription and dismissed plaintiffs’ action against defendants. It noted that,' although plaintiffs’ uncontroverted allegations might establish that fraudulent conduct on the part of defendants actually prevented plaintiffs from judicially asserting their claims within the one-year prescriptive period, six years was not a period during which such conduct could reasonably be expected to prevent plaintiffs from instituting this action. The court concluded, “[e]ven though plaintiffs shouldn’t be held to a timely filing, six years is too long.” The court of appeal affirmed, finding that plaintiffs had failed to exercise “reasonable diligence” in asserting their claim. On application of plaintiffs, we granted certiorari to review the correctness of this decision.

The sole issue presented for our consideration is whether, under the facts and circumstances as contained in the record before us, the courts below erred in sustaining defendants’ exception of prescription.

It is conceded by the parties herein that the period of limitation applicable to this action is one year from November 5, 1970 (the date of the accident). As a general rule, prescription runs against all persons unless they are included in some exception established by law. La.Civil Code art. 3521. This court has, however, accepted in certain limited situations the common law doctrine contra non valentem agere non currit which means that prescription does not run against a person who could not bring his suit. Cartwright v. Chrysler Corp., 255 La. 598, 232 So.2d 285 (1970); Hyman v. Hibernia Bank & Trust Co., 139 La. 411, 71 So. 598 (1916).

This equitable doctrine has been applied to cases wherein defendant has concealed the fact of the offense or has committed acts (including concealment, fraud, misrepresentation, or other “ill practices”) which tend to hinder, impede, or prevent the plaintiff from asserting his cause of action, as long as plaintiffs delay in bringing suit is not willful or the result of his own negligence. See Cartwright v. Chrysler Corp., supra; Dufrene v. Tracy, 232 La. 386, 94 So.2d 297 (1957); Ayres v. New York Life Ins. Co., 219 La. 945, 54 So.2d 409 (1951); Smith v. Tyson, 193 La. 571, 192 So. 61 (1939); Hyman v. Hibernia Bank & Trust Co., supra; Martin v. Jennings, 10 La.Ann. 553 (La.1855); Boyle v. Mann, 4 La.Ann. 170 (La.1849). As indicated in Hy-man v. Hibernia Bank & Trust Co., supra, the doctrine of contra non valentem is, in part, but an application of the long-established principle of law that one should not be able to take advantage of his own wrongful act;

A defendant, who has kept a plaintiff in close confinement during the prescriptive period so as to preclude his bringing suit, could certainly not be allowed to invoke prescription against plaintiff’s suit, and thereby reap the fruit of his own wrong. And between incapacitating a plaintiff by confining his body and incapacitating him by fraudulently lulling his mind into a false security and keeping him in ignorance there is no difference in principle. The one mode of preventing the bringing of suit, if equally effective, is as bad as the other. It is equally a wrong of which the perpetrator cannot be allowed to reap the benefit. 139 La. at 418, 71 So. at 600,

The equitable nature of the circumstances in each individual case has determined the applicability of the doctrine. Dagenhart v. Robertson Truck Lines, Inc., 230 So.2d 916 (La.App. 1st Cir. 1970).

In applying the law to the facts as contained in the record before us, it is clear that plaintiffs alleged acts of fraud and misrepresentation intentionally committed by defendants (or their representative) designed to hinder, impede, or prevent plaintiffs from asserting their cause of action or lull them into a false security. It is equally apparent that the record herein does not support a finding that plaintiffs’ delay in bringing this action was either willful or resulted from plaintiffs’ own negligence. As alleged by plaintiffs, defendants threatened Mrs. Nathan with termination of her compensation benefits if she ever contacted an attorney. Viewed in this light, the acts of fraud and misrepresentation committed by defendants constituted a continuing threat calculated to prevent assertion of this claim for as long as the compensation payments continued. As such, plaintiffs’ delay in bringing this action was a direct result of the fraud or misrepresentation allegedly committed by defendants rather than of their own willfulness or negligence.

