text:
    Ronald PHELPS, Appellant, v. STATE of Florida, Appellee.
    No. 78-1384.
    District Court of Appeal of Florida, Second District.
    March 21, 1979.
    Jack 0. Johnson, Public Defender, and David Wm. Boone, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. As to the question of costs, see Arnold v. State, 356 So.2d 862 (Fla. 1st DCA 1978); but cf. Byrd v. State, 353 So.2d 1228 (Fla. 4th DCA 1978).

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Terry Eugene DICKENS, Appellant, v. STATE of Florida, Appellee.
    No. LL-104.
    District Court of Appeal of Florida, First District.
    March 23, 1979.

      Michael J. Minerva, Public Defender, and Randolph Murrell, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant contends that it was improper for the trial court to sentence him without informing him of all factual matters in the pre-sentence investigation (PSI) report and it was error for the trial court to consider his juvenile record in sentencing him. We agree as to the first point and vacate the sentence and remand for resentencing.

During appellant’s sentencing hearing the trial judge asked him, “You were involved with the juvenile authorities quite a bit, weren’t you?” Though part of the PSI had been made available prior to the hearing, there was no mention of appellant’s juvenile record in that portion. Because of the question, appellant suspected there was undisclosed factual material and entered this appeal.

Rule 3.713(b), Fla.R.Cr.P., provides in relevant part:

“The trial judge shall disclose all factual material, including but not limited to the defendant’s education, prior occupation, prior arrests, prior convictions, military service and the like, to the defendant and the State a reasonable time prior to sentencing.”

The PSI has been made available to this court as part of the record of this case and our review of the confidential portion reveals that the rule was not complied with.

While appellant has emphasized in this appeal the possibility of the presence of factual information relating to his juvenile record, we note that there is other factual information which he did not directly contest, perhaps because he did not know about it. The other information includes alleged admissions by appellant of arrests in other jurisdictions as well as further information about the current status of a prior offense which was listed in the noneonfidential portion of the PSI. Under the rule this information, and all other factual information in the PSI, must be revealed to both the defendant and the state a reasonable time prior to sentencing. Bronson v. State, 345 So.2d 872 (Fla. 2d DCA 1977); Campbell v. State, 342 So.2d 1010 (Fla. 4th DCA 1977); Cunningham v. State, 349 So.2d 702 (Fla. 4th DCA 1977). We hereby admonish the Department of Offender Rehabilitation to include all factual information in the non-eonfidential portion of the PSI.

Appellant’s second point, that it was error for the trial court to consider his juvenile record in sentencing, has already been rejected by this court. Bell v. State, 365 So.2d 463 (Fla. 1st DCA 1978). The error by the trial court was not in considering the juvenile record, but in not disclosing it. Bronson v. State, supra. Implicit in Bell v. State, supra, is the holding that the juvenile record, otherwise confidential under Section 39.12, Florida Statutes (1977), is available to the Department of Offender Rehabilitation for preparation of the PSI. The inclusion of this information in the noneonfidential portion of the PSI will still maintain its overall confidentiality since the PSI is revealed only to the defendant, officers of the court, and persons or agencies with a legitimate professional interest in the information. Rule 3.712, Fla.R.Crim.P.

Accordingly, the judgment is affirmed but the sentence is vacated and the cause remanded for resentencing with directions that all factual material contained in the PSI be disclosed a reasonable time prior to resentencing.

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


text:
    Bernard A. WHITE and Rudy L. White, Appellants, v. William Kenneth KISER and Carolina Freight Carriers, a corporation, Appellees.
    No. KK-412.
    District Court of Appeal of Florida, First District.
    March 27, 1979.

      Richard A. Hirsch of Levine, Freedman, Hirsch & Levinson, P.A., Tampa, for appellants.
    Carle A. Felton, Jr. of Boyd, Jenerette, Leemis & Staas, P.A., Jacksonville, for ap-pellees.
   PER CURIAM.

The Whites appeal a jury verdict in favor of appellees which absolved them from liability in a vehicular accident. The sole issue is whether the trial court erred by admitting an accident report into evidence. We agree that it was error.

Mr. White testified that his truck was hit in the rear by Kiser while both were travel-ling in the same lane on the interstate. However, Kiser testified that White was travelling in the emergency lane when suddenly White pulled in front of Kiser, causing Kiser to hit the rear of appellant’s truck. There were no eye witnesses to the accident other than White and Kiser. During appellants’ case in chief, counsel asked the accident reconstruction expert what information he was given in the course of his investigation and the source of the information. The expert replied that he was given an accident report by one of appellants’ attorneys. Counsel also elicited the fact that the expert had received certain photographs, a description of the automobiles made by one of the attorneys, and Kiser’s deposition. It was then established that the expert had the opportunity to review the accident report and the other items of information. The expert then explained the circumstances under which he made several tests, and appellants’ counsel posed several hypothetical questions containing facts in evidence. On cross-examination appellees’ counsel evoked a statement that the expert had read every piece of information supplied him and that each thing entered in some way in his arriving at his opinion. After further cross-examinations and re-direct examinations, appellants rested their case. The first item introduced in appel-lees’ case in chief, over proper objection, was the Florida Highway Patrol accident report which was published to the jury.

Section 316.066, Florida Statutes (1977), prohibits the introduction of an accident report in any civil trial. Although this section is in derogation of the common law and should be strictly construed in the sense that no situation should be held within its operation to which the legislature did not clearly intend to accord the privilege, on the other hand, the statute being in part at least designed to protect the constitutional right against self-incrimination, and to facilitate the ascertainment of the cause of accidents, it should not be so strictly construed as to defeat the legislative purpose. Wise v. Western Union Telegraph Co., 177 So.2d 765, 767 (Fla. 1st DCA 1965). The sections according the privilege have been given a liberal interpretation in favor of the privilege of confidence. See Smith v. Frisch’s Big Boy, Inc., 208 So.2d 310, 313 (Fla. 2d DCA 1968); Standley v. White, 326 So.2d 68 (Fla. 1st DCA 1976) which held certain statements to the reporting officer privileged although the result of according the privilege seemed to reach an inequitable result; Ippolito v. Brener, 89 So.2d 650 (Fla.1956) which held there was no waiver of the privilege, upon timely objection, although the testimony sought to be admitted was for impeachment purposes.

