text:
    CABOT, CABOT & FORBES LAND TRUST, a Massachusetts Business Trust, Appellant, v. FIRST NATIONAL BANK OF FORT WALTON BEACH, FORT WALTON BEACH, FLORIDA, Appellee.
    No. KK-103.
    District Court of Appeal of Florida, First District.
    March 14, 1979.
    Rehearing Denied April 23, 1979.

      Theodore C. Taub, of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, and A. G. Condon, Jr., of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for appel-' lant.
    Joe J. Harrell, of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appel-lee.
   McCORD, Chief Judge.

This is an appeal from a final judgment of foreclosure entered in favor of appellee, plaintiff below. We affirm.

This suit was brought by appellee Bank to foreclose a real estate mortgage as security for a note executed with the mortgage and two additional subsequently executed notes. The mortgage is the type known as an open-end mortgage authorized by § 697.-04, Florida Statutes. The mortgage contains the following future advance or open-end provision:

“And the Mortgagor further agrees as part of the consideration of this mortgage, and that this mortgage shall also secure (in an amount not exceeding in the aggregate at any time $258,400 DOLLARS,) such further sum as the Mortgagor may hereafter and before the foreclosure of this mortgage, owe or be due to the said Mortgagee, its successors, heirs, or assigns; . . . .’’

The original note for the principal amount of $150,000 was executed by appellant’s predecessor in interest, Evans & Mitchell, Inc. (hereinafter referred to as E & M), for the purchase of property for a project called the Sandestin Development. Subsequently, in 1973, E & M borrowed $44,000 from the Bank executing one of the Bank’s open note forms. The proceeds of that note were used by E & M to purchase a condominium for E & M’s resident manager. In 1974, E & M executed a third note to the Bank on the same type form for an open line of credit of $100,000 to provide interim funding for the Sandestin development. Neither of the two subsequent notes made reference to the previous mortgage. Appellee Bank’s president testified, however, that he and E & M’s treasurer agreed to rely on the open-end feature of the mortgage to secure the two additional loans.

The Sandestin venture failed, and E & M declared bankruptcy. The referee in bankruptcy entered an order abandoning the property to appellant, and appellee Bank then brought this foreclosure action alleging that all three notes were secured by the original mortgage because of the open-end provision. Upon final hearing, the trial court entered final judgment of foreclosure on all three notes in the amount of $218,744.49 plus interest, attorneys fees and court costs — all totaling $311,165.79. Appellant contends that since the two subsequent notes contained no reference to any security, they are not subject to the open-end provision contained in the mortgage. We disagree. The above-mentioned statute governing open-end mortgages (§ 697.04, Fla.Stat.) contains no requirement that subsequent notes make reference to the security of the mortgage. The intention of the parties is the key factor to be considered in determining whether or not subsequent notes are secured by an open-end mortgage. Compare Boyette v. Carden, 347 So.2d 759 (Fla. 1st DCA 1977). There was competent substantial evidence before the trial court to support its conclusion that the parties intended the two subsequent notes to be secured by the mortgage. They related to the same transaction as the original note and mortgage. As recognized in Industrial Supply Corp. v. Bricker, 306 So.2d 133 (Fla. 2nd DCA 1975):

“The obligation secured by a mortgage for future advances is the single binding promise of the mortgagor made at the outset of the transaction to repay all advances within the scope of the agreement which are actually made then and at a later time.” (Emphasis supplied).

We have considered appellant’s remaining point and find it to be without merit.

AFFIRMED.

ERVIN and MELVIN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Keith Howard HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1375.
    District Court of Appeal of Florida, Second District.
    March 14, 1979.
    Rehearing Denied April 18, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Shanklin v. State, 369 So.2d 620 (Fla.2d DCA 1979).

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


author: McCORD, Chief Judge.

text:
    Andre BROWN, Appellant, v. STATE of Florida, Appellee.
    No. JJ-447.
    District Court of Appeal of Florida, First District.
    March 20, 1979.
    Rehearing Denied April 19, 1979.
    F. Perry Odom, E. C. Deeno Kitchen, and Byron S. Camp, of Ervin, Varn, Jacobs, Odom & Kitchen, for appellant.
    Robert L. Shevin, Atty. Gen., Wallace. E. Allbritton, Asst. Atty. Gen., for appellee.
   McCORD, Chief Judge.

Brown appeals his conviction of armed robbery and sentence of five years. He argues that the evidence was insufficient to prove beyond a reasonable doubt that he was the perpetrator of the crime. We agree and reverse.

Wanda Wilson, an employee of the robbed Majik Market, was the only eyewitness to the crime. She testified that between 3:30 and 4 o’clock on Sunday afternoon, a young man came into the store, pulled a long gun with a silver barrel and demanded money. She placed the money in a brown paper bag and saw the robber carry the bag and leave the store on a bicycle. She described the robber as wearing a cap, light blue t-shirt, and jeans. Wilson testified that the appellant and the robber had the same features and resembled each other. However, she also testified that she was not sure that Brown was the robber. Although it was established at trial that Wilson consistently picked out the appellant in a corporeal and a photo line-up, it is clear that neither of these were positive identifications. Wilson merely chose the person who looked most like the robber.

Officer Boynkin arrived at the scene three to five minutes after a call from Wilson. Officer Boynkin tracked bicycle tire marks beginning on a dirt path located 125 to 150 feet from the Majik Market. The tracks on the path led toward a housing project. The appellant lived about one-half mile beyond the project. It was established that the bicycle tracks could have been made by a number of bicycles. Further, none of the tracks could be identified as being made by the robber’s bicycle and no pictures of tire tracks matched those of Brown’s bicycle. Boynkin admitted that the path was well travelled and that there were many young men living in the project who rode bicycles. The appellant’s house was searched the evening of the robbery and no light blue t-shirt, money, or gun was discovered.

Other witnesses testified that the appellant was seen, minutes after the robbery, bicycling unhurriedly toward the project and wearing a cap, blue t-shirt, and jeans. However, he was also wearing sunglasses, and he did not appear to be carrying either a brown paper bag or a gun. Finally, Officer Boynkin testified that Brown initially stated his whereabouts to be elsewhere than near the Majik Market on Sunday afternoon. Subsequently, he admitted being in the area.

The conviction rests entirely upon circumstantial evidence, there having been no positive identification of appellant as the robber. The evidence shows that appellant’s presence in the area was at a reasonable hour and that he was unhurriedly traveling a well-used path. In addition, the nondescript clothing worn by him and by the robber affords no basis for concluding that the two persons were one and the same. Also, there was no evidence of any distinctive or unusual physical features which would tend to identify appellant and the robber as one and the same person. In sum, the circumstances are not of such conclusive nature and tendency as to prove appellant’s guilt beyond a reasonable doubt. As in Kimbler v. State, 360 So.2d 1270 (Fla. 1st DCA 1978), the evidence does not fairly exclude several hypotheses of innocence which are suggested by the evidence or lack of it and which the jury and trial judge were bound to regard.

Reversed and Brown is discharged.

MELVIN and BOOTH, JJ., concur.


text:
    BRICKELL BAY CLUB, INC., a Florida Corporation, Biscayne Bay Club, Inc., a Florida Corporation and John Forte, Individually, Appellants, v. MIAMI PURVEYORS, INC., a Florida Corporation, Appellee.
    No. 78-1184.
    District Court of Appeal of Florida, Third District.
    March 20, 1979.
    Rehearing Denied April 18, 1979.

      Storace, Hall & Hauser and Andrew C. Hall, Miami, for appellants.
    Joseph Pardo, Miami, for appellee.
    Before SCHWARTZ, J., and CHARLES CARROLL (Ret.), and EZELL, BOYCE F., JR., (Ret.), Associate Judges.
   PER CURIAM.

Reversed and remanded with directions to vacate the Final Judgment pursuant to Fla.R.Civ.P. 1.540(b). See Rogers v. First National Bank at Winter Park, 232 So.2d 377 (Fla.1970); North Shore Hospital v. Barber, 143 So.2d 849 (Fla.1962); Centers v. Florida First National Bank at Pensacola, 352 So.2d 162 (Fla. 1st DCA 1977); Travelers Insurance Co. v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977); Imperial Industries, Inc. v. Moore Pipe and Sprinkler Co., 261 So.2d 540 (Fla. 3d DCA 1972); English v. Hecht, 189 So.2d 366 (Fla. 3d DCA 1966), cert. denied, 194 So.2d 619 (Fla.1966).


text:
    U-TOT-M OF MIAMI, INC., a Florida Corporation, Appellant, v. CITY OF MIAMI BEACH, a Municipal Corporation, Appellee.
    No. 78-1235.
    District Court of Appeal of Florida, Third District.
    March 20, 1979.
    Rehearing Denied April 20, 1979.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Frank A. Shepherd, Miami, for appellant.
    Robert L. Shevin, City Atty., and Beth Seigel, Asst. City Atty., for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Modlin v. City of Miami Beach, 201 So.2d 70, 75 (Fla.1967); Dade County v. Bengis Associates, Inc., 257 So.2d 291 (Fla. 3d DCA 1972); City of Miami Beach v. Meiselman, 216 So.2d 774 (Fla. 3d DCA 1968).


author: BERANEK, Judge.

text:
    George ESLER, Seagoing Electronics Corp., and Barco Electronics, Inc., Petitioners, v. Albert GABINET, Respondent.
    No. 78-2589.
    District Court of Appeal of Florida, Fourth District.
    March 21, 1979.
    Rehearing Denied April 18, 1979.

      Edna L. Caruso, West Palm Beach, and Anthony M. Livoti, Jr., of Kruse & Livoti, Fort Lauderdale, for petitioners.
    James J. Belcher, Pompano Beach, for respondent.
   BERANEK, Judge.