No evidence was adduced on the exception of prescription in the trial court. We conclude that defendants’ exception of prescription cannot be sustained on the record before us (i. e., the uncontroverted facts alleged in plaintiffs’ petition and set forth in the affidavits filed in opposition to the exception of prescription). Therefore, we must set aside the judgment of the trial court sustaining the exception of prescription and refer the exception to the merits. See Pearson v. Hartford Accident & Indemnity Co., 281 So.2d 724 (La.1973); Hyman v. Hibernia Bank & Trust Co., supra. The case is remanded to the district court to be proceeded with according to law.

Reversed and remanded.

DENNIS and BLANCHE, JJ., concur.

SUMMERS, C. J., dissents for the reasons assigned by the Court of Appeal.

      . 367 So.2d 56 (La.App. 4th Cir. 1979).

      . 368 So.2d 145 (La.1979).


text:
    STATE of Louisiana v. John T. MARTIN.
    No. 60832.
    Supreme Court of Louisiana.
    July 5, 1979.

      Raymond A. McGuire, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald T. Giglio, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant John T. Martin was convicted of attempted armed robbery, La.R.S. 14:27 and 14:64, adjudged a second felony offender under the provisions of La.R.S. 15:529.1, and sentenced to serve forty years at hard labor. On appeal, this Court affirmed the conviction but set aside the sentence, finding “the evidence adduced [at the multiple offender hearing] . . incompetent to convict defendant as a second offender.” 356 So.2d 1370, 1376 (La.1978). Eight months after the case had been remanded, defendant was brought before the trial court for resentencing. The state abandoned the multiple offender bill, but the trial court, without assigning reasons for its decision, reimposed the original sentence of forty years at hard labor. Defendant now appeals from that sentence, urging three of the four assignments of error filed below.

By his first assignment, defendant contends that the trial court erred in failing to comply with La.C.Cr.P. Art. 894.1, which requires it to “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

The requirement is not merely one of form: it holds the sentencing court to a consideration of criteria “designed to adapt the sentence to the offender as well as the offense.” State v. Jackson, 360 So.2d 842, 844 (La.1978). Moreover, absent some articulation of the guidelines followed in imposing sentence, this Court cannot in-formedly review a claim that the sentence is excessive. See, State v. Touchet, 372 So.2d 1184 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). When the reasons for an apparently severe sentence do not appear in the record, this Court may vacate the sentence and remand for resentencing even though there was no formal objection to the trial court’s noncompliance with Article 894.1. State v. Touchet, supra; State v. Cox, 369 So.2d 118 (La.1979).

In this case, the trial court gave no explanation for the reimposition of the forty year sentence which had resulted from the multiple offender proceedings, subsequently abandoned. On the present record, we are unable to review defendant’s claim (assignment of error no. 8) that the sentence was excessive, although its severity (the maximum for the offense is 49½ years) warrants that the sentence be set aside and the case remanded for resentencing with a full statement of reasons.

Defendant also contends that the eight month delay in resentencing after the finality of this Court’s first remanding decision divested the trial,court of its sentencing jurisdiction. See, La.C.Cr.P. Art. 874; State v. McQueen, 308 So.2d 752 (La.1975). However, we find that under the circumstances of this ease, the delay was not unreasonable, nor was defendant prejudiced by it.

Accordingly, the sentence is vacated and the case remanded for resentencing in accordance with law.


text:
    STATE of Louisiana v. Manuel DRAYDEN.
    No. 63733.
    Supreme Court of Louisiana.
    June 25, 1979.
    William L. Lowe, Shreveport, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Walter L. Smith, Jr., Asst. Attys. Gen., for plaintiff-appellee.
   PER CURIAM.

The defendant Manuel Drayden was convicted of forcible rape, La.R.S. 14:42.1 (1977) and sentenced to forty years imprisonment at hard labor. On appeal defendant raises two assignments of error for reversal of his conviction and sentence.

