text:
    John L. JOHNS, Appellant, v. STATE of Florida, Appellee.
    No. 76-992.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 1976.
    Jack 0. Johnson, Public Defender, and Paul J. Martin, Asst. Public Defender, Bar-tow, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant reserved his right to appeal a denial of his motion for discharge under the speedy trial rule (Fla.R.Crim.P. 3.191) and pleaded nolo contendere to a charge of breaking and entering with intent to commit a misdemeanor. Probation followed. We reverse the denial of the motion for discharge.

Appellant was arrested on February 13, 1975 for the offense charged herein. On June 18, 1975 he and his codefendant, in a stipulation for continuance, waived their right to speedy trial expressly “until such time as their eligibility for Pre-Trial Intervention (PTI) has been determined.” Appellant was thereafter informed on September 23,1975 that he was not eligible for PTI while his codefendant learned on November 18, 1975 that he was eligible. On April 2, 1976, appellant filed his speedy trial motion for discharge, the denial of which we here review.

Concededly, a stipulation for extension of the speedy trial time works so as to lengthen the maximum period in which timely trial is required. Kniffin v. Hall, 262 So.2d 900 (Fla.2d DCE 1972). But it is not tantamount to a waiver altogether unless specifically denominated as such. Here, to the extent that the stipulation was a waiver, there was an express condition subsequent — determination of eligibility for PTI. This occurred, certainly, when the codefendant’s eligibility was determined on November 18 if not when appellant’s eligibility was determined (adversely) on September 23. The time meter then took up where it left off.

Having been arrested on February 13,1975, and the time for making the determination for eligibility for PTI having consumed only 150 days at most, appellant’s motion filed before trial and 414 days after arrest should have been granted. The state was then at least 84 days late.

In view whereof, the order appealed from should be, and it is hereby, reversed; and the cause is remanded with directions to forever discharge appellant from the charges herein.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SECURITY LIFE INSURANCE COMPANY OF GEORGIA, an Insurance Corporation, Appellant, v. Saranell M. TRAVIS, Individually, et al., Appellees.
    No. BB-51.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1976.

      Dudley P. Hardy of Pierce & Hardy, Starke, and M. Julian Proctor, Jr., and Baya Harrison, III, of Ausley, McMullen, McGe-hee, Carothers & Proctor, Tallahassee, for appellant.
    Eugene F. Shaw of Shaw & Kopelousas, and Richard E. Welty, Starke, for appellees.
   PER CURIAM.

Security Life provided the financing for the construction of motels in various locations, including the one here involved which is located in Bradford County. Travis signed promissory notes, construction loan agreements, and a mortgage on the Bradford County property. Travis defaulted prior to the project being completed. Security instituted this action against Travis (Travis’ widow and executrix) and nine ma-terialmen. Four of the materialmen filed cross-claims against Security and Travis. Ultimately, a final judgment of foreclosure was entered, with a condition precedent that Security deposit into the registry of the court the sum of $46,113.28 which Security alleged that it had not disbursed pursuant to the terms of the construction loan agreement and was holding in escrow. A final judgment on cross-claims was subsequently entered in favor of the material-men in the sum of $12,569.06, plus interest, costs, and attorney’s fees.

The primary issue relates solely to the cross-claims of the materialmen. Security urges that the trial court erred in awarding the materialmen a lien superior to its recorded mortgage. We agree and reverse.

The subject mortgage was recorded prior to commencement of any construction and the subject construction loan agreement was executed prior to any materials being furnished by cross-claimants. As stated above the project had not been completed.

The judgment appealed is reversed.

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

      . Paragraph 8(c) of the complaint alleged that construction was not complete. Answers of the defendants other than Travis averred no knowledge of this allegation. Travis admitted all allegations.

      . J.G. Plumbing Service, Inc. v. Coastal Mortgage Company, 329 So.2d 393 (2 Fla.App. 1976). In fairness to the trial court, we note that this opinion was rendered subsequent to the rendition of the judgment appealed.


author: MILLS, Judge.

text:
    INTERNATIONAL CITY BANK & TRUST COMPANY, a Louisiana Corporation, and ICB Corporation, a Louisiana Corporation, Appellants (Defendants), v. FOREST SHORES, INC., a Florida Corporation, Appellee (Defendant), and Talbot & Associates, Ltd., Appellee (Plaintiff).
    No. CC-177.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1976.

      James M. Weber, Beggs & Lane, Pensacola, for appellants.
    Lefferts L. Mabie, Jr. and D. L. Middle-brooks, Levin, Warfield, Middlebrooks, Graff, Mabie, Rosenbloum & Magie, Pensacola, William D. Barrow, Crestview, C. Le-Don Anchors, Fort Walton Beach, H. Richard Bates, Lowndes, Peirsol, Drosdick & Doster, Orlando, for appellees.
   MILLS, Judge.

Talbot & Associates, Ltd. (Talbot) brought suit against International City Bank & Trust Company (IC Bank), a Louisiana corporation; ICB Corporation, a Louisiana corporation; and Forest Shores, Inc. (Forest), a Florida corporation, to recover the sum of $7,184.50 for professional engineering services performed on two parcels of land in Okaloosa County, Florida. As to Forest, Talbot sought foreclosure on the property pursuant to a mechanic’s lien and sought a money judgment based on a written contract. As to IC Bank and ICB Corporation, Talbot sought damages and sought an equitable lien on certain funds held by these appellants. Forest filed a cross-claim against IC Bank and ICB Corporation. IC Bank and ICB Corporation then filed three motions: (1) to dismiss the complaint and cross-claim for lack of jurisdiction; (2) to dismiss the cross-claim for failure to state a proper cross-claim cause of action; and (3) to strike certain parts of the cross-claim. The trial court denied the motions, and IC Bank and ICB Corporation seek review of that order by way of interlocutory appeal.

While that part of the order denying the motion to dismiss for lack of jurisdiction over the person is an appealable interlocutory order, the parts of the order denying the motion to dismiss the cross-claim and denying the motion to strike parts of the cross-claim are not. Fla.App. Rule 4.2(a). However, as this court may review appropriate interlocutory orders by common law certiorari, we will consider the notice of interlocutory appeal- as a petition for common law certiorari insofar as it seeks review of those parts of the order dealing with Forest’s cross-claim.

IC Bank and ICB Corporation urge the following points: (1) Under Sections 48.161 and 48.181, Florida Statutes (1975), the complaint and cross-claim fail to make a showing that they are subject to the jurisdiction of the State of Florida, and (2) the cross-claim is an improper cross-claim under Fla.R.Civ.P. 1.170(g) and contains allegations which should be struck.

The first issue which must be addressed is that relating to jurisdiction. Section 48.-181, Florida Statutes (1975), provides as follows:

“(1) The acceptance by . foreign corporations ... of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry on a business or business venture in this state, or to have an office or agency in this state, constitutes an appointment . of the secretary of state of the state as their agent on whom all process in any action or proceeding against them, . , arising out of any transaction or operation connected with or incidental to the business or business venture may be served. The acceptance of the privilege is signification of the agreement of foreign corporations that the process against them which is so served is of the same validity as if served personally on the . . . foreign corporations.”

The question presented is whether IC Bank and ICB Corporation did “operate, conduct, engage in, or carry on a business or business venture in this state” or had an “office or agency in this state”. This is a factual question which must be determined by examining the allegations contained in the complaint and cross-claim. Wm. E. Strasser Construction Co. v. Lynn, 97 So.2d 458 (Fla.1957).

IC Bank, a Louisiana corporation, was a wholly owned subsidiary of ICB Corporation, a Louisiana corporation, and all of the senior officers and directors of IC Bank were identical to the senior officers and directors of ICB Corporation. Forest, a Florida corporation, was formed at the direction of the executive vice president of IC Bank and the ICB Corporation for the purpose of enabling ICB Corporation to participate in a venture involving the purchase and development of certain real property in Okaloosa County. ICB Corporation is the owner and holder of fifty percent of the capital stock of Forest. It was orally agreed by IC Bank and ICB Corporation that Forest would purchase and develop the property and IC Bank and ICB Corporation would provide the financing. Pursuant to oral agreement, Forest executed a contract to purchase two adjoining tracts of real estate in Okaloosa County totaling about 6,000 acres. The agreement required a deposit of $150,000. In order to provide the cash deposit, IC Bank and ICB Corporation agreed that IC Bank would issue two irrevocable letters of credit in the total sum of $150,000 to the seller. The letters of credit were accepted and Forest began the development of the property which included hiring Talbot to perform certain engineering services. IC Bank and ICB Corporation authorized Talbot to conduct the engineering services and advised Talbot that they were holding sums of between $100,000 and $150,000 for the payment of Talbot’s services. Representatives of Talbot met with the executive vice president of IC Bank and ICB Corporation in Fort Walton Beach, Okaloosa County, on three separate occasions for the purpose of discussing the progress of the development and the future plans for the completion of the project located on the property. IC Bank and ICB Corporation opened a bank account in Fort Walton Beach in the name of IC Bank in which account approximately $200,000 was deposited.

All of the expenditures by Forest were approved by managing officers of IC Bank and ICB Corporation, and it was contemplated that IC Bank and ICB Corporation would have representatives present in Florida to supervise the construction on the properties to be purchased. In all matters relating to the project, IC Bank and ICB Corporation acted as one corporation or as copartners with each other and with Forest.