Petitioner here seeks review by common law certiorari of the lower court’s denial of a protective order under Rule 1.280(c) Fla. R.Civ.P. Petitioner and respondent each own 50% of two marine electronics corporations. Conflict arose between the parties which resulted in respondent’s resigning his corporate office and establishing a competing-electronics firm. Respondent then filed suit to dissolve the co-owned corporation, for damages and for cancellation of certain corporate acts. Respondent sought production of certain corporate documents under Rule 1.350 Fla.R.Civ.P. Pursuant to a motion to compel discovery, the documents were ordered produced and petitioner was ordered to submit to deposition. Petitioner subsequently sought a protective order which was denied. Petitioner here seeks review of that denial.

Based on the petition and attachments, and the very nature of the 50/50 ownership of the business, we conclude petitioner has failed to show the necessary basis for cer-tiorari jurisdiction. There has been no demonstration that the trial court departed from the essential requirements of law or that there is no adequate remedy on appeal after final judgment. Pic v. Hoyt Development Co., Inc., 309 So.2d 586 (Fla.2d DCA 1975). In denying certiorari, we do not decide whether the trial court erred. Such a determination would be premature as noted by the First District in Ford Motor Company v. Edwards, 363 So.2d 867 (Fla. 1st DCA 1978). The trial court, of course, still retains jurisdiction to enter a protective order if the petitioner can demonstrate that any particular demands in the actual course of discovery are burdensome, embarrassing, or otherwise improper.

The petition for certiorari is hereby DENIED.

CROSS and DAUKSCH, JJ., concur.


author: PER CURIAM. ERVIN, Judge,

text:
    PETERSON OUTDOOR ADVERTISING, BREVARD COUNTY, BOARD NO. 3304, Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. II-88.
    District Court of Appeal of Florida, First District.
    March 23, 1979.
    Gerald S. Livingston, Orlando, for appellant.
    Margaret-Ray Kemper, Phillip S. Bennett, H. Reynold Sampson, Tallahassee, for appellee.
   PER CURIAM.

This cause is REVERSED and REMANDED for further proceedings consistent with this Court’s opinion in Walker v. State Department of Transportation, 366 So.2d 96, 1979.

MILLS, Acting C. J., and BOOTH, J., concur.

ERVIN, J., concurs in part and dissents in part.

ERVIN, Judge,

concurring in part and

dissenting in part.

I concur in the conclusion reached by the majority only because it does not appear from the record that Peterson received that notice required by § 479.07(3), Fla.Stat. (1975). I otherwise dissent for the reasons stated in my concurring and dissenting opinion in White Advertising International v. Dept. of Transportation, 368 So.2d 411 (Fla. 1st DCA 1979).


author: RYDER, Judge.

text:
    Edward Steven TODD, Appellant, v. STATE of Florida, Appellee.
    No. 78-1283.
    District Court of Appeal of Florida, Second District.
    March 23, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

After a thorough review of the briefs and the record on appeal, we find that the appellant has failed to demonstrate reversible error, therefore, the judgments are affirmed.

One point on appeal does merit discussion and that is the propriety of the sentencing of appellant for both the second degree felony murder conviction and the underlying felony of robbery. In instances where, as here, a defendant is charged with felony murder but the underlying felony is a category (4) lesser included offense, under Brown v. State, 206 So.2d 377 (Fla.1968), it is improper to impose a separate sentence on the lesser included felony in addition to the sentence on the felony murder conviction. Ennis v. State, 364 So.2d 497 (Fla. 2d DCA 1978).

Accordingly, the sentence on the robbery conviction is vacated and set aside. Otherwise, the case is affirmed.

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


text:
    STATE of Florida, Appellant, v. PINE ISLAND LAND COMPANY, a Florida Corporation, and A. L. and Grace A. Shirley, Appellees.
    No 78-1488.
    District Court of Appeal of Florida, Second District.
    March 23, 1979.
    Jim Smith, Atty. Gen., and James A. Peters, Asst. Atty. Gen., Tallahassee, for appellant.
    Benjamin T. Shuman, Orlando, for appel-lee Pine Island Land Company.
    Richard J. R. Parkinson of Parkinson & Pyle, Orlando, for appellees A. L. and Grace A. Shirley.
   PER CURIAM.

Affirmed. See State ex rel. Herring v. Murdock, 345 So.2d 759 (Fla. 4th DCA 1977).

GRIMES, C. J., and RYDER and DAN-AHY, JJ., concur.


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. Thomas POWER, Appellee.
    No. 78-1865.
    District Court of Appeal of Florida, Second District.
    March 23, 1979.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    H. Michael Evans, Clearwater, for appel-lee.
   DANAHY, Judge.

Appellant, the State of Florida, contends that the trial court erred in granting the motion to dismiss filed by appellee Thomas Power who was the defendant in the court below. We agree.

After appellee filed his motion to dismiss an information charging him with grand theft in the second degree in violation of Section 812.014(2)(b), Florida Statutes (1977), the state filed a sworn traverse which specifically denied a material portion of the factual allegations contained in the motion. Fla.R.Crim.P. 3.190(d) states that “A motion to dismiss under paragraph (c)(4) of this rule shall be denied if the State files a traverse which denies under oath a material fact alleged in the motion to dismiss.” Accordingly, the trial court should have denied appellee’s motion. State v. Wardlow, 356 So.2d 901 (Fla. 2d DCA 1978).

We reverse the trial court’s order and remand the case for further proceedings consistent with this opinion.

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

      . We also note in passing that appellee presented his factual allegations by way of deposition testimony from several witnesses. This led to inconsistencies in appellee’s facts and thus made the case one which did not lend itself to disposition by a motion to dismiss since a motion to dismiss is ordinarily granted in a typical case only when all the relevant facts are clear.


text:
    Greg CHRISTOPHER, Appellant, v. STATE of Florida, Appellee.
    No. 78-1982.
    District Court of Appeal of Florida, Second District.
    March 23, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Christopher appeals his conviction for unlawful entry of a dwelling in violation of Section 810.02(3), Florida Statutes (1975), alleging the trial court erred in denying him discharge under Fla.R.Crim.P. 3.191. We agree that appellant should have been discharged.

Appellant, a juvenile, was arrested on September 27, 1977, and subsequently waived to adult division. Appellant filed a motion to dismiss the information on February 22, 1978. On February 28, the state requested a continuance of the motion, and appellant represented that he was prepared to go to trial immediately should the motion be denied. The court denied the motion on March 3. On March 27, the 181st day after arrest, appellant moved for discharge. The trial court denied discharge, finding that this court’s holding in State v. Beckett, 357 So.2d 448 (Fla. 2d DCA 1978), permitted the time of pendency of the motion to dismiss to be charged against appellant.

Since the offense charged was a felony, the state was required to try appellant within 180 days of taking custody, by March 27, 1978. State v. Benton, 337 So.2d 797 (Fla.1976). There was no continuance requested by appellant. State v. Tyson, 334 So.2d 56 (Fla. 4th DCA 1976); Fla.R. Crim.P. 3.191(d)(3). Appellant did not waive operation of the rule. Smith v. State, 345 So.2d 1117 (Fla. 2d DCA 1970); Fla.R.Crim.P. 3.191(d)(2)(i)(iii). The court did not grant an extension of speedy trial time. Stuart v. State, 360 So.2d 406 (Fla.1978); Fla.R.Crim.P. 3.191(d)(2)(ii). Thus the speedy trial time expired on March 26 unless the state showed that appellant was unavailable for trial. Fla.R.Crim.P. 3.191(e).

Defense discovery pending at the expiration of the speedy trial time can show unavailability. Rubiera v. Dade County, 305 So.2d 161 (Fla.1974). Evidence that defendant was not prepared to present a formal trial defense likewise shows unavailability. Hammock v. State, 330 So.2d 522 (Fla. 1st DCA 1976); Brown v. State, 328 So.2d 497 (Fla. 3d DCA 1976). If the defendant precludes trial at the end of the speedy trial period by obtaining an extension to file pre-arraignment motions, he is unavailable at that time and the period is accordingly extended. State v. Beckett, supra.

Below, appellant was avowedly ready for trial, and made no actions of discovery negating that preparedness. The only pending motion was made more than a month earlier, and did not indicate unpreparedness to defend. Unlike Beckett, the state could have tried appellant at the end of the speedy trial period. We decline to extend Beckett to hold that mere filing of a motion to dismiss at an appropriate time extends the speedy trial period.

We also note that other speedy trial problems later arose in this case, but we do not reach these questions in light of our holding above.

Reversed and remanded with instruction to discharge appellant pursuant to Fla.R. Crim.P. 3.191.

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


text:
    DADE ROOFING AND INSULATION CORP., a Florida Corporation, Appellant/Cross-Appellee, v. Guillermo TORRES, Appellee, A-1-A Insulation, Inc., a Florida Corporation, Appellee/Cross-Appellant.
    No. 78-557.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Rehearing Denied April 20, 1979.

      Grable & Dieguez and Anthony Dieguez, Hialeah, for Dade.
    Michael J. Fingar, North Miami Beach, for A-l-A and Torres.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

Appellant Dade Roofing and Insulation Corp. appeals adverse summary final judgment entered in favor of Guillermo Torres. Cross-appellant A — 1—A Insulation, Inc. appeals an adverse final judgment entered against it and in favor of appellant Dade Roofing and Insulation Corp., pursuant to a jury verdict in the amounts of $10,500.00 compensatory damages and $2,000.00 punitive damages.

Appellant’s amended complaint alleged that A-l-A and its president Torres took and appropriated certain trucks and roofing equipment belonging to appellant and that they acted willfully and with malice. Compensatory and punitive damages were claimed.

It is appellant’s contention on appeal that the trial court erred in entering summary final judgment in favor of Torres, inasmuch as, the evidence showed that he personally participated in the conversion of the trucks and roofing equipment.

