text:
    Alyce C. TINDEL, Appellant, v. Michael A. TINDEL, Appellee.
    No. 77-1640.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1978.

      Ned N. Julian, Jr. of Stenstrom, Davis & McIntosh, Sanford, for appellant.
    No appearance for appellee.
   LETTS, Judge.

Involved here is yet another instance where the trial judge has cancelled alimony without pleadings or notice. We reverse.

The wife was awarded alimony and the husband failed to pay it. Thereafter the wife filed a motion for a contempt citation which came on for hearing without any responsive pleadings by the husband. At the conclusion of said hearing, the trial court held the husband was indeed in arrears and had suffered no diminution in his income. Nonetheless, the court also found that the wife now held full time employment and cancelled the alimony prospectively.

It may be that the trier of the fact was correct in his conclusion and we do not quarrel with his decision not to hold the husband in contempt. However, it is improper to terminate alimony without the wife being put on notice of what is to transpire. Smithwick v. Smithwick, 343 So.2d 945 (Fla. 3d DCA 1977) and Schwebke v. Schwebke, 347 So.2d 645 (Fla. 3d DCA 1977).

In the case at bar, so far as the wife understandably expected, the hearing would only involve the question of the husband’s arrearages on which question she proved successful. Yet her success was a pyrrhic victory indeed, for all else was lost. See Murphy v. Murphy, 351 So.2d 383 (Fla. 4th DCA 1977) and Jennings v. Jennings, 353 So.2d 921 (Fla. 4th DCA 1978).

REVERSED AND REMANDED.

CROSS and BERANEK, JJ., concur.


source: Caselaw Access Project

author: SCHWARTZ, ALAN R., Associate Judge.

license: Public Domain

text:
    Donald Dominick ROMANELLO, Appellant, v. STATE of Florida, Appellee. Alan ISELY, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-2205, 77-2215.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1978.

      Kenneth R. Mikos of Friedrich, Kersten, Blackwell & Mikos, Fort Lauderdale, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for appellee.
   SCHWARTZ, ALAN R., Associate Judge.

After the court had denied their motion to suppress the contraband which was the basis of the charge against them, the appellants were convicted of the possession of cannabis. We hold that the motion should have been granted and reverse the judgments below.

On the forenoon of February 4, 1977, the attention of two Fort Lauderdale police officers, who were each in the area entirely coincidentally, was attracted to the defendants’ attempt to trailer a boat at the Seventh Avenue ramp in that city. Romanello was in a van with an attached trailer; Isely, in the boat trying to negotiate it from the water onto the trailer. Only, and admittedly, to satisfy what one called a “curiosity” aroused as a result of the men’s having apparent difficulty in the operation because the vessel seemed heavily loaded, the officers — after the boat had finally been successfully trailered — approached and detained both defendants. While one policeman, Lynch, sought motor vehicle information from Romanello, the other, Hudson, asked Isely for the boater’s registration. When Hudson followed Isely onto the boat, he allegedly smelled the odor of marijuana emitting from it and said that he noticed a “little glob” of marijuana on the deck. The resulting warrantless search of the boat indeed revealed a large quantity of marijuana for the possession of which both defendants were convicted.

The officers’ sole reasonable bases for believing that an offense was being committed, the odor and sight of marijuana, arose only after and because of their initial stop and detention of the defendants. Thus, the search may be upheld only if the stop may. And it is clear that it may not. The mere recitation of the facts which led to the defendants’ detention establishes that the officers had nothing approaching the “founded or reasonable suspicion” of criminal activity required to support such conduct. Lewis v. State, 337 So.2d 1031, 1032 (Fla. 2d DCA 1976); § 901.151, Fla. Stat. (1975). Instead, the officers had only a “hunch” (although a good one, as it turned out), that is, a “bare” or “unfounded” suspicion that something was wrong, which is clearly not sufficient to validate a stop and detention. E. g., Currens v. State, 363 So.2d 1116 (Fla. 4th DCA 1978), and cases cited; Whitley v. State, 349 So.2d 840 (Fla. 2d DCA 1977). Surely, the weighted down appearance of the boat and the difficulties encountered in maneuvering it, which is all the officers had upon which to base their “curiosity,” cannot, in this day and age, and particularly in this location, be deemed to provide a proper “foundation” or “reasonable” basis for suspecting the existence of crime. Since the motipn to suppress should therefore have been granted, the judgments are reversed with directions to discharge the defendants.

Reversed and Remanded.

LETTS and BÉRANEK, JJ., concur.

      . For this reason, such cases as Miranda v. State, 354 So.2d 411 (Fla. 3rd DCA 1978) and Tamburro v. State, 343 So.2d 638 (Fla. 4th DCA 1977), which find “probable cause” for a search based on a smell of marijuana, but in which the officer was lawfully in a position to detect it, are not controlling. Lower v. State, 348 So.2d 410 (Fla. 2d DCA 1977).

      . In much more exacerbated situations involving heavily weighted motor vehicles stopped in the dead of the night near border points in areas of known smuggling activity, the federal courts have apparently uniformly held stops and detentions to be constitutionally unjustified. United States v. Frisbie, 550 F.2d 335 (5th Cir. 1977); United States v. Olivares, 496 F.2d 657 (5th Cir. 1974).


author: DOWNEY, Chief Judge.

text:
    Joseph S. STRUCKI, Appellant, v. STATE of Florida, Appellee.
    No. 77-2028.
    District Court of Appeal of Florida, Fourth District.
    Dec. 13, 1978.
    Rehearing Denied Jan. 24, 1979.
    John A. Baldwin of Baldwin & Dikeou, Fern Park, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON PETITION FOR REHEARING

DOWNEY, Chief Judge.

On October 11, 1978, we noted apparent lack of jurisdiction because it appeared the Notice of Appeal had not been timely filed and, thus, on that date we dismissed this appeal. Thereafter, appellant timely filed a Petition for Rehearing in which he contends on authority of Cuneo v. State, 335 So.2d 278 (Fla.1976), that the Notice of Appeal was timely filed. We have reconsidered the matter in the light of appellant’s argument and conclude that the Notice of Appeal was timely filed and that we do have jurisdiction.

Appellant was charged by information with the commission of three felonies. A motion to suppress evidence was filed, heard and denied by the trial court. Thereafter, the appellant entered a plea of nolo contendere to one of the counts of the information, preserving his right to appeal the denial of the motion to suppress. On July 12,1977, the trial court adjudicated the defendant guilty and sentenced him to 12 years in the Department of Offender Rehabilitation and 12 years probation. On July 20th the appellant filed a Motion for Reduction of Sentence in which appellant alleged that the trial court had failed to consider all relevant factors in passing sentence; that the sentence involved was unduly harsh in view of defendant’s exemplary background and as compared with sentences of persons similarly situated in Seminole County. On September 9th the court denied the Motion for Reduction of Sentence and on that date the Notice of Appeal in question was filed. This court dismissed the appeal for lack of jurisdiction on the ground that the Motion for Reduction of Sentence did not toll the time for appeal on the judgment and sentence.

Rule 1.3, Florida Appellate Rules (1962 Revision), which is the rule applicable to this appeal, provides for the tolling of the time for appeal under certain circumstances. The rule provides in pertinent part:

“RENDITION” . . . Where there has been filed in the lower court a timely and proper motion or petition for a new trial, for a rehearing, or other timely post-trial motion or petition permitted by the Rules, the decision, judgment, order or decree shall not be deemed rendered until such motion or petition is disposed of.”

Rule 3.800, Fla.R.Crim.P., provides that a court may reduce a legal sentence imposed by it within sixty days after its imposition or within sixty days of receipt by the court of a mandate issued by the appellate court, or within other specified time periods. Thus, it would appear that the Motion for Reduction of Sentence filed by appellant was a post-trial motion permitted by the rules. Clearly the motion was timely, i. e., filed within 8 days from the date of the judgment and sentence, and, therefore, under the plain language of Rule 1.3 the time for appealing the judgment and sentence was tolled until the Motion for Reduction of Sentence was denied.

While the case of Cuneo v. State, supra, is not entirely clear, we believe that a careful reading of that case supports the foregoing conclusion. In Cuneo the defendant was adjudicated guilty and sentenced on August 12, 1974. The defendant filed a Motion for Reconsideration on August 27, 1974, which was denied by the trial court on December 17, 1974. Notice of Appeal from the judgment and sentence and denial of the Motion for Reconsideration was filed January 14, 1975. The State moved to dismiss the appeal in the District Court of Appeal on the grounds that it was untimely because the record demonstrated that no Motion for New Trial or other motion contemplated by the rules was filed after judgment and sentence were rendered and so, although a Motion for Reconsideration was filed, such a motion was not specifically contemplated by the rules and, therefore, did not toll the time for taking the appeal. The District Court granted the motion and dismissed the appeal.