We agree with appellee that this privilege is capable of waiver, but we fail to find any evidence of the necessary acts that constitute waiver here. Soler v. Kukula, 297 So.2d 600 (Fla. 3d DCA 1974) is distinguishable because the record there demonstrated that an officer who was plaintiff’s witness, testified from the investigative reports without objection by plaintiff’s counsel. In that case the privilege did not apply so as to deny defense counsel the right to see and examine the memoranda used by the officer so as to enable him to cross-examine the witness in regard to the testimony given on direct examination. In contrast, the record here reveals that the expert had previously been provided a copy of the accident report, along with other items, and that he generally admitted considering the information in these papers to arrive at his opinion. However, the expert did not testify from the accident report, his opinion was responsive to carefully posed hypotheti-cals which assumed facts in evidence, and the opinions requested had nothing to do with opinions or facts contained in the accident report. Under the circumstances in this case, there was an inadequate predicate laid for the claim of waiver.

Furthermore, the introduction of the accident report was not harmless error since the report, signed by the officer, contained a statement which supported Kiser’s version of the accident. Reversed for a new trial.

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


text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. FLORIDA PROJECT DIRECTORS ASSOCIATION and Norma Richardson, Appellees.
    No. LL-138.
    District Court of Appeal of Florida, First District.
    March 27, 1979.
    George L. Waas, Tallahassee, for appellant.
    Stephen T. Maher, Miami, for appellees.
   PER CURIAM.

The appellant has filed its timely petition for review of a final order of a Department of Administrative Hearing Officer declaring that its Rule 10-2, Part VII, constitutes an invalid exercise of delegated legislative authority.

The Department caused to be published in the Florida Administrative Weekly notice of its intention to incorporate the Departmental Forms Index in the Florida Administrative Code, by reference only. The Florida Project Directors Association objected to this procedure alleging that appellant’s failure to publish the entire index of forms in the Florida Administrative Code would deny to them free and complete access to the forms index. The proposed rule to which objection was leveled provides:

“Department Forms Index. The Departmental Forms Index is hereby incorporated by this rule and made a part of the rules of the Department. Copies of this document and any amendments thereto are available at no more than cost pursuant to the Florida Administrative Code 10-2 and may be obtained from the Office of Assistant Secretary for Administrative Services. . . . ”

Section 120.53, Florida Statutes (1977) requires all agencies to adopt rules which shall include “. . .a list of all forms and instructions used by the agency in its dealings with the public.” The rule that is objected to by the appellees in this case would simply by reference adopt Departmental Forms Index. The hearing officer held that the appellant’s Forms Index cannot be incorporated by reference into the Florida Administrative Code unless it is generally available to affected persons. The hearing officer further observed:

“. If the framers of the Model Rules anticipated that compliance with the Public Records Act would be sufficient to permit incorporation of a rule by reference, there would be no need for the language . . which is generally available to affected persons . . .’ to be set out in the rule.”

The hearing officer concluded by holding that the proposed adoption of a forms index through publication by reference in the Florida Administrative Code does not comport with the requirement for publication of rules set out in the Administrative Procedure Act and the Model Rules of Procedure. Having so concluded, it was ordered and considered that the appellant’s proposed Departmental Forms Index Rule which would adopt by reference such Departmental Forms Index constituted an invalid exercise of delegated legislative authority and that such proposed rule was therefore invalid. We agree.

The only authority for the incorporation of a form index contemplates the incorporation by reference of such index material and form that are generally available to affected persons. We, therefore, conclude that all forms used by the appellant in its dealings with the general public may be adopted by reference in a proposed rule when and only when such proposed rule reference clearly states the title of the form which title must clearly identify such form as to content and purpose. Reference to such listing would place a person in a position to order a particular form rather than to order the complete index in order to then determine what form need be purchased.

The order of the hearing officer is hereby AFFIRMED.

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


text:
    Dorothy PEINE, Appellant, v. WALGREEN DRUG STORE CO., and the Travelers Insurance Company, Appellees.
    Nos. 78-55, 78-851.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Miami, Gilbert & Schumacker, Coral Gables, for appellant.

      Adams & Ward and Amy Shield Levme, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Food Fair Stores of Florida v. Patty, 109 So.2d 5 (Fla.1959); Friedman v. Biscayne Restaurant, Inc., 254 So.2d 831 (Fla. 3d DCA 1971); Castillo v. Baker’s Shoe Stores, Inc., 115 So.2d 427 (Fla. 2d DCA 1959); and see the rule in Commercial Credit Corporation v. Varn, 108 So.2d 638, 640 (Fla. 1st DCA 1959).


author: PER CURIAM. KEHOE, Judge,

text:
    Michael ARKIN and Zurich Insurance Company, Appellants, v. OLD REPUBLIC INSURANCE COMPANY et al., Appellees.
    Nos. 78-211, 78-212.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Haddad & Josephs, Greene & Cooper and Marc Cooper, Miami, for appellants.
    Pyszka, Kessler & Adams, Rentz, McClellan & Haggard and L. Edward McClellan, Jr., Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed on the authority of Insurance Company of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149, 1154 (Fla.1977), and A. United Auto Rental, Inc. v. Bradley, 352 So.2d 579 (Fla. 3d DCA 1977); see American Home Assurance Co. v. City of Opa Locka, 368 So.2d 416 (Fla. 3d DCA 1979); but see State Farm Mutual Automobile Ins. Co. v. Universal Underwriters Ins. Co., 365 So.2d 778 (Fla. 1st DCA 1978).

KEHOE, Judge,

concurring specially.

I concur with the decision of the majority in this case, except I would affirm based upon the authority of the following cases as they relate to the question of coverage under insurance policies which contain identical and mutually repugnant excess insurance clauses. I note that this is not a ease involving the question of indemnity. See Rouse v. Greyhound Rent-A-Car, Inc., 506 F.2d 410 (5th Cir. 1975) (construing Florida law); Consolidated Systems, Inc. v. Allstate Insurance Co., 411 F.2d 157 (5th Cir. 1969) (construing Florida law); Motor Vehicle Casualty Co. v. Atlantic National Insurance Co., 374 F.2d 601 (5th Cir. 1967) (construing Florida law); Continental Casualty Co. v. St. Paul Mercury Fire & Marine Insurance Co., 163 F.Supp. 325 (S.D.Fla.1958); National Indemnity Co. v. The Home Insurance Co., 345 So.2d 1077 (Fla. 3d DCA 1977); World Rent-A-Car v. Stauffer, 306 So.2d 131 (Fla. 2d DCA 1974), and Hartford Accident & Indemnity Company, Inc. v. Liberty Mutual Insurance Company, Inc., 277 So.2d 775 (Fla.1973). But see State Farm Mutual Automobile Insurance Co. v. Universal Underwriters Insurance Co., 365 So.2d 778 (Fla. 1st DCA 1978). See generally Annot., 69 A.L.R.2d 1122 (1960); and 18A Fla.Jur., Insurance § 941 (1971).


