author: DAUKSCH, Judge.

text:
    Donald Ray STIPP, Appellant, v. STATE of Florida, Appellee.
    No. 78-517.
    District Court of Appeal of Florida, Fourth District.
    June 6, 1979.
    Rehearing Denied July 18, 1979.

      Alan J. Braverman of Mastriana & Brav-erman, P. A., Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   ON PETITION FOR REHEARING

DAUKSCH, Judge.

The petition for rehearing is granted and the conviction of appellant is reversed. In doing so we join with the decisions recently rendered in State v. Herrera, 365 So.2d 399 (Fla. 3d DCA 1978) and State v. Atkins, 369 So.2d 389 (Fla. 2d DCA 1979).

Appellant Donald Ray Stipp was tried for possession of cocaine. Before trial he moved to suppress evidence by testimony or otherwise relating to a state chemist’s opinion as to whether the seized substance was illegal cocaine. The reason he urged the suppression was because he was prevented from examining and having tested by his own expert a portion of the alleged illegal substance as he is normally permitted to do under Florida Rule of Criminal Procedure 3.220(a)(l)(vi). The reason he was prevented from testing the substance was the intentional, but not willful, destruction of all of the seized substance by the state chemist. The destruction of the entire amount of the seized substance was not necessary, according to the testimony of the state chemist, and had the chemist wanted to he could have saved enough for the defendant or his expert to examine and test. The chemist testified he needed approximately 10 to 50 milligrams of the substance to perform his test to determine whether it contained illegal cocaine. If it was high on the scale of purity, he said, he would only need about 10 milligrams, but if it was low in purity then a larger sampling was required, but not over 50 milligrams. He used the entire amount seized which was approximately 100 to 150 milligrams.

It is wrong for the state to unnecessarily destroy the most critical inculpatory evidence in its case against an accused and then be allowed to introduce essentially irrefutable testimony of the most damaging nature against the accused. It is wrong because it violates a most fundamental right of due process, constitutionally mandated in Florida and the United States as held in Johnson v. State, 249 So.2d 470 (Fla. 3d DCA 1971) and affirmed in State v. Johnson, 280 So.2d 673 (Fla.1973). In State v. Johnson, our Supreme Court was convinced to accept certiorari based upon an alleged conflict between Johnson v. State, supra, and Roberts v. State, 164 So.2d 817 (Fla.1964). In discharging the writ of certiorari the court said “Thus, in Roberts, unlike the instant case, no question of defendant’s right of confrontation was raised.”

In Johnson as here the precise question was the state’s destruction or loss of critical, inculpatory evidence. See also State v. Armstrong, 363 So.2d 38 (Fla. 2d DCA 1978) which appears to conflict with the Johnson decisions but does not conflict here because of the court’s determination that Armstrong was not a “question of whether ap-pellee Armstrong has been deprived of her right to due process, which guarantees a defendant access to relevant and material evidence necessary for the preparation of his defense.”

While under the ruling of State v. Johnson, supra, it would appear the appellant’s right of confrontation was violated, we are more impressed with the State’s violation of the appellant’s fundamental right of due process and are equally concerned with the breaches of the Florida Rules of Criminal Procedure and basic fairness. The right of confrontation issue was dealt with and discarded in United States v. Herndon, 536 F.2d 1027 (5th Cir. 1976) where illegal moonshine whiskey was seized and destroyed by the government before trial and the defendant’s objection to evidence about the whiskey was held to have been properly overruled because the right of confrontation only applies to witnesses and not physical evidence. Of course, the Fifth Circuit’s ruling is not an interpretation of the Constitution of the State of Florida, Art. I., § 16 and our Supreme Court decision in Johnson is unaffected by Hern-don. But more importantly, Herndon did say “Whether a defendant has been deprived of the right of due process will depend upon the materiality of the evidence, the likelihood of mistaken interpretation of it by government witnesses or the jury, and the reasons for its nonavailability to the defense.”

In Herndon the lawyer for the defense expressly declared he did not file a motion to obtain a sample of the whiskey mash because he preferred to merely cross-examine the expert witness as to the analysis. Not so here, the appellant made a timely motion to suppress after a timely motion for production and adequate objections at trial, all to no avail.

While we tend to agree the right of confrontation does pertain only to witnesses we cannot out of hand dismiss the State v. Johnson, supra, opinion from our Supreme Court because of Hoffman v. Jones, 280 So.2d 431 (Fla.1973). More importantly, we recognize the logic in Herrera, Atkins, Armstrong, Herndon, the logic behind Florida Rule of Criminal Procedure 3.220(a)(1)(vi) and find the due process clauses in our constitutions require a reversal of this conviction. Additionally, if the state has a suspected illegal drug or other evidentiary item it expects to destroy by testing then the better rule is to notify the accused and allow him to have some minimal participation in the testing process as was also said in Herrera and Atkins in the third and second appellate districts. A rule of criminal procedure would easily take care of that.

REVERSED.

LETTS, J., concurs.

CROSS, J., dissents without opinion.


source: Caselaw Access Project

author: BOARDMAN, Judge.

license: Public Domain

text:
    Jesus Rivas PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 78-1591.
    District Court of Appeal of Florida, Second District.
    June 8, 1979.

      Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Jesus Perez appeals judgments and sentences for one count of first-degree murder and two counts of aggravated battery. He was convicted as charged and was given concurrent sentences of life imprisonment on the first-degree murder charge and fifteen years on each of the aggravated battery charges. This appeal timely followed. For the reasons hereinafter set forth we reverse.

The testimony adduced at trial established that appellant ran a fruit harvesting crew for Carlton Fruit Company. Roberto Gutierrez, his son Joel Gutierrez, and Margarito Ramirez were illegal aliens from Mexico who worked for appellant and lived in his house for several weeks prior to the incident in question.

Joel Gutierrez and Ramirez testified that their crew finished working early on Friday, January 27, 1978, and that they left the grove with appellant and Roberto in appellant’s pickup truck at about 2:00 p. m. Appellant told the men that Border Patrol officials were watching closely for illegal aliens. He therefore drove back roads returning from the grove. Appellant turned down a dirt road and left the three men in an isolated, wooded area to hide. Appellant returned about one to two hours later. The three men walked toward the road to meet him. Appellant stopped the truck and, without saying a word, began firing at them. Shots hit all three men. Roberto fell; Joel and Ramirez fled. Appellant pursued them, but they escaped by running into the woods. Each eventually made his way to a main road and obtained help.

Hardee County Deputy Sheriff Jeff Maddox testified to statements that Joel Gutierrez made to him on first contact. Notwithstanding the fact that Joel had already testified that appellant shot him, Roberto, and Ramirez, the deputy was permitted to testify that Joel had reported to him that appellant shot them. Appellant timely objected to this testimony on the grounds that it was hearsay and was merely a prior consistent statement. Appellant also moved for a mistrial, which was denied.