The Supreme Court granted certiorari perceiving conflict between that decision and the decision of State ex rel. Shevin v. Mann, 290 So.2d 1 (Fla.1974). Ultimately the Supreme Court decided that no conflict existed and the writ was discharged, leaving the decision of the District Court of Appeal intact. In discussing the question of whether the appellant’s Motion for Reconsideration of Sentence tolled the time for appeal from the judgment and sentence, the Supreme Court concluded that there was no such motion provided for in the Rules of Criminal Procedure; but the court went further and looked at the body of the motion to make sure that the relief prayed for did not fit within the mission of a rule which was provided for. In doing so the court pointed out that the relief requested by Cuneo in his Motion for Reconsideration was that the sentence and conviction be set aside and that he be placed on probation. There is no provision for such a motion in the rules, the court concluded. But it is important to note that the court considered whether the relief asked for might fall within the purview of Rule 3.800, Fla.R. Crim.P., the rule authorizing a motion for reduction of sentence, and found that it did not. It is our opinion that the Supreme Court’s determination of whether Cuneo’s motion was in substance, although not form, a motion under Rule 3.800 (Motion to Reduce Sentence) implies that a 3.800 motion would have tolled the time for appeal. Otherwise, the court’s inquiry in Cuneo was without purpose.

Another case which seems to support our position is State ex rel. Shevin v. Mann, supra. In that case defendant Micale pleaded nolo contendere to the criminal charge against him requesting that his right to appeal the denial of his motion to suppress be preserved. The trial court declined to accept the plea, whereupon as a result of negotiations he pleaded guilty, but requested the right to review the propriety of the trial court’s refusal to accept his nolo plea. Judgment and sentence were filed on October 23, 1972. Micale filed a Motion for New Trial on October 27, 1972. When this motion was subsequently denied Micale filed a Notice of Appeal which was more than thirty days after October 23, 1972.

The State took the position that, since Micale never had a trial but pleaded guilty, a Motion for New Trial was not a “proper motion” which would toll the time for taking an appeal. Regarding that contention, the Supreme Court stated:

“We do not, however, view the rule as being so restrictive and technical as to deny Micale his right to an appeal under the facts of this case. A ‘proper motion’ is one which is permitted by the rules. Any permissible motion, timely made, stays the running of appeal time until the motion is disposed of. The applicability of a particular motion to the facts or legal posture of a particular case is for the trial court to decide. An appellate court, in determining the timeliness of an appeal, need not consider the merits of any post-trial motion or petition; all that is necessary is a determination of whether or not the motion was permissible under the rules of procedure.” (Emphasis supplied.) 290 So.2d 1 at 2.

The Supreme Court went on to point out that if the State’s interpretation of the definition of rendition contained in Rule 1.3, Florida Appellate Rules (1962 Revision) were adopted:

“ . . .we would be saying, in effect, that a criminal defendant may be deprived of his right to an appeal only because of the poor judgment of his attorney. A defendant should not be so penalized when a post-trial motion filed by his attorney is permissible —even though the motion is totally without merit or even frivolous. In such a case, the motion could be swiftly disposed of and the defendant’s appeal time would again commence to run; hence, no prejudice to the State.” 290 So.2d 1, at 3.

It seems to us that the foregoing construction of Rule 1.3, Florida Appellate Rules (1962 Revision) is a reasonable construction of the language used and that a defendant’s right to review of his criminal conviction and sentence should not be precluded by strained constructions of the language used in the rule.

Accordingly, rehearing is granted and this appeal is reinstated.

CROSS and BERANEK, JJ., concur.


author: PER CURIAM.

text:
    Katherine MANNING, Appellant, v. STATE of Florida, Appellee.
    No. JJ-415.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1978.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Appellant’s conviction for manslaughter is affirmed. However, the provision in her sentence that she be imprisoned “at hard labor” is not authorized by law, and being merely surplusage, this provision is hereby stricken. Massey v. State, 351 So.2d 376 (Fla. 1st DCA 1977). As amended, the sentence is affirmed.

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


author: BOYER, Acting Chief Judge.

text:
    FLORIDA DEPARTMENT OF TRANSPORTATION, Appellant, v. FOSTER AND KLEISER, INC., Appellee.
    No. JJ-443.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1978.

      Margaret-Ray Kemper, Tallahassee, Dept, of Transp., for appellant.
    Horace A. Andrews of Harris, Harris & Andrews, P.A., St. Petersburg, for appellee.
   BOYER, Acting Chief Judge.

DOT appeals an administrative order invalidating Fla.Admin.Code Rule 14-10.06 on the grounds that the proposed rule was not filed with the Department of State within 45 days after publication in the Florida Administrative Weekly, in violation of Section 120.54(ll)(b), Fla.Stat. (Supp.1976). DOT argues here, as it did before the hearing officer, that violations of the time frames provided for in Section 120.54 do not require invalidation unless the agency’s action impairs the fairness of the proceeding or the correctness of the action, relying on Section 120.68(8), Fla.Stat. (Supp.1976). Appellee argued to the hearing officer, and now here, that the mandatory language of Section 120.54(ll)(b) requires invalidation of the rule if there is not strict compliance with the time frames.

We conclude that the time period prescribed by the statute is mandatory, but we will measure the effect of its violation by the provisions of Section 120.68(8). G & B of Jacksonville, Inc. v. State, Dept. of Business Regulation, Div. of Beverage, 362 So.2d 951 (Fla.lst DCA 1978). (See also City of Panama City, Florida v. Florida Public Employees Relations Commission, 364 So.2d 109 (Fla.lst DCA 1978.) Although an examination of the record in this case does not reveal that the fairness of the proceedings nor the correctness of the action taken have been impaired by the delay, it appears that appellee was not afforded an opportunity to demonstrate prejudice. Accordingly, we REVERSE and REMAND for further proceedings not inconsistent with this opinion.

MILLS and BOOTH, JJ., concur.


text:
    The STATE of Florida, Appellant, v. William JONES, Appellee.
    No. 76-750.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Janet Reno, State’s Atty., and Ira N. Loewy, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Karen Gottlieb, Asst. Public Defender, for appellee.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the State of Florida from an order of the trial court dismissing a second degree murder charge against the appellee. The basis for the charge was the killing of a person who was involved with the appellee in a robbery. The statute involved is Section 782.04, Florida Statutes (1975), providing as follows:

“When a person is killed in the perpetration of, or in the attempt to perpetrate, any arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084.”

On motion of the appellant, to which the appellee had no objection, this court entered an order cancelling oral argument and staying further proceedings in the appeal pending the decision by the Supreme Court of Florida in the case of Mikenas v. State, in which the question involved here was being presented in the Supreme Court. This court has now been advised by written report made by the State that the Supreme Court has decided Mikenas v. State, 367 So.2d 606 (1978). An examination of that decision reveals that the appeal before this court has merit, and that the dismissal order which is appealed from was error.

Accordingly, oral argument is dispensed with, and the order or judgment appealed from is reversed on authority of Mikenas v. State, supra, and the cause is remanded for further proceedings.


text:
    Ruth RUMSEY, f/u/b/o the Employers’ Fire Insurance Co., Appellant, v. James A. DIXON, Jr., Frank A. Lane, George O. Mitchell, Individually, etc., et al., Appellees.
    No. 77-1965.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Richard S. Banick, Miami, for appellees.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The issue presented in this appeal is whether or not the trial court erred in dismissing appellant/plaintiff’s complaint for failure to state a cause of action without leave to amend.

We agree with the trial court’s order of dismissal and find that no harmful error has been demonstrated. Davies v. Canco Enterprises, 350 So.2d 23 (Fla. 3d DCA 1977); Adams v. Chenowith, 349 So.2d 230 (Fla. 4th DCA 1977); Cross-Aero Corporation v. Cross-Aero Service Corporation, 326 So.2d 249 (Fla. 3d DCA 1976). Accordingly the order appealed is affirmed.

Affirmed.


text:
    Frederick Garth FORBES, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2203.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Frederick Garth Forbes, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

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


text:
    Charles Arthur BASS, Appellant, v. STATE of Florida, Appellee.
    No. KK-64.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1978.
    Michael J. Minerva, Public Defender, Janice G. Scott, Asst. Public Defender and Charles Arthur Bass, in pro. per., for appellant.
    Robert L. Shevin, Atty. Gen., Charles W. Musgrove and Carolyn M. Snurkowski, Asst. Attys. Gen., for appellee.
   PER CURIAM.

Bass’ conviction of armed robbery is affirmed. However, the provision in his sentence that he be imprisoned “at hard labor” is not authorized by law, and being merely surplusage, this provision is hereby stricken. Massey v. State, 351 So.2d 376 (Fla. 1st DCA 1977). As amended, the sentence is AFFIRMED.

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


text:
    Robert Mark STEPHENS v. CONTINENTAL INSURANCE CO. and David T. Thibaut, Jr.
    No. 63350.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Robert Mark Stephens applying for writ of certiorari to the First Circuit Court of Appeal. 364 So.2d 192.

Writ denied.


text:
    STATE of Louisiana v. Greg L. WILLIAMS.
    No. 63490.
    Supreme Court of Louisiana.
    Nov. 28, 1978.
   In re: Greg L. Williams applying for writ of habeas corpus and stay order. Orleans Parish.

Writ denied and stay order recalled.


author: CALOGERO, J.,

text:
    STATE of Louisiana v. Mark Anthony BROWN.
    No. 63489.
    Supreme Court of Louisiana.
    Nov. 29, 1978.
   In re: Mark Anthony Brown, applying for supplemental writ. Orleans Parish.