text:
    Fernando LOPEZ, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    Nos. 78-596, 78-597.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Horton, Perse & Ginsberg and Edward A. Perse, Stabinski, Funt, Tucker & Levine and Martin E. Levine, Miami, for appellant.
    McCormick, Bedford & Backmeyer and Thomas E. Backmeyer, Miami, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. Roberts v. Carter, 350 So.2d 78 (Fla.1977); Wilder v. Wright, 278 So.2d 1 (Fla.1973).


author: KEHOE, Judge.

text:
    Ronald MARKHAM, Appellant, v. Lester W. THOMPSON, Appellee.
    No. 78-776.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Ainslee R. Ferdie, George Persandi, Coral Gables, for appellant.
    Sams, Anderson, Gerstein & Ward, Miami, Roger A. Bridges, Coral Gables, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a final summary judgment entered by the trial court in favor of appellee, plaintiff below, in his suit on an assignment contract. We reverse.

Our review of the record in this cause reveals, as urged by appellant, that at the time the trial court entered its final summary judgment in favor of appellee there existed justiciable questions of fact in regard to the issue of rescission and that the facts, as shown by the proofs before the trial court, did not justify the imposition of the judgment. See, e. g., Moseley v. Turrell, 354 So.2d 121 (Fla. 3d DCA 1978); Steinhardt v. Lehman, 338 So.2d 64 (Fla. 3d DCA 1976); and Megdell v. Wieder, 327 So.2d 781 (Fla. 3d DCA 1976); and Fla.R. Civ.P. 1.510.

We note that in a previous appeal we stated that the complaint, as amended in this cause stated a cause of action for the remedies sought, but in no way did we rule upon the proofs of fact involved herein. Accordingly, the final summary judgment appealed is reversed and the cause is remanded for further proceedings in the trial court.

Reversed and remanded.


text:
    Richard MOONEY and Barbara Mooney, Appellants, v. INTEGON LIFE INSURANCE CORP., Appellee.
    Nos. 78-1547, 78-1565.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.

      Taylor, Brion, Buker & Greene, Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard, Miami, for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Appeal No. 78-1565 seeks review of an order denying a motion for summary judgment; as such, it is not appealable. See: Rule 9.130, Florida Appellate Rules. Therefore, this appeal is dismissed.

Counsel for the appellee, in Case No. 78-1547, having filed a confession of error, the summary final judgment entered on the 5th day of July, 1978 be and the same is hereby reversed and set aside, and this cause is returned to the trial court for further proceedings.


text:
    Henriot Victorin PREVILOR, Appellant, v. Roseline PREVILOR, Appellee.
    No. 78-1784.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Frank Murray & Associates, P.A., and Michael Shane, Miami, for appellant.
    No Appearance, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

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


text:
    S. Charles ADAMS, Appellant, v. Ann Shepherdson ADAMS, Appellee.
    No. 78-11.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Osinski, Beyer & Luzim, Coral Springs, for appellant.
    Sinclair, Louis, Siegel & Heath and John L. Zavertnik, Miami, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

The order appealed from entered upon remand after our decision in Adams v. Adams, 357 So.2d 264 (Fla. 3d DCA 1978), is affirmed in all respects except one. The contempt order as amended contains no provisions for the husband S. Charles Adams to purge himself from the thirty day jail sentence imposed by paying, as previously ordered, the child support arrearages and child support payments as they become due. Such explicit purge provisions are essential to this civil contempt order. We, accordingly, reverse the order under review as to this issue and remand the cause to the trial court with directions to insert the appropriate purge provisions in the contempt order. Spencer v. Spencer, 311 So.2d 822 (Fla. 3d DCA 1975); Williams v. Williams, 277 So.2d 542 (Fla. 2d DCA 1973); Lord v. Lord, 104 So.2d 624 (Fla. 2d DCA 1958).

Affirmed in part; reversed in part and remanded.


text:
    Jorge ACOSTA, Appellant, v. The STATE of Florida, Appellee.
    No. 79-267.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Jorge Acosta, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, 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 detail of his motion is affirmed.


text:
    Luis GURIDI, a/k/a Luis Guridi Gonzalez, Appellant, v. The STATE of Florida, Appellee.
    No. 79-457.
    District Court of Appeal of Florida, Third District.
    March 27, 1979.
    Luis Guridi, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


text:
    STATE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, on Behalf of Joyce BYRD, Appellant, v. James Leon JACKSON, Appellee.
    No. KK-188.
    District Court of Appeal of Florida, First District.
    March 29, 1979.
    Joseph W. Howard, Asst. Court Commissioner, Jacksonville, for appellant.
    No appearance for appellee.
   PER CURIAM.

The Department of Health and Rehabilitative Services (HRS) appeals, on the behalf of Joyce Byrd, an order of the trial court finding that appellant failed to prove paternity by the greater weight of the evidence. The proceedings at the hearing were not recorded. However, the record does show that a default was entered against the ap-pellee, James Jackson and there is no indication that the default was vacated. At the subsequent hearing, various letters were admitted into evidence which were addressed to Ms. Byrd and signed by appellee. Portions of these letters contain unequivocal statements by appellee admitting paternity. Accordingly, the record before us shows that appellant proved paternity by the greater weight of the evidence. Therefore, we reverse and remand for a new trial.

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


author:
PER CURIAM. TATE and DIXON, JJ., MARCUS and CALOGERO, JJ., TATE, Justice.
     BLANCHE, Justice,

text:
    STATE of Louisiana v. Leonard BROWN.
    No. 61810.
    Supreme Court of Louisiana.
    Sept. 14, 1978.
    On Rehearing March 5, 1979.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Maurine A. Carroll, William L. Brockman, Brian G. Meissner, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

TATE and DIXON, JJ.,

dissent. A defendant should not be required to wear a prison jumpsuit at his trial, however attractive, when he objects and desires to wear his own civilian clothes.

MARCUS and CALOGERO, JJ.,

concur, for reasons assigned by TATE and DIXON, JJ., but do not consider that the error warrants reversal of the conviction in this instance.

On Rehearing

TATE, Justice.