We find merit in this contention and reverse the summary final judgment' entered in favor of Torres. Individual officers and agents of a corporation are personally liable to any third person even if such acts are performed within the scope of their employment or as corporate officers or agents. Odell v. Signer, 169 So.2d 851 (Fla. 3d DCA 1964); CIC Leasing Corp. v. Dade Linen and Furniture Co., 279 So.2d 73 (Fla. 3d DCA 1973).

We have also considered the points raised by A-l-A in its cross-appeal and have found them to be without merit. Therefore, the summary final judgment in favor of Guillermo Torres is reversed and the cause is remanded for further proceeding as to Torres. The judgment entered against A-l-A Insulation, Inc. is affirmed.

Affirmed in part and reversed and remanded in part.


author: LETTS, Judge.

text:
    Iris BENSON, Appellant, v. Seymour BENSON, Appellee.
    No. 77-1249.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1979.

      Marion E. Sibley, of Sibley, Giblin, Le-venson & Glaser, Miami Beach, for appellant.
    Kenneth W. McIntosh, of Stenstrom, Davis & McIntosh, Sanford, for appellee.
   LETTS, Judge.

In this case, involving the dissolution of a marriage between two lawyers, the parties entered into a property settlement agreement (incorporated in the Final Judgment) calling for lump sum alimony payable in installments. Four months later, the husband claiming considerable diminution in income petitioned the court to extend the period over which to pay the balance owed, thereby reducing the amount of the remaining installments. The court so ordered. We reverse.

We commence with the basic premise that lump sum alimony cannot be modified. Zimmer v. Zimmer, 328 So.2d 525 (Fla. 4th DCA 1976); White v. White, 338 So.2d 883 (Fla. 3d DCA 1976); Howell v. Howell, 164 So.2d 231 (Fla. 2d DCA 1964). However, the husband here is arguing that he is not seeking a modification of the total lump sum to be paid, but only a reduced payment schedule because he does not have the present ability to continue the originally agreed to installments. We find no Florida case which has passed on this particular set of circumstances although we would comment that the failure to make payments pursuant to a pure property settlement agreement is not the subject of contempt proceedings, Burke v. Burke, 336 So.2d 1237 (Fla. 4th DCA 1976).

We agree with the language of Sedell v. Sedell, 100 So.2d 639, 642 (Fla. 1st DCA 1958),

Provisions a of a separation agreement constituting a final settlement of the rights which each party has in property accumulated during their marriage are to be construed in the same manner as any other contract. Rights in property which have become fixed and vested under the provisions of such agreement should not be disturbed by the courts, except upon proof which would justify modification or cancellation of a contract between strangers. Each of the parties is justified in relying upon the property settlement provisions of a separation agreement in planning the future course of their respective lives. Rights acquired under such agreements cannot be destroyed nor withdrawn by the courts upon the mere representation of either party that further compliance with the contract would prove burdensome or inconvenient. This is particularly true when the agreement has been ratified and confirmed by the court and incorporated in a final decree of divorce, (emphasis supplied)

The only other point with merit' concerns the actions of the trial judge in forgiving accrued periodic support. This too was error. A court can only modify support payments prospectively from the time a petition for modification is filed. Steinau v. Steinau, 343 So.2d 631 (Fla. 4th DCA 1977).

The cross-appeal is determined to be without merit.

REVERSED AND REMANDED WITH DIRECTIONS TO ENTER AN ORDER IN ACCORDANCE HEREWITH.

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

      . There is no suggestion of proof to justify cancellation of a contract in the instant case.


author: DAUKSCH, Judge.

text:
    Kenneth E. PADGETT, Sarah W. Padgett, Estate of William Van Busch, Deceased, and Patricia Van Busch, a widow, Appellants, v. FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF LAKE WORTH, a United States corporation, Appellee.
    No. 78-538.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1979.
    Rehearing Denied April 19, 1979.
    Michael O’Haire, of Smith, O’Haire, Thatcher & Quinn, Vero Beach, for appellants.
    Mitchell W. Legler, of Commander & Le-gler, P. A., Jacksonville, for appellee.
    W. Robert Fokes, Tallahassee, for amicus curiae.
   DAUKSCH, Judge.

AFFIRMED on the authority of Catogas v. Southern Federal Savings and Loan Association of Broward County, 369 So.2d 922 (Fla.1979).

CROSS and MOORE, JJ., concur.


text:
    Thomas M. RANGER, Individually, and d/b/a Ranger Air Conditioning Company, Petitioners, v. Lonnie HELMS and June Helms, his wife, Respondents.
    No. 79-19.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1979.
    Marjorie D. Gadarian, of Jones, Paine & Fester, P. A., West Palm Beach, for petitioners.

      Patrick C. Massa, of Cone, Owen, Wagner, Nugent, Johnson & McKeown, P. A., and Larry Klein, West Palm Beach, for respondents.
   PER CURIAM.

This is a petition for common law certio-rari. The initial petition was considered and an Order to Show Cause issued. The positions of the various parties have been considered and this Court concludes that there has been no demonstration of a jurisdictional basis. Certiorari is, therefore, denied. See Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975), and Professional Medical Specialties, Inc. v. Renfroe, 362 So.2d 397 (Fla. 4th DCA 1978).

CERTIORARI DENIED.

DOWNEY, C. J., and ANSTEAD and BERANEK, JJ., concur.


text:
    STATE of Florida ex rel. Joseph Wayne ELLIOTT, Relator, v. The Honorable James M. REASBECK, Circuit Judge of the Seventeenth Judicial Circuit, Respondent.
    No. 79-142.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1979.
    Rehearing Denied April 25, 1979.
    Robert M. Leen, Hollywood, for relator.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

This matter has been considered on a suggestion for writ of prohibition. Defendant’s motion to discharge under the Speedy Trial Rule, Rule 3.191, Fla.R.Crim.P., was denied. An order to show cause was issued and the positions of the various parties have been considered. It is our conclusion that in accordance with State v. Kurtz, 354 So.2d 890 (Fla. 4th DCA 1978), the defendant herein waived his right to rely upon strict time limitations provided in Rule 3.191.

Defendant herein requested a continuance and the defendant now directs our attention to a transcript of a colloquy between counsel when the matter was considered. Defense counsel asserts that although he stipulated to waive speedy trial time limitations that this stipulation had certain limitations which were exceeded.

We are not at all certain that the assert-' ed stipulation was in fact of such dignity nor that it was specific enough. As stated in State v. Kurtz, supra, when the defendant’s motion for continuance was granted the provisions of the speedy trial rule were no longer applicable as far as the 180-day provision is concerned. This case like many others boils down to a hindsight argument about what two attorneys meant when they stood before a trial judge discussing the rescheduling of a trial. Defendant now •seeks to say that this discussion constitutes an exact and very limited stipulation. We held in Kurtz that the granting of the continuance effects a waiver of the strict dictates of the speedy trial rule and we believe this case to be governed by the Kurtz ruling.

The suggestion for writ of prohibition is hereby denied.

LETTS, MOORE and BERANEK, JJ., concur.


text:
    James Robert ISHAM, Appellant, v. STATE of Florida, Appellee.
    No. 77-871.
    District Court of Appeal of Florida, Fourth District.
    March 28, 1979.
    Rehearing Denied April 25, 1979.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

This appeal arises from a denial of a motion to suppress evidence obtained through a police search following a telephone call from an anonymous tipster. We reverse.

An anonymous telephone call to the police advised that appellant was, at that moment, on a certain street corner attempting to sell drugs to two females. In a detailed description the informant described appellant as a young, black male, approximately 5'8" tall, wearing a bluejean Levi cap with a bill, a bluejean Levi jacket with no shirt, and blue flannel plaid pants. Plainclothed detectives immediately went to the scene where they spotted the appellant walking toward them. One officer exited his vehicle, identified himself, and stated that he wanted to talk to the appellant. Thereupon appellant, who was approximately three feet from the detective, attempted to flee and the officer detained him. A search of his person revealed cocaine in a container exactly as described during the telephone call.

We have not forgotten that we have recently held that an anonymous tip will not, without more, support implementation of the stop and frisk law, St. John v. State, 363 So.2d 862 (Fla. 4th DCA 1978), but that is not to say the police are required to ignore such a tip altogether. Indeed, if an unidentified caller told the police that an accurately described, flipped-out, disgruntled client was on the way to the public defender’s office to kill the occupants, all would enthusiastically thank the police for investigating the tip and making a stop. Both the Second and Third Districts have so held in cases involving dangerous weapons. State v. Francois, 355 So.2d 127 (Fla. 3d DCA 1978) and State v. Hetland, 366 So.2d 831 (Fla. 2d DCA 1979).

Adapting this rationale to the case at bar, the police had a perfect right, and perhaps a duty, to investigate the call. When they then saw the, described in detail, appellant at the very location, we believe they also had a right to talk to him. As they attempted to do so the appellant ran away which reaction in our view, coupled with all that had gone before, created a founded suspicion sufficient to justify a stop. Of the eight criteria set forth in our recent decision in Lacks v. State, 366 So.2d 1223 (Fla. 4th DCA, 1979), we find six to be applicable here.

The problem remains as to whether an immediate search without arrest, or further investigation, was authorized and we think it was not. There was no information to suggest that the appellant might be armed with a dangerous weapon (such as was the case in Hetland and Francois) nor was there probable cause for arrest for possession of cocaine BEFORE the search. Furthermore the record does not reflect any consent to the search conducted (as was the case in St. John). We are therefore of the opinion that the officers moved too fast and that the search was illegal. We are also of the opinion, however, that had the anonymous tip included information that the appellant was armed, a frisk would have been justified. See Hetland, supra.

THE JUDGMENT IS REVERSED AND REMANDED IN ACCORDANCE HEREWITH.

ANSTEAD and MOORE, JJ., concur.