Not considered. This Court does not entertain a motion for rehearing, or reconsideration of the denial of a writ. Rule 9, Section 6, Rules of Court.

DIXON, J., would grant the continuance.

CALOGERO, J.,

would grant the writ and order a continuance. This application, under our supervisory jurisdiction, is not barred by our rules.


text:
    STATE of Louisiana v. William R. BAKER, III.
    No. 63504.
    Supreme Court of Louisiana.
    Nov. 30, 1978.
   In re: William R. Baker, III, applying for supervisory writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge.

Writ granted in part, denied in part. Assignments 1 and 2 denied; adequate review in event of conviction. Granted as to Assignment of Error 3. Trial Court is ordered to re-open preliminary examination to hear testimony of witness tendered prior to trial. See La.C.Crim.P., Art. 294.


text:
    Clifton L. EVANS v. RED BALL MOTOR FREIGHT CO.
    No. 63391.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Red Ball Motor Freight Co. applying for writ of certiorari to the First Circuit Court of Appeal. Parish of East Baton Rouge.

Writ denied as to Assignment 1, granted as to Assignment 2 (credit for compensation previously paid), and remanded to the Court of Appeal for it to determine this issue.

SUMMERS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. James E. WILLIAMS v. C. Paul PHELPS, Secretary, Department of Corrections.
    No. 62596.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: James E. Williams, applying for writ of certiorari. Parish of East Baton Rouge.

This matter pending on rehearing is dismissed as moot per joint motion because parole board has reinstated relator’s parole status with reprimand.


text:
    STATE of Louisiana v. Otis R. BAKER.
    No. 63313.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Otis R. Baker applying for writ of review and stay order. Parish of Ouachita.

Considering the joint motion this application is dismissed.


author: TATE, J., DIXON, J.,

text:
    Joel T. CHAISSON v. Lanny THOMAS, Charles A. Ferguson, Walter G. Cowan, Ashton Phelps, and the Times-Picayune Publishing Corp.
    No. 63320.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Defendants-Respondents applying for rehearing.

Application for rehearing denied.

TATE, J.,

concurs. Our writ grant was obviously designed to permit the trial judge to rule on the merits of the plaintiff’s objection to discovery of some matters requested as unduly oppressive or as not reasonably calculated to lead to the discovery of relevant evidence.

DIXON, J.,

would grant a rehearing, being of the view that the writ was improvidently granted.


text:
    STATE of Louisiana ex rel. Terry L. KELLY v. Hon. Charles WARD, Judge, Criminal District Court.
    No. 63334.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Terry L. Kelly applying for remedial writ. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Henry MASON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63214.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Henry Mason applying for motion for rehearing. Parish of Pointe Coupee.

Not considered. See Rule 9, § 6, Rules of the Supreme Court.


text:
    Judith LAWRENCE, wife of/and Edward L. Lawrence v. Wilburn C. MOORE et al.
    No. 63406.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Judith and Edward Lawrence applying for writ of certiorari to the Fourth Circuit Court of Appeals. Parish of Orleans. 362 So.2d 803.

Granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    In re Glen B. MAGNUSON, Jr.
    No. 63292.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re Glen G. Magnuson, Jr., applying for reinstatement of license to practice law.

The petition is granted. Petitioner is reinstated as a member of the Louisiana State Bar Association effective this day and his name shall be reinscribed on the roll of attorneys in this Court.


text:
    STATE of Louisiana v. Calvin Miles ROBINETTE and Priscilla Taylor.
    No. 63442.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Calvin Miles Robinette and Priscilla Taylor applying for writs of certiorari, prohibition, review, mandamus and Stay Order. Parish of St. Tammany.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Stephen A. Duczer, Judge of the 22nd Judicial District, Court for the Parish of St. Tammany, to transmit to the Supreme Court of Louisiana, on or before the 15th day of December, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Richard A. PASS.
    No. 63425.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Richard A. Pass applying for remedial writ. Parish of Orleans.

Writ granted. Copy of transcript of Boykinization should be given to relator.

SUMMERS, J., dissents from the order.


text:
    STATE of Louisiana v. Michael T. BROWN.
    No. 63408.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Michael T. Brown, applying for writs of certiorari, prohibition and mandamus. Parish of Acadia.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Hugh E. Brunson, Judge of the 15th Judicial District, Court for the Parish of Acadia, to transmit the Supreme Court of Louisiana, on or before the 15th day of December, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be appointed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    Loyd BASS and Vonnie R. Bass v. AETNA INSURANCE COMPANY and Southern Farm Bureau Casualty Insurance Company.
    No. 63361.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Loyd Bass and Vonnie R. Bass applying for certiorari, or writ of review to the Court of Appeal, First Circuit. Parish of East Baton Rouge.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana ex rel. Bobby Ray SNEED v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63274.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Bobby Ray Sneed applying for writ of mandamus. Parish of Bienville.

Writ granted. Trial judge is ordered to act on relator’s application forthwith.


text:
    STATE of Louisiana v. Alvin PRATT.
    No. 63251.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Alvin Pratt applying for remedial writ. Parish of Ouachita.

Writ granted. Application transferred to City Court to conduct evidentiary hearing on relator’s habeas application.


text:
    STATE of Louisiana ex rel. Albert A. CROW, PMB No. 66580 v. Frank BLACKBURN, Warden.
    No. 63009.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Albert A. Crow applying for writ of habeas corpus. Parish of East Baton Rouge.

Writ denied.

DIXON, J., would grant the writ and order a hearing.


text:
    Corbett PUCKETT v. William J. BYRNE and Edward Dumont.
    No. 63387.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: William J. Byrne and Edward Dumont applying for writ of certiorari to the First Circuit Court of Appeal. Parish of East Baton Rouge.

Writ denied.

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


text:
    STATE of Lousiana v. Ronald LEWIS.
    No. 63290.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Ronald Lewis applying for writ of certiorari. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana v. Helen B. SCOTT.
    No. 63294.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Helen B. Scott applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson.

Writ denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana v. Albert Austin CROW.
    No. 63315.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Albert Austin Crow, applying for remedial writs. Parish of East Baton Rouge.

Treated appeal as writ application, denied.


text:
    STATE of Louisiana v. Jasper LYNCH.
    No. 63319.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Jasper Lynch applying for writ of habeas corpus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Ricky VEALS.
    No. 63335.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Ricky Veals applying for remedial writ. Parish of Orleans.

Writ denied. Relator has not yet sought relief in the trial court.


text:
    STATE of Louisiana v. John M. HAYDEL.
    No. 63345.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: State of Louisiana applying for supervisory writs. Parish of East Baton Rouge.

Denied.

SANDERS, C. J., would grant the writ.


text:
    Sharleen Marie LAVERGNE v. Mr. and Mrs. Russell MIRE.
    No. 63364.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Mr. and Mrs. Russell Mire, applying for remedial writs. Parish of Lafayette.

Writ denied.


text:
    STATE of Louisiana v. Garrett D. RICHARDSON.
    No. 63288.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Garrett D. Richardson applying for remedial writ. Parish of Orleans.

Writ denied. Moot, since defendant has received the assistance of counsel and has pleaded guilty.


text:
    STATE of Louisiana ex rel. Willie WILLIAMS v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 63273.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Willie Williams applying for writ of habeas corpus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Wellington RATCLIFF v. Hayden J. DEES, Warden.
    No. 63266.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Wellington Ratcliff applying for writ for mandamus. Orleans Parish.

Writ denied. Application is moot. Trial court has ruled.


text:
    STATE of Louisiana ex rel. Aaron HAMILTON v.CLERK OF COURT, 15th JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE.
    No. 63256.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Aaron Hamilton applying for writ of mandamus. Parish of Lafayette.

Writ denied. Moot.


text:
    STATE of Louisiana v. A. Bridger EGLIN et al.
    No. 63099.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: A. Bridger Eglin et al., applying for writ of certiorari, or review and/or remedial writ and stay order. Parish of East Baton Rouge.

Writ denied. Applicants have an adequate remedy by review in the event of conviction. Stay order set aside.


text:
    STATE of Louisiana ex rel. Wallace JONES v. CLERK OF COURT, 32ND JUDICIAL DISTRICT COURT, PARISH OF TERREBONNE.
    No. 63077.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Wallace Jones, applying for motion for rehearing. Parish of Terrebonne.

Motion for rehearing treated as writ application. Writ denied.


text:
    STATE of Louisiana ex rel. Richard TRASS v. STATE of Louisiana, Criminal District Court, Hon. Judge Frank J. Shea, Section “G”.
    No. 63193.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Richard Trass applying for writ of mandamus and motion to proceed in Forma Pauperis. Orleans Parish.

Writ denied. Application is moot.


text:
    STATE of Louisiana ex rel. Rickey J. LOTT v. Hon. Enos C. McCLENDON, 26th Judicial District, Bossier-Webster Parishes.
    No. 63377.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Rickey J. Lott applying for writ of mandamus. Parish of Webster.

Writ denied. Allegations do not warrant the relief sought.


text:
    STATE of Louisiana ex rel. Rudolph A. JOHNSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63462.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Rudolph A. Johnson applying for writ of habeas corpus. Parish of Webster.

