text:
    COUNTY OF ST. LUCIE and Hartford Accident and Indemnity Company, Appellants, v. William Franklin BROWNING and Connie Browning, Appellees.
    No. 77-2475.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.
    Richard V. Neill of Neill, Griffin, Jeffries & Lloyd, Chartered, Fort Pierce, for appellants.

      James F. Littman of Liftman & Harvin, P. A., Stuart, for appellees.
   DAUKSCH, Judge.

In this personal injury action a jury verdict was returned in favor of Appellees, the Plaintiffs below. The lower court taxed costs totalling $5,830.10 against Appellants. By this appeal, Appellants contend that some of the costs should not have been taxed against them. Specifically, Appellants object to the following costs: the expense of copies of depositions, the cost of obtaining miscellaneous hospital records, a medical doctor’s witness fee for deposition, and certain expert medical witnesses’ fees for testimony at trial. We will consider each cost in turn.

COPIES OF DEPOSITIONS

In Florida Greyhound Lines v. Jones, 60 So.2d 396 (Fla.1952), the Supreme Court held that the cost of copies of depositions taken in that case was not assessable against the losing party. See also Cohen v. Dennis, 209 So.2d 465 (Fla. 3 DCA 1968). However, most cases concerning the assessment of deposition costs make no distinction between originals and copies. They refer only to “costs of deposition” and hold that such costs are taxable if they serve a useful purpose. See Cohn v. Florida National Bank at Orlando, 223 So.2d 767 (Fla. 4 DCA 1969); Buyer Finance Corporation v. Oliveros, 196 So.2d 451 (Fla. 3 DCA 1967); Lockwood v. Test, 160 So.2d 142 (Fla. 2 DCA 1964).

It is not at all clear that the Supreme Court in Florida Greyhound Lines v. Jones, supra, intended that under no circumstances may costs of deposition copies be taxed against a losing party. We think a better reasoned rule is that such copy costs may be taxable if the copies serve a useful purpose. There may be circumstances in which such copies are necessary expenses which the prevailing party should recover. It is best left to the trial court’s discretion to determine whether the copies served a useful purpose. See, for example, Cohen v. Dennis, supra, in which the cost of deposition copies was found to be not assessable, the original deposition being on file in the clerk’s office and available for examination by the party making the copy.

The record on appeal does not disclose the circumstances under which the copies were ordered, for what purposes they were to be used, or whether the original depositions were readily available for inspection by the party ordering the copies. Therefore, we cannot find that the trial court abused its discretion in assessing the cost deposition copies against Appellants. That part of the order taxing this cost is affirmed.

COST OF HOSPITAL RECORDS

As we held in Cohn v. Florida National Bank, supra, “the cost of hospital records not used in trial or introduced in evidence is not taxable.” We have reviewed the transcript of the trial and find no evidence that the hospital records were either used at trial or introduced in evidence. A mere passing reference to the hospital records by a medical witness while testifying does not constitute use at trial or introduction into evidence. Therefore, the taxing of the costs of hospital records against Appellants was error. That part of the order assessing this cost is reversed.

EXPERT WITNESS FEE FOR DEPOSITION

Prior to trial, Appellees took the deposition of Dr. J. Hunter Smith, a medical expert. Dr. Smith did not appear personally at the trial but his deposition was read to the jury. Appellants contend that the taxation of Dr. Smith’s expert witness fee for the deposition is improper since he was not a witness at trial.

The case cited by Appellants in their brief is not on point. It holds that fees for a witness who has not attended court to testify cannot be taxed as costs. Cohn v. Florida National Bank at Orlando, supra. The opinion clearly refers to fees for appearance at trial, not for deposition.

We find no abuse of the trial court’s discretion in taxing Dr. Smith’s expert witness fee for deposition against Appellants since the deposition clearly fulfilled a useful purpose when it was read at trial in place of Dr. Smith’s live testimony. That part of the order assessing his fee against Appellants is affirmed.

EXPERT WITNESSES’ FEES FOR TESTIMONY AT TRIAL

Appellants contend that some of the amounts taxed as costs for expert witnesses’ fees for testimony at trial are so excessive as to constitute an abuse of discretion. Appellants particularly attack the fee of a Tampa physician who charged a total of $2,700.00 for services rendered: $350.00 for his initial examination of the injured Plaintiff in Tampa, $200.00 for his deposition, and $2,150.00 for his trial testimony. We agree that this total fee is truly exorbitant, particularly when compared with the fees charged by the other medical experts and when the nature of the services rendered is considered.

This physician is an orthopedic surgeon practicing in Tampa who examined the injured plaintiff on referral by plaintiffs’ counsel. He testified at trial as to his opinion of the extent and permanency of plaintiff’s injuries. This physician’s trial testimony covers a total of thirty-one pages, seven of which are devoted to qualifying him as an expert. For this testimony, which required him to travel from Tampa to Ft. Pierce, and to spend the day away from his office, he claimed a fee of $2,150.00. We compare this amount with the $200.00 fee charged by the primary treating physician for his testimony at trial. Although the primary physician was a local doctor who probably was not required to spend hours away from his practice in order to appear at trial, the additional time necessarily involved in the appearance of an out of town physician at trial does not justify the grossly disproportionate fee charged by the more geographically distant doctor. We further note that another expert witness from the Tampa area who testified at trial charged approximately $532.00 for his trial appearance. This witness is a college professor of economics and business who projected the injured plaintiff’s loss of earnings.

We are well aware of the escalating costs of litigation and that trial counsel often is caught in the dilemma of either paying the large fee demanded by an expert or proceeding to trial without the benefit of the expert’s testimony. Nevertheless, attorneys as well as the court have an obligation to keep the costs of litigation within reasonable bounds. Loftin v. Anderson, 66 So.2d 470 (Fla.1953). It follows that while the trial court has broad discretion in taxing costs, the exercise of this discretion should be compatible with the goal of keeping costs within reasonable bounds. Crane v. Stulz, 136 So.2d 238 (Fla. 2 DCA 1961).

Although we are reminded that the trial court has broad discretion in taxing costs, it is also true that the question of whether the exercise of discretion was properly exercised is subject to appellate review. Miller Yacht Sales, Inc. v. Scott, 311 So.2d 762 (Fla. 4 DCA 1975). With due respect to the learned trial judge and with appreciation of his difficult task of assessing costs in an age of exorbitant witness fees constantly on the rise, we find that the fee charged by this Tampa physician for his testimony at trial is so excessive that the taxation of the entire cost against Appellants is an abuse of discretion. In order to determine how much of the fee is excessive the court should take into consideration the fees charged by the other medical witnesses and may consider the usual fees charged by medical witnesses in other cases if such evidence is introduced at a future hearing. That portion of the fee which is excessive must be paid by the successful party who called him as a witness.

That part of the order taxing Appellants for the cost of this physician’s trial testimony is reversed with directions to assess a cost more in harmony with the fees charged by the other medical witnesses, taking into consideration the travel and time required, reasonable fees usually charged by medical witnesses and any particular skill of the witness which would entitle him to a greater fee.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

CROSS and MOORE, JJ., concur.

      . A medical witness testified at the trial: “I had certain records, hospital records, made available to me at the time I examined Mr. Browning, in relation to prior treatment that he had had in relation to his complaints.” (T. Vol. II, p. 109).

      . Plaintiffs trial counsel observed at the costs hearing:
      “And as to any of the doctors whose testimony was required here, again, it is a matter of either I pay them the fee that they ask, or you cannot get them here for the trial.” (T. Vol. Ill, p. 218).

      . At the costs hearing, the trial judge expressed concern about the fees charged by some of the expert witnesses: “I will be very frank with you. I am concerned with the reasonableness of some of these charges.” (T. Vol. III, p. 217).


source: Caselaw Access Project

author: ERVIN, Judge. SMITH, Judge,

license: Public Domain

text:
    STATE of Florida, DEPARTMENT OF COMMERCE, DIVISION OF LABOR, Petitioner, v. MATTHEWS CORPORATION, a Florida Corporation, and State of Florida, Department of Administration, Division of Administrative Hearings, Respondents.
    No. EE-374.
    District Court of Appeal of Florida, First District.
    May 9, 1978.

      Dan F. Turnbull, Jr., Tallahassee, for petitioner.
    Thomas M. Gonzalez and William E. Size-more of Shackleford, Farrior, Stallings & Evans, Tampa, Pamela L. Phillips and Kenneth G. Oertel, Tallahassee, for respondents.
    Frank E. Hamilton, III, of Hamilton, Douglas & Bennett, Fort Lauderdale, for amicus curiae.
   ERVIN, Judge.

Once again we are asked to decide whether certain procedures, informally adopted by an agency, are rules within the contemplation of the Administrative Procedure Act. Matthews Corporation, a general contractor and a disappointed bidder on a public works project, filed a petition for a Section 120.56 hearing to determine whether certain wage rate guidelines were rules, and, if so, for a declaration they were invalid since they were not adopted in accord with Section 120.54, Florida Statutes (Supp. 1976).

Matthews, a competitive bidder on a construction contract of a public building, is governed by Section 215.19(l)(a), Florida Statutes (1975), requiring every contract in excess of $5,000 to which any governmental unit is a party involving the construction of a public building, shall contain a provision that the rate of wages for construction employees shall be no less than the prevailing rate of wages for similar skills in the city where the public work is located. Section 215.19(l)(b) also mandates notice be given to prospective bidders on such contracts by including a schedule of prevailing wage rates prepared by the Division of Labor in the locality where the work is contemplated. Such schedule shall be deemed the prevailing wage rates for the duration of the contract. Fla.Admin.Code Rule 8C-2.05(1), implementing Section 215.19, provides that each wage rate determination shall apply only to the construction of the particular public building.