The assignments do not present reversible error and are governed by clearly applicable legal principles. The assignments require lengthy factual discussion of interest primarily to the parties but not involving circumstances likely to recur. We have therefore discussed and disposed of them in an appendix attached to this opinion, which remains a public record of this Court but which is not for publication.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


author: TATE, J.,

text:
    Elaine REEVES v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., et al.
    No. 64631.
    Supreme Court of Louisiana.
    June 1, 1979.
   In re Elaine Reeves and John Reeves, applying for certiorari, or writ of review to the Court of Appeal, Third Circuit. Parish of Rapides. No. 6895. La.App., 370 So.2d 202.

Denied.

TATE, J.,

would grant on Assignment 5. The commercial retailer should be held to know the defects just as the manufacturer is. See dissent in Spillers v. Montgomery Ward, 294 So.2d 803 (La.1974).


text:
    STATE of Louisiana ex rel. Jewel SPOTVILLE v. Judge Israel AUGUSTINE.
    No. 64728.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Jewel Spotville applying for writ of mandamus. Parish of Orleans.

Writ granted. The trial judge is ordered to comply with decree of this Court, State v. Spotville, La., 308 So.2d 763, by setting aside previous sentence and sentencing defendant as previously ordered. It is further ordered that the trial judge act on any other pending applications by defendant.


author: SUMMERS, C. J.,

text:
    STATE of Louisiana v. Kenneth BEVLEY.
    No. 64635.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re State of Louisiana, through the District Attorney, Harry H. Connick, applying for writ of certiorari. Orleans Parish. No. 260-058.

Writ denied.

SUMMERS, C. J., MARCUS and BLANCHE, JJ., would grant the writ.

SUMMERS, C. J.,

adheres to his dissent in State v. Lewis, La., 367 So.2d 1155.


text:
    STATE of Louisiana v. Joseph WEST.
    No. 64640.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re State of Louisiana applying for writ of certiorari. Parish of Orleans. No. 265-433.

Writ denied.

SUMMERS, C. J., MARCUS and BLANCHE, JJ., would grant the writ.

SUMMERS, C. J.,

adheres to his dissent in State v. Lewis, La., 367 So.2d 1155.


text:
    STATE of Louisiana ex rel. Larry WILLIAMS v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 64617.
    Supreme Court of Louisiana.
    June 11, 1979.
   In re Larry Williams, applying for writ of mandamus. DeSoto Parish.

Granted. See State v. Bickman, # 62,-496, La., 367 So.2d 283, and La.Rev.Statutes 13:4207.


text:
    CITY OF NEW ORLEANS v. Gloria DECUIR.
    No. 64906.
    Supreme Court of Louisiana.
    June 15, 1979.
   In re Gloria Decuir applying for writs of certiorari, mandamus, prohibition and stay order. Parish of Orleans. Municipal Court. No. 212149.

Writ granted. Application transferred to the appellate division of the Criminal District Court for the Parish of Orleans.


text:
    Bennie SLOCUM v. Odell LAMARTINIERE.
    No. 64706.
    Supreme Court of Louisiana.
    June 15, 1979.
   In re Odell Lamartiniere applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Avoyelles. 369 So.2d 201.

Writ denied.

SUMMERS, C. J., and MARCUS, J., would grant the writ.


text:
    STATE of Louisiana in the Interest of Paul Ryder ACHEE.
    No. 64901.
    Supreme Court of Louisiana.
    June 18, 1979.
   In re Paul Ryder Achee applying for writs of certiorari, prohibition and mandamus and for a stay order. Parish of East Baton Rouge. No. 51,912. Family Court.

Writ denied.


author: TATE and MARCUS, JJ.,

text:
    Arthur T. FIELDS, Jr. v. ARLEN REALTY MANAGEMENT, INC.
    No. 64735.
    Supreme Court of Louisiana.
    June 19, 1979.
   In re Arlen Realty Management, Inc. applying for supervisory writs, Second City Court. Orleans Parish. No. SC-51.

Writ denied.