Appellant testified in his own behalf as follows: Earlier during the week of the shooting he and Joel had argued about the section of the grove he had assigned to Joel. Roberto became involved, and both Joel and Roberto pulled their knives. However, the argument was settled, and the men went back to work. On Friday of that week as the three men and appellant were returning to Wauchula, Joel started another argument. Following his usual practice of driving back roads during daylight when he had illegal aliens in his crew, appellant was driving his pickup truck along a dirt, back road. Ramirez and Joel were in the cab of the truck with appellant; Roberto rode in the back. Joel was sitting near the passenger window with Ramirez in the center of the seat. Joel began the argument, pulling his knife and holding it in a concealed fashion. Appellant noticed the knife and commented on it. Joel then punched appellant in the chest and hit the steering wheel, causing the truck to swerve. Appellant stopped the truck. When the truck stopped, Joel, Roberto, and Ramirez jumped out. Appellant was frightened. He pulled his .22 semiautomatic rifle, which he normally carried in his truck, and began firing when Joel came at him with a knife. Joel then fled and hid in a ditch. Ramirez also fled. Appellant stopped shooting when he realized that Joel and Ramirez were too far away to be an immediate danger to him. Realizing that Roberto was dead, appellant dragged his body into a palmetto thicket before driving home. Appellant stayed at his house only a short time before going to pick up his pay check. Since the company was not prepared to pay until 5:00 p. m., he returned home for a few minutes. He then returned to the office, where he waited until he was given the check for himself and his crew. After cashing the check, he drove to Bowling Green to pay some of his crew.

Appellant’s wife Joyce testified that appellant initially returned home from work between 2:30 p. m. and 3:00 p. m., left again shortly thereafter to get the pay check, and returned. He left again after 4:00 p. m. He returned again about forty minutes later. The two of them then drove out to a place where appellant threw some items into the weeds.

When first questioned by the police, appellant denied any knowledge of the shooting and claimed that the three men had left his employ that afternoon. Later, he gave a second statement admitting the shooting, which substantially comported with his trial testimony. Appellant admitted in his second statement that the items thrown into the weeds were personal items belonging to the three men.

Appellant raises five points on this appeal, of which three have merit and will be discussed.

First, he asserts that it was reversible error to allow the prosecutor to amend the indictment during the trial. He is right, for only a grand jury has the authority to alter an indictment. Russell v. State, 349 So.2d 1224 (Fla.2d DCA 1977); Pickeron v. State, 94 Fla. 268, 113 So. 707 (1927).

Second, appellant contends that the trial court erred in allowing Deputy Maddox to testify that Joel Gutierrez told him that appellant had shot Joel and his companions. This testimony was not only hearsay, but was consistent with Joel’s trial testimony. A witness’s prior consistent statement may not be used to bolster his trial testimony. Lamb v. State, 357 So.2d 437 (Fla.2d DCA 1978); Roti v. State, 334 So.2d 146 (Fla.2d DCA 1976). The rationale prohibiting the use of prior consistent statements is to prevent “putting a cloak of credibility” on the witness’s testimony. Brown v. State, 344 So.2d 641 (Fla.2d DCA 1977). When a police officer, who is generally regarded by the jury as disinterested and objective and therefore highly credible, is the corroborating witness, the danger of improperly influencing the jury becomes particularly grave. Under the circumstances, the error in admitting this hearsay testimony cannot be considered harmless.

Finally, appellant argues that the trial court should have given his requested instruction on circumstantial evidence. Proof of a premeditated design to effect the death of a human being is required for a conviction of first-degree murder. § 782.-04(1)(a), Fla.Stat. (1977); Driggers v. State, 164 So.2d 200 (Fla.1964). Although there was direct evidence, i. e., eyewitness testimony, as to appellant’s conduct, the element of premeditation could only have been inferred from appellant’s actions and other circumstances. While there is no question but that premeditation may be established by circumstantial evidence, Spinkellink v. State, 313 So.2d 666 (Fla. 1975); McCutchen v. State, 96 So.2d 152 (Fla. 1957), an instruction on circumstantial evidence is re-' quired where the prosecution relies solely or substantially on circumstantial evidence to prove an essential element of the offense charged. Leavine v. State, 109 Fla. 447, 147 So. 897 (1933); Newsome v. State, 355 So.2d 483 (Fla.2d DCA 1978).

We have considered the remaining two points raised by appellant and find no error.

For the reasons set forth above, the judgments and sentences against appellant are reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Dale SUTTON, Appellee.
    No. 78-2095.
    District Court of Appeal of Florida, Second District.
    June 8, 1979.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellant.
    Jack (). Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

The state appeals from the grant of a motion to reduce appellee’s sentence.

Appellee was sentenced on June 23, 1978, to eleven and one-half months in county jail, beginning September 15, 1978. No appeal was filed. On November 3, 1978, the court granted a motion to reduce appellee’s sentence to two years probation because appellee needed treatment not available in the county jail. Appellee made no allegation that the sentence was illegal, to justify relief under Fla.R.Crim.P. 3.800 or 3.850.

After the passage of 60 days from imposition of the sentence, the trial court had no jurisdiction to modify the sentence. Petters v. State, 350 So.2d 558 (Fla.2d DCA 1977); Fla.R.Crim.P. 3.800(b).

Reversed, and remanded with instruction to reinstate the eleven and one-half month sentence with credit for all time served under this charge.

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


text:
    Kurt NEWMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1664.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.
    Alvin E. Entln and Ronald A. Dion, Miami, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. On consideration of the briefs, record and argument of counsel, we find no reversible error. Yost v. State, 243 So.2d 469 (Fla.3d DCA 1971); De la Cova v. State, 355 So.2d 1227 (Fla.3d DCA 1978); Williams v. State, 353 So.2d 588 (Fla.3d DCA 1977); Mack v. State, 346 So.2d 1229 (Fla.3d DCA 1977); Jefferson v. State, 298 So.2d 465 (Fla.3d DCA 1974).

Accordingly, the conviction is affirmed.


text:
    William SMITH, Appellant, v. Ronald R. REEDER, and the City of Miami, a Florida Municipal Corporation, Appellee.
    No. 78-2045.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.
    Lionel Barnet, Miami Beach, for appellant.
    George F. Knox, Jr., and Mikele S. Carter, Miami, for appellee.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

This appeal by the plaintiff is from a summary final judgment for the defendants. We reverse upon a holding that it does not appear as a matter of law that the defendants are entitled to a judgment. See Harrison v. McCourtney, 148 So.2d 53, 55 (Fla. 2d DCA 1962).

It is unclear from the complaint whether the plaintiff is attempting to allege a cause of action for malicious prosecution or false imprisonment, but lack of clarity is not a basis for summary judgment. We simply hold that it does not conclusively appear that the facts brought before the trial judge were sufficiently settled and crystallized so that it can be said that the plaintiff does not have a cause of action. Cf. Bess v. 17545 Collins Avenue, Inc., 98 So.2d 490, 492 (Fla.1957). Accordingly, the summary final judgment is reversed and the cause remanded for further proceedings.