Matthews sought to have seven wage rate determinations, specifically dealing with rates in the City of Tampa, declared invalid rules. The hearing officer found the determinations were rules, as defined by Section 120.52(14), because (1) they directly implemented Section 215.19, and (2) uniformly applied to all contractors in each geographic area where the public work project was located. As a result, since they had not been adopted in compliance with Chapter 120, they were declared invalid. We disagree with the hearing examiner. The determinations are not statements of general applicability. While wage determinations must be included within the specifications of each public works contract in the state, the determination, by agency Rule 8C-2.05, Fla.Admin.Code, is applicable only to the construction of the particular public building or other work specified in the determination. The determination thus has temporal as well as geographical limitations. The determinations have no prospective application to any other contract — only the specific project involved in the particular location. Nor do they set wage stan- . dards for affected persons extending some indefinite time into the future. The wage determinations may be considered informal “orders” which can be subjected to Section 120.57 proceedings. The temporal distinction between a rule and an order was explicated by Justice Holmes 70 years ago as follows:

“A judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end. Legislation, on the other hand, looks to the future and changes existing conditions by making a new rule, to be applied thereafter to all or some part of those subject to its power.” Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 69, 53 L.Ed. 150 (1908).

The hearing examiner’s reliance upon Straughn v. O’Riordan, 338 So.2d 832 (Fla.1976) is not well founded. In O’Riordan the Supreme Court held invalid as unpublished rules certain guidelines informally established by the Department of Revenue to implement Section 212.14(4), Florida Statutes (1973), requiring sales tax registrants to post bonds. The facts in O’Riordan are easily distinguishable from those here. Section 215.19(1)(a) makes wage determinations applicable only to a specific project. The bond O’Riordan was ordered by the DOR to file, however, is required by Section 212.14(4) in “all cases where it is necessary to insure compliance with the provisions of this chapter . . . The statute did not authorize DOR to apply different guidelines each time a registrant made his application. The standards, while “so informal as to be diverse among Department personnel,” Straughn v. O’Riordan, supra at 834, were not statutorily mandated to apply only to the individual applicant but were informally applied to all applicants. Compare also Dep’t. of Admin. v. Harvey, 356 So.2d 323 (Fla. 1st DCA, 1977), where we held the Division of Personnel’s unpublished statement of “minimum training and experience requirements” for each position in career service employment were invalid rules because they were not formally adopted. The factual distinction between Harvey and Matthews is obvious. The minimum training requirements applied to each employment position. The requirements were not changed each time an applicant was accepted or rejected for a position. Unlike the determinations here, the minimum training requirements had “the direct and consistent effect of law.” McDonald v. Dep’t. of Banking and Fin., 346 So.2d 569, 581 (Fla. 1st DCA 1977).

Matthews, by cross-petition, argues several points; one contends the hearing officer erred in finding the Division’s practice of including only a one week period in wage surveys was not a rule. Notwithstanding the provisions in Fla.Admin.Code Rule 8C-2.13 that the survey—mandated by Section 215.19(2)(a) requiring a continuing study to determine the prevailing wage rates—shall be not less than six months, the administrator of the labor and wage section testified the Division’s practice was generally to conduct a survey of only one week’s duration, although the practice varied in smaller counties and a survey of longer duration occasionally was made. While the examiner found a study conducted for only one week was not in compliance with Section 215.19(2)(a), nevertheless he held the agency’s practice in carrying out the survey was not an agency statement of general applicability as contemplated by Section. 120.52(14) and was not proscribed as an unpublished rule.

We agree with the hearing officer. While Section 120.52(14) defines rule in part as an amendment or repeal of a rule, the testimony given by the administrator of the labor and wage section, as to the agency’s inconsistent policy, does not meet the primary requirement of Section 120.52(14) that such deviation be a statement of general applicability. An agency’s policy, which is merely inconsistent with its published rule, but does not expressly repeal the rule, cf. Price Wise Buying Group v. Nuzum, 343 So.2d 115 (Fla. 1st DCA 1977), is hardly a statement of general applicability to which the strictures of formal rulemaking apply. This is not to say in all cases that a policy which consistently repudiates an agency’s rule to the point of informally repealing it may not be a rule. We simply hold the proof here was lacking that the policy was a statement of general applicability as to the wage surveys conducted.

The APA, nevertheless, affords a remedy to a party substantially affected by inconsistent non-rule agency policy. As we have repeatedly stated, all agency action is a recognizable rule or order or is incipiently a rule or order, State ex rel. Dept. of Gen. Serv. v. Willis, 344 So.2d 580, 584 (Fla. 1st DCA 1977); McDonald v. Dep’t. of Banking and Fin., supra, 346 So.2d at 577. Adjudication, via Section 120.57, provides the appropriate method of relief to such parties. At such proceedings, to the extent agency policy is not incorporated in its regularly adopted rules, the agency may be required by a disappointed applicant to defend its policy, to present evidence and expose its reasons for discretionary action. Harvey, supra, at page 326. At the conclusion of a 120.57 hearing, a summary of the proceedings is finalized into a formal order, which must describe the agency’s “policy within [its] exercise of delegated discretion” sufficiently for judicial review. Section 120.-68(7). Finally, Section 120.68(12)(b) permits a reviewing court to remand the case to the agency if it finds the agency’s exercise of discretion inconsistent with agency rule. Section 120.68(12)(b).

Since prevailing wage determinations for a particular project are determinations affecting the substantial interests of contractors and contracting authorities who, in bidding and other contract procedures, must adhere to the prevailing wages thus determined, those determinations are subject to the provisions of Section 120.57. To the extent those determinations depend on disputed issues of material fact, Section 120.57(1) requires formal proceedings before the agency head or before a hearing officer of the Division of Administrative Hearings. The Department of Commerce or its Division of Labor must adopt and follow rules of practice for its formal and informal procedures, and in that connection should specify when and how formal proceedings leading to a prevailing wage determination may be invoked. Sections 120.-53(1)(b), 120.57(1)(b)1. To the extent that a prevailing wage determination does not depend on a disputed issue of material fact, or if no substantially interested party, having notice and opportunity, timely requests formal proceedings, the Department or its Division must nevertheless afford those parties an opportunity for informal proceedings after notice and at a convenient time and place. Section 120.57(2). Agency failure to comply substantially with Chapter 120 will result in the invalidation of its order of prevailing wage determination, or other appropriate remedy. General Development Corp. v. Division of State Planning, Dep’t. of Administration, 353 So.2d 1199, 1209 et seq. (Fla. 1st DCA 1978). Without rules of practice affording affected parties an early point of entry in proceedings for wage determinations, the agency runs a grave risk of jeopardizing later action by other agencies, such as their awards of public contracts, which depend for their regularity on the underlying prevailing wage determinations.

Matthews attacks also Rule 8C-2.-07 as an invalid exercise of legislative authority, arguing that since Section 215.-19(1)(a) requires the determinations be not less than the prevailing rate of wages where the public work is located, the wage rate can be no less than that paid to a majority of the workers in the area, and any determination based on a lesser number is invalid. We reject this argument. The rule was patterned essentially after 29 C.F.R. § 1.2(a) (1977), which in turn implements the Davis Bacon Act (40 U.S.C. § 276a-276a-5 as amended). Its federal counterpart was adopted more than 20 years ago. Great weight will be given to rules which have been in effect over an extended period and the meaning assigned to them by officials charged with their administration unless such construction is clearly erroneous. Miami Beach v. Miller, 122 So.2d 578 (Fla. 3d DCA 1960). Moreover rules, like statutes, which are modeled after federal law on the same subject will be given the same construction by Florida courts as their prototypes have been given by federal courts insofar as such construction is harmonious with the spirit and policy of Florida legislation. Cf. Kidd v. Jacksonville, 97 Fla. 297, 120 So. 556 (1929). We find nothing in Rule 8C-2.07 inharmonious with the spirit and policy expressed in Section 215.19.

The order is otherwise sustained. Petition for review is granted in part and denied in part.

MILLS, Acting C. J., concurs.

SMITH, J., concurs with opinion.

SMITH, Judge,

concurring:

I concur in the decision and in all that Judge Ervin has written for the court except the statement that the Division’s Rule 8C-2.13(1) requires that each wage survey must cover a period of “not less than six months.” The rule provides:

The investigation need not include
(a) Projects completed more than six months before the date of the investigation.
(b) Projects outside the locality in which the work is to be performed (unless there has been no construction of similar character in the preceding six months’ period, in which event, the report shall cover wage conditions in adjacent areas where construction of similar character is being performed or has been completed within such six months’ period.) [Fla.Admin.Code R. 8C-2.13(1).]

In my opinion the rule simply relieves the Division from investigating wage conditions in local projects completed more than six months previously, and similarly requires investigation of projects in adjacent areas only when no similar construction was performed in the locality within six months. The rule does not require Division investí-gation of all projects completed within six months when such broad survey is unnecessary to an accurate determination of prevailing wages at the time of investigation. The hearing officer’s finding was not that the one-week survey violated Rule 8C-2.13, but that it did not satisfy the requirement of Section 215.19(2)(a), Florida Statutes (1977), for a “continuing study.” Whether the Department complied with Section 215.19(2)(a) is an issue we need not decide. I agree with the court that a deviation from the statutory norm does not make the practice a rule.

      . The Department of Commerce does not now challenge Matthews’ standing as a person “substantially affected” by the operation of the “rule” to seek a Section 120.56 proceeding to challenge the rule. We accept the hearing examiner’s conclusion that Matthews has standing, even though it was not the low bidder and was not awarded the contract, since if it were not for the wage rate determinations prepared by the Division of Labor, Matthews would be in better competitive position to bid on public works projects. Matthews’ situation is substantially different from that of an inmate who sought to have declared invalid certain disciplinary rules of the prison system, but was held not to have standing because he had not shown either injury in fact or issues of sufficient immediacy and reality necessary to confer standing. Florida Department of Offender Rehabilitation v. Jerry and the Florida Division of Administrative Hearings, 353 So.2d 1230, (Fla. 1st DCA, 1978).

      . Which defines rule in part as:
      . . Each agency statement of general applicability that implements, interprets, or prescribes law or policy . .

      . This avenue of relief will be discussed in greater detail infra.