Writ denied.


text:
    STATE of Louisiana ex rel. David L. FIELDS v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary, 24th Judicial District Court, Parish of Jefferson, State of Louisiana.
    No. 63410.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: David L. Fields, applying for writ of habeas corpus and mandamus. Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana ex rel. Arthur WEBB, Jr. v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, State of Louisiana.
    No. 63373.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Arthur Webb, Jr., applying for writs of habeas corpus, certiorari, prohibition and remedial writs. Parish of Pointe Coupee.

Writ denied.


text:
    STATE of Louisiana ex rel. Joel Wade FRAIZER v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63349.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Joel Wade Fraizer, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana ex rel. J. P. McELROY v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63348.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: J. P. McElroy, applying for writs of certiorari, prohibition, and mandamus. Parish of Union.

Writ denied.


text:
    STATE of Louisiana ex rel. Andrew STERLING v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 63325.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Andrew Sterling applying for writ of certiorari. Parish of Orleans.

Writ denied. Under the allegations made, we are unable to say that error was committed in computing the date of the applicant’s good time discharge.


text:
    STATE of Louisiana v. Ronald INGRAM.
    No. 63394.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: State of Louisiana applying for supervisory writs, Parish of East Baton Rouge.

Writ denied.

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


text:
    STATE of Louisiana v. Feltus ANDERSON.
    No. 63375.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Feltus Anderson applying for writ of mandamus. Parish of Orleans.

Writ denied.


text:
    Gregory Dennis JOE et ux. v. The BOARD OF SUPERVISORS OF SOUTHERN UNIVERSITY, etc., et al.
    No. 63386.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Gregory Dennis Joe, et ux. applying for writ of certiorari to the First Circuit Court of Appeal. Parish of East Baton Rouge.

Writ denied.

TATE and DIXON, JJ., would grant the writ.


text:
    John F. BROWN v. Lloyd G. PEREZ et al.
    No. 63384.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: John F. Brown applying for writ of certiorari to the First Circuit Court of Appeal. Parish of East Baton Rouge.

Writ denied. The result is correct.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Richard E. BUTLER.
    No. 63380.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Richard E. Butler, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Jefferson.

Writ denied.


text:
    Edward Joseph DeVERGES, III v. Irvin P. BOURG, Jr., et al.
    No. 63382.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Edward Joseph DeVerges, III applying for writ of certiorari, First Circuit Court of Appeal. Rouge. Parish of East Baton

Writ denied.


text:
    STATE of Louisiana v. Dawn NOWAK.
    No. 61752.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Dawn Nowak applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Plaquemines.

Writ denied. The application is moot, since the motion to suppress was granted.


text:
    STATE of Louisiana ex rel. Herman SMITH, Jr. v. 23RD JUDICIAL DISTRICT COURT, PARISH OF ASSUMPTION.
    No. 63275.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Herman Smith, Jr., applying for writ of mandamus. Parish of Assumption.

Application transferred to district court for action.


text:
    Benjamin R. FONTENOT v. LIFE INVESTORS INSURANCE COMPANY OF AMERICA.
    No. 63409.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Life Investors Insurance Company of America, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Evangeline.

Writ denied.


text:
    STATE of Louisiana ex rel. Keith KLEIN v. Hayden J. DEES, Warden, Dixon Correctional Institution.
    No. 62933.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Keith Klein, applying for writ of mandamus. Parish of Orleans.

Writ denied. Moot.


text:
    STATE of Louisiana v. William TOLIVER.
    No. 62647.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: William Toliver, applying for writ of habeas corpus and certiorari. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. James WILLIAMS v. Honorable Matthew S. BRANIFF, Judge.
    No. 62936.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: James Williams, applying for writ of mandamus. Parish of Orleans.

Mandamus denied. Moot. Trial Court acted on application on November 9, 1978.


text:
    Joseph Vincent DEGREAT v. Ahyden J. DEES.
    No. 63011.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Joseph Vincent Degreat, applying for writ of habeas corpus and mandamus. Orleans Parish.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. James Michael DUPRE v. Rodger AUCOIN, Warden.
    No. 63013.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: James Michael Dupre applying for writ of habeas corpus. Parish of Tangipahoa.

Writ denied. The Trial Court correctly denied the applicant’s petition on November 6, 1978.


text:
    STATE of Louisiana v. Renee MORRIS.
    No. 63470.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: State of Louisiana applying for supervisory writs. Parish at East Baton Rouge.

Writ denied.


text:
    Joseph Neves MARCAL, III v. The LOUISIANA STATE BAR ASSOCIATION.
    No. 63418.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Joseph Neves Marcal, III, applying for motion for stay of proceedings while motion to quash under consideration. Parish of Orleans..

Writ denied.


text:
    STATE of Louisiana v. Leroy STERLING.
    No. 63416.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: State of Louisiana applying for supervisory writs. Parish of East Feliciana.

Denied.

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


text:
    STATE of Louisiana v. Ernest VILLERE.
    No. 63405.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Ernest Villere applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied. Adequate remedy by review in the court of conviction.


text:
    Louis I. BARTELS, Individually, and as Administrator of the Estate of the minor, Linda M. Bartels v. Ray CARROLL et al.
    No. 63402.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Louis I. Bartels, individually, and as administrator of the estate of the minor, Linda M. Bartels, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana v. Henry ANDERSON, Jr.
    No. 63255.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Henry Anderson, Jr. applying for writs of habeas corpus, certiorari and mandamus. Parish of Orleans.

Writ denied. Applicant must first seek relief in the district court.


text:
    STATE of Louisiana v. Henry ANDERSON, Jr.
    No. 63267.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Henry Anderson, Jr., applying for writs of certiorari, habeas corpus, mandamus and prohibition. Parish of Orleans.

Writ denied. Applicant must first seek relief in the district court.


text:
    STATE of Louisiana v. Henry ANDERSON.
    No. 63368.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Henry Anderson applying for writ of habeas corpus, mandamus, prohibition and certiorari. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Perry SEGURA.
    No. 63392.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: State of Louisiana applying for remedial writs. Parish of St. Charles.

Writ denied.

SANDERS, C. J., would grant the writ.


text:
    Kenneth AUBERT et al. v. CHARITY HOSPITAL OF LOUISIANA AT NEW ORLEANS et al.
    No. 63389.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Charity Hospital of Louisiana at New Orleans, Dr. Byung Chung and Elvyn Lee applying for writ of certiorari to the 4th Circuit Court of Appeal. Parish of Orleans. 363 So.2d 1223.

Writ denied.

SUMMERS, J., would grant the writ.


text:
    Dathyl T. BERTEAU v. The WIENER CORPORATION.
    No. 63401.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Dathyl T. Berteau, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 362 So.2d 806.

Writ denied.


text:
    J. D. SUIRE et al. v. Lovelace PRIMEAUX.
    No. 63400.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Lovelace Primeaux applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of Vermilion. 363 So.2d 963.

Writ denied.


text:
    Scottie NEAL v. Brenda WHITE.
    No. 63399.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Brenda White applying for writ of certiorari to the Second Circuit Court of Appeal. Parish of Ouachita. 362 So.2d 1148.

Denied.

SANDERS, C. J., and DIXON and DENNIS, JJ., would grant the writ.


text:
    Martha LOKER v. TULANE UNIVERSITY et al.
    No. 63398.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Martha Loker applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Orleans. 363 So.2d 1305.

Writ denied.


text:
    Charles GUILYOT v. DEL-GULF SUPPLY CO., INC. and Aluminum Specialty Co., Inc.
    No. 63396.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Charles Guilyot applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Orleans. 362 So.2d 816.

Writ denied.


text:
    Russell Wayne COURVILLE v. Cynthia Dean COURVILLE.
    No. 63395.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Russell Wayne Courville applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of St. Landry. 363 So.2d 954.

Writ denied.


text:
    Louis E. BULLIARD and Charles P. Bulliard v. Marcel J. BULLIARD, Sr., etc.
    No. 63404.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Louis E. Bulliard & Charles P. Bulliard applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of St. Martin. 363 So.2d 1343.

Writ denied.

SUMMERS, J., would grant the writ.


text:
    STATE of Louisiana v. James BENNETT.
    No. 63403.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: James Bennett applying for writs of certiorari, prohibition and mandamus. Parish of St. Charles.

Writ denied; adequate remedy on review.


text:
    Johnny F. BROUSSARD v. Edward J. STINE et al.
    No. 63420.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Edward J. Stine et al. applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Calcasieu. 362 So.2d 1174.

Writ denied.


text:
    Tinker WILLIAMS v. Leonard LONDON.
    No. 63362.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Tinker Williams applying for writ of certiorari, First Circuit Court of Appeal. Parish of E. Feliciana. 364 So.2d 621.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    NATIONAL SAFE CORPORATION v. BENEDICT & MYRICK, INC.
    No. 63342.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   In re: Benedict & Myrick, Inc. applying for writ of certiorari to the First Circuit Court of Appeal. Parish of East Baton Rouge.

Writ granted.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Dennis KELP.
    No. 63447.
    Supreme Court of Louisiana.
    Dec. 4, 1978.
   In re: Dennis Kelp applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 78-1753.