      . The very explicit detail of the description in and of itself supplied some reliability to the BOLO (see Hetland, supra, at p. 833).


text:
    Salvatore CITARELLI, Appellant, v. The OHIO CASUALTY COMPANY and West American Insurance Co., Appellees. The WEST AMERICAN INSURANCE COMPANY, Appellant, v. Salvatore CITARELLI, Appellee.
    Nos. 78-96, 78-107.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Horton, Perse & Ginsberg and Edward A. Perse, P. J. Carroll & Associates, Miami, for Citarelli.

      Underwood, Gillis, Karcher, Reinert & Valle and Laurence F. Valle, Miami, for West & Ohio.
    Before SCHWARTZ, J., and CHARLES CARROLL (Ret.), and EZELL, BOYCE F., Jr., (Ret.), Associate Judges.
   PER CURIAM.

Affirmed. Reid v. State Farm Fire and Casualty Co., 352 So.2d 1172 (Fla.1977); Hartford Accident & Indemnity Co. v. Fonck, 344 So.2d 595 (Fla. 2d DCA 1977), cert. denied, 359 So.2d 1214 (Fla.1978); Lee v. State Farm Mutual Automobile Ins. Co., 339 So.2d 670 (Fla. 2d DCA 1976), cert. denied, 348 So.2d 954 (Fla.1977).


text:
    E. Wilson PURDY, as the Director of Public Safety, Appellant, v. Nicole C. WOODARD, Appellee.
    No. 78-1269.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Stuart L. Simon, County Atty., and R. A. Cuevas, Jr., Asst. County Atty., for appellant.
    Ferrell & Ferrell, Miami, for appellee.
    Before PEARSON, HENDRY AND HUBBART, JJ.
   PER CURIAM.

Affirmed. § 790.06, Fla.Stat. (1977). See also Iley v. Harris, 345 So.2d 336 (Fla.1977).


text:
    Lillian Lee MARICONDA, Appellant, v. Erwin A. PETRUSER, a/k/a Erwin Petrusek, and Betty Petruser, a/k/a Betty Petrusek, and Continental Insurance Company, Appellees.
    No. 78-1336.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Hodges, Gossett, Weiss, McDonald & Wakefield and Perry W. Hodges, Jr., Hollywood, for appellant.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellees.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Two points are presented on this appeal, one being procedural and the other going to the substantive basis for the final judgment entered. The procedural point does not present reversible error under the principles stated in Marsh v. Sarasota County, 97 So.2d 312 (Fla. 2d DCA 1957). Having passed the procedural question, an examination of the record reveals that the judgment is adequately supported by the evidence presented.

Affirmed.


text:
    CHARLES GILLER & ASSOCIATES, etc., et al., Appellants, v. MILLER & SOLOMON, INC., et al., Appellees.
    No. 78-1394.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Knight, Peters, Pickle, Niemoeller & Flynn, Miami, and Richard Daniels, Coral Gables, Jeanne Heyward, Miami, for appellants.
    High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellees.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Affirmed. § 725.06, Fla.Stat. (1977).


text:
    Orlando FORTIN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1409.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Assistant Public Defender, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Affirmed. See Ponder v. State, 323 So.2d 296 (Fla. 3d DCA 1975).


text:
    Gary Edward LATHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 79-503.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Donald L. Ferguson, Miami, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed. Compare, Dyer v. State, 296 So.2d 524 (Fla. 3d DCA 1974).


text:
    Louis RAMEAU, Appellant, v. Assephite RAMEAU, Appellee.
    No. 78-1785.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Frank L. Murray & Associates and Michael Shane, Miami, for appellant.
    No appearance for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Affirmed. See Leviten v. Gaunt, 360 So.2d 112 (Fla. 3d DCA 1978).


text:
    Jack LENCHNER, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT SECURITY and Franklin Press, Appellees.
    No. 78-1861.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Stephen Cahen, Miami, for appellant.
    James R. Parks, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Florida Industrial Commission v. Garlante, 84 So.2d 1 (Fla.1955); Spaulding v. Florida Industrial Commission, 154 So.2d 334 (Fla. 3d DCA 1963).


text:
    Laurence R. LEBLANG and Susan Leblang, his wife, Appellants, v. Marilyn Kaufman PESKIN, Appellee.
    No. 78-2266.
    District Court of Appeal of Florida, Third District.
    April 3, 1979.
    Krause, Reinhard & Linden, Miami, for appellants.
    Schoninger & Siegfried and Mark L. Deutsch, Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See First Wisconsin National Bank of Milwaukee v. Donian, 343 So.2d 943 (Fla. 2d DCA 1977); and Green v. Roth, 192 So.2d 537 (Fla. 2d DCA 1966).


text:
    Virginia GALLANT and Phillip Gallant, Appellants, v. William C. RAPE et al., Appellee.
    No. 77-1857.
    District Court of Appeal of Florida, Fourth District.
    April 4, 1979.
    Eric A. Lanigan of Maher & Overchuck, P.A., Orlando, for appellants.
    Ronald M. Owen of Parker, Conrad, Fal-kowski, Johnson & Owen, Orlando, for ap-pellee — John W. Morgan.
   PER CURIAM.

Petition for Writ of Certiorari is hereby DENIED.

CROSS, ANSTEAD and LETTS, JJ., concur.


text:
    Charles POWELL, Appellant, v. STATE of Florida, Appellee.
    No. KK-388.
    District Court of Appeal of Florida, First District.
    April 4, 1979.
    Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Charles Powell entered a plea of nolo contendere, expressly reserving the right to appeal the trial court’s denial of his motion to dismiss. He urges that the undisputed facts do not constitute a prima facie case of carrying a concealed firearm. We agree and reverse.

The motion to dismiss reveals that as Powell and a companion were walking down the street, a police officer riding by in a patrol car saw the handle of a firearm protruding from Powell’s rear pants pocket. After telling the driver to back the car up, the officer saw Powell throw the firearm into shrubbery. He retrieved the firearm and arrested Powell for carrying a concealed firearm. Although the brief asserts otherwise, the record established that the state did not traverse the facts, but demurred, asserting, “That a partially concealed firearm is a concealed firearm within the intendment of Section 790.01(2) of the Florida Statutes.” The factual matters are consequently deemed admitted. Rule 3.190(d), Fla.R.Crim.P.

Section 790.001(2), Florida Statutes (1977), defines “concealed firearm” as “any firearm . . . when the same is carried on or about a person in such a manner as to conceal said firearm from the ordinary sight of another person.” As noted by this court in Sutton v. State, 327 So.2d 234 (Fla. 1st DCA 1976), the mere possession or carrying of a firearm is not prohibited by statute. It is the concealment of the weapon that is prohibited.

In State v. Sellers, 281 So.2d 397 (Fla. 2d DCA 1973), the police officer observed a “bulge” in the defendant’s pocket which he thought was a gun. Upon closer observation he saw a pistol, the butt of which was exposed for about a quarter of an inch. The trial court dismissed the charge, but the appellate court quashed the order on the grounds that those facts were sufficient for the case to go to the jury. In so ruling, however, the court did not hold that the question of whether a weapon is concealed is always a jury question, but rather that the court is to determine whether, under the facts, the weapon could have been a concealed weapon; if it could have been, then the jury is to determine whether it was. Reviewing the application of the law to the facts, the Sellers court observed:

“[W]e would think a completely revealed weapon would not be a concealed weapon, and dismissal on motion would be proper. But it does not follow that a weapon, in order to be concealed, must be completely concealed.” (281 So.2d at 398).

Subsequently, in Donald v. State, 344 So.2d 633 (Fla. 2d DCA 1977), the court reversed a conviction for carrying a concealed weapon where a police officer had approached appellant from the rear and discovered a pistol tucked in the belt of the front of the pants during a “pat down” search, but testified that he did not know whether the defendant’s clothing would have obscured the sight of the pistol if he had observed the defendant from another position. Thus, Donald ■ holds that the weapon could be partially concealed by virtue of being tucked in the belt and not be a concealed weapon within the intent of the statute.

Accordingly, since Sellers states that a firearm need not be completely concealed to be “concealed” and Donald holds that a firearm may be partially concealed and not be “concealed,” it appears that the test is one of degree. For this reason, we believe this case is factually distinguishable from Sellers, for there the officer saw a bulge which he thought to be a gun and upon observing more closely saw one quarter inch of the butt of a gun exposed, whereas here the officer, while riding by in a car, saw what he knew to be the butt of a chrome-plated gun protruding from appellant’s pocket. He did not state that he saw a bulge which could have been a gun or an object which appeared to be a gun ---he saw a gun.

Under these facts, we hold that the weapon was not concealed from the ordinary sight of another person and the motion to dismiss should have been granted.

Reversed and remanded.

McCORD, C. J., and MELVIN and BOOTH, JJ., concur.


text:
    David Michael MEEKS, Appellant, v. STATE of Florida, Appellee.
    No. LL-35.
    District Court of Appeal of Florida, First District.
    April 4, 1979.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Átty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Meeks appeals his conviction of battery on a law enforcement officer and sentence of six months to three years. Appellant alleges that the trial court erred in denying the motion to dismiss the information on the grounds that the officers were not in the lawful performance of their duties at the time of the offense. § 784.07, Fla.Stat. (1977). The batteries occurred while the officers were executing an allegedly illegal misdemeanor warrant. However, just as the appellant is not justified in using force to resist an unlawful arrest pursuant to Sections 843.01 and 776.051(1), Floridá Statutes (1977), neither is he justified in committing a battery to resist an unlawful arrest pursuant to Section 784.07, Florida Statutes (1977). See Lowery v. State, 356 So.2d 1325 (Fla. 4th DCA 1978). Under these unique facts, Sections 784.07 and 843.-01 overlap in their application and the appellant was properly chargeable under either statute. Accordingly, the judgment is AFFIRMED.

MILLS, Acting C. J., ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Willie LIGHTFOOT, Appellant, v. Louie L. WAINWRIGHT, Appellee.
    No. MM-174.
    District Court of Appeal of Florida, First District.
    April 4, 1979.
    Willie Lightfoot, in pro. per.