The allegations show that ICB Corporation was not a mere passive stockholder in a Florida corporation. The executive vice president of IC Bank and ICB Corporation came to Florida and actively participated in negotiations concerning the property to be developed. On three separate occasions the vice president met with representatives of Talbot, in Florida, to discuss the progress of the development, and at each of these meetings advised Talbot that he represented both IC Bank and ICB Corporation. A bank account in the name of IC Bank was opened in Fort Walton Beach to enable IC Bank and ICB Corporation to carry out their business relations.

“The long arm statute is only limited by its terms and the due process requirement that one have certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantive justice. International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).” Beckham v. Holborn, 330 So.2d 101 (Fla. 1st DCA 1976).

The allegations show that IC Bank and ICB Corporation were engaged in a business venture in this State dealing with real property located within this State. It is also clear that the suit brought against IC Bank and ICB Corporation arose out of their activities within the State. We therefore hold that the requirements of Section 48.181 have been met and that the trial court correctly denied appellants’ motion to dismiss for lack of jurisdiction.

The other two issues urged by appellants concern the cross-claim filed by Forest. Appellants contend that the cross-claim is an improper cross-claim under Fla. R.Civ.P. 1.170(g) and therefore the circuit court erred in denying their motion to dismiss the cross-claim.

Rule 1.170(g) reads as follows:
“Cross-Claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter of either the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. The cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.”

Forest asserts that its cross-claim not only arises out of the transaction or occurrence that is the subject matter of the original action but is also related to the property that is the subject matter of the original action.

Basically, the cross-claim alleges that IC Bank and ICB Corporation entered into an agreement with Forest whereby Forest would purchase and develop certain real property in Okaloosa County, and IC Bank and ICB Corporation would provide the necessary financing. The cross-claim further alleges that pursuant to the agreement IC Bank issued two irrevocable letters of credit to the seller of the property, but later breached its agreement by falsely and maliciously informing the seller that such letters of credit had been fraudulently obtained, thus causing Forest to lose its interest in the property; that IC Bank arranged a loan of $800,000 from the Ponchartrain Bank to Forest; that Forest drew $300,000 of the loan and placed that sum in the IC Bank, but due to the actions of the appellants the Ponchartrain Bank refused to further fund the loan; and that IC Bank unlawfully seized the money in the Forest account at the IC Bank and dishonored checks written on that account.

The claims asserted by Forest against IC Bank and ICB Corporation are not claims arising out of the transaction that is the subject matter of the complaint filed by Talbot. The various agreements and financial arrangements made between Forest and the appellants did not arise out of the contract for engineering services performed by Talbot.

Rule 1.170(g) also permits a cross-claim relating to any property that is the subject matter of the original action. However, the cause of action asserted in the cross-claim does not relate to the property in the complaint. The cross-claim asserts that IC Bank and ICB Corporation agreed to provide certain forms of financial assistance and they breached this agreement. The only way property is involved in the cross-claim cause of action is due to the fact that the financing was to be used to purchase and develop 6,000 acres of land. The property involved in the complaint constitutes about 40 acres of those 6,000 but this does not establish the type of relationship required by Rule 1.170(g).

The only remaining basis for the cross-claim is that the appellants are or may be liable to Forest for all or part of the claims asserted by Talbot.

Although certain allegations contained in Forest’s lengthy cross-claim might serve as a basis for finding that the appellants may be liable for all or part of the claim asserted by Talbot, these allegations cannot be easily severed from the cross-claim without substantial editing. Therefore, the cross-claim in its entirety should be dismissed with leave for Forest to file an amended cross-claim alleging only those allegations necessary to show appellants’ liability for the claim asserted by Talbot.

That part of the order from which this appeal is taken denying appellants’ motion to dismiss for lack of jurisdiction is affirmed; that part of the order denying appellants’ motion to dismiss the cross-claim is reversed and the cause remanded for further proceedings consistent with this opinion.

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


text:
    Christopher T. NEALE, Appellant, v. Thomas J. AYCOCK, III, et al., Appellees.
    No. CC-180.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1976.
    Rehearing Denied Jan. 13, 1977.
    James H. Harrison, of Malone & Harrison, Orlando, for appellant.
    John B. Chandler, Jr. and Paul P. Sanford of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellees.
   PER CURIAM.

Interlocutory review is sought of an order entered in the circuit court of Lafayette County staying all proceedings in that action until termination of a certain pending action in the circuit court of Duval County.

In June of 1960, Thomas J. Aycock, Sr. executed a trust agreement naming Ava Johnson Aycock, Thomas J. Aycock, Jr. and Ava Aycock Neale Parker as co-trustees. Pursuant to a provision of the trust agreement the Florida First National Bank of Jacksonville was named a co-trustee following the death of Ava Johnson Aycock in 1964.

Christopher T. Neale, appellant, is the grandson of Thomas J. Aycock, Sr., and the son of Ava Aycock Neale Parker. Under the terms of the trust, appellant was to receive a portion of the income generated by the trust from his 25th birthday until the death of his mother. Upon the latter event, he contends that he was entitled to have distributed to him one quarter of the principal of the trust. Appellant’s mother died on March 26, 1975. The primary trust asset is a tract of land in Lafayette County containing in excess of 24,000 acres and valued at more than $6,000,000.

Within two months of the death of appellant’s mother, David S. Parker, as administrator of the estate of Ava Aycock Neale Parker, filed an action in the circuit court of Duval County against the Florida First National Bank and Dorothy DeShong Ay-cock, as personal representative of Thomas J. Aycock, Jr. All counts of that complaint have been dismissed with prejudice except a count seeking an accounting, primarily attacking the propriety and correctness of expense allocations as between principal and income over the term of the trust, and a temporary injunction enjoining distribution of the trust assets pending a complete audit. Appellant is not a party to that action.

On February 19,1976, appellant, as plaintiff, commenced a partition suit in Lafayette County seeking to have partitioned and distributed to him that portion of the trust assets to which he allegedly became entitled under the terms of the trust upon the death of his mother. Among the defendants in that action are the appellees here, the Florida First National Bank of Jacksonville, as trustee for Cherye Darline Aycock, a beneficiary under the Thomas J. Aycock trust, and the Florida First National Bank of Jacksonville, as a co-trustee of the Thomas J. Aycock trust.

Upon motion of Florida First National Bank of Jacksonville filed in the partition action pending in Lafayette County, the circuit judge entered the order here appealed staying all further proceedings and action until termination of the Duval County case.

Unquestionably, a trial court has broad discretion to order or deny an application for a stay of proceedings in cases pending before it. (Air Comfort Mechanical, Inc. v. Simmons, Fla.App.2d 1971, 252 So.2d 285, 30 Fla.Jur., Stay of Proceedings, Section 4, Page 349) A stay of proceedings may be obtained in equity on considerations which would warrant similar stays at law, especially when a stay is shown to be necessary to avoid an inequitable result. (30 Fla.Jur., Stay of Proceedings, Section 3)

However, the broad discretion vested in the trial court is not without its limitations. In his partition suit, appellant claims to have been entitled to have partitioned and distributed to him one quarter of the principal of the subject trust immediately upon the death of his mother. He is entitled to have that issue determined by the court which has jurisdiction of the res, the circuit court in Lafayette County. Appellant is not a party to the action in Duval County, nor are the issues or subject matter of the two suits the same. By the Lafayette County action, appellant seeks to have partitioned and distributed to him his vested interest in the trust estate. By the Duval County action, another party seeks an independent audit and an accounting. The Duval County Circuit Court has no jurisdiction of appellant and the Lafayette County Circuit Court has no jurisdiction of the subject matter of the Duval County action. It is manifestly unjust to require appellant to await the whims and delays of the parties to the Duval County action, over which he has no control and in which he has no right of participation, all the while being deprived of substantial property which he claims, and is entitled to have determined, to be legally his. Common experience teaches us that where large sums are involved litigation tends to move slowly and repetitiously. By the time the Duval County action matures in the trial court, is tried, appealed and perhaps again tried, the subject of the Layfayette County action may well have depreciated in value or appellant’s life expectancy may well have expired.

Appellee seeks comfort in A. J. Armstrong Co. v. Romanach, Fla.App.3d 1964, 165 So.2d 817; Blake v. Blake, Fla.App.3d 1965, 172 So.2d 9 and Maddox Grocery Co. v. Hay, Sup.Ct.Fla.1924, 87 Fla. 492,100 So. 747. Those cases are clearly distinguishable and are not here controlling.

REVERSED.

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

SMITH, J., dissents without opinion.


text:
    Leroy ALLEN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-385.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.

      Phillip A. Hubbart, Public Defender and Karen M. Gottlieb, Asst. Public Defender and Larry Besser, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Leroy Allen was indicted for first degree murder, tried by jury and found guilty of second degree murder. The trial court adjudicated Allen guilty of second degree murder, and sentenced him to ten years in the state penitentiary. The sole point raised on appeal is that the court erred in admitting, over defense counsel’s objection, photographs of the deceased victim, taken at the scene of the crime.

Defendant Allen contends that the photographs were gruesome, gory, not relevant to any facts in issue, and prejudicial to his right to a fair and impartial trial. We have examined the copies of the photographs provided in the record on appeal, and we are of the opinion that the trial court did not err in admitting them into evidence.