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

DIXON, J., would grant the writ.


text:
    Terry E. MAUTERER v. Robert E. TILLERY.
    No. 63521.
    Supreme Court of Louisiana.
    Dec. 4, 1978.
   In re: Robert E. Tillery, applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. 328 So.2d 755. ,

Writ denied. Insufficient showing to justify the exercise of our supervisory jurisdiction.


text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. Donald J. ROBINSON, Respondent.
    No. 63509.
    Supreme Court of Louisiana.
    Dec. 7, 1978.
   ORDER

Based upon this Court’s determination that the crime of which Donald J. Robinson has been convicted constitutes a serious crime the necessary element of which reflects upon said attorney’s moral fitness to practice law;

It is ordered by the court, that Donald J. Robinson be and he is hereby suspended from the practice of law and said attorney’s license to practice is hereby suspended.

It is further ordered that the Committee institute the necessary disciplinary proceedings against Donald J. Robinson, seeking his disbarment or other remedy deemed appropriate, all in keeping with Article XV of the Articles of Incorporation of the Louisiana State Bar Association, provided however, that the disciplinary proceedings so instituted will not, unless requested by the accused, be brought to a hearing until all appeals from the conviction are concluded.


text:
    STATE of Louisiana v. Calvin DUNNS.
    No. 63560.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Calvin Dunns applying for remedial writs and stay order. Parish of Jefferson.

Writ granted. Preliminary examination and bond reduction hearing ordered held within five days or show cause in this court why he should not be released forthwith.


text:
    Donald A. BREAUX and Julia A. Breaux v. GOVERNMENT EMPLOYEES INSURANCE COMPANY and Traders & General Insurance Company.
    No. 63383.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Donald A. Breaux and Julia A. Breaux applying for writ of certiorari to the First Circuit Court of Appeal. Parish of East Baton Rouge. 364 So.2d 158.

Writ granted.

It is ordered that' the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Gary W. AMACKER et al. v. Mary Ellen McEniry WEDDING et al.
    No. 63481.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Gary W. Amacker et al., applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson. 363 So.2d 223.

Writ denied.


text:
    AETNA INSURANCE COMPANY et al. v. GENERAL ELECTRIC COMPANY.
    No. 63463.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: General Electric Co. applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Orleans. 362 So.2d 1186.

Writ denied.


text:
    Yvonne PARKER v. MORRISON CAB COMPANY et al.
    No. 63448.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Issac Mahoney, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 362 So.2d 1225.

Writ denied.


text:
    Ruth SHEPPARD, Wife of/and Howard Sheppard v. NORTH RIVER INS. CO. et al.
    No. 63443.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Ruth Sheppard, wife of/and Howard Sheppard applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Jefferson. 362 So.2d 1212.

Writ denied.

CALOGERO, J., would grant the writ.


text:
    Patrick A. BRANIGHAN v. DEPT. OF POLICE.
    No. 63441.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Patrick A. Branighan applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Orleans. 362 So.2d 1221.

Writ denied.

SANDERS,' C. J., and DENNIS, J., would grant the writ.


text:
    Gordon K. KONRAD v. PARISH OF JEFFERSON.
    No. 63434.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Gordon K. Konrad applying for writs of certiorari, review, prohibition and mandamus. Parish of Jefferson. Fourth Circuit Court of Appeal. 352 So.2d 361.

Denied.

DIXON, J., would grant the writ because there appears to be an abuse of the judicial system by respondent.


author: TATE, J.,

text:
    WHITNEY NATIONAL BANK OF NEW ORLEANS v. Gerald G. PFISTER and Henry J. Guidry, etc.
    No. 63431.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Whitney National Bank of New Orleans applying for writ of certiorari, 4th Circuit Court of Appeal. Parish of Orleans. 362 So.2d 1200.

Writ denied.

SUMMERS and MARCUS, JJ., would grant the writ.

TATE, J.,

concurs in denial, being under the belief that the Court of Appeal currently indicated that the applicant’s remedy for recovery of the underlying obligation is by an independent suit, rather than a remand for amendment of the pleadings in the present suit. The present suit interrupted prescription on all claims arising out of the factual basis for such obligation.


text:
    TRI-STATE INSURANCE COMPANY OF TULSA, OKLAHOMA v. FIDELITY & CASUALTY INSURANCE CO. OF N. Y. et al. W. F. WATLEY v. FIDELITY & CASUALTY INSURANCE CO. OF N. Y. et al.
    No. 63478.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Tri-State Insurance Company of Tulsa, Oklahoma, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Jackson. 364 So.2d 657.

Writ denied.


text:
    STATE of Louisiana ex rel. Harold Joseph VINCENT v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63372.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Harold Joseph Vincent, applying for writs of habeas corpus and certiorari. Parish of Vernon.

Writ denied. The district attorney is not compensated by fees paid pursuant to R.S. 16:4. See return. The other contentions are also without merit.


text:
    Alton CREDEUR v. Norbert R. LUKE et al.
    No. 63430.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Norbert R. Luke applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of Lafayette. 362 So.2d 1175.

Writ granted and consolidated for hearing with Credeur v. Luke, La., 363 So.2d 909.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana ex rel. Robert H. MURRAY v. Charles R. WARD, Judge, Criminal District Court, Section A, Parish of Orleans.
    No. 63087.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Robert H. Murray, applying for writ of mandamus. Parish of Orleans.

Order to District Court to provide transcript of Boykin examination rescinded, as guilty plea was entered before effective date of Boykin in Louisiana. See State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).


text:
    STATE of Louisiana v. Robert ADAMS.
    No. 62878.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Robert Adams, applying for remedial writs. Parish of Ouachita.

Granted. Consolidated with Appeal No. 63336.


text:
    STATE of Louisiana v. Robert L. ADAMS.
    No. 62880.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Robert L. Adams, applying for writ of habeas corpus. Parish of Ouachita.

Granted. Consolidated with Appeal No. 63336.


text:
    STATE of Louisiana v. Joseph V. DELATTE.
    No. 63279.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Joseph V. Delatte applying for remedial or supervisory writs of certiorari, prohibition and mandamus. Parish of Jefferson.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Patrick E. Carr Judge of the 24th Judicial District Court, for the Parish of Jefferson, to transmit to the Supreme Court of Louisiana, on or before the 22nd day of December, 1978, the record, in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be appointed by this court why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Joseph LEMON v. Frank BLACKBURN, Warden, et al., Louisiana State Penitentiary.
    No. 63427.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Joseph Lemon applying for writ of mandamus. Parish of Avoyelles.

Writ granted. Applicant is to be furnished a transcript of the hearing at which he pleaded guilty.

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


text:
    STATE of Louisiana ex rel. Willie JACKSON v. Hayden J. DEES, Warden.
    No. 63435.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Willie Jackson, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Tangipahoa.

Out of time appeal granted.

SANDERS, C. J., and SUMMERS, J., dissent from the order granting an out of time appeal.


text:
    STATE of Louisiana v. Tracy Lee HUDSON.
    No. 63450.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Tracy Lee Hudson, applying for writ of certiorari on writ of habeas corpus. Parish of Bossier.

Granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Cecil C. Lowe Judge of the Twenty-Sixth Judicial District Court, for the Parish of Bossier, to transmit to the Supreme Court of Louisiana, on or before the 22nd day of December, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end .that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. John Robert JORDAN.
    No. 63482.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: John Robert Jordan applying for writs of certiorari, prohibition, mandamus and review. Parish of Ouachita.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Robert T. Farr Judge of the Fourth Judicial District, Court for the Parish of Ouachita, to transmit to the Supreme Court of Louisiana, on or before the 22nd day of December, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be determined by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Bonnie G. TEDETON.
    No. 62754.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Bonnie G. Tedeton, applying for writs of certiorari, review, mandamus, and/or prohibition. Parish of Ouachita.

Writ denied. Stay order recalled.


text:
    STATE of Louisiana v. Prentice L. TEDETON, Jr.
    No. 62755.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Prentice L. Tedeton, Jr., applying for writs of certiorari, review, mandamus, and/or prohibition. Parish of Ouachita.

Writ denied. Stay order recalled.


text:
    STATE of Louisiana v. Henry L. HODGES.
    No. 63081.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Henry L. Hodges applying for remedial writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Renee MORRIS.
    No. 63503.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Renee S. Morris applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana v. Carroll J. DOMINGUE.
    No. 63492.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Carroll J. Domingue, applying for supervisory writ and stay order. Parish of Acadia.

Denied. Relator has inadequate remedy by appeal in the event of conviction.


text:
    Jean HUMMEL, Individually and as Tutrix of the Minor John A. Hummel, IV v. Pat D. LANDRY, Winston J. Landry, Employers Fire Insurance Company, and St. Paul Mercury Insurance Co.
    No. 63486.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Jean Hummel, individually and as tutrix of the minor, John A. Hummel, IV, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Ouachita.

Writ denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Lambert GONZALES.
    No. 63484.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: State of Louisiana applying for writ of certiorari. Parish of Orleans.

Writ denied.


text:
    Ralph BREWER v. LEGAL AID SOCIETY OF BATON ROUGE, INC., et al.
    No. 63483.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Legal Aid Society of Baton Rouge, Inc., et al., applying for writ of certiorari. Parish of East Baton Rouge.

Writ denied.