Reversed.


text:
    Mollie KNAPP, Appellant, v. The STATE of Florida DEPARTMENT OF REHABILITATIVE SERVICE, Albert A. Porco, Josephine Porco and Glens Falls Insurance Company, Appellees.
    No. 78-2214.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.
    Ellis Rubin, Naples, for appellant.
    Corlett, Merritt, Killian & Sikes, P. A., and Gerald E. Rosser, Miami, for appellees.
    I. Richard Jacobs, Miami, as amicus curiae.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

This is an appeal from a final judgment for the defendant/appellees in a negligence action entered upon a directed verdict which was granted by the trial court after the jury had returned a verdict for the plaintiff/appellant in the amount of $38,-000. We reverse the judgment appealed from and remand the cause to the trial court with directions to enter a judgment for the plaintiff/appellant based on the jury verdict.

In our view, the jury could have reasonably found, as it did, that a case of actionable negligence had been established, as pled, against the defendant/appellees. Although the jury was not compelled to so find based on trial evidence which was admittedly susceptible of conflicting inferences, we are unable to say, as urged by the defendant/appellees, that the jury was precluded from doing so. As such, a directed verdict in favor of either party was not in order in this cause, and the one which was entered cannot be permitted to stand. Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168, 169 (Fla. 3d DCA 1977); Landry v. Sterling Apartments, Inc., 231 So.2d 225 (Fla. 4th DCA 1969).

Reversed and remanded.


author: KEHOE, Judge.

text:
    Charlotte VOGEL, Trustee, Appellant, v. Helen C. SMITH, a single woman, Appellee.
    No. 79-16.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.

      Herman Cohen, Miami, for appellant.
    Galbut, Galbut & Menin and Michael B. Solomon, Miami Beach, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellant/plaintiff takes this interlocutory appeal from a non-final order directing the release of $3500 from the registry of the Circuit Court to a non-party movant. We reverse.

The trial court committed reversible error by authorizing the release of monies deposited in the court registry to one who was not a party to the action below. A non-party had no standing to make such a motion:

“ ‘Persons who are not parties of record to a suit have no standing therein which will enable them to take part in or control the proceedings. If they have occasion to ask relief in relation to the matters involved, they must either contrive to obtain the status of parties in such suit or they must institute an independent suit’.”

Warshaw-Seattle, Inc. v. Clark, 85 So.2d 623, 625 (Fla.1955).

The trial court has discretion to allow an interested party to intervene below and assert a claim under these circumstances. See Miracle House Corporation v. Haige, 96 So.2d 417 (Fla.1957); Buckley Towers Condominium, Inc. v. Millis, 352 So.2d 585 (Fla.3d DCA 1977); cert. denied, 360 So.2d 1247 (Fla.1978); Coral Bay Property Owners’ Association v. City of Coral Gables, 305 So.2d 853 (Fla.3d DCA 1974); and Fla.R. Civ.P. 1.230.

Reversed.


text:
    William J. WASHUTA, Petitioner, v. Louis M. ANDRIS and Giedre B. Andris, his wife, Respondents.
    No. 79-637.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.
    Robinson & Greenberg and Barry N. Greenberg, Miami, for petitioner.
    Goodwin, Ryskamp, Welcher, George Earl Brown, Miami, for respondents.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The petition for writ of certiorari is granted, the order under review is quashed and the cause remanded to the trial court with directions to grant the petitioner/in-tervenor William J. Washuta leave to intervene in circuit court case no. 78 10491 now presently pending in the Circuit Court for the Eleventh Judicial Circuit of Florida. Miracle House Corp. v. Haige, 96 So.2d 417 (Fla.1957).

It is so ordered.


text:
    Charles Edward McBRIDE, Appellant, v. The STATE of Florida, Appellee.
    No. 79-965.
    District Court of Appeal of Florida, Third District.
    June 12, 1979.
    Charles Edward McBride, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, 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 the petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


author: ERVIN, Judge.

text:
    Alva Nick DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. KK-158.
    District Court of Appeal of Florida, First District.
    June 13, 1979.
    Michael J. Minerva, Public Defender and John D. C. Newton, II, Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen. and Lee Mandell, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

The sentence of five years imposed as to count II of the information charging appellant with unlawfully possessing paraphernalia with the intent that such paraphernalia be used for unlawfully injecting, smoking or using a drug must be vacated since the count does not charge a felony. Section 893.13(3)(a)4(b), Florida Statutes (1977), provides essentially, depending upon the allegations charged, that possession of paraphernalia shall be either a felony of the third degree or a misdemeanor in the first degree. The information failed to charge, as required in Section 893.13(1)(f), either appellant’s prior conviction of the Drug Abuse Law or that the amount of marijuana involved exceeded five grams. Cf. Pope v. State, 268 So.2d 173 (Fla.2d DCA 1972); Dicaprio v. State, 352 So.2d 78 (Fla.4th DCA 1977). While count I of the information charged appellant with possessing more than five grams of marijuana with intent to sell, the allegations of each count must be separately considered and not by reference to the other. We vacate the sentence imposed in count II and remand the cause to the trial court for the imposition of a sentence not exceeding the maximum provided by law for a misdemeanor in the first degree.

Appellant contends for the first time on appeal that the trial judge’s failure to instruct the jury on the element of intent to sell marijuana as to count I and intent to unlawfully administer drugs as to count II was fundamental error. While we think appellant was required to timely object to the instructions given, Forceier v. State, 133 So.2d 336 (Fla.2d DCA 1961); Williams v. State, 109 So.2d 379 (Fla.2d DCA 1959), cert. den., 113 So.2d 836 (Fla.), we nevertheless conclude that the trial court sufficiently tracked the language contained in Florida Standard Jury Instructions and, by reason of all the instructions given, no prejudice resulted to appellant which reaches “down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without . . .” the error. Brown v. State, 124 So.2d 481, 484 (Fla.1960). See also State v. Bryan, 287 So.2d 73, 75 (Fla.1973); Burcham v. State, 338 So.2d 1138 (Fla.2d DCA 1976); Waters v. State, 298 So.2d 208 (Fla.2d DCA 1974).

We have considered the remaining points urged for reversal by appellant, determine that they are without merit and otherwise affirm. Remanded for further proceedings consistent with this opinion.

ROBERT P. SMITH, Jr., Acting C. J. and LARRY G. SMITH, J., concur.


text:
    James Thomas HOBBS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. KK-496.
    District Court of Appeal of Florida, First District.
    June 13, 1979.

      Michael J. Minerva, Public Defender and Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Appellant, charged with two offenses, following trial was convicted of four. He appeals. We reverse in part.

Appellant was charged in one count with the lewd, lascivious assault upon a child under the age of 14, contrary to Section 800.04, Florida Statutes (1977), and in count two with the same act on another child. The jury, at the conclusion of the court’s instructions, was given two verdict forms. Both reflected that the jury could find the defendant guilty as charged, or for the lesser included offenses of attempted battery. The jury apparently misunderstood the court’s instructions and not only found appellant guilty as charged, but also of the lesser offenses. The court then polled the jurors and after each responded that the verdicts were as intended, the court adjudged appellant guilty on all offenses returned. Later a single sentence of four years imprisonment was imposed as to both the offense charged in count one and the lesser offense of attempted battery. A concurrent sentence of 60 days in the county jail was imposed as to the offense stated in the second count.