As the Florida Supreme Court held in State v. Wright, 265 So.2d 361, 362 (Fla.1972), photographs taken at the scene of a crime, which are alleged to be gruesome and inflammatory, will be admissible into evidence if they are relevant to any issue required to be proven in a case; relevancy is to be determined in the normal manner, without regard to any special characterization of the proffered evidence. The admissibility of photographs as evidence is a matter within the broad discretion of the trial court, and a ruling thereon will not be disturbed except when shown to be clearly abusive or patently erroneous under the circumstances revealed by the record. Belger v. State, 171 So.2d 574 (Fla. 1st DCA 1965); Reed v. State, 224 So.2d 364 (Fla. 4th DCA 1969). See also, Garmise v. State, 311 So.2d 747 (Fla. 3rd DCA 1975), and Swan v. State, 322 So.2d 485, 487 (Fla.1975).

The record on appeal in this case demonstrates that the photographs met the test of relevancy, and that they were not of such a nature as to be prejudicial or inflammatory.

Affirmed.


text:
    Alex JAMES, a/k/a Alex Leon Evans a/k/a Leroy James, Appellant, v. The STATE of Florida, Appellee.
    No. 76-397.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.

      Pollack, Tunkey, Robbins & Leen, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Sidney M. Pertnoy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Alex James takes this appeal from an order of revocation of probation. James was charged by information with breaking and entering with intent to commit grand larceny. He pled not guilty, then changed his plea to guilty and was sentenced by the trial court to one year in the county jail, with six months to be served and six months to be stayed and withheld, and probation for a period of two years. James served six months in jail. Within a few months of his release, his probation supervisor filed an affidavit of violation of probation, reciting three violations. A hearing was held. The trial court took testimony, ruled the defendant in violation of probation and sentenced him to five years in the state penitentiary.

Two points are raised on this appeal. The first is that the trial court erred in sentencing the defendant to a term greater than his original sentence of one year in the county jail. This specific point has been addressed by the Florida Supreme Court and settled adversely to the defendant. State v. Jones, 327 So.2d 18 (Fla.1976). The Court held that a defendant placed on probation may be sentenced to imprisonment by the trial judge for the same period of years as the court could have originally imposed.

The defendant’s second point on appeal is that the evidence was insufficient to sustain the court’s finding of violation of probation. The record reflects that there was sufficient competent evidence to support the decision of the trial judge that the defendant had violated the conditions of his probation. Therefore, we affirm the order of revocation of probation. Randolph v. State, 292 So.2d 374 (Fla. 3rd DCA 1974); Brown v. State, 305 So.2d 309 (Fla. 4th DCA 1974); Rose v. State, 308 So.2d 119 (Fla. 1st DCA 1975).

Affirmed.


text:
    Thomas J. SMART, Appellant, v. The STATE of Florida, Appellee.
    No. 76-440.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.
    Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Defendant appeals from his conviction of grand larceny. Two points are before us on appeal. The first is directed to alleged trial court error in denying defendant’s motion to discharge for violation of his right to a speedy trial. From a review of the record, we do not find that defendant was deprived of his right to a speedy trial, as provided by Rule 3.191, Fla.R.Civ.P., nor was denial of his motion to discharge fundamental error under the Florida and United States constitutions.

Defendant’s second point is directed at the trial court’s denial of his motions for acquittal at the close of the State’s case and at the close of all the evidence. Defendant urges that the circumstantial evidence was insufficient to support the verdict.

In Garmise v. State, 311 So.2d 747 (Fla.3d DCA 1975), we stated:

“When a defendant moves for a directed verdict of acquittal, he admits all facts in evidence adduced and every conclusion favorable to the State fairly and reasonably inferable therefrom. ... A motion for judgment of acquittal should not be granted unless it is apparent that no legally sufficient evidence has been submitted upon which the jury could legally find a verdict of guilty. Id. at 748^49.” (Citations deleted.)

We find that there was substantial competent evidence to support the verdict.

Affirmed.


author: PER CURIAM. NATHAN, J.,

text:
    AIRMART COIN LAUNDRIES, INC., Appellant, v. The MAYTAG COMPANY, Appellee.
    No. 76-573.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.
    Jones & Montgomery, Fort Lauderdale, for appellant.
    Adams, George, Lee & Schulte and David L. Willing, Miami, for appellee.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. Winn-Dixie Stores, Inc. v. Fellows, 153 So.2d 45 (Fla. 1st DCA 1963); Westinghouse Electric Corporation v. J. C. Penney Company, 166 So.2d 211 (Fla. 1st DCA 1964); Florida Power & Light Company v. General Safety Equipment Company, 213 So.2d 486 (Fla. 3rd DCA 1968). Compare Starkey v. Miami Aviation Corporation, 214 So.2d 738 (Fla. 3rd DCA 1968).

NATHAN, J.,

concurring specially.

I concur in the result only, on the grounds that the third party complaint, as amended, did not allege any ultimate or specific facts detailing the alleged defects of the machines manufactured by Maytag. However, in all other respects I am of the opinion that Central Truck Lines, Inc. v. White Motor Corp., 316 So.2d 579 (Fla. 3d DCA 1975), is controlling.


text:
    Emmy Lou TIRONE, Appellant, v. Antonio TIRONE, Appellee.
    No. 76-892.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.
    Rehearing Denied Jan. 6, 1977.

      Ellis Rubin and H. Lee Bauman, Miami, for appellant.
    Whitman & Wolfe, Miami, for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, former wife of the appellee, filed a motion pursuant to Fla.R.Civ.P. 1.540 seeking to set aside a property settlement agreement, the terms of which had been incorporated into a final decree of dissolution of marriage entered some three months before. The ground of the motion was that the wife had been coerced by her attorney into making the settlement agreement against her will. At the conclusion of the evidence presented by the wife at a hearing on the motion, the trial judge found as follows:

“1. That the Wife’s Motion for Relief from Final Judgment be and the same is hereby denied on the following grounds.
“2. That it was clearly established that the Respondent/Wife was fully aware of the property settlement agreement that was entered and made a part of the Final Judgment. Further that she participated fully to establish the agreement between herself and her former Husband. It was established the Wife is an experienced business woman and has participated in negotiating contracts for real estate transactions in the past and, therefore, was well aware of the terms of the property settlement agreement and the negotiations for same.
“3. That it was established that prior to her being represented by MR. DANIEL HELLER, she was represented by two other attorneys and that she discharged them by letter. That if she was dissatisfied with the services of MR. DANIEL NEAL HELLER, that she had every right to discharge MR. HELLER, but she chose not to do so and he represented her through the Property Settlement Agreement and the Final Judgment, which incorporated the Property Settlement Agreement. That her allegations that she was coerced and under duress by MR. DANIEL NEAL HELLER had not been substantiated by her evidence and, in fact, the evidence clearly establishes that she cooperated with her attorney and that her attorney, DANIEL NEAL HELLER, negotiated for and in her behalf to establish the Property Settlement Agreement with her full cooperation and participation.”

On this appeal, it is urged that the trial judge abused his discretion (1) in denying the wife’s motion by failing to find for her on the basis of the evidence she presented in support of her motion where there was no rebuttal evidence by the husband, and (2) in granting the husband’s motion to dismiss the wife’s motion by failing to require the husband to present evidence in support of his own motion.

Our review of the record convinces us that the wife failed to present a prima facie case entitling her to the relief sought. See Butler v. Butler, 172 So.2d 899 (Fla.3d DCA 1965); and Southern Title Research Company v. King, 186 So.2d 539 (Fla.4th DCA 1966).

Affirmed.


text:
    BUCKLEY TOWERS CONDOMINIUM, INC., a Florida Corporation, Appellant, v. Herbert BUCHWALD, Trustee, Appellee.
    No. 76-1364.
    District Court of Appeal of Florida, Third District.
    Dec. 20, 1976.
    Joseph S. Paglino, Miami, for appellant.
    Steel, Hector & Davis, Miami, for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Solar Research Corporation v. Parker, 221 So.2d 138 (Fla.1969), and Bosem v. Bosem, 279 So.2d 863 (Fla.1973).


text:
    R. Eugene ROCQUE, d/b/a Rocque Investment & Mortgage Company, Appellant, v. SMYRNA DEVELOPMENT, LTD., a co-partnership, Appellee. SMYRNA DEVELOPMENT, LTD., Appellant, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF TITUSVILLE, Appellee.
    Nos. AA-221, AA-407.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1976.
    Frank R. Pound, Jr., of Lovering, Pound & Lober, P. A., Rockledge, for appellants.
    Lawrence G. Mathews, Jr., of Gray, Adams, Harris & Robinson, P. A., Orlando, for appellee Smyrna; Harry A. Jones of Henderson, Matheny & Jones, Titusville, for appellee First Federal.
   PER CURIAM.

Having considered the briefs, the oral argument and the entire record in these consolidated cases, we are of the view that the position of appellant Rocque cannot be sustained on appeal except by reweighing evidence submitted to the trier of facts. We are not at liberty to do so. No error has been made to appear on the appeal of Smyrna from the judgment rendered by the trial court in favor of First Federal. The judgments are accordingly

AFFIRMED.

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


author: BOYER, Chief Judge.

text:
    Cecil G. COOKE et al., Appellants, v. John E. FRENCH and Lovenia French, Appellees.
    No. BB-328.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1976.

      William J. Roberts and Owen K. Good-wyne, Tallahassee, for appellants.
    Harvie J. Belser, Bonifay, for appellees.
   BOYER, Chief Judge.

Appellees brought suit for non-payment on a contract for the sale of land. Appellants filed their answer and a counterclaim, alleging misrepresentation and mutual mistake of fact as to the amount of acreage involved, requesting a court-ordered survey of the property to determine the exact amount of acreage and reformation of the contract with a reduction in the purchase price based on the reduced acreage as would allegedly be revealed by the survey. By this appeal appellants urge that the trial court erred in making certain findings of fact, in placing on appellants the burden of proof of establishing the number of acres involved, and in relying upon certain allegedly irrelevant facts in its finding that there was no mutual mistake of fact.