The defendant was charged with armed robbery, La.R.S. 14:64. On the morning of the trial, in the judge’s chambers his counsel had objected to the defendant being tried in prison clothing, an orange-yellow jumpsuit. The trial court refused to allow the defendant an opportunity to change into his own civilian clothing. The defendant was convicted, by a jury vote of 10-2.

On original hearing, we affirmed the defendant’s conviction. Two justices dissented, however, stating: “A defendant should not be required to wear a prison jumpsuit at his trial, however attractive, when he objects and desires to wear his own civilian clothes.” Two other justices, in concurring, noted their agreement with the principle stated by the dissenting justices, but felt that the error might not warrant reversal in this instance.

On the defendant’s application, we granted rehearing.

I.

Our state jurisprudence has previously recognized, in effectuation of the constitutional right of the accused to a presumption of innocence, that the accused may insist that he be brought into court with the appearance, dignity, and self-respect of a free and innocent man and not garbed in prison clothes. State v. Yates, 350 So.2d 1169 (La.1974); State v. Tennant, 262 La. 941, 265 So.2d 230 (1972). We held in these decisions, however, that reversible error is not presented unless the accused established the deprivation of his right by clear-and convincing evidence.

(At least two of these decisions are clearly distinguishable from the present, where despite his pre-trial objection an accused was required to remain in prison clothes, instead of his own civilian clothing, during the entire trial on the merits.)

We granted rehearing primarily because of the defendant’s strong contention in his application that our test of reversible prejudice, as above formulated, is inconsistent with constitutional requirements.

The defendant relies upon the United States Supreme Court’s pronouncement in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), that “the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes,” 425 U.S. 512, 96 S.Ct. 1697, and its indication that “the probability of deleterious effects on fundamental rights calls for close judicial scrutiny,” 425 U.S. 504, 96 S.Ct. 1693.

II.

In Estelle v. Williams, cited above, the United States Supreme Court ultimately refused, in post-conviction proceedings, to set aside a Texas conviction. However, it clearly indicated that, upon direct review, an error of constitutional dimensions occurs if an accused, over his objection, is compelled to stand trial in identifiable prison garb.

In Estelle, the defendant had made no objection to being tried in prison garb before the jury. He first raised the issue as reversible in his post-conviction proceedings. In rejecting this post-conviction attack, the court noted there was no finding that non-bailed defendants in the trial court were compelled to stand trial in prison garb, if timely objection was made to the trial court.

Under these circumstances, the court concluded that, for purposes of federal habeas corpus review of a state conviction, “the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of a compulsion necessary to establish a constitutional violation.” 425 U.S. 512-13, 96 S.Ct. 1697.

The present, however, concerns a direct appeal from a conviction, where the defendant was compelled, over his objection, to stand trial in an orange-yellow jumpsuit, the jail garb of prisoners at the parish jail, despite his objection and despite his counsel’s request that he be tried in his own civilian attire.

Under the circumstances shown, reversible error occurred. As the nation’s high tribunal stated in Estelle v. Williams, at 425 U.S. 503-05, 96 S.Ct. 1692-93 (footnotes and citations omitted):

“The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. * * * The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. * *

“To implement the presumption, courts must be alert to factors that may undermine the fairness of the fact-finding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. * * *

“The actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But this Court has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny. * * * Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience.

“The potential effects of presenting an accused before the jury in prison attire need not, however, be measured in the abstract. Courts have, with few exceptions, determined that an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system. * * * This is a recognition that the constant reminder of the accused’s condition implicit in such distinctive, identifiable attire may affect a juror’s judgment. The defendant’s clothing is so likely to be a continuing influence throughout the trial that ... an unacceptable risk is presented of impermissible factors coming into play. * * * ”

III.

The state, first, argues that the orange-yellow jumpsuit was not necessarily identifiable as a prison garb, despite the fact that all prisoners in the parish jail were so clothed. The trial court itself, when it overruled the objection, stated that it didn’t think the jumpsuit would be recognized as prison clothing.

We need not weigh the defendant’s argument that we should take judicial notice that prospective jurors, seeing defendants or prisoners similarly clothed in any courtroom in which they sat, would common-sensibly conclude that the similar jumpsuits were prison garb. Aside from the circumstances that the victim himself testified about prisoners in a line-up all being clothed in jumpsuits, recently in State v. Leggett, 363 So.2d 434 (La.1978), we ourselves had occasion to disapprove the apparently not uncommon practice in the present judicial district of requiring prisoners to undergo trial in the yellow jumpsuits issued for prison wear. We there stated, 363 So.2d 438:

“ * * * When the defense objects before the jury is impaneled and the objection is not simply a dilatory tactic, then the state is not prejudiced by allowing defendant the extra time to change to civilian clothing. The trial court erred in not allowing the defendant this right. Defendant should not be required to wear a prison jumpsuit at the trial, however attractive, if defendant objects and desires to wear his own civilian clothing.”

IV.

The state finally contends that no prejudice was caused by the error, since the victim (the only eyewitness) had identified the accused as the robber, and since some twelve hours later the accused was found in possession of some of the stolen goods.

The defendant did not put on any witnesses in his defense. In the state’s case, the defense cross-examination was chiefly directed at impeaching the credibility of the eyewitness identification by the victim of the robbery, and in suggesting that such identification resulted from impermissible suggestiveness of a photograph shown the victim and of the lineup itself at which the witness had identified the accused. (The apparent thrust of this defense was that, while the accused may have been found in possession of the stolen automobile, he was not himself the person who had committed the armed robbery.)

Thus, while questioning the reliability of the victim’s identification of him as the robber, the accused primarily relied upon his constitutional presumption of innocence, La.Const. of 1974, Art. 1, Section 16, and the state’s duty to prove his guilt beyond a reasonable doubt. La.R.S. 15:271 (1978); La.C.Cr.P. art. 804.

The accused’s compelled attendance in distinctive prison garb at his jury trial impaired the very presumption of innocence upon which the accused primarily relied. As the United States Supreme Court noted in Estelle v. Williams, quoted above, the constant reminder to the jurors implicit by such distinctive, identifiable attire is so likely to be a continuing influence which impairs the presumption of innocence as to be an unacceptable risk of prejudice.

Under the circumstances we are unable to say that the error of compelling the witness to be tried, over his objection, in prison garb was so harmless as not to be a substantial violation of his constitutional rights under the circumstances.

The situation is distinguishable from that in State v. Leggett, 363 So.2d 434 (La.1978), where the prejudicial effect was held to be minimal and therefore harmless. There, for instance, the defendant took the stand and admitted participation in the robbery.