      . Rule 8C-2.07 provides:
      “(1) In making each such determination, the rate of wages which the Division of Labor will regard as prevailing shall be:
      (a)The rate of wages paid in the city, town, village, or other civil division of the State (hereafter referred to as the locality) in which the work is to be performed, to the majority of those employed in the corresponding classes of laborers or mechanics (hereinafter referred to as the craft) on projects that are similar to the contract work; or
      (b) In the event that there is not a majority paid at the same rate, then the rate paid in the greater number, provided such greater number constitutes 30% of those so employed; or
      (c) In the event that less than 30% of those so employed receive the same rate, then the average rate.”


author: PER CURIAM.

text:
    FORD MOTOR COMPANY, a corporation, Petitioner, v. Bobby F. BASFORD, as Administrator of the Estate of Theresa Ann Basford, Deceased, and as Administrator of the Estate of Brenda E. Basford, Deceased, Respondent.
    No. HH-224.
    District Court of Appeal of Florida, First District.
    May 9, 1978.
    Ronald L. Palmer and Raymond Ehrlich, of Mathews, Osborne, Ehrlich, McNatt, Go-belman & Cobb, Jacksonville, for petitioner.
    Robert Perry, Palatka, and J. Robert McClure, Jr., and William C. Owen, of McClure, Wigginton, Campbell & Owen, Tallahassee, for respondent.
   PER CURIAM.

The petition is DENIED.

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


author: HAVERFIELD, Chief Judge.

text:
    Irene CONEY et al., Appellants, v. RESERVE INSURANCE COMPANY and State Farm Mutual Automobile Insurance Company, etc., Appellees.
    No. 76-1904.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Grover, Ciment, Weinstein & Stauber, Miami Beach, and Sam J. Simon, Miami, for appellants.
    Stephens & Schwartz, Richard M. Gale, Walton, Lantaff, Schroeder & Carson and Richard J. Thornton, Miami, for appellees.

      Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   HAVERFIELD, Chief Judge.

Plaintiffs appeal an order granting the motions of defendant insurers for judgment on the pleadings in this declaratory judgment action seeking to determine coverage under the provisions of plaintiff’s automobile insurance policies.

On December 9, 1973, plaintiffs (Irene Coney and her passengers) sustained serious injuries when the car in which they were riding was struck by an automobile owned and negligently operated by George Burks. Burks was covered by an insurance policy with liability limits of $10,000/$20,000. Irene Coney was insured under a policy which was issued by Reserve Insurance Company effective January 17, 1973, and provided for uninsured motorist coverage in the amount of $10,000/$20,000. In addition, the car operated by Coney was insured by State Farm Mutual Automobile Insurance Company. This policy was issued on January 5, 1973 and contained uninsured motorist coverage in the amount of $10,000/$20,-000. The limits of liability under Burk’s policy being inadequate, plaintiffs made demand upon Reserve and State Farm under the uninsured motorist provisions of their policies pursuant to Section 627.727(2)(b), Florida Statutes (1973), which includes in the definition of uninsured, a motorist who is underinsured. State Farm and Reserve denied coverage and plaintiffs filed the instant declaratory judgment action. Both insurers filed answers denying liability on the ground that Section 627.727(2)(b), Florida Statutes (1973), became effective on October 1, 1973, and, therefore, were not applicable to their policies which were issued prior thereto in January, 1973. Upon the insurers’ motion, the trial court entered a judgment on the pleadings in their favor for the above stated reason. Plaintiffs appeal. We affirm.

Section 627.727(2)(b), Florida Statutes, which is the subject of this controversy, became, effective October 1, 1973, and the legislature clearly provided that this section is applicable only to “policies delivered, issued for delivery, or renewed in this state with an inception date on or after October 1, 1973.” See Laws of Florida, Chapter 73-180, Section 5 (1973).

Although the accident occurred after the effective date of the statute, the policies of Reserve and State Farm were issued some ten months previous to that date and we find the trial court correctly entered judgment in favor of these insurers. See Castaneda v. State Farm Mut. Auto. Ins. Co., 348 So.2d 1231 (Fla. 3d DCA 1977); Marks v. Travelers Indem. Co., 339 So.2d 1123 (Fla. 3d DCA 1976).

Affirmed.

      . and owned by Albert Johnson

      . “ *(2) For the purpose of this coverage, the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:
      (a) Is unable to make payment with respect to the legal liability of its insured within the limits specified therein because of insolvency; or
      (b) Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist’s coverage.”


text:
    Joanne T. GRATTON, Appellant, v. Joseph S. GRATTON, Appellee.
    No. 77-122.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.

      Smathers & Thompson and Shepherd D. Johnston and Cromwell A. Anderson, Miami, for appellant.
    Dubbin, Schiff, Berkman & Dubbin and Evan Langbein, Miami, for appellee.
    Before HENDRY and HUBBART, JJ. and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal, by the respondent in a proceeding for dissolution of marriage, challenges the correctness of the final judgment as it relates to the alimony allowance made to her therein and to an award to the husband of a special equity in the residence property owned by the wife, and to refusal to award the wife attorney’s fee and costs.

As revealed by the record, the parties were married in Dade County, Florida, in 1955. They separated in 1975. The marriage was dissolved in 1976. A supplemental judgment awarded the alimony. Four children were born of the marriage. Three are still minors. After residing in Dade County for five years, the family moved to Maryland in 1960. Upon the husband suffering business reverses there, the family returned to Dade County, Florida in 1970. Thereafter, a home was purchased for a price of $49,900.00. The money for the down payment was supplied by the appellant-wife’s mother. Title thereto was taken in the name of the wife, who still owns the property, which she estimated to have a present value of $60,000.00 and which the husband valued at $80,000.00. The wife, with the children, continues to reside in the home. The husband’s annual income is approximately $50,000.00. Those figures indicate the standard of living which the parties enjoyed during the marriage.

The judgment dissolving the marriage, entered July 2,1976, included provisions for the husband to pay child support of $300.00 per month for each of the three minor children, and $600.00 per month alimony, with a reservation of jurisdiction to determine whether the alimony should be permanent or rehabilitative, and, if the latter, its duration. By a subsequent order, also termed a final judgment, entered December 14, 1976, the court designated the allowed alimony as rehabilitative, to be paid for a period of six years, and further reserved jurisdiction “to determine, at the end of six (6) years, whether said alimony should terminate or continue.”

The judgment awarded the husband a $9,400.00 special equity in the residence property, based on payment by him of principal and interest on the purchase money mortgage. The amount thus allowed was somewhat less than the total thereof which was paid by the husband. It appears that the husband remains liable for the payment of unpaid balances on home improvement loans by which certain additions or improvements were made to the residence. The amount thereof is approximately $8,000.00. In the December 1976 judgment it was recognized the husband had agreed to pay the last mentioned obligations, and the court held that each of the parties should bear his or her attorney’s fee and costs.

We affirm the trial court’s rulings relating to attorney fees and costs and awarding the special equity to the husband. The ruling as to attorney fees and costs was authorized under Section 61.16, Florida Statutes (1975), and in the situation of the parties was not an abuse of discretion. In view of the disclosed facts bearing thereon we hold no reason in law has been shown to disturb the special equity award to the husband. See Poston v. Poston, 332 So.2d 363 (Fla. 1st DCA 1976); Italiane v. Italiane, 342 So.2d 1003 (Fla. 4th DCA 1977).

It was argued strenuously on behalf of the wife that the circumstances of the case were such that an award of permanent alimony should have been made, and that it was an abuse of discretion not to do so and instead to award rehabilitative alimony. We find merit in that contention.

In our view the situation presented was one that called for allowance of alimony, but not for rehabilitative alimony. The marriage was of twenty-one years duration in which, except for a short period of financial reverses of the husband, the standard of living established was above average. The wife is forty-three years of age and has the care of the minor children. She has' a number of physical ailments, some of which are of long standing. Although not disabling, they well could interfere with any regular or profitable employment. The wife’s attendance at college was required to be terminated after two and one-half years because of illness. She has no academic degree, and has no business experience or work skills such as could enable her to engage in business or obtain employment from which she could be expected to derive income in an amount adequate for her self-support, and clearly not such as could be expected to enable her to support herself in accordance with the former standard of living of the parties established during marriage, yet it is that to which she is entitled. See Messer v. Messer, 342 So.2d 1076, 1077 (Fla. 2d DCA 1977). After the family returned to Florida in 1970, the wife worked for approximately four months in two low paying jobs. After the 1975 separation, the wife worked for a time as a substitute teacher (non-accredited) in a private school, in which endeavor she earned less than $1,000.00.

In short, the wife has no previously established adequate earning capacity or ability to which to become rehabilitated, and in her accustomed stratum it is unlikely that she could gain such in the future. The reservation of jurisdiction did not state that it was for the purpose of determining, after six years, whether to grant her permanent alimony, but was to determine “whether said [rehabilitative] alimony should terminate or continue”. What the trial court planned for thereby is not clear. That language in the judgment as it relates to alimony has a tendency to place the wife improperly in an “or else” dilemma.

Since due to her age, physical condition and lack of business training it is highly unlikely that the wife could be expected to become adequately self-supporting, according to the wording of the jurisdiction reservation the court’s alternatives, after six years, would appear to be whether then to terminate the rehabilitative alimony or to extend it for a further rehabilitative period.

In a case which on the facts is strikingly similar to the instant case, this court reversed an award of rehabilitative alimony and directed allowance of permanent alimony. See Hawkesworth v. Hawkesworth, 345 So.2d 359 (Fla. 3d DCA 1977).

The fact that the legislature authorized rehabilitative alimony did not do away with permanent alimony, and in a proper case permanent alimony is still desirable and lawful. Messer v. Messer, supra, 342 So.2d 1076 (Fla. 4th DCA 1977); Mosher v. Mosher, 321 So.2d 450 (Fla. 2d DCA 1975); Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975).

In Messer the court said “Concerning the rehabilitative alimony, we note that the whole concept thereof presupposes the potential for self-support; and, without this capacity, there is nothing to which one can be rehabilitated”; citing Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974); Patterson v. Patterson, 315 So.2d 104 (Fla. 4th DCA 1975); and Lash v. Lash, supra.