      No appearance for appellee.
   PER CURIAM.

Lightfoot appeals a denial, without hearing, of his Petition for Habeas Corpus. The only allegation which requires discussion is his claim that he was not given a written statement as to the evidence relied on and reasons for the disciplinary action. If this is true, appellant’s due process rights were denied. Wolff v. McDonnell, 418 U.S. 539, 564-565, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Kirby v. Blackledge, 530 F.2d 583, 585 (4th Cir. 1976). The failure to give appellant such a statement also violates Florida Administrative Rule 33-3.08(13)(m). The documents comprising the record below do not refute this allegation. Therefore, this cause is remanded for an evidentiary hearing to determine the truth of the allegation.

MILLS, Acting C. J., ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Isaac McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. JJ-378.
    District Court of Appeal of Florida, First District.
    April 6, 1979.
    Michael J. Minerva, Public Defender, Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Charles W. Musgrove and Carolyn M. Snurkowski, Asst. Attys. Gen., for appellee.
   PER CURIAM.

Appellant raises several points from his conviction for second degree murder, the first being that the court erred in allowing into evidence six black and white photographs of the badly decomposed body of the victim over appellant’s objection that such photographs were irrelevant, inflammatory, and prejudicial. While the photographs were unquestionably gruesome, they were nevertheless relevant, either independently or as corroborative of other evidence and were therefore admissible. See Foster v. State, 369 So.2d 928 (Fla.1979); Bauldree v. State, 284 So.2d 196 (Fla.1973); State v. Young, 234 So.2d 341 (Fla.1970).

We find that appellant has not properly preserved for appellate review his pretrial motion for continuance since it was not renewed at the time of the trial; moreover, appellant’s counsel indicated at trial that he was in fact ready for trial. See Riggins v. State, 283 So.2d 878 (Fla. 1st DCA 1973). Finally, as to the lower court’s alleged error in refusing to instruct on the character and reputation of the deceased, we find no error since there was no predicate established from the evidence introduced justifying the charge.

The judgment is in all respects AFFIRMED.

MILLS, Acting C. J., ERVIN, J. and MASON, ERNEST E., Associate Judge, concur.


text:
    Terry Herbert PARKER, Appellant, v. STATE of Florida, Appellee.
    No. KK-279.
    District Court of Appeal of Florida, First District.
    April 6, 1979.
    Michael J. Minerva, Public Defender, and Kathleen F. Dekker, Sp. Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   McCORD, Chief Judge.

Parker seeks review of a conviction for manslaughter under Section 860.01(2), Florida Statutes (1977). We affirm.

The evidence presented was sufficient to establish a prima facie case of manslaughter by motor vehicle while intoxicated. Accordingly, the trial court properly denied Parker’s motion for judgment of acquittal.

Parker also contends that the trial court erred in instructing the jury as to the presumption of intoxication pursuant to Section 322.262(2)(c), Florida Statutes (1977). On appeal, Parker, relying on Lytwyn v. State, 353 So.2d 222 (Fla. 1st DCA 1977), argues that this instruction was improper because the blood alcohol test given him was not given in accordance with Sections 322.261 and 322.262, Florida Statutes (1977). Parker objected before the trial court that the proposed instruction was improper because:

. [T]he presumption is only valid in cases where the Defendant is charged with driving while under the influence of alcohol to the extent that his or her normal faculties are impaired.

There was no objection to the instruction on the ground now raised that the blood alcohol test had not been administered in accordance with Chapter 322, Florida Statutes. Because Parker’s objection failed to adequately present the trial court with the putative error now urged, we find this issue has not been properly preserved for appellate review.

Further, we find that Parker’s contention that he was denied a fair trial by alleged improper remarks by the prosecutor during final arguments is without merit.

Accordingly, the judgment and sentence appealed are AFFIRMED.

ERVIN and MELVIN, JJ., concur.


text:
    Dianna UPSON, Appellant, v. The ESTATE of Helen E. CARVILLE, Deceased, Appellee.
    No. LL-125.
    District Court of Appeal of Florida, First District.
    April 6, 1979.
    J. Peyton Quarles, Law Offices of T. Hu-len Ray, Deland, for appellant.
    Berrien Becks, Sr., of Becks & Becks, Daytona Beach, Samuel Spector and Guyte P. McCord, III, of Spector & Tunnicliff, Tallahassee, for appellee.
   PER CURIAM.

Dianna Upson, daughter of the decedent Helen E. Carville, appeals the order of the trial court granting a petition to establish and probate a lost will and denying a counter-petition to appoint appellant the sole surviving heir. We affirm.

The record reveals that Helen E. Carville executed a will in 1965 leaving her estate in trust to her two grandchildren. Her attorney had retained an unexecuted carbon copy of the will and, when the executed copy which had been retained by Carville could not be found, he filed a petition to establish and probate the lost will. Appellant filed an objection to the petition and a counter-petition to have herself named the sole surviving heir.

The evidence revealed that Carville was meticulous about her affairs, keeping all of her important papers, including her will, in a metal box in her office-sewing room and maintaining a ledger to record every expenditure. The metal box was seen in her possession a week or two before her death; but after her death, it could not be found. There was testimony that Carville had talked with friends about making a new will or having done so, but no one had seen that will or had heard her say she had executed it. Furthermore, although the testimony was that her proposed new will would provide for a great grandchild and provide for a later distribution of the corpus of the trust to her grandchildren and that her feelings toward appellant had softened during the last two months of her life, there was no testimony that Carville ever expressed any intent to leave her estate to appellant. There was clear evidence that she desired to die testate.

In Florida there is a presumption that if a properly executed will which is retained by the testator cannot be found at death, in the absence of the evidence to the contrary, there is a presumption that the will was destroyed by the testator with the intention to revoke it. In re Washington’s Estate, 56 So.2d 545 (Fla.1952). We believe that there was evidence to the contrary sufficient to overcome the presumption.

Appellant relies on In re Estate of Baird, 343 So.2d 41 (Fla. 4th DCA 1977), where the court held that the evidence did not overcome the presumption even though the decedent’s apartment had been accessible to others and was in disarray and the decedent had expressed warm feelings for those who would have taken under the will but would receive nothing otherwise. We think Baird is distinguishable. In that case, though the apartment was in disarray, the box where the decedent had kept his important papers was intact. Here, it was not simply that the will was missing from the box of important papers; the box itself was missing. In Baird, the court noted that if people with an adverse interest had had an opportunity to destroy the will, the presumption might have been overcome, but the only person who had adverse interest was hundreds of miles away. Here, the person with the adverse interest lived in the same vicinity as did Carville.

Appellant also challenges the procedural propriety of the hearing below, urging that it was improper for the trial court to require her to go forward with the burden of proof once the execution and contents of the lost will were established by appellee. Appellant waived this point by failing to move for a directed verdict before presenting her evidence.

Accordingly, the decision of the trial court granting the petition to establish and probate a lost will and denying the counter-petition is AFFIRMED.

MILLS, Acting C. J., ERVIN, J. and MASON, ERNEST E., Associate Judge, concur.


author:
DIXON, Justice.
     SUMMERS, Chief Justice SAMUEL, Justice ad hoc

text:
    STATE of Louisiana v. Lewis Lee BONIFACE.
    No. 62102.
    Supreme Court of Louisiana.
    March 5, 1979.
    Stephen A. Jefferson, Monroe,. for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Richard C. Anzalone, Asst. Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

Relator, Lewis Lee Boniface, while staying at a house in Monroe, Louisiana on May 17, 1969, was arrested with seven other persons and charged with possession of a narcotic drug (marijuana), in violation of R.S. 40:962 and R.S. 40:981 (as those sections existed in 1969). Subsequently, upon motion of the district attorney, the bill of information pending against relator was nolle prossed.

In 1977 relator learned that the Monroe arrest appeared on his Federal Bureau of Investigation arrest records. Alleging that this entry has caused him irreparable harm, relator filed a petition with the Fourth Judicial District Court seeking to have state law enforcement officials demand return from the FBI of all arrest information incident to his Monroe arrest and to have the court seal the records of this arrest so that they would not be inspected or divulged except for good reason upon court order. On February 8, 1978 the district court denied relator’s request because R.S. 44:9, which provides for the ex-pungement of records under certain circumstances, applies only to misdemeanors, and on the date the crime in question was committed, possession of marijuana was a felony. Writs were granted to review the ruling of the district judge.

“The U.S. Bureau of Prisons and the U.S. Parole Commission receive a copy of each prisoners F.B.I. Arrest Record and consider the information contained therein in determining whether or not to allow a prisoner to participate in the furlough program, Work release, study release, on the job training courses, in community and club activities, and, most important of all, parole consideration (see United States vs. Hudson, 16 Criminal Law Reporter, page 2470 et seq.; Tarlton vs. Saxbe [165 U.S.App.D.C. 293], 507 F.2d 1116). The kinds of prior arrests are one of the foremost reasons used by the U.S. Bureau of Prisons and the U.S. Parole Commission in denying the abovenamed rehabilitation programs and activities to a prisoner.”

The Louisiana statute on expungement of criminal records provides in part:

“B. Any criminal court of record in which there was a nolle prosequi, an acquittal, or dismissal of a crime set forth above shall at the time of discharge of a person from its control, enter an order annulling, cancelling, or rescinding the record of arrest, and disposition, and further ordering the destruction of the arrest record and order of disposition. Upon the entry of such an order the person against whom the arrest has been entered shall be restored to all civil rights lost or suspended by virtue of the arrest, unless otherwise provided in this section, and shall be treated in all respects as not having been arrested.” R.S. 44:9.