MARCUS and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Robert THIBODEAUX and Patricia Barlow.
    No. 63476.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Robert Thibodeaux and Patricia Barlow applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson.

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


text:
    STATE of Louisiana v. Walter J. GIBSON.
    No. 63465.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Walter J. Gibson, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana v. Gregory SMITH et al.
    No. 63459.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Gregory Smith et al., applying for writ of certiorari. Parish of Orleans.

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

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


text:
    STATE of Louisiana v. Edward F. CROOK.
    No. 63452.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Edward F. Crook applying for supervisory writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Paul GOODBIER.
    No. 63451.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Paul Goodbier, applying for remedial writs. Parish of St. Martin.

Writ denied. Appeal pending.


text:
    STATE of Louisiana v. Robert L. LEES.
    No. 63449.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Robert L. Lees applying for writs of certiorari, mandamus and prohibition.

Writ denied.


text:
    Alejandro RAMOS v. INTERNATIONAL HARVESTER COMPANY.
    No. 63444.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Alejandro Ramos applying for writ of certiorari to the Fourth Circuit Court of Appeal. Parish of Orleans.

Writ denied.

DENNIS, J., would grant the writ.


text:
    Nicholas J. CADO and Mrs. Rosalind Cado v. E. Michael BOYD and Mrs. Rita Busch Boyd v. Mr. and Mrs. Stanley H. GROS.
    No. 63440.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: E. Michael Boyd and Mrs. Rita Busch Boyd applying for writ of certiorari, Fourth Circuit Court of Appeal. Parish of Jefferson.

Writ denied. The result is correct.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Johnny B. WRIGHT v. Gene A. SCROGGY, Custodian, Caddo Correctional Institute.
    No. 63413.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Johnny B. Wright, applying for remedial writs. Parish of Caddo.

Writ denied.


text:
    STATE of Louisiana ex rel. Gernard CASBON v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 63379.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Gernard Casbon applying for writs of mandamus. Parish of Jefferson.

Writ denied. Moot. Trial Court acted on application on June 9, 1978.


text:
    STATE of Louisiana ex rel. Woodrow BARKSDALE v. Matthew S. BRANIFF, Judge, Criminal District Court, Parish of Orleans.
    No. 63215.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Woodrow Barksdale applying for writ of mandamus. Parish of Orleans.

Writ denied. Mandamus application moot, since the trial court acted on November 30, 1978.


text:
    STATE of Louisiana ex rel. Bernard G. KABEL v. Alvin Rudy EASON, Judge, 24th Judicial District Court, Division “K”, Parish of Jefferson.
    No. 63289.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Bernard G. Kabel applying for writ of mandamus. Parish of Jefferson.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Larry BARR v. C. Paul PHELPS, Secretary, Dept. of Corrections.
    No. 63500.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Larry Barr applying for writ of certiorari. Parish of Caddo.

Denied.


text:
    STATE of Louisiana ex rel. Warren GARRISON v. Jerome M. WINSBERG, Judge, Criminal District Court, Parish of Orleans.
    No. 63494.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Warren Garrison applying for remedial writ. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Robert H. MURRAY v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63467.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Robert H. Murray applying for writs of certiorari, mandamus, habeas corpus, all remedial writs. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Frank ANDERSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63453.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Frank Anderson applying for writs of habeas corpus and remedial writs. Parish of Orleans.

Writ denied.

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


text:
    STATE of Louisiana ex rel. Robert FIRMIN v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, State of Louisiana.
    No. 63454.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Robert Firmin applying for writ of mandamus. Parish of Orleans.

Writ granted. Since the minutes do not show the applicant was present on February 14, 1978, he must be resentenced and it is ordered, with applicant present in court; the minutes must reflect his presence.


text:
    STATE of Louisiana ex rel. Howard ROBERTS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 63498.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Howard Roberts applying for writ of mandamus and remedial writs. Parish of St. Bernard.

Writ granted. Case reassigned to Judge Gauthier for an evidentiary hearing.


text:
    STATE of Louisiana ex rel. Autry Lee JONES v. Honorable Steve A. ALFORD, Jr., Judge, Division “J”, 19th J.D.C.
    No. 63507.
    Supreme Court of Louisiana.
    Dec. 8, 1978.
   In re: Autry Lee Jones applying for writ of mandamus. East Baton Rouge Parish.

Writ granted. Transcript for appeal ordered.


text:
    STATE of Louisiana v. Larry HOWARD.
    No. 63571.
    Supreme Court of Louisiana.
    Dec. 11, 1978.
   In re: Larry Howard, applying for writs of certiorari, prohibition, mandamus and habeas corpus. Parish of Jefferson.

Writ granted. Trial judge ordered to release defendant on bail bond filed; without prejudice to his right to test the surety in accordance with La.Code Crim.P., Art. 321.


author: SUMMERS, J.,

text:
    STATE of Louisiana v. Bernell MATTHEWS.
    No. 63577.
    Supreme Court of Louisiana.
    Dec. 12, 1978.
   In re: Bernell Matthews, applying for supervisory and remedial writs and for mandamus. Parish of Lafourche.

Writ granted. Bail hearing ordered on or before December 19, 1978.

SUMMERS, J.,

dissents. The motion makes no allegation of fact warranting an order for a hearing. Only a conclusory statement is made. The refusal of the trial judge does not constitute an abuse of discretion.


text:
    STATE of Louisiana v. Gordon NOVEL.
    No. 63589.
    Supreme Court of Louisiana.
    Dec. 12, 1978.
   In re: State of Louisiana, through Harry F. Connick, District Attorney, applying for writs of certiorari, mandamus, prohibition and request for stay order. Orleans Parish.

Writ denied. No abuse of discretion shown.


author: SANDERS, C. J.,

text:
    In the Matter of Jennifer JOHNSON, Norman Johnson, II, David Johnson, minors, and Judith Homes Necaise, their mother.
    No. 63583.
    Supreme Court of Louisiana.
    Dec. 13, 1978.
   In re: Jennifer Johnson, Norman Johnson, II, David Johnson, and Judith Homes Necaise, their mother, applying for writ of review, Juvenile Court. Parish of Orleans.

Granted. The orders of the Juvenile Court of November 14 and November 29 are set aside; the Civil District Court for the Parish of Orleans is ordered to proceed to complete the trial and determine the issues forthwith. The custody of the children is ordered restored to the mother.

SANDERS, C. J.,

dissents from the order, being of the opinion that the petition filed in Juvenile Court is sufficient to establish that court’s jurisdiction. I would order a hearing in Juvenile Court forthwith.


author: SANDERS, C. J., SUMMERS, J.,

text:
    Cylyce Eidson CRAIG v. Johnnie Floyd CRAIG, Jr.
    No. 63588.
    Supreme Court of Louisiana.
    Dec. 13, 1978.
   In re: Cylyce Eidson Craig applying for extraordinary writs and for rule to show cause and/or leave to file an alternative writ of habeas corpus. Parish of Calcasieu.

Writ granted in part and denied in part. The mother may file a writ of habeas corpus in Calcasieu Parish. Previous orders of this court do not prevent relator from filing petition for habeas corpus in Calcasieu Parish or other court of proper venue. See La.Code Civ.P., Arts. 3821-3831, Stelly v. Montgomery, 347 So.2d 1145 (La.1977).

SANDERS, C. J.,

agrees that habeas corpus may be filed, but only in a court of competent jurisdiction.

SUMMERS, J.,

is of the opinion that the courts of Calcasieu Parish have not been determined to be the proper venue. Relator’s action should be lodged in the court of proper jurisdiction as provided by law.


text:
    In the Matter of Jennifer JOHNSON, Norman L. Johnson, II, David Johnson, minors, and Judith Homes Necaise, their mother.
    No. 63583.
    Supreme Court of Louisiana.
    Dec. 13, 1978.
   In re: Norman L. Johnson, applying for reconsideration and stay order. Parish of Orleans.

Denied.

SANDERS, C. J., would grant a rehearing and reconsideration.


text:
    STATE of Louisiana v. Robert F. PETER.
    No. 63415.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: Robert F. Peter applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Orleans.

Writ denied.


text:
    Joel T. CHAISSON v. Lanny THOMAS, Charles A. Fergerson, Walter G. Cowan, Ashton Phelps and the Times Picayune Publishing Corporation.
    No. 63513.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: Joel T. Chaisson applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Cary ANDERSON.
    No. 63517.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: Cary Anderson applying for supervisory and remedial writs. Parish of East Baton Rouge.

Writ denied. Adequate remedy for review after conviction and sentence.


text:
    STATE of Louisiana v. Orie C. STEWART.
    No. 63518.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: Orie C. Stewart, applying for writ of certiorari, prohibition, mandamus and/or review. Parish of Winn.

Writ denied.


text:
    STATE of Louisiana v. Wayne D. THOMAS.
    No. 63520.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: Wayne D. Thomas, applying for writ of mandamus. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana v. Robert WYMORE.
    No. 63522.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: Robert Wymore applying for writ of mandamus. Parish of St. Charles.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Nelson AVERY v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 63546.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: Nelson Avery applying for writ of certiorari. Parish of Orleans.