With permanent alimony, as called for here, awarded in this case, if, in spite of the unlikelihood that the wife could become adequately self-supporting, she does in fact become so, or substantially so, then on the basis of that change of circumstances of the parties the husband could apply under Section 61.14, Florida Statutes (1977) for modification of the judgment as to the alimony awarded therein. See Anderson v. Anderson, 333 So.2d 484 (Fla. 3d DCA 1976).

In our opinion this case was one in which the wife should have been awarded permanent periodic alimony, and it was an abuse of discretion to deny permanent alimony and to make the alimony rehabilitative in character. Hawkesworth v. Hawkesworth, supra; Messer v. Messer, supra; Lash v. Lash, supra.

Accordingly, we reverse the provision of the judgment of December 14, 1976 which classified the allowed alimony as rehabilitative in character, and we hereby amend the judgment to provide that the alimony which was allowed by the trial court shall be permanent periodic alimony, payable by the husband until the wife shall remarry or die or the husband shall die, whichever shall first occur.

Affirmed in part and reversed in part and amended.


text:
    Theresa C. WASSON, Appellant, v. Gerald WASSON, Appellee.
    No. 77-309.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Ainslee R. Ferdie, Coral Gables, for appellant.
    Erstling & Erstling, South Miami, for appellee.
    Before HAVERFIELD, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Wynne v. Wynne, 342 So.2d 556 (Fla.3d DCA 1977); Pfohl v. Pfohl, 345 So.2d 371, 375 (Fla.3d DCA 1977); Hamra v. Hamra, 345 So.2d 1083 (Fla.3d DCA 1977); Koeppel v. Koeppel, 351 So.2d 766 (Fla.3d DCA 1977).


text:
    Mercer SCOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 77-337.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Defendant, Mercer Scott, appeals a sentence of fifteen years in the state penitentiary following an order revoking his probation.

Defendant was informed against as follows:

Count I — sale of cocaine on November 1, 1974;
Count II — possession of cocaine on November 1, 1974;
Count III — sale of heroin on November 1, 1974;
Count IY — possession of heroin on November 1, 1974;
Count V — sale of cocaine on November 4, 1974;
Count VI — possession of cocaine on November 4, 1974.

He pled guilty and received a sentence of one year in the county jail on Count I and five years probation on each of the remaining Counts. Subsequently, an affidavit of violation of probation was filed and after hearing, defendant’s probation was revoked and he received a sentence of fifteen years imprisonment on Counts II-VI. This appeal from the sentence ensued.

Defendant first argues that the sentence, imposed with respect to Counts III— VI is illegal because the heroin and cocaine he possessed on November 1 and 4, 1976, respectively, were the same heroin and cocaine he sold on those dates; Counts III and IV and V and VI being a facet or phase of a single transaction, only one sentence as to each of the two combined counts could have been imposed. Yost v. State, 243 So.2d 469 (Fla.3d DCA 1971). Orange v. State, 334 So.2d 277 (Fla.3d DCA 1976).

A review of the record reveals that defendant has not included a transcript of the hearing where testimony was presented to prove the subject offenses of sale and possession. The record having failed to substantiate that a single transaction was involved, no error has been made to appear. See Brown v. State, 110 So.2d 94 (Fla.3d DCA 1959); Suiero v. State, 248 So.2d 219 (Fla.4th DCA 1971). Further, assuming ar-guendo that the record substantiated defendant’s claim of a single transaction, then sentence should have been imposed only for the higher offense; in this case, sale of the cocaine and heroin. Nevertheless, defendant received the same probationary term on all counts and the probation sentences on Counts III and V (as well as Count II) were valid. Thus, the order revoking probation was proper.

Defendant also argues that the sentence to fifteen years is invalid because it is a general sentence.

Since general sentences are no longer proper and may not be imposed by the trial court, we hereby vacate the sentence and remand the cause to the trial court for resentencing. See Dorfman v. State, 351 So.2d 954 (Fla.1977).

So ordered.


author: HENDRY, Judge.

text:
    James GAULDEN and Mary L. Gaulden, Appellants, v. ARKWRIGHT-BOSTON MANUFACTURERS MUTUAL INSURANCE COMPANY, a Massachusetts Corporation, Appellee.
    No. 77-392.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.

      Friedman & Lipcon, Miami, for appellants.
    Stephens & Schwartz and Robert M. Klein, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   HENDRY, Judge.

Appellants/plaintiffs take this appeal from a final judgment entered pursuant to a jury verdict in favor of appellee/defend-ant. In rendering its verdict, the jury determined that a contract of insurance entered into by the parties did not provide coverage for the contents of appellants’ home which were damaged by fire.

Appellants have raised four points on appeal. Their first and third points claim that (1) the court erred in refusing to direct a verdict in appellants’ favor in that the construction to be placed upon an insurance contract involved a question of law and (2) likewise erred in submitting said question to the jury.

Generally, the construction to be placed upon an insurance contract involves a question of law to be resolved by the court and is not an issue of fact to be determined by jury. Willis v. Willis, 245 So.2d 302 (Fla. 1st DCA 1971). Sub judice, however, appellants introduced a second issue into the case. Appellants claimed that they had requested contents coverage from appellee and were misled into believing that such coverage had been extended. This allegation, denied by appellee, created an issue of fact that was properly submitted to the jury. See Harris v. Aetna Insurance Co., 208 So.2d 282 (Fla. 3d DCA 1968).

The trial judge apparently refused to direct a verdict on the construction question because there was a factual dispute involved. Instead, the judge submitted both questions to the jury. While the construction of the policy should have been resolved by the court, submitting such issue to the jury sub judice was not reversible error. This is so because the policy sued upon was not ambiguous and judgment, as a matter of law, should have been rendered in favor of appellee on that issue. See Equitable Life Assurance Society of United States v. Pinon, 344 So.2d 880 (Fla. 3d DCA 1977). As such, where the jury’s verdict was in accordance with the law, any error in submitting said question to the jury was harmless. See Dade Air Conditioning & Heating Corporation v. Jannach, 218 So.2d 193 (Fla. 3d DCA 1969).

Appellants’ second point on appeal claims that the court erred in failing to give appellants’ complete jury instruction number four, which, inter alia, informed the jury of the general rules applicable to ambiguities contained in a contract of insurance. The trial judge did, however, give the following portion of instruction number four, to-wit:

“ . . . If, however, the greater weight of the evidence shows that there was contents coverage or that the contract of insurance was doubtful, uncertain or ambiguous, or susceptible to two interpretations so that it can not be determined, on its face, whether or not contents coverage existed, then your verdict should be for the plaintiffs.”

While the above instruction might not be ideal, we believe it did adequately inform the jury of the applicable law. As such, we find no reversible error. Gavin v. Headley, 272 So.2d 843 (Fla. 3d DCA 1973).

Appellants’ fourth point has been considered by this court and deemed to be without merit.

Accordingly, the final judgment appealed from is hereby affirmed.

Affirmed.


text:
    PORT ROYALE APARTMENTS et al., Appellants, v. Myer DELNICK and Lee Delnick, his wife, Appellees.
    No. 77-643.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.
    Rentz, McClellan & Haggard, Miami, for appellants.
    Krupnick & Campbell, Fort Lauderdale, for appellees.
    Before HENDRY, BARKDULL and KE-HOE, JJ.
   HENDRY, Judge.

Appellants/defendants appeal from a final judgment rendered pursuant to a jury verdict in favor of appellees/plaintiffs. Appellees cross-appeal from that same final judgment. As modified, we affirm.

Briefly stated, the facts reveal that ap-pellees’ hotel was damaged when appellants negligently excavated the adjacent property in such a manner so as to partially undermine appellees’ structure. This negligent excavation resulted in cracks in the walls of the hotel. Additionally, during the construction of the adjacent apartment building, certain building materials (planks) and debris fell on the roof of the hotel causing damage thereto. Appellees sought redress through the courts and were rewarded by a jury in the amount of twenty-two Thousand ($22,000) Dollars. From a final judgment incorporating the jury's award, this appeal and cross-appeal has been taken.

Appellants raise three points on appeal. The first and second point on appeal claims that the trial judge erred in admitting into evidence (1) a bill reflecting the replacement cost of a roof for appellees’ hotel and (2) a certain document purporting to show lost business profits sustained by appellees during the time that appellants were constructing their building on the adjacent property. It is our opinion, however, that no reversible error has been demonstrated. Twyman v. Roell, 123 Fla. 2, 166 So. 215 (1936); Garrett v. Morris Kirschman and Co., Inc., 336 So.2d 566 (Fla.1976); Conner v. Atlas Aircraft Corporation, 310 So.2d 352 (Fla. 3d DCA 1975); Reliable Services, Inc. v. Taft, 247 So.2d 97 (Fla. 3d DCA 1971).

Appellants’ third point on appeal claims that the trial judge should have reduced the judgment by the amount of Three Thousand, Five Hundred ($3,500) Dollars. Said amount represents a settlement entered into by appellees and Reed Construction Company (not a party to this suit) for damages to appellees’ hotel allegedly occurring while Reed was performing work on the adjacent apartment building.

Pursuant to Section 768.041(2), Florida Statutes (1977), which provides as follows:

“At trial if any defendant shows the court that the plaintiff, or any person lawfully on his behalf, has delivered a release or covenant not to sue to any person, firm or corporation in partial satisfaction of the damages sued for, the court shall set off this amount from the amount of any judgment to which the plaintiff would be otherwise entitled at the time of rendering judgment and enter judgment accordingly.”
it is our opinion that appellants’ contention has merit. Accordingly, the judgment is reduced by the above amount paid by Reed Construction Company to appellants in return for appellants’ execution of a covenant not to sue.

Appellees’ cross-appeal is addressed to the trial judge’s direction of a verdict for appellants on the issue of punitive damages. A careful review of the record supports the trial judge’s ruling that, as a matter of law, there was no basis for a recovery based upon punitive damages. Tuel v. Hertz Corporation, 296 So.2d 597 (Fla. 3d DCA 1974); De Witt v. Seaboard Coast Line Railroad Company, 268 So.2d 177 (Fla. 2d DCA 1972); see also Singer v. I. A. Durbin, Inc., 348 So.2d 370 (Fla. 3d DCA 1977) and Carter v. Lake Wales Hospital Association, 213 So.2d 898 (Fla. 2d DCA 1968).