The reference in Subsection B to “a crime set forth above” is to Subsection A which provides that any person who has been arrested “for violation of a state statute which is classified as a misdemeanor” may make a written motion for expungement of the arrest record under two enumerated circumstances. By Acts 1978, No. 570, the legislature added to R.S. 44:9 Subsection E which provides:

“E. No court shall order the destruction of any record of the arrest and prosecution of any person convicted of a felony, including a conviction dismissed pursuant to Article 893 of the Code of Criminal Procedure.” (Emphasis added).

(C.Cr.P. 893 provides for suspension of sentence and probation after a felony conviction ).

The principal purpose of R.S. 44:9 is remedial, rather than penal. Remedial and penal statutes are distinguishable in terms of the nature of the evil sought to be remedied by the legislation; it is penal if it undertakes to redress a wrong to the public and remedial if it undertakes to remedy a wrong to the individual. 3 Sutherland, Statutory Construction, § 60.03, at 33 (4th ed. Sands, 1974). R.S. 44:9 was designed to protect individuals from future harassment and embarrassment by virtue of a criminal record. State v. Sims, 357 So.2d 1095 (La.1978).

Remedial statutes are liberally construed to suppress the evil and to ad-vanee the remedy. What is called a liberal construction is ordinarily one which makes the statutory rule or principle apply in more situations than would be the case under a strict construction. Sutherland, § 60.01, at 29. This liberal construction is in favor of those individuals entitled to benefits of the statute. Davis v. United Fruit Co., 120 So.2d 273 (La.App.1960). Of course, the rule of liberal construction should not defeat the intention of the legislature.

To determine whether liberal construction of R.S. 44:9 to expunge relator’s arrest would defeat the intention of the legislature, this court must consider legislative history of the statute. State v. Gyles, 313 So.2d 799 (La.1975). The legislature was aware of the possibility of applying R.S. 44:9 to felony arrests, because the 1978 amendment to the statute specifically addressed this issue and mandated in unambiguous words that a record of a felony arrest which ends in a conviction shall not be expunged. It would have been simple for the legislature to have provided that any record of a felony arrest should not be expunged; however, it did' not so provide.

The legislature no longer so severely punishes the possession of marijuana. When relator was arrested marijuana was classified as a narcotic (see Acts 1960, No. 488, § 1; R.S. 40:961(19)) and a conviction for possession of marijuana then carried a mandatory minimum punishment of imprisonment at hard labor for not less than five years (see Acts 1963, No. 60, § 1, R.S. 40:981). Very shortly after relator’s arrest the drug laws were amended and reenacted (see Acts 1970, No. 457 and Acts 1972, No. 634 amending and reenacting R.S. 40:961 et seq., and the statutory history in State v. Welkner, 259 La. 815, 253 So.2d 192 (1971)). Marijuana is no longer legislatively classified as a narcotic drug (see Acts 1977, No. 649, § 1; R.S. 40:961(23); State v. Jewell, 345 So.2d 1166, 1168 (La.1977)) and a first conviction for possession of marijuana now carries a penalty of $500.00 fine and/or imprisonment in parish jail for not more than six months (Acts 1978, No. 725; R.S. 40:967D).

It would be unduly harsh, and would serve no justifiable end, for this court to refuse to apply R.S. 44:9 to expunge an arrest for possession of marijuana in “violation of a state statute which is classified as a misdemeanor” today merely because it once was classified as a felony. Our refusal would continue the imposition of an inappropriate and disproportionately heavy penalty on the relator for the crime of possession of marijuana, and would violate the intention of the legislature to effect a remedial change pursuant to changing societal attitudes toward possession of marijuana. It is reasonable to believe that the legislature did not intend such a result. “The dead hand of the past, where it bars rather than leads social progress, must be narrowly limited in scope. . . . ” Hall, Strict or Liberal Construction of Penal Statutes, 48 Harv.L.Rev. 748, 767 (1935).

For these reasons the ruling of the district court is reversed; the case is remanded for the district court to enter an order annulling, cancelling, or rescinding the record of relator’s arrest and disposition and further ordering the destruction of the arrest record and disposition pursuant to R.S. 44:9; the order should include a request to the Federal Bureau of Investigation for return of the record and accompanying information of relator’s arrest (and its disposition) for possession of marijuana.

SUMMERS, C. J., and SAMUEL, J. Ad Hoe, dissent with opinions.

SUMMERS, Chief Justice

(dissenting).

The language of the statute on expungement of criminal records is clear and unequivocal. The statute provides for ex-pungement of the record of any person who has been arrested “for violation of a state statute which is classified as a misdemean- or.” La.Rev.Stat. 44:9. At the time of relator’s arrest on May 17, 1969 possession of marijuana was a felony. La.Rev.Stat. 40:962 and 981.

It would have been simple enough for the Legislature to make the expungement statute applicable to prior arrest and thereby entitle relator to the statute’s benefits. This was not done for reasons within the prerogative of the Legislature which it is not required to disclose. The law is clearly stated and should be applied as written.

I would affirm the ruling of the trial court.

SAMUEL, Justice ad hoc

(dissenting).

Insofar as the problem involved in this case is concerned, Act 570 of 1978 is confusing in that amends R.S. 44:9, which is concerned only with violations of municipal and state misdemeanors, by adding a subsection (E) concerned with felonies. However, obviously nothing contained in R.S. 44:9 prior to the 1978 amendment permitted destruction of arrest and prosecution records in felony matters; and I find nothing in the 1978 amendment which indicates anything other than an intent to make certain that destruction of the records of the arrest and prosecution of any person convicted of a felony is prohibited.

The possession with which relator was charged was a felony. That a similar possession later was reduced by the legislature from a felony to a misdemeanor does not change the fact that relator was charged with a felony and not a misdemeanor. Whether destruction of the arrest record in this case would be preferred procedure in the eyes of the court is not a consideration. Arrest records in felony cases cannot be destroyed under the provisions of R.S. 44:9 as those provisions existed and now exist, before and subsequent to the 1978 amendment.

Accordingly, as I would affirm, I respectfully dissent.

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

      . The harm relator alleged is:

      . Apparently a state court order would provide relator the relief he seeks. As noted in his brief, Department of Justice Order 556-73, § 16.34 (28 CFR § 16.34) provides:
      “If, after reviewing his identification record, the subject thereof believes that it is incorrect or incomplete in any respect and wishes changes, correction or updating of the alleged deficiency, he must make application directly to the contributor of the questioned information. Upon the receipt of an official communication directly from the agency which contributed the original information the FBI Identification Division will make any changes necessary in accordance with the information supplied by the agency.”
      The FBI honors requests from local authority for return of arrest records. Menard v. Saxbe, 162 U.S.App.D.C. 284, 498 F.2d 1017, 1025 and n. 24 (1974); Tariton v. Saxbe, 165 U.S.App. D.C. 293, 507 F.2d 1116 (1974); Crow v. Kelley, 512 F.2d 752, 755 (8 CA 1975).

      . Penal statutes are strictly construed in favor of the defendant and lenity, State v. Young, 357 So.2d 503 (La.1978), and against the state, State v. Jewell, 345 So.2d 1166 (La.1977). In the federal courts, where the nature of an act is remedial, it is construed liberally in an attempt to provide the remedy, not avoid it. Starks v. Orleans Motors, Inc., 372 F.Supp. 928 (ED La. 1974) citing Thomas v. Myers-Dickson Furniture Co., 479 F.2d 740 (5 CA 1973).

      . It should be noted that under the one title Act 570 of 1978 amends not only R.S. 44:9 but also Articles 893 and 894 of the Code of Criminal Procedure. This could be a reason for some of the confusion.


author: TATE, Justice. MARCUS, Justice

text:
    STATE of Louisiana, Appellant, v. Hugo COX, Appellee.
    No. 63036.
    Supreme Court of Louisiana.
    March 5, 1979.

      John P. Calmes, Jr., Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
   TATE, Justice.

The defendant was charged with armed robbery, La.R.S. 14:64, and attempted murder, La.R.S. 14:27 and 14:30, arising out of an incident which resulted from a pool hall altercation. He was convicted of both counts which had been joined for indictment and trial. He was sentenced to twenty-five years imprisonment on each count. The trial court provided that the sentences were to run consecutively.

The single assignment of error urged on appeal complains that the sentence is excessive, in that consecutive sentences were imposed for each count, when the two crimes joined for trial arose out of the same incident.

Appellate Review for excessiveness

Article 1, Section 20, La.Constitution of 1974 prohibits the imposition by law of excessive punishment. In accordance therewith, in State v. Sepulvado, 367 So.2d 762 (La.1979), we held that “the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this court on appellate review of his conviction.” 367 So.2d 767.

With respect to the appropriate standards for that review, we further stated that: “. . . the statutory criteria legislatively provided by La.C.Cr.P. art. 894.1 (1977), which are similar to those evolved by courts in other American jurisdictions with a constitutional or statutory duty to review ex-cessiveness, provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives.” 367 So.2d 769.

Relationship of Article 894.1 to Sentence Review

La.C.Cr.P. art. 894.1 (1977) sets forth three factors which justify a sentence imposing imprisonment, and eleven other factors which tend to indicate suspension of sentence or probation as appropriate. The statute provides that the latter, “while not controlling the discretion of the court, shall be accorded weight” by the trial court in its sentencing decision. The enactment con-eludes that the trial court “shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

Even without formal objection at the time, where the trial judge imposes a sentence without adequate compliance with the mandatory requirement of La.C.Cr.P. art. 894.1 that he state .the considerations and the factual basis for his sentence, this court may vacate a sentence and remand for re-sentencing, when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record. State v. Jackson, 360 So.2d 842 (La.1978); State v. Scarborough, 359 So.2d 982 (La.1978); State v. Sepulvado, 359 So.2d 137 (La.1978). See also State v. Gibson, 362 So.2d 769 (La.1978).