It is fundamental that a defendant cannot be convicted both for the offense charged as well as its lesser offense. The fact that defense counsel timely failed to object does not cure such error. This does not mean, however, that all the verdicts and judgments entered must be vacated. It is abundantly clear that the jury intended to find defendant guilty of all offenses returned. The verdicts returned for the greater offenses comported with the jury’s intent, cf. Hambrick v. State, 80 Fla. 672, 86 So. 623 (Fla.1920), and they are sustained. The verdicts and judgments entered as to the lesser offenses are vacated and the cause is remanded to the trial court for sentencing proceedings consistent with this opinion.

The remaining points urged by appellant as requiring reversal have been considered and rejected. AFFIRMED in part and REVERSED in part.

ROBERT P. SMITH, Jr., Acting C. J., and LARRY G. SMITH, J., concur.


text:
    Samuel GRANGE, Appellant, v. STATE of Florida, Appellee.
    No. JJ-232.
    District Court of Appeal of Florida, First District.
    June 15, 1979.

      Michael J. Minerva, Public Defender and Margaret Good, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Grange appeals judgments entered upon two separate verdicts finding him guilty of sexual battery without consent by use of physical force and violence not likely to cause serious personal injury. Appellant was charged in a two-count information with (1) committing a sexual battery upon a person over the age of 11 years, without her consent, by threatening to use force or violence likely to cause serious personal injury, and (2) committing sexual battery upon the same person, without her consent, by use of physical force and violence not likely to cause serious personal injury. As to the first count, the jury returned a verdict finding appellant guilty of the instructed lesser offense of sexual battery by use of physical force and violence not likely to cause serious personal injury, and, as to the second count, guilty as charged. The lower court sentenced appellant to fifteen years’ imprisonment on the first count, and on the second count, while adjudging him guilty, deferred imposition of sentence from day to day and term to term “until this area of appeal is perfected before the District Court.”

Appellant argues that the lower court erred in adjudging him guilty on the second count because he may not be convicted of two separate offenses when only one single criminal act was involved. We decline to rule on the question presented because we conclude that defendant’s conviction of the purported lesser included offense under count one was not itself a lesser offense.

The Third District Court of Appeal in Harris v. State, 338 So.2d 880 (Fla. 3d DCA 1976), on similar facts, and relying upon Brown v. State, 206 So.2d 377 (Fla.1968), concluded that sexual battery involving the use of force not likely to cause serious personal injury neither was a necessarily included offense to sexual battery involving the use of a deadly weapon or use of force likely to cause serious personal injury, nor was it an offense which may or may not be included depending upon the accusatory instrument and the evidence.

We agree with Harris. Here the offense could not be necessarily included because the burden of proof of the major crime can be discharged without proving the lesser crime as an essential link in the chain of evidence. Cf. Brown v. State, supra at 382. For example, in order to prove a robbery the state must also prove the occurrence of a larceny as an essential element of the major offense since every robbery necessarily includes a larceny. Id. The gist of the major offense here is the threat to use force likely to cause serious personal injury. Since no element of force likely to cause serious personal injury is involved in the lesser, the major offense is not dependent upon proof of the lesser in establishing the crime charged.

The next question is whether sexual battery involving the use of force not likely to cause serious personal injury is an offense which may or may not be included in the offense charged depending upon the accusatory pleading and the evidence. Brown v. State, supra; State v. Anderson, 270 So.2d 353, 356 (Fla.1972); Gilford v. State, 313 So.2d 729 (Fla.1975). As to such lesser offenses, Brown instructs the trial court to examine the information to determine if it alleges all the elements of a lesser offense even though it is not an essential ingredient of the major offense alleged. 206 So.2d at 383. And, if the allegations and proof are present, there should be a charge on the lesser offense. Id. For example, if an information charges assault with a deadly weapon with intent to commit robbery, aggravated assault would be a lesser offense provided use of a deadly weapon were established by proof. On the other hand, if the defendant were charged with assault with intent to commit robbery, aggravated assault could not be lesser included although simple assault would be. Id.

Here the allegations contained in count one did not support a charge of a lesser offense of sexual battery by use of physical force and violence not likely to cause serious personal injury because the allegations contained in the greater offense, while alleging sexual battery without consent, nevertheless charged also the threat to use force or violence likely to cause serious personal injury. The allegations in the greater offense were negated by the essential element in the lesser: use of physical force not likely to cause serious personal injury.

Appellant’s conviction under count one, not being lesser included to the greater, is vacated with instructions that he be discharged as to that offense. See Falstreau v. State, 326 So.2d 194 (Fla. 4th DCA 1976); Smith v. State, 365 So.2d 405 (Fla. 3d DCA 1978). As to count two, the cause is remanded to the trial court for the imposition of a sentence no greater than the maximum permitted for a felony of the second degree. Since it appears that the lower court failed to allow credit for time served prior to imposition of sentence, the court shall also make a determination of such time when resentencing. We have considered appellant’s pro se brief and conclude the points raised in it were not appropriately preserved for appellate review.

Reversed and remanded for further proceedings consistent with this opinion.

MILLS, Acting C. J., and ROBERT P. SMITH, Jr., J., concur.

      . A second degree felony under Section 794.-011(4)(b), Florida Statutes (1977).

      . A felony of the third degree. Section 794.-011(5).

      .A deferred sentence of this type is illegal. See State v. Bateh, 110 So.2d 7 (Fla.1959); Baggett v. State, 302 So.2d 206 (Fla. 2d DCA 1974). The lower court was obviously aware of this since its reason for deferring sentence was that the second count was duplicitous to the offense charged in the first count.


text:
    William BOSHEARS, Appellant, v. STATE of Florida, Appellee.
    No. LL-311.
    District Court of Appeal of Florida, First District.
    June 15, 1979.

      Michael J. Minerva, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We affirm the judgment against appellant for sexual battery of a child under the age of eleven years, finding his two substantive points to be without merit. First, the trial court did not err in failing to grant a mistrial simply because two of the potential jury members stated in voir dire that they had been rape victims. Stevens v. State, 251 So.2d 565 (Fla. 1st DCA 1971). Second, the court did not err in restricting certain discovery and cross-examination of the victim because there was no showing that the excluded matter had any relevance to the disputed issues in the trial or to the victim’s credibility. Contrast Jenkins v. State, 349 So.2d 1191 (Fla. 4th DCA 1977); Lombardi v. State, 358 So.2d 220 (Fla. 1st DCA 1978).

There was error, however, in the court’s failure to specify appellant’s jail-time credit in the sentence. Randall v. State, 352 So.2d 566 (Fla. 2d DCA 1977). Accordingly, we remand for that correction but appellant need not be present at that time.

ROBERT P. SMITH, Jr., Acting C. J., and ERVIN and LARRY G. SMITH, JJ., concur.


author: SUMMERS, Justice. DIXON, Justice TATE, Justice DENNIS, Justice.

text:
    STATE of Louisiana v. Lonnie C. JACOBS.
    No. 62036.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    On Rehearing May 21, 1979.
    Rehearing Denied June 25, 1979.