Decree

For the reasons assigned, therefore, we reverse the defendant’s conviction and sentence, and we remand this case to the district court for a new trial in accordance with law.

REVERSED AND REMANDED.

BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice,

dissenting.

I respectfully dissent.

The record shows that the defendant is guilty of the crime charged beyond a reasonable doubt. The proof consisted of an “eyeball witness,” who maintained his certainty that it was the defendant who robbed him despite cross-examination and suggestions that his identification was sponsored by suggestive tactics of the police. Furthermore, the defendant was found in possession of the victim’s watch, ring and automobile. One found to be in the unexplained possession of property recently stolen is presumed to be the thief. There is no evidence to rebut this presumption.

On the other hand, I cannot defend the trial judge’s refusal of the defendant’s request, especially when the law is so clear on the subject. By his action, the State will be put to the expense of another trial, with its attendant waste of precious judicial time.

My consideration that there was no prejudice to the defendant and the attendant wastefulness of another trial occasions this dissent.

       Judge Pike Hall, Jr., Louisiana Court of Appeal, an Associate Justice Ad Hoc. Second Circuit, participated in this decision as

      . In Yates, we noted that the garb was not distinctively that of a prison (since the normal jail uniform was orange (as here), while the accused was wearing blue denim), that (unlike the present instance) no objection had been made before the prisoner’s appearance in prison garb during voir dire examination and no request had been made to change into civilian clothes, and that during the noon recess the accused was permitted to change into civilian clothes, with no objection or request for a mistrial made until after the prejudice was cured.
      In State v. Kinchen, 290 So.2d 860 (La.1974), the accused and another prisoner were seated briefly (for ten minutes) in the courtroom while preliminary matters were being considered before the trial. As soon as the trial judge became aware, he immediately ordered the accused to be returned to the jail to be dressed in civilian clothes. Because some of the jury ve-nire may have been seated in the courtroom, the accused’s counsel moved to excuse the entire jury venire. We found no reversible error in the denial, noting certain factors such as the absence of any showing that the jurors had recognized the individual charged to be the prisoner who had sat for ten minutes in the jury box, the defendant being dressed in his own clothes for the trial later in the morning.
      See also State v. Thomas, 325 So.2d 593 (La.1976), where similarly no objection was made or prejudice shown by the accused’s initial appearance in non-distinctive prison garb, and where he appeared in civilian clothes for the bulk of the trial.

      . We note that, despite the apparent strength of the state’s case (allegedly in part based upon certain identification by him of the victim, without impermissive suggestiveness), the jury’s vote for conviction was 10-2, not unanimous.


author: SUMMERS, Chief Justice. PER CURIAM.

text:
    STATE of Louisiana v. Danny WELCH.
    No. 62390.
    Supreme Court of Louisiana.
    Jan. 29, 1979.
    Rehearing Denied March 5, 1979.

      Lawrence M. Lehmann, Miriam G. Waltzer, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Bridget E. Bane, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Chief Justice.

The Grand Jury of Orleans Parish returned an indictment on October 21, 1976 charging that on October 12, 1976 Danny Welch committed aggravated rape upon a named female. La.Rev.Stat. 14:42 (1975). After trial the jury returned a verdict of guilty of attempted aggravated rape, and the trial judge sentenced defendant to serve twenty-five years imprisonment at hard labor without benefit of probation or parole. In brief the defense argues eleven contentions of error on this appeal.

Arguments I and II: On the day of trial, before the jury venire was brought into the courtroom, defense counsel filed a motion to be furnished with “a copy of any and all information, data, computer printouts, and lists or the fruits thereof in the possession of the Assistant District Attorney who will try this cause pertaining to the prior voting record of each and every prospective juror in the present jury panel that will be used in the trial of this cause.”

The prosecutor responded that the State had no such computer print-outs nor the fruit of such and did not intend to use any in the trial. And, if the State did intend to use a compilation of past voting records of jurors, the defense was not entitled to these records; furthermore, the defense had the same access the State had to that information from the court records.

The trial judge recognized that the State had no such computer print-out. Insofar as a compilation of the voting record of the jurors was concerned, he was of the opinion the State was not required to furnish that record. To this ruling the defense objected and assigned as error the refusal to furnish the voting records and the designation of them as the “work product” of the State.

It should be noted that the record does not indicate that the trial judge referred to a compilation of the voting record of jurors as a “work product” of the State.

In State v. Wright, 344 So.2d 1014 (La.1977), we recognized the rule enunciated by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). By its holding the Hickman court announced that a party is not entitled to discover written statements in the files of the attorney for the adverse party or memoranda made by him in anticipation of litigation, without any showing of necessity for the production of such material or any demonstration that the “denial of such production would unduly prejudice the preparation of petitioner’s case or cause him any hardship or injustice.” 329 U.S. at 509, 67 S.Ct. at 392; also 344 So.2d at 1017.

On this premise, in a case involving a defense discovery motion for a list of voting records of prospective jurors compiled by members of the district attorney’s office, the Court in State v. Wright held:

“Consequently, defendant was required to make in support of his motion proper showing that production of the voting records of the jurors was necessary in order to prevent undue prejudice to his case, hardship or injustice. In order to make such a showing, however, he would have been required to demonstrate that he could not practicably obtain information from other sources, and that the State intended to use it in selecting the jury. Had defendant done so, he should have been given the information before voir dire or else allowed to question the prospective jurors on the subject.” See also State v. Swift, 363 So.2d 499 (La.1978); State v. Singleton, 352 So.2d 191; State v. Holmes, 347 So.2d 221 (La.1977).

Aside from conclusory allegations on the part of defense counsel no showing has been made to meet the test prescribed by our decisions. Unless the defense shoulders this burden, the State need not negate the requirement.

These assignments are without merit.

Argument III: Defendant complains that the trial judge was in error when he denied defense counsel the right to question jury veniremen during voir dire examination about their past jury experience. At the time the offense charged in this case occurred on October 12,1976, and when this case was tried on May 23, 24 and 25, 1977, the rule of law then prevailing vested discretion in the trial judge where questions involving the interrogation of veniremen concerning previous jury service were concerned. State v. Roquemore, 292 So.2d 204 (La.1974); State v. Spencer, 257 La. 672, 243 So.2d 793 (1971); State v. Martin, 250 La. 705, 198 So.2d 897 (La.1967).