In State v. Jackson, 360 So.2d 842 (La.1978), we discussed at some length the purpose of the article in requiring that each sentence be particularized. We noted that not only public protection and deterrence, but also rehabilitation, are objectives of the sentencing process. In that unanimous opinion, authored by former Chief Justice Sanders, we observed that the code provision “requires that the sentence be individualized. . . . The article establishes procedures designed to adapt the sentence to the offender as well as the offense.” 360 So.2d 843-44.

In State v. Sepulvado, 367 So.2d 762 (La.1979), we noted that the trial court’s statement of reasons in imposing sentence, as required by this statute, “is an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive.”

In Sepulvado, in a first (or earlier) appearance before this court, the defendant had complained that the sentence was excessive, although he had not formally questioned it in the trial court. 359 So.2d 982 (La.1978). While we did not then reach the issue of excessiveness, we nevertheless remanded the case for re-sentencing in compliance with La.C.Cr.P. art. 894.1, because the factual basis assigned did not adequately comply with the statement of considerations with respect to the statutory guidelines provided by that statute. The same sentence was re-imposed over the accused’s objection in the trial court that it was excessive. On the second appeal, we vacated as excessive the re-imposed sentence.

The Sepulvado cases illustrate the relationship between the trial court’s statement of the reasons and factual basis for the sentence imposed, required by La.C.Cr.P. art. 894.1-, and our appellate review of ex-cessiveness as authorized by our 1974 state constitution.

If inadequate compliance with 894.1 is exhibited by the record, we may remand for re-sentencing in accordance with the mandatory requirements of that article, whether or not formal request has been made in the trial court that it comply with law. However, if (as required by 894.1) the trial court has stated the factual basis and individual considerations upon which the sentence is based, then upon formal assignment of error we will review whether the trial court’s large discretion has been abused. Our review of individual excessiveness will then consider, in the light of the criteria expressed by 894.1, the circumstances of the crime and the trial court’s stated reasons and factual basis for its sentencing decision.

Procedural requirements for appellate review of a sentence as excessive

With the exception of death penalty cases (which this court must independently review in each instance for excessiveness, La. C.Cr.P. art. 905.9), individual excessiveness of sentence may be considered on appeal only where presented by assignment of error, La.C.Cr.P. art. 920(1), formally made as required by La.C.Cr.P. art. 844.

In addition, we had previously held that some form of objection to the sentence as excessive must be made in the trial court. When the issue of review for excessiveness of sentence was first raised after the 1974 state constitution came into effect, we initially refused to review the claim unless before or at the time the sentence was imposed, an objection was made on the ground of excessiveness. State v. Williams, 340 So.2d 1382 (La.1976); State v. Williams, 322 So.2d 177 (La.1975). See also State v. Bryant, 325 So.2d 255 (La.1976) (concurring opinion, 325 So.2d 265, 267).

We then indicated that the purpose of requiring this sort of objection to be made in the trial court was to permit a hearing at which the factual circumstances indicating excessiveness or not might be shown, with an opportunity for the trial court to impose or amend its sentence accordingly, and in order to disclose for purposes of appellate review the showing as to such circumstances which might not otherwise be found in the trial record.

The requirement of these decisions that objection be made to the sentence as excessive was based upon La.C.Cr.P. art. 841. That article, however, provides that “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence * * Under its literal terms, the article does not require objection to be made to post-verdict reasons.

Furthermore, subsequent to the two cited Williams decisions, the legislature has itself provided that the trial court, in imposing sentence, must state the consideration taken into account and the factual basis therefore. Since these decisions, the jurisprudence has made clear that the defendant must be given an opportunity to rebut or explain misinformation upon which the trial relies or to which it is exposed in its sentencing decision. State v. Trahan, 367 So.2d 752 (La.1978); State v. Segers, 357 So.2d 1 (La.1978); State v. Underwood, 353 So.2d 1013 (La.1977). The latter holdings necessarily imply that the accused must likewise be given an opportunity to make a showing, by argument of counsel or otherwise, of mitigating factors under La.C. Cr.P. art. 894.1 B. which the trial court may have overlooked.

Thus, the legislative enactment of La.C. Cr.P. art. 894.1, as well as the later jurisprudence, see also State v. Bosworth, 360 So.2d 173 (La.1978), have provided the mechanisms by which the appellate record may reflect the circumstances outside of the trial on the merits, in the light of which the contention of excessiveness may be reviewed on appeal.

The Code of Criminal Procedure does not itself require any formal objection to be made to preserve post-verdict error for appellate review. Subsequent legislative action and jurisprudential developments have assured adequate appellate review for review of excessiveness, the original purpose of our early decisions in judicially imposing the requirement for an objection in order to preserve the issue of excessiveness for appellate review.

We see no intelligent reason longer to adhere to and accordingly we overrule, the holdings in State v. Williams, 340 So.2d 1382 (La.1976) and State v. Williams, 322 So.2d 177 (La.1975), that excessiveness of sentence may not be reviewed in the absence of formal objection — there being no statutory requirement for such objection, and there being no remaining functional reason for these decisions’ court-imposed requirement for the technicality of requiring an objection for such purpose. Similarly to the instance of the trial court’s ruling on a written motion, where no objection is required (La.C.Cr.P. art. 841), the defendant’s complaint of the trial court action is self-explanatory and the objection serves no functional basis to assure an adequate record by which to review on appeal the issue, when so raised by an assignment of error.

We should note, however, that if at or before the time of the sentencing hearing a defendant does not alert the trial court to alleged deficiencies in its sentencing reasons because of circumstances not reflected by the record (such as alleged misinformation or insufficient data of mitigating circumstances with regard to the sentencing decision), the assertion of the alleged deficiencies for the first time in the appellate court will not ordinarily be considered in the appellate review of sentence, which will be based upon the actual showings or attempted showings with regard to excessiveness made in the sentencing proceedings and upon the considerations and factual reasons expressed by the trial court’s sentencing reasons made in compliance with La.C.Cr.P. art. 894.1.

In the present case, the defendant did object to the sentence as excessive at the time it was imposed. The state argues on appeal that we should not consider the complaint of consecutive sentences because not particularized. Even under Williams, the objection as made was sufficient. We prefer to rest our ruling, however, on the broader ground that no technical objection was required to preserve the issue for appellate review, when raised by assignment of error to this court.

Facts of this case

The charges arose from a dispute between the victim and the accused (Cox), who had played a number of games of pool together for money. The victim owed Cox $6.00, when the defendant suggested they play a final game for double or nothing. After it, the victim and Cox disagreed as to who had won the game.

When the victim left the pool hall, Cox (who had left earlier) accosted him at his car, drove him to another location, beat him with his fists, and kicked him in the head and stomach; he may also have, although this is disputed, beat him with jumper cables. The victim was left unconscious and severely beaten, and he spent three weeks in the hospital recovering.

Excessiveness of consecutive sentences

The offenses did not arise out of premeditated criminal conduct in the sense of a planned robbery, as contrasted with an unplanned escalation of a pool-hall controversy into an enraged (but nevertheless unlawful) attempt to recover money of which the accused felt he had been cheated. Nevertheless, for present purposes it is not substantially disputed that the violence of the beating justified the trial court’s discretion in imposing a severe sentence upon the accused because of the aggravated manner in which the crime was committed; even though he is a first offender.

As the trial court stated, in imposing sentence, “What little I did hear of the extent of the injuries of the young man involved, and as you [defense counsel] say he was not free from some fault, but simply because you get in a disagreement over a bet on a pool bet, you do not settle it by stomping the holy hell out of a man and leaving him for dead.” The trial court pointed out that the injuries were serious and required three weeks’ hospitalization and could have resulted in the victim’s death, so that Cox might easily have been before the court for sentencing on a murder.

As noted, these reasons justified the penalty of twenty-five years imprisonment on either count, either armed robbery or attempted murder. The issue is whether the identical aggravating circumstances justify consecutive sentences on both counts.

As we stated in State v. Underwood, 353 So.2d 1013, 1019 (La.1977), “Based on American theory and practice concurrent rather than consecutive sentences are the usual rule, at least for a defendant without criminal record and in the absence of a showing that the public safety requires a longer sentence.” We there noted that one reason advanced to permit joinder and trial of two or more offenses at the same time was to facilitate the imposition of concurrent rather than consecutive sentences. 353 So.2d 1019 (footnote 6).

See: American Bar Association Standards Relating to Sentencing Alternatives and Procedures, Standard 3.4 (1968); American Law Institute Model Penal Code, Section 7.06 (1962); National Advisory Commission on Criminal Justice Standards and Goals, Corrections Standard 5.6; National Council on Crime and Delinquency, Model Sentencing Act 2d, Section 17 (1972), reprinted at 18 Crime and Delinquency 335 at 367' (1972); and official commentaries following each such statement of sentencing principle.

These standards contemplate the normal imposition of concurrent standards, with consecutive sentences to be imposed only under certain circumscribed conditions. As succinctly summarized by Commentary c, Standard 3.4 ABA Standards Relating to Sentencing Alternatives and Procedures, at p. 177 (Approved Draft, 1968):

“The function of the consecutive sentence should be similar to the function of the sentence imposed on habitual or dangerous offenders. Because of his repeated criminality the offender who has rendered himself subject to multiple sentences may pose the same type of unusual risk of the safety of the public. It would thus appear that he should be treated in a similar fashion.”

The state argues that the defendant should be considered a “dangerous offender”, one of the circumstances which justifies consecutive rather than the normal concurrent sentences. The state points out that sentencing principles recognize that a first offender may be a dangerous person who committed one or more serious crimes without being apprehended, Guides to Sentencing the Dangerous Offender 9 (National Council on Crime and Delinquency, 1969), and that “If the defendant’s violence arises out of an irrational response to situations that will occur frequently in his lifetime . or even if he is likely to strike out physically at others when he has an argument, he is probably one who comes within the concept of dangerousness.” Id., at p. 11.