Appellees agreed to sell certain property located in Holmes County to appellant Cooke on October 11, 1969. Appellant Cooke was shown the property by Mr. Wayne Carey, manager of the Caryville Office of the United Farm Agency, who told him that the property contained approximately 86.5 acres, which was the figure recited in the description of the property at that time. About one month after the sale, appellant Cooke sold a one-third interest in the property to appellants Jobe. Appellant Cooke listed the property for sale with real estate agent Leonard Landress, whose inquiries inspired investigation as to the correct acreage.

At trial there was testimony from a licensed Florida surveyor, Pleasy Collins, that the entire acreage of the property amounted to somewhat over 34 acres. A second registered Florida land surveyor, Thomas Jenkins, prepared a map of the property from aerial photographs of the area which showed the north side of the property measuring 1600 feet and the south side 1500 feet. Mr. Robert Slay, property appraiser for Holmes County, testified that the property had been described for years on Holmes County tax rolls as containing 86.50 acres, but that in 1974, the amount of acreage was changed by Honeycutt & Associates, who had not surveyed the property, to 58.17 acres. Appellant Cooke stated that he did not order a survey of the property himself because he did not have the money to do so.

Appellees established that a contract for sale had been signed and executed by the parties and that appellants had failed to make timely payments as required by the contract. In order to avoid the effect of such proof, appellants had to prove by a preponderance of the evidence that there was some legally recognized reason for their failure to pay and that they were entitled to relief.

Appellants failed to meet their burden. Their affirmative defenses and counter-claim were based on the theories of misrepresentation and mutual mistake of fact. Both theories, in turn, were based on the factual assumption that the acreage contained in the property was substantially less than 86.5. To prove misrepresentation, appellants were required to establish that the 86.5 acre figure as represented to them was inaccurate, while in order to prove mutual mistake, it was necessary to prove that the parties were mistaken in their belief that the property contained 86.5 acres. However, the evidence on that point was conflicting. As above recited, the testimony concerning the amount of acreage ranged from 34 acres in the opinion of Mr. Collins to an amount larger than 86.5 acres according to the map prepared by Mr. Jenkins. Thus, the trial court was quite correct in ruling that appellants did not meet their burden of proof.

Appellants also assert that the trial court placed upon them the burden of conclusively proving the exact amount of acreage in the disputed parcel. A reading of the trial transcript, however, reveals that the court did not in fact impose such a burden. The judge merely said that “defendant has not conclusively determined that there is any shortage of acres or certainly has not introduced enough testimony before me to make a finding other than a mere guess that it be error.” The record supports the conclusion that appellants did not establish, either conclusively or by a preponderance of the evidence, that there was a shortage. The law is well settled that before a court of equity will either rescind or reform an apparently valid contract, there must be satisfactory proof of an accident, fraud, mistake, or other ground upon which such relief can be granted. (See 5 Fla.Jur., “Cancellation, Reformation, and Rescission of Instruments”, Section 4 et seq.) (Sub judice, rescission was not sought.)

Nor does the record reveal that the trial judge based his decision upon a determination of waiver or laches, nor upon an implicit holding that appellant Cooke, by virtue of his holding a license as a Florida real estate broker, was not entitled to rely upon appel-lees’ representations as to the amount of acres. Placed within the context of the final hearing, the remarks of the trial court now objected to by appellants indicate that the court felt that appellant Cooke’s status as a registered real estate broker and the fact that he continued making payments for a substantial period of time after becoming aware that there might have been a shortage in the amount of acreage supported the court’s conclusion that appellants had not established at trial that there was in fact a shortage.

Finally, we observe that the trial court was also correct in refusing to order a survey of the property. Notwithstanding the desirability of determining the correct acreage, the trial court had no authority under the facts of this case to order such a survey which appellants suggested should be taxed as costs to one or both of the parties. No funds were available to pay the surveyor, there was no evidence that the value of land was such as to secure a lien for the cost thereof, and appellant Cooke had already testified that he had not ordered a survey himself because of his inability to pay for same.

Appellees have filed a motion for attorney’s fees. No legal basis therefor having been cited, the motion is denied.

AFFIRMED.

McCORD and MILLS, JJ., concur.


text:
    VOLKSWAGENWERK ATKIENGELSELISCHAFT, a German Corporation, Appellant, v. Albert W. McCURDY et al., etc., Appellees.
    No. DD-80.
    District Court of Appeal of Florida, First District.
    Dec. 21, 1976.

      J. Richard Caldwell, Jr., of Pitts, Eu-banks, Ross & Rumberger, Orlando, for appellant.
    Anthony I. Provitola, of Provitola & McDermott, De Land, Wilson Sanders, Orlando, Alfred A. Green, Jr., Wesley A. Fink, Daytona Beach, for appellees.
   BOYER, Chief Judge.

Appellant, named as defendant in a negligence action filed by appellees, appeals from an order denying its motion to quash substituted service of process effected under F.S. § 48.181, one of Florida’s “long-arm” statutes. Appellees have cross-assigned as error that portion of the order which granted a motion to quash service of process attempted pursuant to the National Highway Traffic Safety Act (15 U.S.C. Section 1399(e)) and F.S. § 48.081(1).

The action is based upon an automobile collision which occurred on October 30, 1974. The complaint alleges that appellant, a corporation organized under the laws of Germany having its principal place of business in that country, is not authorized to do business in Florida, and is not amenable to service of process by personal service within the state. The complaint further asserts that another defendant, Volkswagen of American, Inc., hereinafter referred to as VWoA, is a new Jersey corporation which is a wholly owned subsidiary of appellant as is another defendant, Volkswagen Southeastern Distributor, Inc., hereinafter referred to as VWSD, which is a Florida corporation. Finally, the complaint states that appellant has no agents nor other representatives within the state other than VWoA and VWSD, and that VWoA was the alter-ego or agent of appellant in the importation, distribution, and sale of the 1969 Volkswagen which was involved in the accident.

Plaintiffs, citing Elmex Corp. v. Atlantic Federal Savings & Loan Association, Fla. App. 4th 1976, 325 So.2d 58, successfully argued before the trial court that the allegations of their complaint were sufficient to invoke the application of F.S. § 48.181. Specifically, plaintiffs rely on two factual allegations: That VWoA, licensed to do business in Florida, is a solely owned subsidiary of the defendant, and that the 1969 Volkswagen involved in the accident was distributed for sale by defendant through VWoA.

The courts of this state' have repeatedly held that statutes providing for substituted service must be strictly construed and one seeking to effect service thereunder has the burden of presenting facts which clearly justify the applicability of the statute. (American Baseball Cap, Inc. v. Duzinski, Fla.App. 1st 1975, 308 So.2d 639) Where one seeking to quash service of process makes a prima facie showing that it was not amenable to substituted service of process under Florida’s “long-arm statute”, the burden then shifts to plaintiffs to support the allegations of their complaint and to clearly show facts sufficient to sustain the propriety of the substituted service of process sought. (American Baseball Cap, Inc., supra at 646) Sub judice, the motion to quash established a prima facie showing by alleging that appellant conducted no business within the state of Florida nor within the United States of America and that neither VWoA or VWSD was an agent of appellant authorized to accept service of process on behalf of appellant.

The fact that VWoA is a wholly owned subsidiary of appellant is insufficient, in and of itself, to overcome the pri-ma facie showing made by appellant. Only where there is a showing by plaintiff that the parent corporation exercised such a degree of control over its subsidiary that the activities of the subsidiary were in fact the activities of the parent within the state is substituted service of process permitted. (Deere & Co. v. Watts, Fla.App. 3d 1963, 148 So.2d 529) Appellees have not presented nor proved any facts tending to show that appellant exercised such control over its subsidiary, VWoA, as to render it amenable to substituted service of process, but have merely relied upon the bare fact that VWoA is the wholly owned subsidiary of appellant. Notwithstanding dictum in ABCTC v. Morejon, Sup.Ct.Fla.1975, 324 So.2d 625, 627, to the contrary, control of VWoA by appellant may not be inferred merely from the status of the former as a wholly owned subsidiary of the latter. Thus, because appellees did not maintain their burden of clearly proving that appellant was amenable to substituted service of process pursuant to F.S. § 48.181, the motion to quash should have been granted.

As to the issue raised by the cross-appeal, appellees claim that appellant designated VWoA as their agent under the National Highway and Traffic Safety Act and that, therefore, VWoA may be served as appellant’s business agent pursuant to F.S. § 48.081(l)(d). The trial court quashed service of process on that ground, and properly so. First, appellees have neither pleaded nor proved that VWoA is a business agent of appellant, but only that appellant designated VWoA as an agent for service of process under the National Highway and Traffic Safety Act. Appellees have not established, and we refuse to so hold, that an agent under the National Highway and Traffic Safety Act is equivalent to a “business agent” for purpose of F.S. § 48.081(1). Moreover, F.S. § 48.081(l)(d) applies only to those business agents residing within the state of Florida. While VWoA is authorized to do business in Florida, appellees have neither alleged nor proved that VWoA resides within the state.

Affirmed in part; reversed in part and remanded for further proceedings consistent herewith.

MILLS and SMITH, JJ., concur.


text:
    Stephen M. ARCHINAL, Appellant, v. STATE of Florida, Appellee.
    No. 75-426.
    District Court of Appeal of Florida, Second District.
    Dec. 22, 1976.