Writ granted. Trial court’s order of June 18, 1976 denying good time with respect to the sentence imposed on June 14, 1976 is vacated and set aside; original sentence of June 14, 1976 is reinstated.


text:
    STATE of Louisiana v. Malcolm FRAZIER.
    No. 63532.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: Malcolm Frazier applying for writs of certiorari and mandamus. Parish of Orleans.

Writ granted. The trial court is ordered to hold an evidentiary hearing on the plaintiff’s petition.

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


text:
    STATE of Louisiana ex rel. George Henry LEE v. C. Paul PHELPS, Secretary, Louisiana Department of Corrections, et al.
    No. 63535.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: George Henry Lee applying for writ of certiorari. Parish of Madison.

Writ granted. Evidentiary hearing is ordered.

SANDERS, C. J., and SUMMERS, J., dissent from the order.


text:
    STATE of Louisiana v. Stanley SULLIVAN, Jr.
    No. 63544.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: Stanley Sullivan, Jr., applying for remedial or supervisory writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge.

Writ denied: See State v. Thompson, 256 La. 934, 240 So.2d 712 (1970).

DIXON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Melvin DILLARD v. CIVIL DISTRICT COURT, DIVISION D, PLAQUEMINES PARISH.
    No. 63525.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: Melvin Dillard applying for writ of mandamus, Parish of Plaquemines.

Writ granted. The trial judge is ordered, upon receipt of a request from the appellant, to set a time and date for confirmation of the preliminary default. Such time shall be not less than thirty days nor more than sixty days from receipt of the request.


text:
    STATE of Louisiana ex rel. Jimmie L. TAYLOR v. Matthew BRANIFF, Judge, Criminal District Court.
    No. 63530.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: Jimmie L. Taylor applying for remedial writ. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana ex rel. Salvador LOGRANDE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63536.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: Salvador Logrande applying for writ of habeas corpus. Parish of Orleans.

Writ denied.


text:
    Prentice L. WISE v. Mrs. Nona Wise HOLLIS et al.
    No. 63542.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: Prentice L. Wise applying for writ of certiorari to the Second Circuit Court of Appeal. Parish of Lincoln.

Writ denied.


text:
    STATE of Louisiana ex rel. Archie Lee WILLIAMS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 63548.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: Archie Lee Williams applying for writ of certiorari. Parish of East Baton Rouge.

Writ denied.


text:
    FIRST NATIONAL BANK OF RUSTON v. PINE BELT PRODUCERS CO-OP, Martin S. Sanders, Jr., Claude L. O’Bryan, et al.
    No. 63543.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: First National Bank of Ruston, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Winn. 363 So.2d 1201.

Writ denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Edward James ARMSTEAD, Jr. v. C. Paul PHELPS, Secretary, et al.
    No. 63552.
    Supreme Court of Louisiana.
    Dec. 14, 1978.
   In re: Edward James Armstead, Jr., applying for writs of certiorari, prohibition, and mandamus. Parish of East Baton Rouge.

Not considered. The relator’s remedy is by appeal to the Court of Appeal within the delays provided for other criminal appeals. See State ex rel. Armistead v. Phelps, 365 So.2d 468 (1978).


text:
    Rodney HOPKINS et al. v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS.
    No. 63554.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
   In re: Rodney Hopkins et al., applying for writ of certiorari, Third Circuit Court of Appeal. Parish of Sabine. 364 So.2d 616.

Writ denied.

SANDERS, C. J., and SUMMERS and DENNIS, JJ., would grant the writ.


author: LOTTINGER, Judge.

text:
    CENTRAL PROGRESSIVE BANK, Plaintiff-Appellant, v. Billy M. DOERNER et al., Defendant-Appellee.
    No. 12209.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 10, 1978.
    Ronald A. Curet, Hammond, for Central Progressive Bank — plaintiff-appellant.
    William A. Lepore, Hammond, for Billy Doerner — defendant-appellee.
    Robert J. Burns, Metairie, for Cumberland Capital Corp. — intervenor.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is an executory process suit by the first mortgagee, Central Progressive Bank (Central), against property also encumbered by a second mortgage. The second mortgagee, Cumberland Capital Corporation (Cumberland), intervened.

From a judgment entitling Central to be paid by preference out of the proceeds of the sheriff’s sale, and ordering the remaining proceeds to be paid to Cumberland, Central has appealed and Cumberland has answered the appeal.

Central held a collateral mortgage on property of the defendants, Billy and Vickie Doerner, located in Tangipahoa Parish. The collateral mortgage note of $10,500.00 plus 10% per annum interest and 25% attorney fees was pledged as security for the hand note of $17,472.00 plus 12% per annum interest and 25% attorney fees. Defendants defaulted on their payments, and the plaintiff instituted this executory proceeding for the balance of $12,925.89 due, together with interest at the rate of 8% per annum from June 2, 1977 and 25% attorney fees on both principal and interest.

The sheriff’s sale of the property occurred on December 7, 1977. The property sold for $18,600.00.

On December 9, 1977, Cumberland intervened asserting a privilege, as second mortgagee to the excess of the funds above the amount secured by the first mortgage. On that same day the trial court issued a temporary restraining order for 10 days halting the disbursement of the proceeds. No extensions of the restraining order appear in the record.

The trial court judgment rendered on March 8, 1978, recognized Central “as entitled to be paid by preference out of the proceeds of the Sheriff’s Sale heretofore held in this matter the sum of $10,213.85 in principal plus eight per cent (8%) interest per anum [sic] thereon from September 1, 1977, together with twenty-five per cent (25%) additional on both principal and interest as attorneys fees and all costs.” It further ordered “that the remaining proceeds from said Sheriff’s Sale be paid to intervenor and second mortgage creditor, Cumberland Capitol [sic] Corporation.”

In appealing Central contends the trial judge erred in his computation of the amount due Central as the first mortgagee, and in ordering the sheriff on March 8, 1978, to disburse funds which he had been ordered to hold only until December 19, 1977. In answering the appeal, Cumberland also complains of the award in favor of Central.

As pointed out by the record, the original restraining order, dated December 9, 1977, was erroneously altered by the trial judge from “until further orders of this court” to “for a period of 10 days from date hereof,” and was not renewed at the expiration thereof. Once the restraining order lapsed, the sheriff completed the proces verbal. The proces verbal recites that the creditor paid the costs and retained the remainder of the bid. Costs amounted to $1,103.50, leaving a balance of $17,496.50 retained by Central.

This court recognizes the problem of the sheriff being ordered to disburse funds which he did not have, and the possible mootness of this proceeding as of the time the trial court rendered its decision.

Cumberland could by separate suit proceed directly against Central for a proper determination of the amount each should receive from the sheriff’s sale. Tri-South Mortgage Investors v. Forest and Wafer- way Corporation, 354 So.2d 588 (La.App. 4th Cir. 1977). Since both the seizing creditor and the intervenor are properly before this court, and acting under the authority of La.C.C.P. art. 2164, and for the sake of judicial economy, we now proceed to a complete resolution of this proceeding.

PLAINTIFF’S CLAIM

In filing this executory proceeding, Central claims a balance due on the hand note of $12,925.89, together with interest at the rate of 8% per annum from June 2, 1977, and attorney fees of 25% on both principal and interest. The hand note was what is generally referred to in the financial trade as a “discount note,” and in computing the balance due, Central properly allowed a rebate for the unearned portion of precomputed interest.

The trial judge in computing the balance due fell into error when he ordered plaintiff to compute the indebtedness as if the hand note was a simple interest loan. As this court said in Cameron Brown South, Inc. v. East Glen Oaks, 341 So.2d 450, 456 (La.App. 1st Cir. 1976), “the collateral mortgage note does not represent the indebtedness; it is the security that is pledged to secure another note, usually a hand note, which represents the indebtedness. The true indebtedness is the debt that the collateral mortgage note is pledged to secure.” We find no dispute in the record that the computation of the rebate of unearned interest allowed by Central, or the balance due on the hand note was in error. Thus, the balance due Central on the hand note is that as prayed for, or a total balance including principal, interest, and attorney fees of $16,821.58.

The total amount secured by the collateral note is the principal of $10,500.00, interest at 10% per annum from date of default, June 2,1977, and attorney’s fees of 25% on principal and interest, or a total of $13,-674.50.

In a suit on collateral mortgage, the seizing creditor can recover a sum no greater than that represented by the collateral note. Therefore, the total indebtedness of the hand note secured by the collateral mortgage is limited to the amount of $13,674.50. See Nathan and Marshall, The Collateral Mortgage: A Reassessment and Postscript, 36 La.L.R. 973 (1976).

INTERVENOR’S CLAIM

Cumberland claims it is the holder of a promissory note for $9,300.00, executed by the defendants on October 1,1976, and payable in 60 consecutive monthly installments of $155.00 each, with the first installment due on November 15, 1976, plus 25% attorney fees on the unpaid balance. It contends that as of July 27, 1977, the balance remaining after crediting unearned interest and insurance is $6,792.11. We recognize intervenor’s claim of $6,792.11 plus 25% attorney fees.

The property sold at the sheriff’s sale for $18,600.00, less cost of $1,103.50, or a net balance of $17,496.50 to satisfy the claims of Central and Cumberland. Central’s claim of $13,674.50 has priority as a first mortgage, thus leaving a balance of $3,822.00 to be applied toward intervenor’s claim.