      J. Michael McDonald, Baker, Culpepper & Brunson, & Bobby L. Culpepper, Jonesboro, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., John C. Blake, Asst. Dist. Atty., Leon H. Whitten, Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

In three counts Lonnie Jacobs was charged in an October 11, 1977 bill of information with 1) distribution of marijuana on March 18, 1976; 2) distribution of marijuana on March 18, 1977; and 3) possession of marijuana with intent to distribute on October 15, 1977, all in violation of Section 966 of Title 40 of the Revised Statutes.

After denial of pretrial motions, defendant was tried before a jury of twelve and found guilty of counts one and two and guilty of possession on count three. The trial judge sentenced defendant to serve 10 years at hard labor in the custody of Department of Corrections and to pay a fine of $15,000 on each of the first two counts, and to incarceration in the Parish Jail for a period of six months in addition to payment of a fine of $500 on count three, the sentences to run consecutively, with credit for time served. The sentences imposed are the maximum allowed by law. Defendant’s appeal relies principally upon the refusal of the trial judge to sever the three offenses for trial, and upon the claim that the sentences imposed were excessive.

The Issue of Severance

Prior to trial on November 30, 1977, the defense filed a motion to sever the three separate offenses, alleging they were not triable by the same mode of trial, and the complexity of the evidence to be offered would not enable the trier of fact to intelligently distinguish between the offenses or the law applicable to each. At the same time, a defense motion to quash alleged the duplicity of the charges and the unconstitutionality of Article 493 of the Code of Criminal Procedure, which permits the joinder of offenses. Severance was appropriate under Article 495.1 of the Code of Criminal Procedure, the defense alleged, in order to promote a fair determination of the defendant’s guilt or innocence of each offense. The motions were denied. Although conceding in brief that Article 493 was not facially unconstitutional, defense counsel argues it is unconstitutional as applied in this case.

No evidence was presented by the defense at the pre-trial hearing held on the motions on December (5, 1977 and no defense argument was advanced on the law which would support these motions. The merits of these motions, therefore, is to be determined from the face of the bill of information, the record as then constituted, and the law.

Joinder of offenses is specifically authorized by Article 493 of the Code of Criminal Procedure in these terms:

“Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan; provided that the offenses joined must be triable by the same mode of trial.”

The three offenses here are felonies charged in separate counts in the same information as approved by Article 493. They are also triable by the same mode of trial as the proviso of the Article mandates. Because there is no contention that these offenses are based upon the same act or transaction, or on two or more acts or transactions connected together, or constituting parts of a common scheme or plan, to fulfill all elements of a proper joinder in the context of this case, it remains only to determine whether the offenses are of the same or similar character.

Each offense involves a charge under. Section 966 of Title 40 of the Revised Statutes. Each offense involves the distribution of marijuana, defined as a controlled dangerous substance under Louisiana law. Each offense occurred at the residence of defendant on Ebony Street, in North Hodge, Louisiana. Therefore, in the absence of evidence establishing facts to the contrary, the offenses as charged “are of the same or similar character,” and the joinder satisfies the requirements of Article 493. State v. Boone, 364 So.2d 978 (La.1978); State v. Carter, 352 So.2d 607 (La.1977).

Aside from the requirements of Article 493, the court must grant a severance of offenses whenever “if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.” Because no evidence was presented by the defense to support such a contention, because no defense argument or memorandum in support of such a contention was submitted to the trial judge prior to the ruling on the motion, and because, on the face of the information, the joinder satisfied the requirements of Article 493, there is no error in the ruling of the trial judge.

When on its face the information fulfills the requirements of joinder under Article 493, it cannot be expected that the trial judge will find it “appropriate” to order a severance in order “to promote a fair determination of the defendant’s guilt or innocence” without additional facts to support such a finding. At the very least, in certain offenses and under certain laws, an argument on the legal complications involved in joinder may be sufficient to order severance. In this case, however, no additional facts were established and no legal argument was presented to support a severance.

Appropriate here is the language in State v. Carter, supra, a case involving this Court’s initial interpretation of the cited articles on severance. As organ of the Court Mr. Justice CALOGERO wrote:

“For this reason we hold that when crimes, which have been joined simply because they are the same or similar character offenses, are indeed legitimate ‘other crimes’ under Prieur and its progeny (the offenses are sufficiently similar, the evidence is relevant to a real issue in each case, and the prejudicial effect of the evidence does not outweigh its probative value), a decision not to sever the crimes will normally be proper.”

The ruling of the trial judge on these pretrial motions was correct.

During trial, after the jury was empaneled, the defense filed another motion to sever, again alleging that a severance should be ordered in view of the number of offenses charged and the complexity of the evidence to be offered. These conclusory allegations are not associated in argument with the facts of the case. Nevertheless, as alleged and announced orally by defense counsel, the motion is principally based upon the allegation that certain prospective jurors indicated to the court that if they felt the defendant was guilty of one of the counts they would also probably feel he was guilty of the other two, although the evidence might not be strong. Once one count is proven, the motion sets forth, certain prospective jurors indicated they would not be able to accord defendant the presumption of innocence on the other counts.

Motions to sever applied for during trial must be granted upon consent of the defendant if it is deemed necessary to achieve a fair determination of defendant’s guilt or innocence. When such an application is presented the court shall consider, in view of the number of offenses charged and the complexity of the evidence to be offered, whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense. La. Code Crim.Pro. art. 495.1.

The assignments of error, which present issues arising out of this “during trial” motion to sever, do not designate the portion of the record relied upon to support the motion. La.Code Crim.Pro. art. 845. The brief, however, refers the Court to the testimony of Gerald Pepper on his voir dire examination. Although conceding that Pepper was excused for cause, the defense submits that the confusion and feelings he harbored were generally indicative of the feelings of the entire community. On this basis, it is contended that a severance is necessary. This colloquy is cited:

“BY THE COURT: Let me ask you this Mr. Pepper. Your feelings — are you telling me that you are biased against this defendant or are you biased against selling or distributing marijuana?
A. Probably both; I’m not quite sure how I feel. I have a horror of drugs, and, like I say, the things I have heard it would be hard to wipe all that out.
BY THE COURT: Well you hear a lot of things about murder but somebody has to serve on the jury. What do you think about that?
A. Well, Your Honor, I’m just trying to answer the questions as best I can. I am willing to do whatever I should do .
BY THE COURT: I believe the reason you stated you heard gossip among the people you work with, etc.?
A. Yes sir.”

When asked by the trial judge if he could “presume this man innocent and whether or not you can give him a fair trial,” Pepper replied, “I don’t believe I can.” Whereupon, the trial judge excused him for cause, commending him for his frank and earnest attitude.

James D. Coleman was also called a prospective juror and examined on voir dire. The defense cites extracts from his testimony to support the contention that a state of “apparent confusion” existed among the jurors. The questions are by defense counsel:

“Q. ... Of course, in this case it would make a substantial amount of difference or could make a substantial amount of difference whether or not you could isolate the three different dates and the three different charges without running them all together.
A. I would try; it would be harder; he did it on one day then what is the difference on the other day? It would be a lot harder to convince me that he didn’t; if I was convinced he had done it one day; then he hadn’t done it at all.
Q. I understand what you are saying and I appreciate that; there may be a lot of people who feel the same way, but, it may come out on the trial that he says ‘on all three dates, I did not do it’ and then someone else says ‘Yes, you did do it’ and what you are saying is that if you are convinced on one day when he said he did not do it but he did then you are going to have difficulty with his other two times even though the evidence might not be as strong on those two dates as on a third date, is that correct?
A. That’s correct.”