The difficulty with accepting his argument is this: The showing at the sentencing hearing and trial, so far as it goes, does not indicate that the accused, a 23-year-old first offender with a working background, had ever before so lost his self-control as to inflict violence on others with whom he quarrelled. A single violent incident does not justify characterizing a convicted person as a dangerous offender likely to be a public danger because of the probability of recurring violent episodes.

The pre-sentence report is not included and is not summarized, but no mention of prior violent conduct was made by the sentencing judge, who seemed to rely only on violence committed in the present single incident. The record does not reflect, for instance, that any examination and report was made of the defendant’s mental and emotional condition, a normal requirement before consecutive sentences are imposed on the basis of the defendant’s dangerous character by reason of his mental or psychological deficiencies. See ABA Standard 3.4(b)(iii), cited above. See Guides to Sentencing the Dangerous Offender, cited above, at pp. 3-5, 11-12.

As Chief Justice Sanders stated for the court in State v. Jackson, 360 So.2d 842, 844 (La.1978): “The considerations taken into account by the trial judge should be based upon factual determinations. Among the numerous matters to be reviewed are: the defendant’s personal history (e. g., age, marital status, dependents, family stability, employment, mental, emotional, and physical health); the defendant’s prior criminal record; the seriousness of the crime; the circumstances of the offense; the likelihood that defendant will commit another crime; and his potential for rehabilitation *

Under these present circumstances, the record does not reflect reasons why consecutive sentences were imposed for two counts arising out of the same incident, each having the identical aggravating factor, rather than the concurrent sentences applicable in such circumstance by usual sentencing principles.

Accordingly, while we affirm both convictions and also the twenty-five year sentence for the armed robbery, we vacate and set aside the twenty-five year sentence for the attempted murder insofar as it is made consecutive to the former sentence; and we remand the case to the district court for a hearing as to whether or not consecutive sentences should be imposed in the instant case, and for re-sentencing on the attempted murder conviction in accordance with the principles above expressed.

BOTH CONVICTIONS AFFIRMED; SENTENCE FOR ARMED ROBBERY AFFIRMED; SENTENCE FOR ATTEMPTED MURDER VACATED, AND CASE REMANDED FOR RE-SENTENCING.

SUMMERS, C. J., dissents.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

BLANCHE, J., concurs in part and dissents in part for reasons assigned by MARCUS, J.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of defendant’s convictions.

La.Const. art. 1, § 20 (1974) provides that “[n]o law shall subject any person . to cruel, excessive, or unusual punishment.” (emphasis added). Hence, I consider that our review is limited to whether the “law” subjects any person to excessive punishment, not whether a sentence in a particular case is excessive. See my dissent in State v. Sepulvado, 367 So.2d 762 (La.1979). Moreover, La.Code Crim.P. art. 878 provides that “[a] sentence shall not be set aside on the ground that it inflicts cruel or unusual punishment unless the statute under which it is imposed is found unconstitutional.” Even assuming, arguendo, that this court could review a sentence in a particular case for excessiveness, I consider that an objection would be required at the time the allegedly excessive sentence is imposed. La.Code Crim.P. art. 841. This would afford the trial judge an opportunity to reconsider the sentence imposed upon objection by defendant. La.Code Crim.P. art. 881 provides that “[ajlthough the sentence imposed is legal in every respect, the court may amend or change the sentence, within the legal limits of its discretion, prior to the beginning of execution of the sentence.”

Accordingly, I respectfully concur in part and dissent in part.

      . La.C.Cr.P. art. 894.1 (1977) is entitled “Sentence guidelines; generally”, and it provides:
      A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
      (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
      (2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
      (3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
      B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
      (1) The defendant’s criminal conduct neither caused nor threatened serious harm;
      (2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
      (3) The defendant acted under strong provocation;
      (4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
      (5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
      (6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
      (7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
      (8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
      (9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
      (10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
      (11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
      C.The court shall state for the record the considerations taken into account and the factual basis' therefor in imposing sentence.

      . On the remand, the trial court had afforded a sentencing hearing in order to disclose the factual basis for the sentence, before re-imposing it.

      . See also the progeny of the Williams decisions, likewise overruled as to this holding: State v. Fisher, 362 So.2d 553 (La.1978); State v. Proctor, 354 So.2d 488 (La.1977); State v. Dickerson, 353 So.2d 262 (La.1977).

      . Likewise, for instance, if no request for the presentence report is made by the defendant in the trial court, we will not ordinarily consider, in appellate review for excessiveness, the failure of the trial court to afford counsel access to it or its absence (sealed for our in camera inspection, if so ordered by the trial court) from the record. State v. Berain, 360 So.2d 822 (La.1978).


author: CALOGERO, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Alain TERRIAULT.
    No. 63259.
    Supreme Court of Louisiana.
    March 5, 1979.

      Bertrand DeBlanc, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., William J. Burris, Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Alain Terriault was charged by . grand jury indictment with second degree murder in violation of R.S. 14:30.1. On January 14, 1977, after a jury trial defendant was found guilty of manslaughter. He was sentenced by the trial court to serve twenty-one years at hard labor. Relying on one assignment of error, defendant appeals his conviction and sentence to this Court.

On the evening of June 8, 1976, defendant and one Danny Webb were seen leaving a local lounge in Lafayette, Louisiana, driving away in defendant’s car. Later Danny Webb’s body was found on the side of Highway 167 with five or six gunshot wounds in the head and upper right neck. It was the state’s theory that defendant had killed Webb in a fight over a relationship between Webb and defendant’s girlfriend. The defendant, testifying in his own behalf, stated that he had shot Webb in self-defense.

By his only assignment of error, defendant argues that the trial court erred in sentencing him to twenty-one years at hard labor. It is his contention that under the circumstances of this case, the sentence, the maximum penalty allowed for manslaughter, is unconstitutionally excessive.

Article I, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment. Accordingly, in State v. Sepulvado, 367 So.2d 762 (La.1979), we held that “the imposition of a sentence, although within the statutory limit, may violate defendant’s constitutional right against excessive punishment that is enforceable by this court on appellate review of his conviction.” We further stated concerning appropriate standards for excessive review, that “. . . the statutory criteria legislatively provided by La.C.Cr.P. art. 894.1 (1977), which are similar to those evolved by courts in other American jurisdictions with a constitutional or statutory duty to review excessiveness, provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives.” Sepulvado, supra, at 769.

In the case before us the trial court imposed the maximum sentence of twenty-one years at hard labor upon conviction of the crime of manslaughter. Defendant did not object on grounds of excessiveness. Furthermore, because sentencing took place on January 20, 1977 before passage of Act 635 of 1977 (adding La.Code of Crim.Pro. art. 894.1), there was no obligation on the part of the trial judge to “state for the record the considerations taken into account and the factual basis therefor in imposing sentence” and no corresponding opportunity on the part of defendant to complain of lack of articulation. Defendant did, however, specifically assign as error in this Court that the twenty-one year sentence was excessive.

In State v. Cox, La., 369 So.2d 118, decided this date, we made certain determinations pertinent to the issues at hand. In that case we overruled recent holdings in State v. Williams, 340 So.2d 1382 (La.1976) and State v. Williams, 322 So.2d 177 (La. 1975) as well as State v. Fisher, 362 So.2d 553 (La.1978); State v. Proctor, 354 So.2d 488 (La.1977) and State v. Dickerson, 353 So.2d 262 (La.1977), and held that no technical objection is required to preserve the issue of excessiveness for appellate review provided the issue is raised by assignment of error in connection with the appeal.

In this case because defendant’s maximum sentence for manslaughter was imposed before adoption of Article 894.1 there was obviously no compliance with that article (no mention of considerations taken into account and factual basis therefor). Our excessiveness review is thus hampered by lack of articulation of reasons or some equivalent. We prefer to consider defendant’s complaint of excessiveness in light of a more complete record.

Decree

Accordingly, while we affirm defendant’s conviction, we find it necessary to vacate and set aside the twenty-one year sentence for manslaughter and remand the case to the district court for re-sentencing and compliance with La.Code Cr.P. art. 894.1 so that in the event that there should be filed anew an appeal with contention that the sentence is excessive, we will be better able to comply with our constitutional and statutory duty to review that contention.

CONVICTION AFFIRMED; SENTENCE VACATED; CASE REMANDED FOR RE-SENTENCING.

SUMMERS, C. J., dissents.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

BLANCHE, J., dissents.

MARCUS, Justice

(concurring in part and dissenting in part).

I concur in the affirmance of defendant’s conviction.

La.Const. art. 1, § 20 (1974) provides that “[n]o law shall subject any person . to cruel, excessive, or unusual punishment.” (emphasis added). Hence, I consider that our review is limited to whether the “law” subjects any person to excessive punishment, not whether a sentence in a particular case is excessive. See my dissent in State v. Sepulvado, 367 So.2d 762 (La., 1979). Moreover, La.Code Crim.P. art. 878 provides that “[a] sentence shall not be set aside on the ground that it inflicts cruel or unusual punishment unless the statute under which it is imposed is found unconstitutional.” Even assuming, arguendo, that this court could review a sentence in a particular case for excessiveness, I consider that an objection would be required at the time the allegedly excessive sentence is imposed. La.Code Crim.P. art. 841. This would afford the trial judge an opportunity to reconsider the sentence imposed upon objection by defendant. La.Code Crim.P. art. 881 provides that “[although the sentence imposed is legal in every respect, the court may amend or change the sentence, within the legal limits of its discretion, pri- or to the beginning of execution of the sentence.”

Accordingly, I respectfully concur in part and dissent in part.

      . A further holding in Cox, not pertinent because sentencing here pre-dated passage of La. Code Cr.P. art. 894.1 was that even without formal request the trial court must comply with Article 894.1, and that if inadequate compli-anee with that article is exhibited by the record, the preferred solution is to remand for re-sentencing with an adequate Article 894.1 articulation, when the reasons for an apparently severe sentence do not appear in the record.