Therefore, the final judgment appealed from is affirmed, as modified.

Affirmed as modified.


text:
    Ruben MANSO and Luis Antonio Comabella, Appellants, v. The STATE of Florida, Appellee.
    No. 77-854.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.

      Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

This appeal is by two defendants who were apprehended by police while a burglary was in progress. The jury found defendants Manso and Comabella guilty of attempted breaking and entering a dwelling with intent to commit a felony, and also found defendant Comabella guilty of a second count of possession of burglary tools.

Two points are argued. The first, on behalf of Comabella alone, asserts that the trial court erred in denying a motion to suppress the burglary tools found on Coma-bella’s person after arrest. It is claimed that the officers did not have probable cause to make the arrest. We hold that probable cause clearly existed under the law as set forth in State v. Outten, 206 So.2d 392, 397 (Fla.1968). See also Bew v. State, 289 So.2d 465 (Fla. 3d DCA 1974).

The second point, on behalf of both defendants, questions the sufficiency of the evidence concerning the value of the property collected in the apartment preparatory to its transportation therefrom. The evidence of value was sufficient. See Eaton v. State, 307 So.2d 915 (Fla. 3d DCA 1975); and Roundtree v. State, 236 So.2d 140 (Fla. 3d DCA 1970).

Affirmed.


author: PEARSON, Judge.

text:
    Margaret E. KITZMILLER, Appellant, v. SOUTHEAST SERVICES, INC., etc., Appellee.
    No. 77-2002.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.

      Alan E. Fallik, Legal Aid Service of Broward County, Inc., Hollywood, for appellant.
    Friedman & Britton and J. T. Haley, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PEARSON, Judge.

On January 19, 1977, the trial court entered a default final judgment for the plaintiff against the defendant. The judgment did not include an award of attorney’s fees for the plaintiff. The parties, by their respective attorneys, thereafter entered into a stipulation which provided: (1) The final judgment was to be vacated. (2) The defendant admitted an indebtedness “. . . for the principal sum of $2,700.81, plus interest in the sum of $335.25, plus court costs in the amount of $48.00, for a total of $3,084.06.” (3) The defendant agreed to make “monthly payments.” (4) The plaintiff would be permitted to take judgment without notice “. . . in the event of default in any one payment ... for the remaining balance due and owing . . . ” The trial court ratified and executed the stipulation.

The defendant defaulted. and a final judgment, dated June 29, 1977, was entered. The judgment did not include attorney’s fees.

The plaintiff, on July 28,1977, “. . . move[d] to amend the Final Judgment . ” upon the ground that “[t]he original Judgment failed to include attorney’s fees to which the plaintiff is entitled.” On August 18, 1977, the trial judge entered an amended final judgment and included $350.00 as attorney’s fees for the plaintiff.

The motion to amend final judgment was not timely under Fla.R.Civ.P. 1.530(g). See Allen v. Allen, 230 So.2d 29 (Fla. 1st DCA 1969). The motion was not a proper motion under Fla.R.Civ.P. 1.540. Cf. Kuykendall v. Kuykendall, 301 So.2d 466 (Fla. 1st DCA 1974). The inclusion of attorney’s fees contravenes the stipulation of the parties.

The final judgment, dated August 18, 1977, is reversed and the cause is remanded with directions for further proceedings upon the judgment entered June 29, 1977.

Reversed.


text:
    Eddie Lee CORNILEUS, Jr., et al., Appellants, v. The MUSIC FACTORY, INC., a Florida Corporation, Appellee.
    No. 77-2064.
    District Court of Appeal of Florida, Third District.
    May 9, 1978.

      Richard Abramowitz, Margate, for appellants.
    Forrest, Ruffner, Traum & Hagen, Miami, for appellee.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   PEARSON, Judge.

This interlocutory appeal is from an order of the trial court denying the motion of defendant, Eddie Lee Cornileus, Jr., to abate the action against him as a defendant. The issue presented is one of jurisdiction over the person of the defendant. The relevant facts are set out in two orders of the trial court.

The first order, dated June 13, 1977, found:

“1. That the Defendant, EDDIE LEE CORNILEUS, JR. never received Service of Process in this Action and that STEVEN L. BERZNER, ESQ., entered an unauthorized appearance on behalf of the Defendant, EDDIE LEE CORNILEUS, JR. in this Action.
“2. That the Defendant EDDIE LEE CORNILEUS, JR., received no Pleadings filed in this Action until after a Final Judgment for Partial Damages was entered against him on December 16, 1976.
“3. That this Court lacks jurisdiction over the person of the Defendant, EDDIE LEE CORNILEUS, JR.”

Thereafter, the same order provided:

(1) that motion to vacate final judgment of the defendant Eddie Lee Cornileus, Jr., was granted; and (2) that the defendant should file a responsive pleading to the plaintiff’s amended complaint within 20 days. The defendant properly pointed out the inconsistency in the order in his motion to abate. The trial court entered its second order, which denied the motion to abate.

It is apparent that if the trial court did not have jurisdiction of the defendant, it could not order him to proceed with a defense of the cause. The plaintiff urges that the failure to serve the defendant personally is not fatal if a court acquires jurisdiction by the defendant’s voluntary appearance and submission to the jurisdiction of the court. Citing McKelvey v. McKelvey, 323 So.2d 651 (Fla. 3d DCA 1976). The record submitted is devoid of any action of this defendant which can be construed as a voluntary appearance and submission to the jurisdiction of the court. See Fla.R.Civ.P. 1.140(b).

Reversed with directions to grant defendant Eddie Lee Cornileus, Jr.’s, motion to dismiss him from this action.


text:
    Walter L. ABROGAST, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2533.
    District Court of Appeal of Florida, Third District.
    May 10, 1978.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   Opinion on Order Reviewing Denial of Bail Pending Appeal

PER CURIAM.

We are presented with a motion to review denial of bail pending appeal. See Pla.App.Rule 6.15.

On the motion of appellant, this court relinquished jurisdiction to the trial court on proceedings to set bail pending appeal. The trial court’s order denying bail set forth as follows:

‡ s(i }(; sjc s}:
“After hearing arguments of counsel and considering a Certificate of Restoration of Civil Rights dated May 17, 1977, the Court finds that the specific authority to possess or own a firearm was excepted from those rights restored, and thus, remained as an unrestored civil right, material to Defendant’s eligibility for bail under Fla.R.Cr.P. 3.691(a). Further considered was Defendant’s need for alcoholic rehabilitation as was made evident during the proceedings which hopefully is now being provided by the correctional system.”
* * * * * *

The certificate of restoration of civil rights reads, in part, as follows:

* * * * * *
“WALTER LEWIS ARBOGAST, 07-026287, 67267 DOB 9/19/38 and the same shall be evidence to all persons that this person is restored to all civil rights in this State, except the specific authority to possess or own a firearm, lost by reason of any and all felonies this person may have been convicted of in the State of Florida and/or any prior felony conviction in another state, federal, or military court; provided, however, that if this person has been convicted of a felony and has been released from a county jail or state prison by expiration of sentence, this person shall not be exempt from the registration requirements of Section 775.-13, Florida Statutes.”

The issue to be decided is whether or not this restoration of civil rights is such a restoration as will qualify the defendant to bail under the provisions of Fla.R.Crim.P. 3.691, which provides in part as follows:

“. . .no person may be admitted to bail upon appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous; provided that in no case shall bail be granted if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and such person’s civil rights have not been restored . . . ”

We hold that the restoration of civil rights is effective to qualify the defendant under the quoted section of the rule and that, therefore, he is eligible for bail.

The position of the State that the restoration is a limited restoration and, therefore, not effective under the facts of this case is not well taken inasmuch as the executive department of the State is not authorized to issue a more complete restoration of civil rights because of the limitations placed upon it by Section 790.23, Florida Statutes (1977).

Accordingly, the order denying bail pending appeal is quashed, and this court relinquishes jurisdiction to the trial court with directions to proceed pursuant to Fla.R. Crim.P. 3.691 to determine defendant’s eligibility for bail and, in event he is found eligible under the provisions of the applicable law, to set a proper bond forthwith.

It is so ordered.

      . Appellate proceedings in this cause were instituted prior to March 1, 1978, and this appeal is governed by the 1962 revision of the Florida Appellate Rules.


author: SANDERS, Chief Justice. TATE, Justice,

text:
    STATE of Louisiana v. Ernest ANDERSON.
    No. 60509.
    Supreme Court of Louisiana.
    Jan. 30, 1978.
    Rehearing Denied May 22, 1978.
    Alton T. Moran, Director, Daniel R. Atkinson, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Lennie F. Perez, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-ap-pellee.
   SANDERS, Chief Justice.

The State charged Ernest Anderson, along with Eddie Marshall and Rufus McDonald, with armed robbery, a violation of LSA-R.S. 14:64, and attempted aggravated kidnapping, a violation of LSA-R.S. 14:27, 44. Defendants waived jury trial and were tried together. Defendant Anderson was found guilty as charged on both counts. The court sentenced Anderson to twenty years without benefit of parole, probation, or suspension of sentence for his involvement in the armed robbery and to ten years for the attempted aggravated kidnapping of Edward Gaines. The court ordered that the two sentences run consecutively. Defendant now appeals his convictions and sentences, relying upon four assignments of error.

On November 6, 1975, Edward Gaines, while driving alone in his car, stopped for a stop sign. A man later identified as Eddie Marshall opened the door and, placing a knife at Gaines’ side, forced him to a house where Anderson and McDonald were present. There the defendants forced Gaines to give them his wallet, shirt, and belt. Thereafter, they bound his hands and forced him into his car and drove away. Gaines escaped at a gas station and reported the crime. The next day police arrested the three assailants.

ASSIGNMENT OF ERROR NO. 3

In this assignment defendant complains that the trial court erred in overruling his objection to State elicited testimony referring to suppressed evidence. He argues that although the State did not introduce the knife and shirt into evidence, any reference to these items was a violation of the trial court’s order suppressing the evidence.