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

The appellant appeals two judgments and sentences entered on a plea of nolo conten-dere.

The law is clear that before a trial court accepts a plea of nolo contendere it must first determine that the plea is being entered voluntarily and that the defendant understands the consequences of such a plea. Fla.R.Crim.P. 3.170(j); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Williams v. State, 316 So.2d 267 (Fla.1975).

The record before this court contains a short transcript of an initial plea hearing at which the appellant was not asked a single question. His counsel stated that appellant was pleading nolo contendere with the understanding that he was to receive a sentence of one year’s probation. The trial judge stated that he neither accepted nor rejected the plea bargain.

The sentencing hearing was not preserved at all. Appellant was sentenced to two years probation on both counts to run concurrently.

The record is clearly devoid of the colloquy that is required to show voluntariness and understanding of the consequences of the plea. It also appears that the sentence is at variance with the plea bargain.

Appellant contends that the trial court erred in denying his motion to suppress. The record-on-appeal does not include the transcript of the hearing on the motion to suppress. Therefore, we cannot consider this point.

Accordingly, the judgments and sentences are vacated and the case is remanded for a hearing on the voluntariness of the plea. If the plea is found to be voluntary and is acceptable, the trial court shall resen-tence the appellant in accordance with the plea bargain. If the plea bargain is rejected by the court, the court shall allow the appellant to withdraw his plea.

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

      . It is the duty of the trial court to ensure that a record of the sentencing hearing is preserved. Fla.R.Crim.P. 3.721.


text:
    Charles BARNETT, Appellant, v. William R. BARNETT, Appellee.
    No. CC-438.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1976.
    Rehearing Denied Jan. 13, 1977.
    Raymond, Wilson, Karl, Conway & Barr, Tallahassee, Bedell, Bedell, Dittmar & Zeh-mer, Jacksonville, for appellant.
    George L. Hudspeth, Jack F. Wayman, Jacksonville, for appellee.
   PER CURIAM.

By this interlocutory appeal, appellant, a trust beneficiary, challenges the amount of attorneys’ fees awarded by the trial judge to the attorneys for the trustee, appellee, incident to a dispute and ensuing litigation among the trust beneficiaries. The factual background may be found in two prior opinions of this Court, Barnett v. Barnett, Fla.App. 1st 1974, 304 So.2d 482 and Barnett v. Barnett, Fla.App. 1st 1976, 336 So.2d 1213. By our first above-mentioned opinion, we temporarily relinquished jurisdiction to the trial court with directions that it enter a further order making specific rulings on each objection to evidence which the judge took under advisement during the course of the trial. While jurisdiction was relinquished, the trial judge entered the order here interlocutorily appealed. During the pendency of this interlocutory appeal, we have rendered our opinion on the merits in the primary case. (Our second opinion above cited.)

Under the terms of the trust, the surviving blood issue of William L’Engle Barnett is entitled to a share of the income and corpus of the trust of which William R. Barnett is trustee. Following the death of William L’Engle Barnett in April of 1968, Charles Barnett, appellant here, through his attorney, notified the trustee that he (Charles) was entitled to benefits from the trust as surviving blood issue of William. The trustee promptly engaged the services of the law firm of Mahoney, Hadlow & Adams and notified the other trust beneficiaries who soon announced their intention to dispute Charles’ claim. A settlement attempt arranged by attorney Hadlow in September of 1968 failed. Up to that time, the law firm had devoted a total of 53 hours to the case. On January 20,1970, the trustee filed a declaratory judgment action seeking resolution of the conflicting claims. Up to that time, said firm had devoted an additional 112 hours, or a total of 165 hours to the case. From January to August, 1970, the firm, then representing the trustee and other defendants in the ease, took three depositions and moved to strike one of the defenses contained in Charles’ answer. During the latter period, the firm devoted an additional 141 hours to the case. In August of 1970, the other alleged beneficiaries, being the other defendants in the case, employed other attorneys to represent their respective interests. From August, 1970 through February, 1972, the firm representing the trustee expended an additional 481 hours incident to the case. The trial of the case which commenced on February 21,1972, consumed nine days. As recited in our prior opinion, the basic issue before the trial court was whether or not Charles was the blood issue of William under a construction of Section 731.29(1), F.S.1973. The trial judge found adversely to Charles, whose motions for rehearing and new trial were denied on June 13, 1972. From the beginning of the trial until disposition of the post-trial motions, the law firm employed by the trustee expended an additional 160 hours.

At the hearing on the petition for attorneys’ fees which is the genesis of this appeal, a member of the firm filed an affidavit dated February 6, 1975, alleging “that your affiant has examined the time records for attorneys as kept by Mahoney, Hadlow, Chambers & Adams to determine the amount of time its members and associates have devoted to this case from April, 1968, to the present, and those records reflect” a total of 1008.7 hours. Two affidavits from eminent attorneys were also filed stating that in their opinion such legal services justified a fee of $42,500 and $46,400, respectively. The trial judge awarded a fee of $42,500.

While conceding that the trustee is entitled to receive reasonable attorneys’ fees for necessary legal services, and that the hourly amount awarded by the trial judge is reasonable, appellant argues that the only services shown to have been necessary were those involved in the initial 165 hours expended by the law firm in getting the case filed in the court where the conflicting claims of the real parties in interest could be judicially determined plus approximately 90 hours, or 10 hours a day, for the nine day trial. In support of that argument, appellant quotes a recitation in the trustee’s one page brief filed in this Court incident to the primary appeal wherein he said “* * * since the issue on appeal is one in which the trustee has no direct interest other than being a stakeholder of the trust res, the trustee does not propose to file any brief.” Appellant also urges citing West Coast Hospital Association v. Florida National Bank of Jacksonville, Sup.Ct. Fla. 1958, 100 So.2d 807 and Warner v. Florida Bank & Trust Co. at West Palm Beach, 160 F.2d 766 (5th Cir. 1947), that the law of Florida provides that Charles Barnett and the other claimants may be entitled to receive from the trust assets reasonable costs of legal services necessarily rendered by their respective attorneys incident to determining whether or not Charles Barnett was the blood issue of William L’Engle and that therefore the trust assets will be depleted by a substantial amount for legal services rendered by the attorneys for the trustee, without the trial court having any information as to the amount of reasonable attorneys’ fees necessarily incurred by Charles Barnett and the other claimants.

When a trustee seeks to charge a trust corpus with an expense incurred by him, including attorney fees, the burden of proof is upon the trustee to demonstrate that the expense was reasonably necessary and that such expense was incurred for the benefit of the trust, and not for his own benefit nor the benefit of others.

Our examination of the record reveals that the trustee failed to demonstrate the necessity of a substantial amount of the services rendered by his attorneys and failed to distinguish between services rendered for the trustee and services rendered for the other defendants. As already observed, the trustee finally asserted in his brief that he was only a stakeholder. It is clear that the trustee knew in April of 1968 that there were conflicting claims to the share of the trust estate claimed by appellant and he knew in September of 1968 that the real parties in interest were not going to settle their differences. At the time the trustee filed his complaint for declaratory judgment, the need for substantial additional legal services on the part of the trustee came to an end. All of the claimants being in court, it was not the duty nor prerogative of the trustee to favor one claimant over the other. Certainly the trustee is not entitled to have paid from the trust estate attorneys’ fees for services rendered by the trustee’s attorneys to other parties to the proceedings.

The crucial question is whether, after filing a suit to determine which of the conflicting claims should prevail, the trustee should have actively continued to participate in the preparation of the pending litigation. While the trustee in his fiduciary capacity was required to do something more than stand on the sidelines and watch, it was not his duty to take a partisan stance and argue the side of one or more of the claimants. In order that the trustee might discharge his fiduciary responsibilities it was his duty to participate in the investigation of the claims, secure relevant documents and procure other evidence. However, sub judice the record reveals that the trustee through the fourth day of the trial at which time his attorney announced “I’ve done everything I intend to do” actively participated in the litigation, opposed appellant’s motion for summary judgment and moved to strike certain defenses.

Although the record before us is inadequate to support a determination by this Court as to which services rendered by the trustee’s attorneys were reasonably necessary in their representation of the trustee incident to his duties and responsibilities as trustee, that record does reflect that the trial judge awarded compensation for attorneys’ services which were not reasonably necessary to such purpose. Further, services rendered by the trustee’s attorneys incident to the preparation of one or more of the defendant’s claims may not properly be paid from the trust estate.

Accordingly, we remand the case for further proceedings to determine proper fees to be awarded for the services of the trustee’s attorneys consistent with the views expressed herein.

IT IS SO ORDERED.

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

      . Conflict of interest is not urged by appellant. Indeed, during the hearing before the trial judge, appellant’s attorney stated: “Now it just happens to be a fact that for eight months the other beneficiaries relied on this firm, the Had-low-Hudspeth firm to represent them in the case here. I don’t fault anybody for that. I’m —I don’t mean to say there was such conflicts of interest that it created any problem.”