Shortly after the trial of the instant case, this Court decided State v. Holmes, 347 So.2d 221, on June 20, 1977. That ease reversed the former jurisprudence on the subject and established a new rule to the effect that it was permissible to ask pro-speetive jurors questions concerning prior jury service such as: whether they had served on a jury in a criminal trial; what was the charge; what was the verdict, etc. Thereafter, in State v. Swift, 363 So.2d 499 (La.1978), we reviewed the criteria for retroactive application of a new rule of law. Because the Holmes decision did not substantially enhance the integrity of the fact-finding process, it was decided that the rule in Holmes was to be applied prospectively to prosecutions begun after June 20, 1977.

In the instant case, therefore, the trial judge relying on the rule of law then prevailing, did not abuse his discretion when he denied defense counsel’s attempt to question prospective jurors concerning their previous jury service.

Argument IV: Contending that prospective jurors should not have been excused for cause simply because they indicated they had scruples against the death penalty, defense counsel argues the accused was denied his constitutional right to be tried by a jury impartially drawn from a cross section of the community.

During voir dire six jurors were successfully challenged for cause by the prosecutor when they indicated that they were opposed to the death penalty or had such doubts about its application that they would be unable to make a fair determination of defendant’s guilt.

Louisiana’s law on the subject is set forth in the following pertinent part of Article 798 of the Code of Criminal Procedure:

“It is good cause for challenge on the part of the state, but not on the part of defendant, that: .
“(2) The juror tendered in a capital case who has conscientious scruples against the infliction of capital punishment and makes it unmistakably clear (a) that he would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before him, or (b) that his attitude toward the death penalty would prevent him from making an impartial determination as to the defendant’s guilt; .

Based upon this authority and an examination of the record, we are satisfied that all prospective jurors excused for cause over defense objection testified that they were either completely opposed to the death penalty or that their attitude toward the penalty would prevent them from making an impartial determination as to defendant’s guilt.

The rule expressed in Article 798 is in keeping with the decision of the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). There the Court approved in principle the State’s right to exclude from the jury in a capital case'those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them. Nor did the Court condemn the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to defendant’s guilt.

As we understand the defense argument in brief, however, its claim is that in order to be tried before a jury which is impartially drawn from a cross section of the community jurors opposed to capital punishment may not be excluded. To do so, it is contended, deprives defendant of representation on the jury of an identifiable class of citizens. The effect of that exclusion is said to deprive defendant of his constitutional right to due process and equal protection of the law.

There is no authority for defendant’s position. A juror who declares he cannot abide by the law and impose the death penalty when the law ordains that it should be imposed is not legally acceptable. Nor is a juror acceptable when he concedes that his attitude toward the death penalty would prevent him from making an impartial determination as to defendant’s guilt. What is required of jurors is that they abide by the law applicable to the case and judge the defendant’s guilt or innocence impartially.

Another factor militating against prejudice to the defendant is the fact that the jury did not return a verdict of guilty, finding the defendant guilty of attempted aggravated rape, a crime not punishable by death. Moreover, the death penalty has been declared unconstitutional when imposed for rape of an adult female.

Argument V: The assignments of error relied upon by the defense to support its argument on this point concerns the prosecutor’s reference to matters during trial and in closing argument which the defense avers were not supported by the evidence.

Specifically, the objectionable reference was to scratch marks on the body of defendant shortly after the offense was committed. We find the defense contention to be without merit. The prosecutor’s reference to scratch marks on defendant’s body was well within the scope of the trial evidence. La.Code Crim.Pro. art. 774.

Defendant’s brief asserts that “prior testimony revealed during the trial that nothing could be seen on the photographs taken by the police, and that the presence of scratch marks was mere conjecture on the part of the police officers.” This statement is not well-founded. As seen in the transcript, Officer Deborah Langla testified that she went to the hospital on the day of the crime and observed scratch marks on Welch’s torso. She described these scratches in detail. She also testified that she took pictures of the marks, which she stated appeared to be scratch marks. The photographs were admitted into evidence without objection and displayed to the jury. Scratch marks appear thereon. Officer Sheila Bass also testified that she observed marks on defendant’s body.

The defense also complains that the following statement by the prosecutor was not supported by the evidence: “. . . . and I am telling you that we are fortunate that we aren’t here for a rape-homicide. That he did not change his mind or let something change it.”

This testimony of the victim supports the prosecutor’s statement:

“. . . and he grabbed me around the throat like this. And he put the bag over my mouth. And I couldn’t breathe and he stuck his thumb down my throat with the bag on it. He said, he said, “You can either do what I say or I’ll kill you. I’m going to kill myself today so it won’t matter what I do to you.”

Argument VI: Error is assigned by the defense because the State did not require that a sperm motility test and a secreter test be performed by the Coroner’s office in connection with the sperm found in the vagina of the victim.

It is not incumbent upon the State to perform any scientific tests on any evidence in its possession. Its failure to do so is a matter which addresses itself to the weight of the evidence, and in this case the State’s failure was to be assessed by the jury.

Argument VII: A charge is made that trial counsel for Welch was ineffective because he failed to move for the suppression of a suicide note written by the defendant.

From the record it is apparent that it was part of the defense trial strategy to use the note to provoke jury sympathy for the accused. Defense counsel asked Welch to read the note to the jury and to explain the text. There was no explicit reference to the rape in the note. It may be inferred from the verdict that, despite the violence of this crime, the defense strategy was effective. Moreover, the entire effort was competent and industrious.

Argument VIII: In this argument it is asserted that the testimony of Officer Sheila Bass was improperly admitted. Officer Bass was asked whether a description of defendant’s clothes had been furnished to her by the victim. Without stating what that description was, the trial court allowed the State’s witness to testify that the description of defendant’s clothes given by the victim matched the clothes of defendant. This is said to be a conclusionary statement based upon the witness’ opinion, an opinion she was not qualified to express.

We think the contention is without merit. No questions involving a knowledge obtained only by means of a special training or experience is involved in the prosaic comparison of clothing. There is therefore no necessity to qualify a witness as an expert to express such an opinion. La.Rev.Stat. 15:464-467.

Argument IX: Here defense counsel argues that his cross-examination of the victim was unduly limited. The assignment of error relied upon refers to a portion of the transcript where defense counsel’s cross-examination departed from inquiry into facts relevant to the offense and sought to inquire into whether the victim’s sister had received shock treatments. The prosecutor objected that the question should not be allowed until a showing was made that it was relevant. When defense counsel made no response, the trial judge directed defense counsel to move to another subject. The ruling is assigned as error.