It is appropriate to note that after he was unable to rehabilitate Coleman, the trial judge also excused him for cause.

On the basis of the testimony of two prospective jurors, who were properly excused for cause, the court cannot in logic or reason attribute these causes to the other twelve jurors who were considered acceptable by the court, the prosecution and the defense. There is no support for the broad assertion by defense counsel that the testimony of these two prospective jurors was “indicative of the feelings of the entire community.”

Defendant took the stand and admitted that when he was arrested he had secreted in his boots several lids of marijuana. His wife, who was present at the time, confirmed this fact. State police officers assisting in undercover narcotic investigations testified to the isolated, but remarkably similar, transactions in which they purchased marijuana from defendant at his residence.

Our appreciation of the record, like that of the trial judge, does not require that we find reversible error in his ruling denying severance of these offenses. The evidence of each isolated transaction was forthright and uncomplicated. There was no reasonable opportunity to confuse the three offenses. Severance was not therefore necessary to achieve a fair determination of defendant’s guilt or innocence of each offense.

The Issue of Excessiveness

To support the contention that the trial judge erred in imposing an excessive sentence unsupported by the record and without benefit of a presentence investigation requested by the defense, the Court is referred to the minutes of court at the time of sentence. In addition to the consecutive sentences and fines set forth in the beginning of this opinion, insofar as pertinent to this issue, the minutes disclose that defendant was 29 years old and that defense counsel objected to the sentence and moved for an appeal.

In brief defense counsel points out “that the three crimes are all very similar in nature.” The argument relies upon this Court’s decision in State v. Underwood, 353 So.2d 1013 (La.1977), a case involving the imposition of sentence by the trial judge in reliance on a presentence report which contained false information. This Court found that a reasonable probability existed that the trial judge’s sentencing discretion was at least unconsciously influenced by the gross misinformation of unconstitutionally prejudicial magnitude in the presentencing report. On this finding the sentences were set aside and the case was remanded for resentencing. The case is distinguishable from the case at bar. Here no presentence report was involved. The same is true of State v. Segers, 357 So.2d 1 (La.1978), relied upon by the defense.

The defense argues that this distinction is not determinative of Underwood’s principles and urges this Court to remand the case for a presentence report and resentenc-ing. There are, however, other factors in the instant case which undoubtedly influenced the trial judge and which would not favor defendant’s contention if contained in a presentence report, in the event of remand. Defendant was arrested for possession of marijuana and admitted to bail. While free on bail he committed another offense involving distribution of marijuana, demonstrating by his actions that he was neither contrite nor readily amenable to rehabilitation.

The verdict in this case rests, to a great extent, upon the credibility of those who testified. Defendant testified, denying categorically the facts testified to by the investigating officers whose testimonies established essential elements of the offenses. The conclusion drawn by "the trial judge was necessarily that defendant’s testimony was false, another factor which undoubtedly influenced the verdict.

When a sentence rests upon a valid and sufficient statute, indictment, and verdict it meets the test prescribed by Article 872 of the Code of Criminal Procedure. These sentences fell within the ambit of the statute which has been repeatedly upheld as valid; the indictment met the requirements of law, and the verdict of the twelve-man jury was unanimous. Under the circumstances there is no basis for disturbing the sentencing discretion vested in the trial judge.

A review of the other assignments of error results in the conclusion that none involved reversible error.

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

TATE, J., assigns concurring reasons.

DIXON, J., concurs with reasons.

CALOGERO, J., concurs.

DENNIS, J., dissents.

DIXON, Justice

(concurring).

The offenses here charged arose from a continuing investigation of defendant. One charge was possession with intent to distribute. The other instances of distribution were relevant to prove the intent, and the prejudicial nature of the offenses does not appear to outweigh their probative value in this case.

TATE, Justice

(concurring).

Under Prieur [State v. Prieur, 277 So.2d 126 (La.1973)] the evidence of the unrelated offenses was admissible to prove the specific intent charged in two of the three counts. Therefore, the denial of the severance is not reversible under the guidelines established by Carter.

The consecutive sentences for conviction of multiple counts of the same nature would normally be excessive. However, the majority points out continued criminal conduct after arrest for one of the offenses as a justifying basis for the trial court’s exercise of its discretion to impose consecutive rather than concurrent sentences, and I am unable to disagree.

ON REHEARING

DENNIS, Justice.

A rehearing was granted to determine whether we erred in our original decision to affirm the trial court’s (1) refusal to grant a severance of the offenses, or (2) exercise of its discretion in imposing three, consecutive maximum sentences of imprisonment. We conclude that defendant’s convictions should be affirmed but that the sentences imposed must be vacated and the case remanded with instructions to the trial judge to sentence the defendant in accordance with law.

Severance of offenses

Under La.C.Cr.P. art. 495.1, a severance of offenses requested before trial is mandatory if “it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.” In interpreting the statutory command that the trial court shall grant a severance whenever it will promote a fair trial, this Court in State v. Carter, 352 So.2d 607, 614 (La.1977), held that normally a joint trial of several offenses will not promote a fair trial if the defendant will be prejudiced by the introduction of evidence of other offenses which the rules of evidence would exclude in the interest of a fair trial if the offenses were tried separately. State v. Hamilton, 364 So.2d 585 (La.1978).

In the instant case a severance was not required under this rule because the evidence of the extraneous distribution offenses would be admissible to prove intent in a single prosecution based upon the possession with intent to distribute charge. Since the latter charge was founded upon defendant’s possession of only four lids of marijuana which he testified he intended to smoke, the evidence indicates that the presence or absence of his intention to distribute these drugs was a real and genuine matter at issue independent of his general claim of innocence posed by his plea of not guilty, State v. Frederick, 340 So.2d 1353 (La.1976), and that the prejudicial effect of the other crimes evidence does not outweigh its probative value. State v. Prieur, 277 So.2d 126 (La.1973).

Excessive sentence

Article I, § 20 of the 1974 Louisiana Constitution prohibits imposition by law of excessive punishment, and the statutory guidelines provided by La.C.Cr.P. art. 894.1 (1977) furnish appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or its nature. State v. Cox, 369 So.2d 118 (La.1979). Therefore, when the trial judge fails to “state for the record the considerations taken into account and the basis therefor in imposing sentence” as required by La.C.Cr.P. art. 894.1(C) (1977), we normally will set aside the sentence and remand the case for resentencing in accordance with the mandatory requirements of law. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Jackson, 360 So.2d 842 (La.1978); State v. Sepulvado, 359 So.2d 137 (La.1978).