      . Barnett v. Barnett, Fla.App. 1st 1976, 336 So.2d 1213.


author: MARCUS, Justice. MARCUS, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Henry A. REID, Jr.
    No. 58784.
    Supreme Court of Louisiana.
    Decree Rendered Oct. 27, 1976.
    Reasons for Judgment Nov. 8, 1976.
    Rehearing Denied Dec. 2, 1976.
    Concurring Opinion Dec. 17, 1976.
    Joe J. Tritico, J. Michael Veron, Lake Charles, for defendant-relator.
    John M. Mamoulides, Gretna, President Louisiana Dist. Attys.’ Ass’n, Pete Adams, Executive Director (Acting), Abbott J. Reeves, Metairie, Director, Research & Appeals, for amicus curiae.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, L. J. Hymel, Dennis Weber, Asst. Attys. Gen., Frank T. Salter, Jr., Dist. Atty., James L. Babin, Asst. Dist. Atty., for plaintiff-respondent.

      . See the appendix to the opinion of the court for a copy of this questionnaire.

   MARCUS, Justice.

DECREE

For the reasons to be assigned, the ruling of the trial judge denying defendant’s motions to quash is affirmed.

DIXON and DENNIS, JJ., concur.

SUMMERS, J., concurs and will assign reasons.

MARCUS, Justice.

On June 25, 1976, the grand jury for the parish of Calcasieu returned three indictments against Henry A. Reid, Jr. for the crimes of public payroll fraud and theft in violation of La.R.S. 14:138 and La.R.S. 14:67 respectively. Defendant filed motions to quash the indictments alleging, inter alia, that the manner of selection of the general venire from which the grand jury was chosen was illegal within the intendment of La.Code Crim.P. art. 533(1). The trial judge denied defendant’s motions to quash, holding that the method of selection of the general venire in Calcasieu Parish was in full conformity with the law. On defendant’s application, we granted a writ of review under our supervisory jurisdiction. On motion by the state for a preferential hearing, the matter was heard on October 27, 1976, after which this court rendered an order affirming the trial judge’s denial of defendant’s motions to quash the indictments. The reasons for this order are hereinafter set forth.

The record of the hearing on defendant’s motions to quash reflects that the general venire in Calcasieu Parish is selected in the following manner. Approximately 75,000 names gathered from a variety of sources are recorded on index cards and placed in a large drum. Periodically, several hundred names are drawn from the drum and questionnaires are sent to the persons whose names appear on the cards drawn. The questionnaire is designed to aid the jury commission in determining the qualifications of persons to serve as jurors and whether or not, it called for jury duty, they would claim an exemption to which they may be entitled by virtue of age, occupation or previous jury service. The cards of persons who are qualified to serve and do not claim a legal exemption are placed in a smaller drum from which the general ve-nire is selected by the jury commission. The record indicates that the mailing out and processing of returned questionnaires is carried on under the direction of Mr. Acton Hillebrandt, clerk of court for the fourteenth judicial district court and a member of the jury commission, as required by La. Code Crim.P. art. 404. Persons failing to return questionnaires are contacted by phone or mail and instructed to complete and return the forms within ten days. Failure to comply with this request results in the issuance of a subpoena by the jury commission to compel the attendance of prospective jurors; continued noncompliance results in a report to the judge for the issuance of a citation for contempt. Questionnaires returned by the postal service as non-deliverable are followed up by the personnel of the clerk’s office who attempt to ascertain the current whereabouts of the addressees. The records of the clerk’s office reflect that of approximately 6,300 questionnaires sent out since the inception of the system in October, 1975, 652 have been returned unclaimed, 76 persons have been determined deceased, 59 are temporarily non-residents, 424 are non-residents, and 992 persons have been excluded for medical or professional reasons.

Defendant complains that the process of screening prospective jurors by questionnaire before their names are placed in the small drum from which the general venire is drawn is improper. More particularly, defendant contends that (1) the jury commission has no power to exclude persons from the general venire for medical or professional reasons, and (2) that as a result of such exclusions, the general venire does not represent a fair cross section of the community.

The law regarding a jury commission’s authority to exclude persons from the general venire for medical reasons is found in the code of criminal procedure. Among the qualifications for jury service embodied in La.Code Crim.P. art. 401 is the requirement that in order to be qualified a person must not be

. incapable of serving as a juror because of a mental or physical infirmity . . (Emphasis added.)

La.Code Crim.P. art. 408 further provides in pertinent part:

. the jury commission shall select impartially at least three hundred persons having the qualifications to serve as jurors, who shall constitute the general venire. (Emphasis added.)

In keeping with their authority to ascertain juror qualifications the questionnaire employed by the jury commission includes the following inquiry:

11. Are you in good health? If not, state briefly your problem.
PLEASE ENCLOSE A PHYSICIAN’S CERTIFICATE IF HEALTH PROBLEMS WOULD KEEP YOU FROM SERVING.

It is undisputed that the jury commission has the authority to exclude unqualified persons from the general venire. Inasmuch as physical infirmity is clearly a disqualification from jury service, we are of the opinion that the attempt to gather documented information by questionnaire concerning the medical condition of prospective jurors is a legitimate exercise of the authority vested in the jury commission.

Defendant suggests that the information received through this process is not used to determine juror qualifications but rather to grant advance medical excuses within the contemplation of La.Code Crim.P. art. 783, a matter reserved to the discretion of the trial judge. Had we been presented with evidence substantiating this allegation, we would be faced with a serious issue. The record before us, however, does not demonstrate that anyone has been excluded from the general venire on the basis of a medical condition not constituting a physical infirmity. We are unwilling to assume that this has been the case.

Defendant further argues that the jury commission is without authority to exclude from the general venire persons claiming a legal exemption from jury service. Pursuant to the authority granted by the Louisiana Constitution of 1974, this court passed rule 25, effective January 1, 1975, which exempts from jury duty certain classes of people otherwise qualified to serve as jurors. The rule provides as follows:

Section 1. It is the policy of this court that all litigants in Louisiana courts entitled to trial by jury shall have the right to grand, petit and civil juries selected at random from a fair cross-section of the parish wherein the district court convenes, that all qualified citizens shall have the opportunity to be considered for jury service in the district courts of Louisiana and shall have an obligation to serve as jurors when summoned for that purpose, and that no citizen shall be excluded from jury service in the district courts of Louisiana on account of race, color, religion, sex, national origin or economic status.
Section 2. This court finds that the exemption of the following groups or occupational classes is in the public interest and, accordingly, members of such classes are exempt from jury service:
(a) Public officers in the executive, legislative, or judicial branches of the Government of the United States, or the State, or any subdivision thereof, who are actively engaged in the performance of official duties;
(b) Members in active service in the Armed Forces of the United States and members of the National Guard of this State while on active service;
(c) Members of paid fire or police departments of the State or any subdivision thereof and federal law enforcement officers;
(d) Members of the following groups when regularly and actively engaged in the practice„of their professions: attorneys at law, ministers of religion, chiropractors, physicians, dentists, pharmacists and optometrists;
(e) All persons over seventy years of age;
(f) Persons who have served as grand or petit jurors in criminal cases or as trial jurors in civil cases during a period of two years immediately preceding their selection for jury service.
Section 3. Any person may waive his exemption from jury service, but the exemption is personal to him and is not a ground for challenge.

In State v. Procell, 332 So.2d 814 (La. 1976), we held that the general venire selection process employed by the Sabine Parish jury commission contravened this rule in that the commissioners automatically excluded from the general venire, all exempt persons, without affording them the opportunity to waive their exempt status as provided in section 3. In the instant case, however, no one has been automatically deprived of the right to serve as a juror by virtue of an exempt status. Only those persons who return their questionnaires affirmatively claiming a lawful exemption are excluded from the general venire.

Since the list of exempt classes is exclusive and the right to claim an exemption absolute, it is clear that, whether performed by a judge or a jury commission, the act of excluding an exempt person from the general venire is a purely ministerial function. While the code of criminal procedure in enumerating the duties of the jury commission does not expressly authorize the performance of this function, neither does it by direction or implication prohibit it. This court has recognized in the passage of its new rule concerning the selection and constitution of a general venire that the jury commission is an appropriate body to exclude the names of those claiming lawful exemptions. Moreover, we have specifically authorized a questionnaire process for ascertaining qualifications and claimed exemptions. We are unable to hold, therefore, that the actions of the Calcasieu Parish jury commission in excluding from the general venire persons claiming lawful exemptions are illegal.

It is a matter of some concern, nevertheless, that the record reflects a failure to return the cards of persons excluded from the general venire for medical or professional reasons to the large drum. Inasmuch as physical infirmities may in certain eases be temporary and since persons claiming an exempt status may, at a later date, either no longer be eligible for exemption or choose not to claim their exemption, the names of such persons should not be permanently removed from the list of potential jurors. It is well settled, however, that a general venire shall not be set aside for any reason unless fraud has been practiced or some great wrong committed that would work irreparable injury to the defendant. La.Code Crim.P. art. 419. Defendant in this case does not even suggest that there has been fraud in the selection of the general venire; nor has he demonstrated wherein he has suffered any injury from the manner of selection or the constitution of the general venire. Hence, we decline to upset the general venire on this basis.

Finally, regarding defendant’s contention that the general venire does not constitute a fair cross section of the community, we note that the record is totally devoid of any evidence suggesting the systematic exclusion of any class of people who are not either disqualified from jury service by law or exempt by rule of this court. Accordingly, we find no merit in this contention.

For the foregoing reasons, this court rendered the following order on October 27, 1976:

For the reasons to be assigned, the ruling of the trial judge denying defendant’s motions to quash is affirmed.

DIXON, J., concurs.

SUMMERS, J., concurs in the result only and will assign reasons.

Appendix to follow.

APPENDIX TO THE OPINION OF THE COURT

QUESTIONNAIRE AS TO QUALIFICATION FOR JURY DUTY

The Judges of the 14th Judicial District Court have ordered that these questions be answered and this questionnaire mailed to the Calcasieu Parish Jury Commission, within 10 days from the date of receipt. If you fail to do so you will be subpoenaed to appear at the Jury Commission office to answer same.