It is the defense theory that the purpose of this line of questioning was to show bias against the defendant on the part of the victim and her family, and this bias was the motive underlying the charge which resulted in this prosecution.

At best the argument is tenuous. In the protracted cross-examination which preceded and followed the contested ruling, defense counsel was given wide latitude to explore the theory advanced in brief at this time. However, when the State objected to the single question at issue here, defense counsel made no effort to explain the relevancy of the question. Taken in the context of the trial, the ruling of the trial judge was not an abuse of his authority and discretion in the conduct of the discipline of his court. La.Rev.Stat. 15:275.

Argument X: To support the defense contention that the victim and her mother conspired to falsely accuse him of rape in order to prevent any further contact by defendant with the victim’s family, an effort was made by defense counsel to interrogate Dr. Cook, a part time psychiatric social worker, in order to impeach the testimony of the victim’s mother. However, defense counsel did not adhere to the procedure prescribed by law in such cases.

The victim’s mother was a defense witness. No proper foundation had been established by the defense for the impeachment of its own witness as Section 487 of Title 15 of the Revised Statutes requires:

“No one can impeach his own witness, unless he has been taken by surprise by the testimony of such witness, or unless the witness shows hostility toward him, and even then, the impeachment must be limited to prove contradictory statements.”

Surprise in the sense of the last preceding article, as defined by Section 488, does not arise out of the mere failure of the witness to testify as expected, but of his testifying upon some material matter against the party introducing him and in favor of the other side.

Although hostility is not defined by statute, this Court has suggested that hostility turns on a showing that the witness’ interest is on the side of the opposite party to such an extent that he or she is unlikely to give a true account of the transaction. State v. Willis, 241 La. 796, 131 So.2d 792 (1961).

In the present case, it is arguable that defense counsel did not establish either that he was surprised by the testimony of the victim’s mother or that she was hostile. In any event, in order to impeach its own witness through prior inconsistent statements it was necessary that the defense comply with Section 493 of Title 15:

“Whenever the credibility of a witness is to be impeached by proof of any statement made by him contradictory to his testimony, he must first be asked whether he has made such statement, and his attention must be called to the time, place, and circumstances, and to the person to whom the alleged statement was made, in order that the witness may have the opportunity of explaining that which is prima facie contradictory. If the witness does not distinctly admit making such statement, evidence that he did make it is admissible.”

No close questioning of the witness concerning any prior statements she made was undertaken by the defense. At no time was her attention called to her prior statement, or the time, place, and circumstances and the person to whom the alleged statement was made. Under these circumstances the trial judge properly denied the defense the right to impeach its own witness.

Argument XI: The defense submits that the twenty-five year sentence is clearly excessive and that the trial judge gave no reasons for the sentence imposed as required by Article 894.1 of the Code of Criminal Procedure.'

The argument cannot be sustained. At the time of sentencing the defense made no objection that the sentence was excessive. Insofar as compliance with Article 894.1 is concerned, the Article was not enacted until after sentencing and is therefore inapplicable to this case.

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

DIXON, CALOGERO and DENNIS, JJ., concur.

BLANCHE, J., not participating.

On Application For Rehearing

PER CURIAM.

The defendant was convicted of attempted aggravated rape, La.R.S. 14:27, 42 (1975), and sentenced to twenty-five years imprisonment.

The defendant’s application for rehearing calls to our attention that, whereas the transcript reflects that the trial judge sentenced the defendant to “twenty-five years imprisonment in the custody of the Department of Corrections,” the minute entry is in conflict with the transcript. The minute entry indicates the defendant was sentenced “to serve 25 years imprisonment at hard labor, without benefit of probation or parole.” (Italics ours).

At the time of the crime in this case, the penalty for aggravated rape was death. La.R.S. 14:42, as amended by Act 612 of 1975 (prior to amendment by Act 343 of 1977). The penalty for attempt to commit a crime punishable by death was imprisonment at hard labor for not more than fifty years. La.R.S. 14:27(D)(1) (as amended by Act 132 of 1975).

Therefore, the sentence of 25 years imprisonment for attempted aggravated rape could not, as a matter of law, be without benefit of parole.

Our affirmance of the conviction and sentence is hereby modified to correct the inadvertent statement that the sentence was without benefit of probation or parole. We reserve the state’s right to apply for a rehearing within fourteen days as to this modification of our original opinion.

STATEMENT IN ORIGINAL OPINION AMENDED; WITH THIS AMENDMENT, APPLICATION FOR REHEARING IS DENIED.

BLANCHE, J., not participating.


author:
TATE, Justice.
     SUMMERS, C. J.,

text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. Ford E. STINSON, Respondent.
    Nos. 59855, 61716.
    Supreme Court of Louisiana.
    March 5, 1979.
    Rehearings Denied April 9, 1979.

      Wellborn Jack, Sr., Shreveport, Ford E. Stinson, Jr, Benton, for respondent.
    Leonard Führer, Alexandria, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, John F. Pugh, Thibodaux, A. Russell Roberts, Metairie, John B. Scofield, Lake Charles, Thomas 0. Collins, Jr., New Orleans, Louisiana State Bar Ass’n, Committee on Professional Responsibility, for petitioner.
   TATE, Justice.

This court has original jurisdiction of disciplinary proceedings against a member of the Louisiana bar. La.Const. of 1974, Art. 5, Section 5(B). The Louisiana State Bar Association, appearing through its Committee on Professional Responsibility, instituted the present disciplinary proceedings against Ford E. Stinson. Article XV of the Articles of Incorporation of the Association (1971), approved by us as a rule of this court. 21A West’s LSA Revised Statutes 119 (1974).

In accordance with the procedures authorized by Article XV, a commissioner was appointed and heard evidence. In the commissioner’s scholarly and fair detailed report, he concluded that the respondent’s conduct provided an adequate basis for the court to impose a serious disciplinary penalty.

The commissioner’s hearing resulted from charges set forth in two petitions for disciplinary action.

1. Charges of Misconduct, (Our) Docket No. 59,855

The first petition represents three instances of client dissatisfaction: 1. The respondent’s unjustified delay and neglect in settling the Flannery succession; 2. The respondent’s neglect and alleged failure to make proper preparation for trial in the representation of Loftin, and his commingling and use for a slight period of funds ($3,085) received in settlement of the Loftin claim; and 3. The respondent’s delay in expeditiously handling matters representing a Mrs. McDowell, including the Smith succession, and the commingling of $1,167.60 of client’s funds in the respondent’s bank account.