In the instant case the sentencing judge did not comply with the mandatory requirements of La.C.Cr.P. art. 894.1; nor did he, insofar as the record reflects, order a pre-sentence investigation, or conduct a sentencing hearing. Although the evidence at trial in the case at bar may establish a prima facie basis for a sentence of imprisonment, see La.C.Cr.P. art. 894.1(A), when it is weighed against the circumstances of the offense and the character and propensities of the defendant as required by law, see La.C.Cr.P. art. 894.1(B), punishment without suspension of sentence or probation may be constitutionally excessive. Accordingly, it will be necessary for us to vacate the defendant’s sentences and to remand the case to the trial court with instructions to the trial judge to take additional evidence through either a hearing or a pre-sen-tence investigation, or both, and to weigh the grounds specified by La.C.Cr.P. art. 894.1(A) and (B) before imposing sentence.

Decree

For the reasons assigned the defendant’s convictions are affirmed but the sentences imposed are vacated and set aside and the case is remanded to the district court with instructions to the trial judge to sentence defendant in accordance with law.

CONVICTIONS AFFIRMED; SENTENCES VACATED. AND CASE REMANDED FOR RE-SENTENCING.

       Since the record suggests that the defendant has no prior criminal record, the trial judge’s attention is directed to our statement that “[bjased on American theory and practice concurrent rather than consecutive sentences are the usual rule, at least for a defendant without criminal record and in the absence of a showing that the public safety requires a longer sentence.” State v. Underwood, 353 So.2d 1013, 1019 (La.1977); see State v. Sepulvado, 367 So.2d 762 (La.1979).


author:
      DIXON, Justice.
     MARCUS, Justice DENNIS, Justice,

text:
    STATE of Louisiana v. Everette SIMPSON.
    No. 62746.
    Supreme Court of Louisiana.
    March 5, 1979.
    Dissenting Opinion June 19, 1979.

      Thomas W. Mull, 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., Fred P. Harper, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

During the early morning hours of July 6, 1975 Everette Simpson and Gregory Ursin were playing pool at Jimmie’s Pool Hall near the corner of Valence and Freret Streets in New Orleans. Ursin had arrived at Jimmie’s after an evening of frequenting bars and pool halls with a friend, LeRoy Washington. Although he did not know Simpson, Ursin engaged him in a pool match and the stakes were set at $3.00 a game. After several hours of play, Ursin owed Simpson about $15.00 and offered to pay him with a check which was in his car, to which Simpson agreed. However, in the meantime Washington had borrowed Ur-sin’s car to take another friend home. While waiting outside for the car to be returned, Simpson grew impatient and asked Ursin to give him his watch as collateral for the debt. When Ursin refused, Simpson placed a gun between Ursin’s eyes and demanded the watch. Ursin again refused; Simpson then cocked the trigger and Ursin gave him the watch. After Simpson walked away, Ursin followed him and attempted to notify the authorities, but Simpson had disappeared by the time he found a police officer. However, Simpson surrendered himself to the police on the following day and was charged with armed robbery, a violation of R.S. 14:64. He was subsequently convicted on November 6, 1975 of simple robbery and was sentenced as a multiple offender to seven years at hard labor. On appeal the defendant relies on one assignment of error as requiring a reversal of the conviction and sentence.

By this assignment of error, the defense contends that it was error for the trial judge to deny the defendant’s plea of former jeopardy. The plea arose from a mistrial granted on October 9, 1975 when the defendant was first tried for the same offense. During the trial Gregory Ursin testified for the prosecution and was cross-examined by the defense on the subject of past convictions:

“EXAMINATION BY MR. COUNCIL:
Q Mr. Ursin, have you ever been convicted of any offense?
A No, I haven’t.
Q Is your name Gregory Edmund Ursin?
A Yes, it is.
Q On 12/12/68—
MR. MESSINA:
Objection to this, your Honor, unless he has some basis because I know for a fact that he doesn’t.
THE COURT:
Let him finish at his own peril.
EXAMINATION BY MR. COUNCIL:
Q On 12/12/68, were you convicted of theft in Gretna, Louisiana?
A No, I was not.
Q On 7/19/70, were you convicted in New Orleans, Louisiana for the charge of theft?
A No, I wasn’t.
Q On 12/12/68, were you convicted of resisting arrest in Gretna, Louisiana?
A No, I wasn’t.
MR. MESSINA:
May we approach the bench, your Hon- or?”

After a bench conference out of the jury’s hearing, the trial judge declared a mistrial and gave the following justification for his ruling:

“THE COURT:
I am going to declare a mistrial so you don’t walk out of here with your head turned around and wondering what happened, when a defendant takes the witness stand he can only be asked about convictions and the same thing applies to witnesses and I just feel that there may be some inference left with you here that this man is lying when the facts indicate, since you are not going to hear this case anymore that there is no record of him having been convicted of anything. I am afraid the way it was asked and the inference that followed from it that some of you may have gotten the idea that maybe he was which is something that bears on his creditability the same as any other witness whether it’s him or the defendant or whoever it is. If they have been convicted of something, you have a right to consider that in deciding whether or not you believe him. I think this man’s character has been assailed in a way and may leave an unfavorable impression where none should exist since this man has never been convicted and showing fairness to him since he is the main witness for the state. You would have had to decide a great majority, based on his testimony and I feel it’s unfair and I am not saying counsel did it on purposely (sic) but the was (sic) it was askef (sic) rom (sic) the document, the dates and times, to me, it may have left some question in your mind about maybe be was convicted of something and this may have affected one or more of you in your deliberation. For that reason, I will mistry the case. Thank you, you are discharged.”

The record indicates no response to this ruling by either the defendant or his attorney.

The constitutional protection against double jeopardy protects a defendant in a criminal proceeding from repeated prosecutions for the same offense as well as from repeated convictions and punishments for it. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). Therefore, a mistrial declared without the defendant’s consent ordinarily operates as a bar to further prosecution for the same criminal conduct. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); State v. Lawson, 338 So.2d 627 (La.1976); State v. Birabent, 305 So.2d 448 (La.1974).

However, the jurisprudence has developed certain exceptions to this principle. United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165 (1824), established the right of the prosecution to reprosecute in instances of “manifest necessity,” as where the jury was unable to reach a verdict. Moreover, the United States Supreme Court has until recently followed a course of limited review for such declarations and has questioned the trial court’s ruling only in clear cases of abuse of discretion. Note, 32 La.L.Rev. 145 (1971). In Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961), the court in effect held that declaring a mistrial and discharging the jury did not trigger double jeopardy if the mistrial benefited the defendant. However, in United States v. Jorn, supra, the court apparently retreated from the broad implications of its holding in Gori. There the mistrial was declared without the defendant’s consent so that the government witnesses could consult with their attorneys (about their right against self-incrimination) prior to testifying; a subsequent prosecution was then dismissed on double jeopardy grounds. By affirming the dismissal, the court demonstrated that a mistrial declared without the defendant’s consent and in the absence of manifest necessity is likely to trigger double jeopardy, especially if the mistrial was not declared for the defendant’s benefit.