In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the United States Supreme Court established the rule that tangible results of an unconstitutional search are inadmissible in state courts. In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), the court announced more clearly that the Fourth Amendment, and with it the exclusionary rule, is binding on the states.

These holdings established that any tangible evidence obtained through an unconstitutional search could not be admitted into evidence. It is reasonable to conclude that no testimony relating to the location of the evidence at the place searched, as well as the physical evidence itself, may be admitted into evidence. However, this exclusionary rule does not preclude every reference to the existence of the items ordered suppressed. It merely precludes the admission of the physical items into evidence.

Therefore, Assignment of Error No. 3 is without merit.

ASSIGNMENT OF ERROR NO. 5

In Assignment of Error No. 5, defendant complains that the trial court erred in not allowing defense counsel to question the victim concerning prior homosexual acts. Defense counsel asked the victim whether he had had any homosexual relations with defendant Marshall. The witness responded negatively. Defense counsel then asked the victim whether he had ever engaged in homosexual activities with anyone else. The State objected and the judge sustained that objection.

The defense asserts that the victim voluntarily came with Marshall to the house in order to engage in homosexual activities. Hence, he argues that the question was within the permissive bounds of impeachment in relation to this particular case. In support, he cites State v. Owens, La., 301 So.2d 591 (1974).

Therein we allowed the State to question the defendant regarding his homosexuality. The Court reasoned:

“In the instant case, the defendant testified on direct examination that he met the victim at a ‘homosexual’ bar and that the victim proposed homosexual relations. The defendant agreed to the proposal and left with the victim in the latter’s automobile. The defendant further testified that after the car was parked, he learned that the victim would not pay him for engaging in homosexuality and he left the automobile. Whereupon, the victim shot at him and he returned shots in self-defense. Defendant denied any intention to rob the victim.
“From this brief review of defendant’s testimony, it is apparent that defendant’s homosexuality became relevant. It was factually interrelated with the defense. Hence, it was a proper subject for the State’s cross-examination.”

The State submits that Owens is distinguishable because the defendant admitted on direct examination that he had initially encountered the victim in a homosexual bar and that he had agreed to have homosexual relations with the victim. The State contends that this testimony permitted further questioning on cross-examination. Unlike Owens, the victim herein denied that the occurrence was homosexually related.

Moreover, the trial judge is vested with wide discretion in determining the relevancy of evidence. His ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Pierre, 261 La. 42, 259 So.2d 6 (1972); State v. Davis, 259 La. 35, 249 So.2d 193 (1971); State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970).

In the instant case, the defense’s explanation of the encounter was that the victim and Marshall had agreed to homosexual activity and had arrived at the house for that purpose. When defense counsel asked the victim whether he had ever engaged in homosexual activity with Marshall, the witness replied negatively. Earlier, defense counsel asked the witness whether he had stopped his car and homosexually propositioned Marshall. Again, the witness denied any homosexual involvement. Thus, defense counsel successfully questioned the victim and elicited the relevant information necessary to either support or disprove the defense theory espoused. Thus, the trial court properly denied the additional question asked by defense counsel.

Assignment of Error No. 5 is without merit.

ASSIGNMENT OF ERROR NO. 8

Here, defendant complains of the trial court’s denial of his motion for acquittal. Therein he alleges that the State failed to introduce any evidence of several of the elements of the armed robbery: the dangerous weapon, that defendant used force, and the taking of something of value. Additionally, he contends that the State introduced no evidence of forcible seizing or forcible secreting in the attempted aggravated kidnapping charge.

LSA-R.S. 14:64 defines armed robbery as “the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.”

The victim testified that a sharp object was placed against his side and that the sharp instrument was a knife. This is some evidence that a dangerous weapon was used. Moreover, the victim testified that he was forced by the three assailants to remove his belt, shirt, and wallet.

Defendant correctly contends that the State did not introduce evidence that he personally held the knife or took the victim’s things by force. However, as a principal, he is charged with the responsibility for the actions of his cohorts. LSA-R.S. 14:24 provides that: “All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

The victim testified that Ernest Anderson, the defendant, was present when Marshall and the victim entered the house and that he was involved in the commission of the crime. This is evidence that he was there and actively participated in forcing the victim to remove items of clothing and his wallet and give them to the three men.

LSA-R.S. 14:44 proscribes aggravated kidnapping as follows:

“Aggravated kidnapping is the doing of any of the following acts with the intent thereby to force the victim, or some other person, to give up anything of apparent present or prospective value, or to grant any advantage or immunity, in order to secure a release of the person under the offender’s actual or apparent control:
“(1) The forcible seizing and carrying of any person from one place to another; or
“(2) The enticing or persuading of any person to go from one place to another; or
“(3) The imprisoning or forcible secreting of any person.”

LSA-R.S. 14:27, the attempt statute, provides that:

“Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.”

Defendant argues that no force was used in seizing and carrying the victim. He complains that even if force was used, it was not he who used said force.

The victim testified that after he was robbed at the house, he was tied and taken outside to his own car. Gaines stated that Anderson led him to the car and forced him inside the vehicle. Anderson’s two accomplices, McDonald and Marshall, accompanied them to the car and also got into the car. Anderson then drove off with Gaines in the back seat with his hands bound.

Thus, we conclude that Anderson personally used force in seizing and carrying the victim.

Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 9

In Assignment of Error No. 9, defendant complains that the trial court erred in denying his motion for a mistrial. Defendant based his motion upon the prosecutor’s alleged improper questioning of defendant regarding a prior arrest. The objectionable question arose as follows:

“Q. You said that your attorney asked you, you said you hadn’t been in any trouble since you’ve been out of Angola. Is that exactly correct?
“A. I haven’t been in jail, that’s right.
“Q. Were you arrested for theft since then?” (Tr. p. 371.)

Defense counsel immediately objected and the trial court sustained the objection. Defense counsel moved for a mistrial, relying upon LSA-R.S. 15:495, which provides:

“Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness, but before evidence of such former conviction can be adduced from any other source than the witness whose credibility is to be impeached, he must have been questioned on cross-examination as to such conviction, and have failed distinctly to admit the same; and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to the conviction, and as provided herein.”

The State argues that a mistrial is not required under LSA-C.Cr.P. Art. 770 because it provides that “a mistrial shall be ordered when a remark or comment, made within the hearing of the jury . refers directly or indirectly to [ajnother crime committed or alleged to have been committed by the defendant as to which evidence is not admissible . .” (Emphasis added.) The State contends that because defendant was tried by a judge and not a jury, even if error is presumed, it was harmless.

Initially, we note that defendant’s objection was sustained. Therefore, defendant was not requested to answer the question.

A pure question is “one which, while probing for inadmissible evidence, does not present any facts allegedly constituting the other crime to the jury.” State v. Hatch, La., 305 So.2d 497 (1974). “Assertive questions are those which place before the jury the details concerning the other crime.” (Emphasis added.) State v. Hatch, supra.

In the instant case, the defendant was asked, “Were you arrested for theft since then?” This is a pure question.

We have held that the asking of a pure question relating to a prior arrest is harmless error. State v. Hatch, supra; State v. Maney, 242 La. 223, 135 So.2d 473 (1961); cf. State v. Guillot, La., 277 So.2d 146 (1973).

In the instant case, the question propounded by the prosecutor was merely interrogatory. Before the defendant could reply, defense counsel objected, and the court sustained the objection. The trial judge was correct in denying defense counsel’s motion for a mistrial. The objectionable question was not answered by the witness. Moreover, there was no jury involved. The trial judge was capable of disregarding the question. No prejudice resulted, and the defendant received a fair trial. Thus, the motion for a mistrial was properly denied.

Assignment of Error No. 9 is without merit.

For the reasons assigned, defendant’s conviction and sentence are affirmed.

DIXON, J., concurs.

TATE, J., dissents and assigns reasons.

CALOGERO, J., dissents for reasons assigned by TATE, J.

DENNIS, J., concurs, but disagrees with the reasons assigned on assignment No. 9.

TATE, Justice,

dissenting.

I respectfully dissent. In my opinion, Assignment 5 presents reversible error. It concerns the denial of the defendant’s cross-examination of the victim concerning whether the latter had engaged in homosexual relations.

Normally, the private sexual practices of a witness are irrelevant to any inquiry in the case. Here, however, the defense was that the victim had voluntarily come to a house with a co-defendant (Marshall) in order to engage in homosexual relations: i. e., that he had not been kidnapped and brought there, as charged. Upon cross-examination, the victim denied that he had come to the house for homosexual relations with Marshall or that he had engaged in such relations with Marshall.

He was then asked whether he had engaged in such immoral relationships with anyone else (other than Marshall). The state’s objection to this query was improperly sustained, in my opinion. If (for instance) the witness admitted to recent or frequent homosexual relationships, his denial of Marshall’s version of the incident might be far less credible. While the cross-examination is distasteful — and would be normally irrelevant — , such cross-examination is here directed at the victim’s credibility concerning a central issue of the accused’s defense.

The cross-examination in this instance was thus both material and relevant. Its denial therefore violated not only the accused’s statutory right of cross-examination of opposing witnesses, La.R.S. 15:280, but also his confrontation rights under the state and federal constitutions. These include meaningful cross-examination of witnesses against him. State v. Giordano, 259 La. 155, 249 So.2d 558 (1971).

Accordingly, I respectfully dissent.

      . The victim testified that his car door was opened and a sharp instrument was put in his side and that he surrendered his belt when Marshall asked for it.

      . During direct examination, defense counsel asked defendant, “Have you ever been in any trouble since then [1966 — when defendant was released from Angola after serving a burglary sentence]?” (Tr. p. 358.)


author: SANDERS, Chief Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. William SKINNER.
    No. 60519.
    Supreme Court of Louisiana.
    April 10, 1978.
    Rehearing Denied May 19, 1978.

      Edwin A. Stoutz, Jr., New Orleans, for defendant-appellee.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Robert F. Barnard, Asst. Dist. Attys., for plaintiff-appellant.
   SANDERS, Chief Justice.