By the respondent’s conduct, his clients were forced to incur regrettable and unnecessary delay in receiving the final settlement of their claims. Further, at least in the Loftin case, he not only deposited the settlement check in his own account but additionally for at least three days used the client’s funds.

Nevertheless, taking account of several mitigating factors, including the respondent’s ready willingness (in advance of any complaint to the committee) to reduce his fee and to pay interest or otherwise compensate for the delay occasioned by his negligence, the commissioner concluded that these charges by themselves would not justify the most serious disciplinary action (with the possible exception of the three-day misuse of the Loftin settlement funds).

2. Charges of Misconduct, (Our) Docket No. 61,716

The commissioner nevertheless concluded that serious disciplinary action is warranted, considering the totality of the evidence, most particularly because of the respondent’s misconduct in connection with the charges proved in connection with the second petition.

As summarized by the commission’s brief, with regard to this misconduct the evidence taken at the hearings indicate as a conclusion of law and fact that the respondent attorney, in representing Mr. and Mrs. J. M. Fuller and Terri L. Colley in a personal injury claim against three insurers, did “[rjeceive on their behalf on or about 22 February 1977 the sum of $26,000.00; respondent did commingle said sum with his own and did convert same to his personal and/or business use until on or about 29 July 1977, some five (5) months later, and did further misrepresent and withhold information as to the receipt of said sum of $26,000.00 in settlement.”

In argument before this court, the disciplinary committee correctly points out that the drastic remedy of disbarment is the usual penalty for commingling of client funds of the extent here indicated, and its conversion (use or borrowing) by the lawyer, and that the mere fact of restitution by the attorney has not been regarded as sufficient reason to excuse imposition of this penalty.

The committee cites to us the following decisions to this effect: Louisiana State Bar Association v. Weysham, 307 So.2d 336 (La.1975); Louisiana State Bar Association v. Levy, 292 So.2d 492 (La.1974); Louisiana State Bar Association v. Brown, 291 So.2d 385 (La.1974); Louisiana State Bar Association v. Selenberg, 270 So.2d 848 (La.1972); Louisiana State Bar Association v. Jacques, 260 La. 803, 257 So.2d 413 (1972); Louisiana State Bar Association v. Blum, 256 La. 530, 237 So.2d 366 (1970); and Louisiana State Bar Association v. Haylon, 250 La. 651, 198 So.2d 391 (1967).

Conclusion

Nevertheless, we ultimately conclude that, while severe disciplinary action is warranted by the respondent’s conduct, the drastic remedy of disbarment is not appropriate under the present facts and circumstances.

1. Here, unlike in the cited decisions, the complete payment to the client of all monies due occurred prior to any disciplinary complaint being made. Unlike in the cited instances, there is no indication that, but for the disciplinary proceedings, the lawyer might not ever have paid his client the sums due, and most of the decisions reflect theft from or an intent to defraud a client. In short, the present respondent’s conduct is indicative more of procrastination and carelessness than dishonesty.

2. The six-month delay in turning over to the client the money collected for him is inexcusable. It appears, however, to have been motivated more by the lawyer’s desire to complete collection of a claim against another insurance policy and to make a final adjustment of the entire representation, than by any desire to misuse the client’s money.

Absolutely no excuse justifies the lawyer’s response to his client on the five or six inquiries over the five months that the papers had not been completed, nor the lawyer’s failure to turn over to his client the latter’s money. On the other hand, the misconduct was primarily motivated by a desire to put off computing amounts due (until the medical payments coverage proceeds were received) rather than by greed or a dishonest intent to use the client’s money.

Por instance, the lawyer volunteered to and did deduct over three thousand dollars from his $6,500 fee, which was itself a one-fourth rather than the usual one-third contingency fee. As the client admitted, the lawyer also offered to waive his fee entirely if the client was dissatisfied, but the client was unwilling to accept this offer since he realized that the lawyer had earned his fee. (This was all in advance of any complaint to the bar association.)

S. Likewise, little excuse can be offered for the lawyer’s misconduct in failing to segregate his client’s money in a separate account, and for permitting his personal balance to fall from time to time to an amount low enough to encroach on the sums in the account belonging to the client. The record shows the lawyer to be a highly individualistic sort of person, who felt that his maintaining collateral in the bank and cash in two special safety deposit boxes for the purpose of securing his clients was sufficient to protect the matter, despite his failure to segregate his client’s money in a separate account as required by the disciplinary rules of the bar association. (The lawyer now maintains a special account into which he deposits his clients’ monies.)

The record reflects that the respondent lawyer, now aged 64, has practiced law with an honorable reputation for some 42 years and has in the past (before his retirement from political life) served in the legislature with distinction for 24 years. During the period of the charges, it reflects the lawyer to have run a busy one-man law-practice, as well as having engaged in an active civic and public service and in farming activities.

The disciplinary committee points out, correctly, that a lesser disciplinary penalty is not justified simply because of the respondent’s age, good reputation during his long practice of law and public service, and honorable position as a community leader — perhaps the converse is true.

On the other hand, we do not feel that the most severe sanction of disbarment is required, under the totality of the evidence. This shows:

That the respondent attorney did good and honest work for his clients (if slowly); that no client lost money by his actions (nor is there the slightest hint of dishonest intent in the lawyer’s procrastination); that indeed of his own volition (before any bar complaint) in each instance he attempted to minimize any client loss occasioned by his own delay by cutting his fees, which were in any event minimal rather than excessive; and that the lawyer had attempted to rectify his negligence or delay before any complaint was made to the disciplinary authorities.

As we stated in Louisiana State Bar Association v. Cox, 252 La. 978, 215 So.2d 513, 515 (1968): “The primary objective of such disciplinary action is to protect the courts and the public. No greater penalty should be imposed than that which is required to accomplish this purpose.” Under all the circumstances here reflected, we think a suspension of three years will accomplish the disciplinary purpose.

Decree

Accordingly, it is ordered that Ford E. Stinson be suspended from the practice of law in the State of Louisiana for a period of three years, effective upon the date of finality of this decree. All costs of this proceeding shall be paid by the respondent.

ATTORNEY SUSPENDED FROM PRACTICE OF LAW FOR THREE YEARS.

SUMMERS, C. J.,

dissents. I am of the view that suspension from the practice for two years is adequate under the facts of this case.

       Judge Pike Hall, Jr., of the Louisiana Court of Appeal, Second Circuit, participated in this decision as an Associate Justice Ad Hoc.