After calculating and awarding the amount of Central’s claim, the trial judge ordered the remainder of the funds to be turned over to Cumberland. The sheriff never had these funds in his possession. These funds are in the possession of Central, the seizing creditor. Cumberland has a valid claim to these funds in the hands of Central. We recognize same, and grant a judgment in favor of Cumberland against Central.

Central was aware when it retained the funds that Cumberland had a claim pending against those funds. Under La. C.C. art. 2301, plaintiff, as trastee of the funds, owes to Cumberland the amount remaining.

Our brethren on the Fourth Circuit dealt with the disbursement of funds from a sheriff’s sale in Tri-South Mortgage Investors v. Forest and Waterway Corporation, supra. In that case, the seizing creditor retained the cash purchase price and was held to be “the trustee of the funds with a distinct codal obligation to restore those funds — in this case, under the condition that a judicial determination occurs, ranking the lien claims as superior to Tri-South’s mortgage.”

Although the case is distinguishable on the facts, the intervenors in Tri-South, supra, were superior ranking lienors whereas in our case the intervenor was the second mortgagee subject to the seizing creditor, the fact still remains that a judicial determination has not been rendered as to the distribution of the proceeds.

Therefore, for the above and foregoing reasons the judgment of the trial court is amended and IT IS ORDERED, ADJUDGED AND DECREED that Central Progressive Bank be recognized as entitled to be paid by preference out of the proceeds of the sheriff’s sale heretofore held in this matter the sum of $13,674.50; and IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of intervenor and second mortgage creditor, Cumberland Capital Corporation, against Central Progressive Bank in the amount of $3,822.00, and as amended the judgment of the trial court is affirmed. All costs of this proceeding excluding those costs attributable directly to the sheriff’s sale are to be shared equally by Central Progressive Bank and Cumberland Capital Corporation.

AMENDED AND AFFIRMED.

      . La.C.C.P. art. 1092 provides:
      “A third person claiming ownership of, or a mortgage or privilege on, property seized may assert his claim by intervention. If the third person asserts ownership of the seized property, the intervention may be filed at any time prior to the judicial sale of the seized property, and the court may grant him in-junctive relief to prevent such sale before an adjudication of his claim of ownership.
      “If the third person claims a mortgage or privilege on the entire property seized, whether superior or inferior to that of the seizing creditor, the intervention may be filed at any time prior to the distribution by the sheriff of the proceeds of the sale of the seized property, and the court shall order the sheriff to hold such proceeds subject to its further orders. When the intervener claims such a mortgage or privilege only on part of the property seized, and the intervention is filed prior to the judicial sale, the court may order the separate sale of the property on which the intervener claims a mortgage or privilege; or if a separate sale thereof is not feasible or necessary, or the intervener has no right thereto, the court may order the separate appraisement of the entire property seized and of the part thereof on which the intervener claims a mortgage or privilege. “An intervener claiming the proceeds of a judicial sale does not thereby admit judicially the validity, nor is he estopped from asserting the invalidity, of the claim of the seizing creditor. As amended Acts 1962, No. 92, § 1.”

      . Principal of $12,925.89; interest at 8% per annum from June 2, 1977 of $531.37; and attorney fees of 25% on principal,and interest of $3,364.32.

      . Principal of $10,500.00; interest at 10% per annum from June 2, 1977 of $539.60; and attorney fees of $2,634.90.


author: FORET, Judge. WATSON, Judge,

text:
    Robert L. MYERS et al., Plaintiffs-Appellants, v. Lovelace THIBEAUX et al., Defendants-Appellees.
    No. 6636.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1978.
    Dissenting Opinion Oct. 18, 1978.
    Rehearing Denied Nov. 28, 1978.

      Dean, Lomenick & Seemann, P. C., by G. Frederick Seemann, Opelousas, for plaintiffs-appellants.
    Lovelace Thibeaux, in pro. per.
    Gist, Methvin & Trimble by DeWitt T. Methvin, Jr., Alexandria, for defendant-ap-pellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

The sole issue presented on this appeal is whether the rejection of uninsured motorist coverage by Robert L. Myers, Sr. in 1962 constitutes a sufficient rejection of uninsured motorist coverage for a subsequent 1973 policy issued by State Farm Mutual Automobile Insurance Company (hereinafter referred to as State Farm) to Mr. Myers wherein he insured a different automobile with different coverage limits.

Since 1962, State Farm has continuously issued automobile insurance covering vehicles owned by Robert L. Myers, Sr. It is undisputed that Mr. Myers rejected uninsured motorist coverage under his 1962 policy issued by State Farm. In 1973, State Farm issued an automobile insurance policy to Mr. Myers which insured a different automobile with different coverage than previous policies issued to Mr. Myers. Although the 1973 policy does not include uninsured motorist coverage by its terms, appellants argued that such coverage should be read into the policy because Mr. Myers was not given the opportunity to reject uninsured motorist coverage therein. See: Act 494 of 1975 . No questions are presented on this appeal concerning liability or damages with respect to the uninsured defendant, Lovelace Thibeaux. Appellants contend that State Farm should be held liable in solido with Thibeaux.

Act 494 of 1975 amending LSA-R.S. 22:1406 provides in part:

“D. The following provisions shall govern the issuance of uninsured motorist coverage in this state:
(1) * * *
(a) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state . . . unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy . . . provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or select lower limits. Such coverage need not be provided in or supplemental to a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the same insurer.” (emphasis added.)

When the renewal or supplemental policy was issued in 1973, LSA-R.S. 22:1406 D(l) provided in part:

“. . . provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage . . . ”

Appellants argue that there is no rational connection between the policy issued in 1962 and the one issued in 1973, and that uninsured motorist coverage should have been offered to the insured each time that a policy was applied for or renewed. Appellants base this contention on the fact that prior to Act 494 of 1975 the statute did not mention prior rejection by the insured as having a continuing effect on policies subsequently issued in a “renewal or substitute policy where the named insured ha[d] rejected the coverage ... in connection with a policy previously issued to him by the same insurer”. We find no merit in this argument under the facts of this case.

The record indicates that the insurance in effect on the date of the accident, i. e., November 15,1975, was “delivered or issued for delivery” on October 23, 1975, after the effective date of Act 494 of 1975, which amended LSA-R.S. 22:1406 D by adding the sentence above quoted. The initial policy was issued in the year 1962 and in connection with the issuance of that policy, Myers rejected uninsured motorist coverage. This policy was issued only for a period of six months and provided for a renewal every six months as the required renewal premium was paid. In 1973, the substitute policy was issued because Myers changed cars and required slightly different limits and coverage. This coverage, like the 1962 policy, was renewed every six months, the last renewal occurring on October 23, 1975, after the amendment to LSA-R.S. 22:1406 D(l) and prior to the accident on November 15, 1975. In our view, it cannot be seriously questioned that the insurance delivered by State Farm on October 23, 1975, was but a renewal and/or substitute for the insurance initially issued to Myers in 1962.

Since Myers initially rejected uninsured motorist coverage in 1962, and since the last insurance delivered to him by State Farm (a renewal or substitute for the coverage provided in 1962) was on October 23, 1975, we conclude that the very terms of the uninsured motorist statute as amended, and as quoted above, bar his recovery.

For the reasons assigned, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

WATSON, J., dissents and assigns reasons.

WATSON, Judge,

dissenting:

Contrary to what the majority says, the insurance policy in question was issued in 1973, not 1975. On the erroneous premise that it was issued in 1975, the incorrect conclusion is drawn that there is no UMI coverage.

The essential facts are as follows: Myers, Sr. bought an insurance policy in 1962, from State Farm. State Farm claims that he executed a rejection of uninsured motorist coverage in 1962, although the rejection slip does not appear in the record. Be that as it may, State Farm issued a different insurance policy to Myers in 1973, which covered a different automobile and which bore a different policy number.

An accident occurred to Myers, Jr. in 1975, and he claims uninsured motorist benefits.

In 1973, the applicable law in effect was Act 137 of 1972, which provided that an automobile liability insurance policy could not be issued without uninsured motorist coverage except, “That the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage.”

Under the language of the 1973 Act, (the law in effect at the time Myers, Sr. bought his present policy) it would have been necessary for Myers, Sr., at that time, to reject uninsured motorist coverage. The 1962 rejection was not effective in 1973.

In 1974, the law was enacted again as Act 154 of 1974, which left the rejection provision of LSA-R.S. 22:1406 D(l) the same as that in 1972. But, in 1975, a sentence was added at the end of the paragraph which says:

“Such coverage need not be provided in, or supplemental to, a renewal or substitute policy where the named insured has rejected the coverage or selected lower limits in connection with a policy previously issued to him by the named insurer.”

Thus, the inquiry is whether the rejection signed in 1962, which was ineffective in 1973, became effective in 1975.

On two bases I disagree with the majority’s conclusion that the rejection was effective in 1975. First, the policy was not a renewal or substitute. It covered a different car with different coverage and a new number. Second, the 1975 Act made a substantive change in the law and is prospective, not retrospective in application.

I respectfully dissent.

      . Act 494 of 1975, amending LSA-R.S. 22:1406, was effective on September 12, 1975, two months before the subject accident which occurred on November 15, 1975.