The State charged the defendant, William Skinner, with two counts of selling a vehicle without delivering the certificate of title to the purchaser, violations of LSA-R.S. 32:70s. The defendant filed motions to quash, alleging the unconstitutionality of the statute under which he was charged. The trial court sustained the motions, ruling that LSA-R.S. 32:705 was “impractical” in requiring delivery of the certificate of title at the time of the sale.

The State appeals, supporting the statute’s constitutionality.

LSA-R.S. 32:705 provides in pertinent part:

“On and after December 15, 1950, no person shall sell a vehicle without delivery to the purchaser thereof, whether such purchaser be a dealer or otherwise, a certificate of title issued under this Chapter in the name of the seller with such signed endorsement of sale and assignment thereon as may be necessary to show title in the purchaser; . .

The defendant’s principle contention is that LSA-R.S. 32:705 is unconstitutionally vague in that it fails to alert a person of ordinary intelligence as to when the seller must deliver the certificate of title to the purchaser. He alleges that if the statute requires delivery at the time of sale, there is an inconsistency within the statutory scheme since LSA-R.S. 32:707 states that a purchaser must file an application for certificate of title with the Vehicle Commissioner within five days after delivery of the vehicle.

Every statute is presumed constitutional, and the burden of clearly establishing its unconstitutionality rests upon the party attacking it. State v. Everfield, La., 342 So.2d 648 (1977); State v. Newton, La., 328 So.2d 110 (1976). However, a statute is unconstitutionally vague if it fails to give a person of ordinary intelligence fair notice that his conduct is criminal. Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975); State v. Booth, La., 347 So.2d 241 (1977); State v. de la Beckwith, La., 344 So.2d 360 (1977). In interpreting a statute its “(w)ords and phrases shall be read with their context and shall be construed according to the common and approved usage of the language.” LSA-R.S. 1:3. In addition, courts should construe all statutes to give effect to the legislative intent. Bonnette v. Karst, 261 La. 850, 261 So.2d 589 (1972); Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336 (1962); Johnson v. Sewerage District No. 2 of Parish of Caddo, 239 La. 840, 120 So.2d 262 (1960).

Applying these rules of construction, this Court holds LSA-R.S. 32:705 constitutional. As we construe it, the statute requires all sellers of vehicles to deliver the certificate of title which has been endorsed and assigned to the buyer at the time of the sale. This interpretation conforms with the main intention of the legislature: to protect buyers by preventing sellers from withholding title until full payment is made. This statute also protects persons holding security devices and the public by strengthening the security of vehicle titles. See 60 C.J.S. Motor Vehicles § 42(1), p. 286.

LSA-R.S. 32:705 is not inconsistent with LSA-R.S. 32:707, as the defendant argues. The statutes refer to different certificates of title. LSA-R.S. 32:707 provides that, in five days after the delivery of the vehicle, the buyer must file an application for certificate of title with the Vehicle Commissioner. This is a new certificate listing the car in the buyer’s name. LSA-R.S. 32:705 requires immediate transfer of a certificate of title standing in the name of the former owner, but which is endorsed and assigned to the buyer.

Secondly, the defendant submits the following argument in further support of his allegations of unconstitutionality:

“Where credit sales of automobiles are involved, the vendor has only two options available in order to protect his interest in the balance due. He can record a chattel mortgage on the automobile and thus obtain a security device, or he can hold onto the title certificate until the balance is paid. In order to obtain the chattel mortgage, the vendor must advance the sales tax and transfer fees even though he has no legal obligation to the State to collect these taxes and fees. Thus, he is deprived of his property without benefit of due process in violation of the 14th Amendment to the United States Constitution. Further, he is made an unwilling agent for the State in those instances where the sale is made on credit and he must advance the necessary fees, which is repugnant to the equal protection clause.”

In essence, this contention attacks the validity of the chattel mortgage law. Its validity is irrelevant to the present prosecution for failure to deliver a certificate of title at the time of the sale. Moreover, the defendant did not obtain a chattel mortgage on either vehicle which was sold without delivery of title. As he did not “advance the sales tax and transfer fees,” he has not been deprived of any property, and thus has no viable complaint.

Finally, he avers that LSA-R.S. 32:705 violates equal protection guarantees because at least 50% of used car salesmen who deal in credit sales violate the statute, but there has never been any case reported under that statute in its 26-year life. Basically, he contends that he has been singled out for prosecution.

In State v. Anderson, 206 La. 986, 20 So.2d 288 (1944), addressing a similar contention, we quoted the United States Supreme Court as follows:

“ ‘The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to • those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intention or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another not to be inferred from the action itself. But a discriminatory purpose is not presumed, there must be a showing of “clear and intentional discrimination”.’ ” [Citations deleted.] Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1943).

At the hearing on the motion, the defendant called two witnesses who worked for automobile title companies. One testified that used car sellers followed LSA-R.S. 32:705 only 50% of the time, and the other testified that sellers did not universally comply with it.

This evidence is insufficient to prove “clear and intentional discrimination” on the part of the State in enforcement of the statute. See Pier I Imports, Inc. v. Pitcher, La.App., 270 So.2d 228 (1972).

In conclusion, we hold that LSA-R.S. 32:705 is constitutional. Hence, the district court erred in sustaining the defendant’s motions to quash.

For the reasons assigned, the ruling of the district court is reversed, the motions to quash are overruled, and the case is remanded to the district court for further proceedings according to law and consistent with the views herein expressed.

DENNIS, J., dissents and assigns reasons.

CALOGERO, J., dissents for reasons assigned by DENNIS, J.

DENNIS, Justice,

dissenting.

The majority opinion fails to discuss the more important issue presented, viz., whether the statute is unconstitutionally vague because it does not state definitely when the certificate of title must be delivered.

La.R.S. 32:705, in pertinent part, provides that “. . .no person shall sell a vehicle without delivery to the purchaser thereof ... a certificate of title .

Article I, Section 13 of the Louisiana Constitution of 1974 provides that an accused in a criminal prosecution “shall be informed of the nature and cause of the accusation against him.” This Court, in State v. Mitchell, 319 So.2d 357 (La.1975), held that the Louisiana constitutional guarantee of due process of law is synonymous with the federal constitutional requirement of statutory definiteness set forth by the Supreme Court in United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954):

“The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.”

See also, Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); Rose v. Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975).

In Connick v. Lucky Pierre’s, 331 So.2d 431, 434 (La.1976), we discussed the characteristics of a statute which is void for vagueness:

“The fourteenth amendment of the United States Constitution, as well as Article I, Section 2 of the Louisiana Constitution of 1974, command that words and phrases used in statutes be not so vague and indefinite that any ‘penalty’ prescribed for their violation constitutes the taking of liberty or property without due process of law. Wright v. Georgia, 373 U.S. 284, 83 S.Ct. 1240, 10 L.Ed.2d 349 (1963); Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed.2d [sic] 888 (1939); State v. Lindsey, 310 So.2d 89 (La.1975); City of Shreveport v. Brewer, 225 La. 93, 72 So.2d 308 (1954). Thus any statute which either forbids or requires the doing of an act and which, therefore, acts as a guide to future conduct, is deemed to be void for vagueness if ‘men of common intelligence must necessarily guess at its meaning and differ as to its application . . . .’ Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). See U. S. v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989 (1954); State v. Dardar, 257 La. 191, 241 So.2d 905 (1970); State v. Cloud, 248 La. 125, 176 So.2d 620 (1965); State v. Robertson, 241 La. 249, 128 So.2d 646 (1961); Note, 109 U.Pa.L.Rev. 67 (1960); Note, 62 Harv.L.Rev. 77 (1948).”

The statutory section under attack, La. R.S. 32:705, does not explicitly state when delivery of the certificate of title must be made to the purchaser of the automobile. The State argues that, in the absence of an express provision as to time of delivery, a reasonable interpretation of the statute would require transfer of the title certificate contemporaneously with the sale of the vehicle. However, this construction does not remove the guesswork for a person of ordinary learning and intelligence who would avoid criminal conduct under the statute. Since La.R.S. 32:705 does not specify when the sale takes place, reasonable laymen of common intelligence could easily differ on whether a sale is completed upon delivery of the vehicle, payment of the purchase price, signing of a bill of sale, or the happening of some other event. Of course, an attorney would know that, under Civil Code Article 2456, the sale is perfected as soon as there exists an agreement for the object and for the price, although there has not yet been delivery of the object or payment of the price. But if this is the meaning intended by the legislature, it is much too esoteric for a criminal statute. Persons of ordinary learning and intelligence reasonably could be unaware that a sale can be perfected legally before delivery of the vehicle or payment of the price and therefore not have fair notice that their contemplated conduct is proscribed. For these reasons, we should conclude that the criminal provisions of La.R.S. 32:705 do not meet the constitutional requirement of definiteness and are unconstitutionally vague.

The motor vehicle certificate of title statutes of other states, many of which also carry criminal penalties for noncompliance, specify with much more particularity the time at which the certificate of title must be delivered. The Uniform Motor Vehicle Certificate of Title and Anti-Theft Act, which has been adopted, with slight modifications, in nine jurisdictions provides that the certificate shall, at the time of the delivery of the vehicle, be mailed or delivered to the transferee or to the Department of Motor Vehicles. The transfer-at-delivery approach is also utilized in several states which have not adopted the Uniform Act. I have not conducted an exhaustive study of all state statutes, but my research convinces me that criminal sanctions for the enforcement of certificate of title laws may be enacted which fulfill the constitutional requirement of definiteness.

The unconstitutionality of La.R.S. 32:705 would not affect the remainder of the Louisiana Vehicle Certificate of Title Law, La. R.S. 32:701, et seq., because the section containing the faulty definition of criminal conduct is severable from the other provisions of the statute. The severance clause contained in Act 342 of 1950, by which the law was enacted, creates a presumption in favor of severability. Guidry v. Roberts, 335 So.2d 438 (La.1976); State ex rel. Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477 (1949). The defective section is not so interrelated and connected with the other portions as to indicate that the legislature would not have enacted one part without the remainder. Roy v. Edwards, 294 So.2d 507, 511 (La.1974).

The judgment of the district court should be affirmed.

I respectfully dissent.

      . LSA-R.S. 32:731 imposes a penalty of imprisonment for a term not exceeding ninety days and/or a fine not exceeding $500 for each violation.