TATE and MARCUS, JJ.,

concur. The defendant’s remedy was an independent action in nullity. La.C.Civ.Procedure, Articles 2001, et seq.


text:
    STATE of Louisiana v. Ernesto C. SALAZAR.
    No. 64928.
    Supreme Court of Louisiana.
    June 19, 1979.
   In re Ernesto C. Salazar, applying for writs of certiorari, prohibition, mandamus and for a stay order. Jefferson Parish. No. 79-582.

Writ denied. Adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. George Arthur BRUMFIELD.
    No. 64952.
    Supreme Court of Louisiana.
    June 21, 1979.
   In re George Arthur Brumfield, applying for motion for stay order. Tangipahoa Parish. Nos. 43452 and 43455.

Writ granted in part and denied in part. The continuance is denied. The trial court is ordered to appoint a sanity commission to examine the defendant and report no later than 9:00 A.M., Monday, June 25.


text:
    STATE of Louisiana v. Carroll J. DOMINGUE.
    No. 64956.
    Supreme Court of Louisiana.
    June 22, 1979.
   In re Carroll J. Domingue applying for supervisory writs and stay order. Parish of Lafayette. No. 31,884.

Writ denied.


author: SUMMERS, C. J.

text:
    STATE of Louisiana ex rel. Charles LOWE v. Frank BLACKBURN, Warden.
    No. 64880.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Charles Lowe applying for writ of mandamus. Parish of St. Charles.

Writ denied. This court has received copy of transcript of evidentiary hearing held on January 22, 1979, in the District Court. Hence, relator’s writ of mandamus to this court is moot. Relator may seek review, of said hearing by subsequent application to this court. Information copy is being sent to relator’s trial counsel.

SUMMERS, C. J.

In my opinion an attorney should be appointed to represent relator and pursue the. remedy he seeks.


text:
    STATE of Louisiana v. Barbara M. GROOM.
    No. 64972.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Barbara M. Groom, applying for writs of certiorari, review, prohibition, mandamus and for a stay order. Orleans Parish. No. 269-584.

Writ granted. Bail reduced to $2500.


text:
    STATE of Louisiana ex rel. Junious JONES v. Rudolph F. BECKER, III, Judge.
    No. 64166.
    Supreme Court of Louisiana.
    June 25, 1979.
   In re Junious Jones applying for writ of mandamus. Parish of Orleans. Nos. 241-129, 247-189.

Writ granted. Application transferred to district court to be acted on by trial court.


text:
    Joseph D. LUPO v. Mildred D. LUPO.
    No. 64985.
    Supreme Court of Louisiana.
    June 26, 1979.
   In re Joseph D. Lupo, applying for remedial writs. Tangipahoa Parish. No. 51,953.

Writ denied.


text:
    Milton CRADDOCK v. Roger CROWE et al.
    No. 65006.
    Supreme Court of Louisiana.
    June 28, 1979.
   In re Milton Craddock, applying for supervisory writs and stay order. St. Tammany Parish. No. 56,156.

Writ denied.


text:
    STATE of Louisiana v. Sam BOOKER, Jr.
    No. 65036.
    Supreme Court of Louisiana.
    June 29, 1979.
   In re Sam Booker, Jr. applying for writs of certiorari, prohibition and mandamus. Parish of DeSoto. No. 38,336.

Denied; abuse of discretion not shown.

SUMMERS, C. J., absent.


text:
    STATE of Louisiana ex rel. v. Joseph MEYER, Jr.
    No. 64858.
    Supreme Court of Louisiana.
    June 29, 1979.
   In re Joseph Meyer, Jr., applying for motion for re-hearing. Orleans Parish.

Writ denied. A person held in contempt for failure to obey an order may be imprisoned until he performs an act which is yet within his power to perform. C.Cr.P. Art. 25. Relator was ordered to either call witnesses for a preliminary hearing or apply for a supervisory writ on the question of the validity of the judge’s order. Either act is yet within relator’s power to perform.

SUMMERS, C. J., absent.