1. Print name (in full)-

2. Residence address- Phone No-

3. City, Town or Post Office-

4. How long have you resided in Calcasieu Parish?-

5. Sex_ Date of birth: (month)-(day)-(year)-

6. What education have you had?-

7. Can you read, write and speak the English language?-

8. What is your occupation?-

9. Have you ever been convicted of a felony offense?-

If so, what?-

10. Do you have any criminal charge pending against you at this time?-

If so, what?-

11. Are you in good health?- If not, state briefly your problem-

PLEASE ENCLOSE A PHYSICIANS CERTIFICATE IF HEALTH PROBLEMS WOULD KEEP YOU FROM serving:

The following persons may be excused from jury service if they so request. You may waive the excuse and serve, if you wish.

1. Public officers actively performing duties in the Federal or State government or any subdivision thereof.

2. Members on active duty of the Armed Forces or La. National Guard.

3. Members of paid fire or police departments and federal law enforcement officers.

4. Persons actively practicing as attorneys at law, ministers of religion, chiropractors, physicians, dentists, pharmacists and optometrists.

5. Persons more than seventy years of age.

6. Persons who have served as grand, petit or civil jurors in the past two years.

Do you come under any of the above excuses?-

If so, state-=-

Would you claim this excuse if called for jury duty?-

DATE:- . -

Sign your name

If you have any questions regarding this questionnaire call the Calcasieu Parish Jury Commission. Phone: (318)433-8047.

SUMMERS, Justice

(concurring).

The Court concludes that, in discharging its function of selecting prospective jurors for inclusion on the jury venire, the jury commission was free to delegate that responsibility to employees in the clerk of court’s office. These delegates, upon the basis of unverified responses to a questionnaire, peremptorily exempted prospective jurors from jury service. In approving this procedure the Court has sanctioned a practice that effectively excludes the trial judge from any participation in deciding whether a prospective juror is qualified or entitled to an exemption. In doing so the Court has acted contrary to established authority. See La.Code Crim.Pro. arts. 401, Comments (d), (f) (1966), 783 and 787; cf. State v. Vassel, 285 So.2d 221 (La.1973).

A ministerial function is one which requires no exercise of judgment or discretion. See Hood Motor Company, Inc. v. Lawrence, 320 So.2d 111 (La.1975). Determining who is exempt from jury service is not a ministerial function as the Court holds. Therefore, a juror’s health is not a matter the determination of which the jury commission is authorized to delegate to personnel in the clerk of court’s office; nor is it a ministerial function.

While I find the Court to be in error on this important issue, no showing is made that prejudice resulted in this case to the accused or that the error warrants reversal. There remained, after the exemptions granted in this case, a substantial and adequate number of prospective jurors to form the venire from a fair cross-section of the community. No purposeful or systematic discrimination was shown which would destroy or otherwise impugn the character of this fair cross-section. State v. Jack, 285 So.2d 204 (La.1973). See also State v. Baggett, 292 So.2d 201 (La.1974); State v. Leichman, 286 So.2d 649 (La.1973). I therefore concur.

      . The following changes and additions to rule 25 are effective January 1, 1977:

        RULE XXV. EXEMPTION OF JURORS

      Section 2. This court finds that the exemption of the following groups or occupational classes is in the public interest and, accordingly, members of such classes are exempt from jury service:
      (a) Public officers in the executive, legislative, or judicial branches of the Government of the United States, or the State, or any subdivision thereof, who are actively engaged in the performance of official duties;
      (b) Members in active service in the Armed Forces of the United States and members of the National Guard of this State while on active service;
      (c) Members of paid fire or police departments of the State or any subdivision thereof and federal law enforcement officers;
      (d) Members of the following groups when regularly and actively engaged in the practice of their professions: attorneys at law, ministers of religion, chiropractors, physicians, dentists, pharmacists and optometrists;
      (e) All persons over seventy years of age.
      Section 4. The jury commission shall not Include in, and shall delete from, the general venire the names of those persons who have served as grand or petit jurors in criminal cases or as trial jurors in civil cases during a period of two years immediately preceding their selection for jury service. However, if the name of such a person is included in a general venire, that person may claim an exemption from jury service or may waive the exemption.

        RULE XXVI. CONSTITUTING A GENERAL VENIRE

      Section 1. Definitions. As used in this rule the following words are defined as hereafter indicated.
      (a) Qualified. A person who meets all of the requirements of C.Cr.P. Art. 401.
      (b) Excluded. A qualified person who is not subject to jury service by reason of prior service as set forth in C.Cr.P. Art. 410 and Supreme Court Rule XXV, Section 4.
      (c) Exempt. A qualified person who is in any one of the groups or occupational classes described in Supreme Court Rule XXV, Section 2.
      (d) Excused. A qualified person as to whom the court determines that jury service would result In undue hardship or extreme inconvenience in accordance with C.C.P. Art. 1767, as amended, or C.Cr.P. Art. 783, as amended.
      Section 2. Duties of the Jury Commission.

      (a) The Jury Commission shall impartially select a general venire composed of all qualified persons, except:
      (i) Those who are classified as excluded.
      (ii) Those who are exempt and who, having been so advised, choose to claim the exemption.
      (iii) Those who are timely excused by the court.

        (b) Qualification, as well as those above stated exceptions in paragraph (a)(i), (ii), and (iii), may be ascertained by the jury commission on the basis of verified documented information available to it at the time of selection of the general venire.
      (c) Unless such verified documented information is available to the jury commission at the time of impartially selecting, revising or supplementing a general venire, all persons randomly chosen shall, not to exceed the required number, be impartially selected as the general venire.
      (d) Alternatively, the jury commission may determine qualification as well as the exceptions set forth in (a) above, on the basis of verified information obtained by means of an appropriate written questionnaire mailed to each person under consideration for impartial selection, revision or supplementation of a general venire.
      Section 3. Subsequent selection, revision or supplementation.

      (a) Persons who have previously been eliminated from selection for a general venire based on verified information at that time shall not again be automatically eliminated because of that fact.
      It should be noted that the new rule does not empower the jury commission to grant excuses, as that term is defined in Section 1(d). Section 2(d), which outlines a questionnaire system for ascertaining qualifications for, and exclusions, exemptions and excuses from jury service, authorizes the commission to exclude from the general venire by excuse only those persons who have been previously excused from jury service by the court.

      . The rulemaking authority of this court is granted in La.Const. art. 5, § 5(A) (1974) which provides that the supreme court has general supervisory jurisdiction over all other courts and may “establish procedural and administrative rules not in conflict with law . . . .”
      (Emphasis added.)


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Arturo Carlos MONTOYA.
    No. 58116.
    Supreme Court of Louisiana.
    Nov. 8, 1976.
    Rehearing Denied Dec. 14, 1976.

      Robert J. Stamps, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Arturo Carlos Montoya, charged by bill of information with having committed armed robbery in violation of La.R.S. 14:64, was tried by a jury, convicted, and sentenced to serve ninety-nine years at hard labor. Defendant relies on twenty-six assignments of error for reversal of his conviction and sentence. We find merit in assignments seventeen and twenty-three and therefore preter-mit consideration of the other assigned errors.

The offense for which defendant was prosecuted was the armed robbery of Joseph Marino, a drug clerk working at the Livaudais Pharmacy, 2733 Dauphine Street, New Orleans. To establish defendant’s participation in the armed robbery the State, in addition to the testimony of Mr. Lawton J. LeBlanc and Mr. Joseph Marino, relied on the defendant’s silence under police interrogation regarding his possession of drugs after his arrest.

LeBlanc and Marino testified that two armed and masked assailants entered the Livaudais Pharmacy on January 25, 1973, and forcibly took from them a substantial sum of money and some narcotics. Their descriptions of the robbers and their clothes matched those of the defendant and his companion at the time of their arrest shortly after the robbery. The State called Detective Gerald W. Laird, of the New Orleans Police Department, who related the details of the suspects’ apprehension, and that at the time of their arrest they possessed the property identified as having been taken in the robbery.

ASSIGNMENT OP ERROR NO. 17

During the prosecution’s direct examination of Detective Laird, the arresting police officer, the following interrogation, objection, ruling and testimony occurred:

“BY [PROSECUTOR]:
“Now, did you ask Montoya where he got these drugs, and— -
“BY [DEFENSE ATTORNEY]:
“Your Honor, at this time, I would object to any testimony in regard to what—
“BY THE COURT:
“Well, let him answer yes or no.
“BY [DEFENSE ATTORNEY]:
“Alright.
“BY THE WITNESS:
“Yes, we did ask him.
“BY [PROSECUTOR]:
“Q. You did ask him.
“A. Yes sir.
“Q. Did he tell you?
“A. No sir. * * * ”

In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) the United States Supreme Court held that a state prosecutor may not seek to impeach a defendant’s exculpatory story by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings at the time of his arrest. The Court stated:

“The warnings mandated by [Miranda], as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U.S. 433, 443-444, 94 S.Ct. 2357, 2363-2364, 41 L.Ed.2d 182 (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arres-tee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, 422 U.S., at 177, 95 S.Ct. at 2137. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. Mr. Justice White, concurring in the judgment in United States v. Hale, 422 U.S. at [171] 182-183, 95 S.Ct. [2133] at 2139 [45 L.Ed.2d 99] put it very well: ‘. . . when a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony . Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.’” 426 U.S. at 617, 96 S.Ct. at 2245, 49 L.Ed.2d at 97-98. (Footnotes omitted.) .