      .“La.Civ.Code Art. 2456. The sale is considered to be perfect between the parties, and the property is of right acquired to the purchaser with regard to the seller, as soon as there exists an agreement for the object and for the price thereof, although the object has not yet been delivered, nor the price paid.”

      . Alabama, Connecticut, Maine, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island and Vermont. See, Uniform Laws Ann., Vol. 11, pp. 421 et seq.

      . E. g., Arizona, Delaware, Illinois, and Michigan. See, Ariz. R.S. 28-314; Del.Code 21:2501; Ill.Stat. 9572 § 3-112; Mich.Stat. 9.1933 [M.C. R.A. § 257.233]. Some states, while providing that transfer shall occur upon delivery of the vehicle, allow a “grace period” of some days before criminal penalties attach.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Janice WEEMS and Roger Sallettes, Jr.
    No. 60855.
    Supreme Court of Louisiana.
    April 10, 1978.
    Rehearings Denied May 19, 1978.

      Edward C. Keeton, Gretna, for Janice Weems.
    Edward A. Haggerty, Jr., New Orleans, for Roger F. Sallettes, Jr.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Me-tairie, for plaintiff-appellee.

       Dixon and Calogero, JJ., would grant a rehearing.

   SANDERS, Chief Justice.

The State charged the defendants, Janice Weems and Roger Sallettes, Jr., with distribution of phencyclidine, a violation of LSA-R.S. 40:967. The jury returned guilty verdicts. The court sentenced Weems to four years imprisonment and Sallettes to eight years.

The defendants appeal. They rely on fourteen assignments of error for reversal of their convictions and sentences. Defendant Weems specifically abandoned Assignments of Error Nos. 2 and 6.

We adduce the following context facts:

A confidential informer telephoned Undercover Agent Warren Breaux and asked him if he was interested in a drug transaction. The agent replied that he was. When the agent arrived at the informer’s apartment later that night, Weems and Sal-lettes had departed with $110 of the informer’s money. Two hours later, they returned. Weems handed the phencyclidine to Sallettes, who then handed it to Agent Breaux.

ASSIGNMENTS OF ERROR NOS. 1, 3, 5 AND 12 (Weems)

ASSIGNMENTS OF ERROR NOS. 1 AND 2 (Sallettes)

In a Bill of Particulars, during trial, and in a motion for a new trial, the defense unsuccessfully sought disclosure of the identity and address of the confidential informer. In claiming that he was material to the defense of entrapment, they point to the following: that he arranged for the distribution; that he paid the defendants with his own money, and thus, was an active participant; that he was a witness; and that the distribution occurred in his apartment.

The privilege of withholding the identity of an informer who supplies information to law enforcement officers concerning crime is founded on public policy and seeks to advance the public interest in effective law enforcement. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). We have consistently held that a confidential informer’s identity will be revealed only in exceptional circumstances, and that the defense must demonstrate these exceptional circumstances. State v. Williams, La., 347 So.2d 184 (1977); State v. de la Beckwith, La., 344 So.2d 360 (1977); State v. Robinson, La., 342 So.2d 183 (1977); State v. Russell, La., 334 So.2d 398 (1976). Moreover, the trial court has much discretion in determining whether the circumstances warrant disclosure. State v. de la Beckwith, supra; State v. Robinson, supra.

In closing arguments, both defense counsel admitted knowing who the confidential informer was. They also knew his address at the time of the crime for the State gave the exact location of the transaction and stated that it was the confidential informer’s apartment. See State v. Robinson, supra. Neither defendant subpoenaed him, and the record is void of any attempt to locate him. Moreover, the court permitted full examination concerning his background: his criminal record, life style, drug involvement, education, employment, and the method of compensation for his information. See State v. Williams, supra (Tate, J., concurring).

The informant did not participate in the crime of distribution. The defendants directly transferred the phencyclidine to Agent Breaux. The bare allegation of entrapment is insufficient to compel disclosure. See State v. de la Beckwith, supra; State v. Dotson, 260 La. 471, 256 So.2d 594.

Under these circumstances, we hold that the court did not abuse its discretion in denying the defense requests for the identity and address of the confidential informer.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 4 (Weems)

Attempting to establish the delay between the offense and arrests, Weems’ defense counsel asked Agent Breaux whose duty it was to present the cases to the district attorney’s office. The State objected, urging that the question called for a speculative answer. The court sustained the objection. Defendant Weems now complains of the ruling.

Assuming arguendo that the court erred, no prejudice resulted. Agent DiGerolamo testified that Captain Reed decided which cases to present to the district attorney. Also, the same witness gave the dates of the offense and arrests, the objective of counsel’s query. See LSA-C.Cr.P. Art. 921; State v. Western, La., 355 So.2d 1314 (1978); State v. Alexander, La., 351 So.2d 505 (1977).

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 7 (Weems)

Agent DiGerolamo conducted a surveillance of the confidential informer’s apartment from the parking lot. He testified that Agent Breaux entered the apartment at 9:10 p. m. and that the defendants entered at 11:00 p. m. He also stated that the defendants remained there for one hour and fifty minutes. Thereafter the following occurred:

“[THE PROSECUTOR]: Approximately what time did they [the defendants] arrive now, what time at night?
“[THE WITNESS]: About 11 p. m.
“Q. All right and then they left at about what time?
“A. About 11:20.
“Q. All right, well you just stated an hour and fifty minutes they were inside the apartment and now you’re saying—
“A. No, the time they—
“[DEFENSE COUNSEL]: Your Hon- or, I’m going to object to this. He is trying to impeach his own witness.
“[THE PROSECUTOR]: Your Honor, I’m not trying to—
“[THE COURT]: The objection is overruled.
“[DEFENSE COUNSEL]: Note my objection.
“[THE PROSECUTOR]: Would you just clarify that?
“[THE WITNESS]: An hour and fifty minutes from the time that Agent Breaux had arrived that they arrived.
“Q. All right, sir, and how long were the defendants in the apartment before they left?
“A. About twenty minutes.” [Tr. pp. 228-229.]

Defendant Weems assigns the court’s ruling as error.

The prosecutor was not impeaching his witness. The agent obviously misunderstood the question to refer to the length of time Agent Breaux was in the apartment instead of the length of time the defendants were there. The State merely asked the agent to clarify his statement.

We conclude that the court correctly overruled the objection grounded on improper impeachment.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 8 (Weems)

In questioning Agent DiGerolamo about the confidential informer’s drug habits, counsel for Defendant Weems asked him to explain what other uses methadone had besides use for heroin withdrawal. The State objected on the basis that the witness was not qualified as an expert in that field. The court sustained the objection, and Defendant Weems contends that it was error.

A lay witness may only testify as to facts within his knowledge. LSA-R.S. 15:463. But an expert witness may give testimony involving special knowledge that he acquired through training or experience. LSA-R.S. 15:464. However, prior to giving expert testimony, the court must be satisfied of his competency and must qualify him as an expert. LSA-R.S. 15:466.

Agent DeGerolamo may have gained special knowledge of methadone’s medical purposes while working three and one-half years as a narcotics agent. See State v. Brown, 250 La. 1125, 202 So.2d 274 (1967). However, absent court qualification as an expert in narcotics, the agent is prohibited from testifying as to the uses of methadone. See State v. Maney, 242 La. 223, 135 So.2d 473 (1961); State v. Damico, 213 La. 765, 35 So.2d 654 (1948). Questions of this nature involve knowledge obtained from special training or experience. Thus, the court properly sustained the objection.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 9 AND 10 (Weems)

Counsel for Defendant Weems asked Agent DiGerolamo how police solicited confidential informants, other than the one involved in this case. The State objected, contending that solicitation of other confidential informants is irrelevant. The court sustained the objection, and Defendant Weems now challenges the ruling.

Relevant evidence tends to show or negate the commission of the offense or intent. LSA-R.S. 15:441. The relevancy of evidence must be determined by the purpose for which counsel offers it. LSA-R.S. 15:442. Thus, counsel must alert the court to the evidence’s relevancy contemporaneously with the objection to allow the judge to rule intelligently. State v. Lindsey, La., 351 So.2d 1178 (1977). Moreover, a determination of relevancy lies within the discretion of the trial court and will not be disturbed absent a clear abuse of that discretion. State v. Winston, La., 343 So.2d 171 (1977); State v. Gallow, La., 338 So.2d 920 (1976).

Counsel failed to apprise the judge of the relevancy of the testimony. Because the judge ruled without benefit of counsel’s theory of relevancy, we conclude that he did not abuse his discretion in disallowing the evidence. State v. Lindsey, supra; State v. Braggs, La., 334 So.2d 215 (1976).

In any event, the ruling was correct. Evidence concerning other confidential informers is irrelevant to the crime and defense. State v. Lindsey, supra.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 11 (Weems)

ASSIGNMENT OF ERROR NO. 3 (Sallettes)

Both defendants contend that the court erred in denying their oral motion for a special requested charge, namely that “ . . . evidence under the control of a party and not produced by him was not produced because it would not have aided him. ... .” See LSA-R.S. 15:432. They wanted the jury to apply it .to the State’s failure to call the confidential informer as a witness.

The court properly denied the request since the defense failed to put the special charge in writing. LSA-C.Cr.P. Art. 807; State v. Orsby, 261 La. 605, 260 So.2d 639 (1972); State v. Shirley, 256 La. 665, 237 So.2d 676 (1970).

Assuming, however, that the special charge was in writing, it needed qualification and explanation in light of the confidential informer’s privilege. Thus, the court correctly refused to charge the jury as requested. LSA-C.Cr.P. Art. 807.

These assignments of. error are without merit.

ASSIGNMENT OF ERROR NO. 4 (Sallettes)

Defendant Sallettes complains of the denial of the motion for a new trial.

Inasmuch as the motion reurges the assignments of error previously rejected, the court properly denied it.

This assignment of error is without merit.

For the reasons assigned, the convictions and sentences are affirmed.

CALOGERO, J., concurs.

      . Agent Breaux had previously testified that the. defendants remained in the apartment for approximately ten minutes.