In the instant case the defendant did not take the stand. Thus, there is even less justification here for the State to call attention to his silence at the time of arrest than there was in Doyle, because the argument cannot be made that he was under cross-examination and thus fair game for impeachment by use of his silence at the time of his arrest. Therefore, we conclude it was clearly reversible error for the trial court to permit the State to use the arrested person’s silence against him at trial. Doyle v. Ohio, supra; cf. United States v. Hale, 422 U.S. 71, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975).

The only quibble we foresee with this ruling is the contention that the defense attorney waived his objection by saying “alright” after the trial judge overruled his objection and by failing to reiterate his objection. However, the record is equally subject to the interpretation that, having unsuccessfully objected to the improper threshold question by which the prosecution gained entrance to a forbidden area of inquiry, defense counsel concluded his objection to this line of questioning was preserved. Therefore, in the absence of clear and convincing evidence that defense counsel intended to waive his objection to a substantial violation of defendant’s constitutional rights, we will construe the record against such a waiver. The trial judge should have sustained his objection because it was directed to a question which could have no purpose other than to elicit from the police officer the fact that the defendant remained silent upon his arrest in contravention of defendant’s rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Doyle v. Ohio, supra. Cf. United States v. Hale, supra.

ASSIGNMENT OF ERROR NO. 23

Before the case was submitted to the jury, defendant objected to the trial judge’s jury instruction that one in unexplained possession of recently stolen property is presumed to be the thief. Because defendant objected to the trial judge’s instructions on the effect of the La.R.S. 15:432 presumption before the case was submitted to the jury, he has preserved his right to raise the error in this Court. See State v. Beard, 312 So.2d.278 (La.1975) and cases cited therein.

The portion of the charge objected to is as follows:

“ * * * Now, in law there are numerous presumptions. A legal presumption relieves him in whose favor it exists from the necessity of any proof, but, may nonetheless be destroyed by rebutting evidence. Such is the presumption that the defendant intended the natural and probable consequences of his acts, that the defendant is innocent, that the defendant is sane and responsible for his actions, that the person in the unexplained possession of property recently stolen is the thief, that evidence under the control of a party and not produced by him, was not produced because it would not have aided him, and so on.
“From the recent possession of stolen property, guilt may be inferred unless, there is a reasonable account given of the property as having been lawfully and not feloniously obtained. This inference or presumption is strengthened or weakened in accordance with the length of time between the theft and the time of the finding of the property. * * * ”

Defendant contends this instruction had the effect of abridging his constitutional right to remain silent in the face of the State’s accusation. United States Constitution Amendment V; La. Constitution Article I, § 11 (1921). Compare, La. Constitution Article I, § 16 (1974). Under the particular facts presented by this case and for the reasons set out below, we agree that defendant’s constitutional rights, as recognized by the United States Supreme Court in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), were violated by the trial judge’s instructions to the jury.

Throughout the State’s case, the assistant district attorney repeatedly told the jury that the law required it to presume that one in unexplained possession of recently stolen property committed the theft. Though the State had charged Montoya with armed robbery, it did not attempt to apply the jurisprudentially created presumption that one in the unexplained possession of property recently taken in an armed robbery is presumed to be the robber. State v. Braxton, 257 La. 183, 241 So.2d 763 (1970). Had this been the ease, our recent decision in State v. Searle, 339 So.2d 1194 (La.1976), No. 57,262, would have mandated reversal, because we therein held the jurisprudential extensions of the La.R.S. 15:432 presumption to armed robbery and simple burglary were “unconstitutional, unwise and must be overruled.”

Instead, the State was content to rely simply on the presumption as it is formulated in article 432 of Title 15, that one in the unexplained possession of property recently stolen is the thief. Of course, theft is but one element of the crime of armed robbery. La.R.S. 14:64.

The constitutionality of La.R.S. 15:432 insofar as it is used to create a presumption of theft (rather than armed robbery or burglary) has been affirmed, State v. Womack, 283 So.2d 708 (La.1973), and although, as we noted in Searle, we have some misgivings as to its continued constitutional vitality, and urge the legislature to reconsider its wisdom, we are not compelled to decide, in the present case, whether the presumption is unconstitutional on its face under the test we announced in State v. Searle, supra. Our examination of the record in the present case convinces us that the trial judge’s instructions regarding the La.R.S. 15:432 presumption, because of the factual context which preceded them, substantially violated defendant’s rights.

As we said in State v. Searle, supra, “ * * * La.R.S. 15:432 is * * '* so indefinite in some respects that it easily lends itself to unconstitutional application, depending upon the trial judge’s use of it in articulating his jury instructions.” 339 So.2d at 1203.

The phrase “unexplained possession” cannot constitutionally refer to defendant’s failure to take the stand in his own defense. Furthermore, under the United States Supreme Court’s ruling in Doyle v. Ohio, supra, the fact of an accused’s post-arrest silence cannot be used to establish that his possession of recently stolen property is “unexplained.” See also, United States v. Hale, supra. As we stated in State v. Searle, supra,

“ * * * If the meaning of the presumption as conveyed to the jury by an instruction in a particular case is that the defendant must personally explain his possession of the stolen property to the police or the jury, reversible error will have been committed. * * * Additionally, the statute cannot be interpreted to mean, or a jury led to believe, that the defendant must do anything other than produce some evidence contrary to or, at most, create a reasonable doubt as to the presumed fact in order to destroy the presumption.” 339 So.2d at 1203. (Citations omitted.)

During the course of his direct examination of Detective Laird, the State’s attorney, in an apparent attempt to establish that Montoya’s possession of the stolen property was unexplained, elicited, over defense objection, the fact of Montoya’s failure to explain his possession of the stolen property after his arrest. In his closing argument the assistant district attorney made the following observations:

“ * * * But the other three items, they definitely positively identified them as the drugs that were taken from them just an hour and forty-five minutes before they were found on the person of the defendant. Now, this is the presumption. Now, of course, just like the presumption of innocence can be rebutted — the presumption that the defendant is a thief can be rebutted.—
« * * *
“ * * * Now, gentlemen, as I said, this presumption can be rebutted. It can be overcome. How? By complying with the law, furnishing explanations of how he came into the possession of this property, which we now know is stolen.— << * * *
“ * * * He refused to tell him where he got this bottle, or the rest of the drugs, or the money. So that, you have no explanation. You have the presumption unrebutted. Now, this is one instance where the defendant does have to do something. He’s got to explain his possession. He’s got to explain how he came into possession of this property.” (Emphasis supplied.)

Counsel objected to these arguments on the ground that they violated Montoya’s constitutional right to remain silent. The trial judge overruled counsel’s objections and commented to the jury:

“Gentlemen of the jury, when these arguments are over, I will instruct you on what the law is. You are to apply that law to the evidence which you heard from this witness stand to arrive at your judgment. * * *,”

It was incumbent on the trial judge, in giving his jury instructions relative to the presumption of theft that can be drawn from the unexplained possession of stolen goods, to inform the jury of the significance of the phrase “unexplained possession.”

In view of the State’s improper ref-' erences to defendant’s post-arrest silence, which the State had used to show that Montoya’s possession of the stolen property was “unexplained,” the jury, given only the trial judge’s instruction previously reproduced, probably assumed that Montoya’s post-arrest silence should be considered by them in determining whether to apply the La.R.S. 15:432 presumption. That is, because of the State’s improper references to the defendant’s post-arrest silence, and its implicit references to his failure to take the stand, the reference in the judge’s charge to “unexplained possession” most likely meant to the jury that the accused was required either personally to come forward and explain his possession of the property to them at trial, or to have explained satisfactorily his possession of the stolen property to the police at the time of his arrest. In sum, the judge’s instruction in the context of this case called attention to the defendant’s post-arrest silence and his failure to take the stand.

Had the State not used Montoya’s post-arrest silence to show that his possession of the recently stolen property was unexplained, perhaps the trial judge’s instruction would not have substantially violated his constitutional rights. Given the facts of this case, it did.

For the foregoing reasons defendant’s conviction and sentence are set aside, and the case is remanded for a new trial.

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

      . Defendant’s alleged co-participant, Vinton Lee, pleaded guilty to the armed robbery charge brought against him. His conviction and sentence are not before this Court for review.

      . During voir dire examination the State’s attorney addressed the jurors over numerous defense objections as follows:
      “ * * * I just spoke of the presumption of innocence. Well, that presumption is contained in Title 13, [sic] Section 432 of the Louisiana Revised Statutes. I’d like to read you the entire article so that you can better understand it. ‘A legal presumption’ — and the judge is going to charge you on this at the conclusion of the trial also. ‘A legal presumption relieves him in whose favor it exists from the necessity of any proof; but may none the less be destroyed by rebutting evidence; * * * [one such presumption is] that the person in the unexplained possession of property recently stolen is the thief—
      “Now, all this means, is that there are certain things that are so logical that the law presumes it. The law says that you don’t have to prove it. This doesn’t mean that it can’t be rebutted. For instance, remember the word ‘unexplained’ — 1 would like to reiterate the legal presumption, that a person who is found in possession of recently stolen property is presumed to be the thief. — ”
      Also, the State’s attorney discussed the presumption at length in his closing argument, over defense objection.

      . We are of the opinion that defendant, because of these comments, would have been entitled to a mistrial under La.C.Cr.P. art. 770 if counsel had requested it.