Louisiana has attempted to codify these principles in the Code of Criminal Procedure. Article 591 states' that a retrial is permissible only if the defendant moved for the new trial “or where there has been a mistrial legally ordered under the provisions of Article 775 or ordered with the express consent of the defendant.” Article 775 in turn establishes grounds for ordering a mistrial:

“A mistrial may be ordered, and in a jury case the jury dismissed, when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;
(3) There is a legal defect in the proceedings which would make any judgment entered upon a verdict reversible as a matter of law;
(4) The -court finds that the defendant does not have the mental capacity to proceed;
(5) It is physically impossible to proceed with the trial in conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a jury case the jury dismissed, when prejudicial conduct in or outside the courtroom makes it impossible for the defendant to obtain a fair trial, or when authorized by Article 770 or 771.
A mistrial shall be ordered, and in a jury case the jury dismissed, when the state and the defendant jointly move for a mistrial.”

By providing five specific instances in which the trial judge may declare a mistrial on his own motion, the article limits the scope of the manifest necessity rule developed by the federal courts. State v. Lawson, supra. Due to this limitation, situations may arise in which it may seem advisable to declare the mistrial without the defendant’s consent, but which do not fit into the circumstances enumerated in Article 775. In such situations, a “mistrial” declared without the defendant’s consent would actually constitute an illegal dismissal, and a retrial would be prevented by the constitutional protection against double jeopardy. U.S.Const. Amend. V, Amend. XIV; La.Const., art. 1, § 15; C.Cr.P. 591; Note, 32 La.L.Rev. 145, 153 n. 30 (1971).

In the instant case, the defense contends that the defendant did not consent to the mistrial, apparently on the basis of the absence in the record of any specific agreement to that effect. The State in turn argues that the defendant did consent to the ruling or, in the alternative, that the trial judge was authorized to grant the mistrial sua sponte because “a legal defect in the proceeding (the allegedly improper questions asked by the defense attorney) would make any judgment entered upon the verdict reversible as a matter of law.” C.Cr.P. 775(3). We note at the outset that this latter provision is inapplicable to the instant situation — a judgment acquitting the defendant would not be ap-pealable, and a conviction certainly would not be reversed on the basis of questions asked by defense counsel. Therefore, it is clear that the trial judge was not authorized to declare the mistrial on his own motion, and, as a result, the defendant’s consent was necessary to the proper granting of the mistrial. The question raised, therefore, is whether this consent must be “the express consent of the defendant” of Article 591.

Although Article 775 provides that a mistrial may be granted and the jury dismissed when “[t]he defendant consents thereto,” it does not further define consent. However, cómment (e) to this article states that it must be considered in light of Article 591, in which “the express consent of the defendant” is required for the ordering of a mistrial (emphasis added). The record of the first trial reveals only that the defense pursued a line of questioning which the State found objectionable, and that, after a bench conference, the trial judge ordered a mistrial to which ruling the defense did not object. Clearly, the express consent required by Article 591 cannot be found in the record before the court.

In State v. Lawson, supra, the court considered the propriety of a mistrial which was granted after a bench conference following defense objections to improper cross-examination of a defense witness. Although the defendant did not specifically consent to the ruling, we concluded that the failure to object to a mistrial was the equivalent of an acquiescence which barred subsequent complaint about the propriety of the mistrial. This result was reached in reliance on comment (d) to Article 775 which provides:

“(d) When a mistrial is improperly ordered, the defendant must object at the time and reserve a bill of exceptions. Otherwise, he will be deemed to have acquiesced in the court’s ruling. Art. 841.”

Certainly the result in Lawson is correct. The defense attorney brought the objectionable question to the attention of the trial judge and was apparently not satisfied with the prospect of an admonition by the judge. Moreover, it was the defense which was aggrieved by the cross-examination and which benefited from the mistrial. In light of these factors, a finding that the defendant consented to the. mistrial had ample support.

Nevertheless, the reasoning underpinning the Lawson decision cannot be applied to the case at hand. Comment (d) to Article 775 states that a defendant must object to an improper mistrial and reserve a bill of exceptions or be considered to have acquiesced in the court’s ruling. In essence the comment is a statement that the provisions of Article 841 (as originally enacted) apply to a mistrial situation, and that the general legislative policy requiring contemporaneous objection to any irregularity and reservation of a bill of exceptions must be followed.

However, it is apparent that contemporaneous objection and reservation of a bill are not applicable to a plea of double jeopardy. As originally drafted, Article 841 did not require a bill to be reserved for “a ground for arrest of judgment under Article 859 . . .one of which, is double jeopardy. Moreover, it is clear that requiring a contemporaneous objection to an improperly granted mistrial does not advance the purpose of the rule, which is to put the trial judge on notice of the alleged irregularity and to provide him with the opportunity to correct the problem during trial. State v. Dupre, 339 So.2d 10 (La.1976); State v. Charles, 326 So.2d 335 (La.1976). When a mistrial is declared, the jury is dismissed. (Compare the effect of granting a motion for acquittal, even when erroneously granted. State v. Hurst, 367 So.2d 1180 (La.1979). Unless the defendant anticipates the declaration of a mistrial, the trial ends without the opportunity to object. See United States v. Jorn, supra. Therefore, comment (d) is not a complete statement of the law; it must be considered with comment (e), and can apply only to mistrials granted for the defendant’s benefit. United States v. Jorn, supra; Note, 32 La.L.Rev. 145 (1971).

In the instant case, the State was clearly not entitled to a mistrial. Although the prosecution may have believed its case prejudiced by the defense questions put to Ursin, its remedy was redirect examination to rehabilitate the witness and rebut the inferences arising from the cross-examination. Nevertheless, the trial judge granted a mistrial, for the prosecution’s benefit, without obtaining the “express consent” of the defendant. By aborting the proceedings without the defendant’s consent and without his interest in mind, the trial judge impermissibly deprived the defendant of his right to have his trial completed by the jury before which he had been placed in jeopardy. We therefore conclude that the trial judge was in error to deny the defendant’s plea of double jeopardy.

For the reasons assigned, the conviction and sentence of Everette Simpson are reversed and the case is remanded to the district court for further proceedings consistent with the views expressed herein.

MARCUS, J., dissents and assigns reasons.

DENNIS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I agree with comment (d) to article 775 that, when a mistrial is improperly ordered, the defendant must object at the time. Otherwise, he will be deemed to have acquiesced in the court’s ruling. La.Code Crim.P. art. 841. Defendant’s objection would enable the trial judge to correct his error in improperly granting a mistrial. Accordingly, I respectfully dissent.

DENNIS, Justice,

dissenting.

I respectfully dissent. A mistrial declared by the trial court without the consent of the defendant will ordinarily bar further prosecution of that defendant for the same criminal conduct. State v. Lawson, 338 So.2d 627 (La.1976); see also, United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). La.C.Cr.P. art. 775 notes only five specified situations in which the trial court may declare a mistrial upon its own motion. Under the facts of this case, the trial court did not possess the statutory discretion conferred by the code provision to declare a mistrial without the consent of the defendant.

However, the official revision comment (d) to La.C.Cr.P. art. 775 notes that “[w]hen a mistrial is improperly ordered, the defendant must object at the time and reserve a bill of exceptions. Otherwise, he will be deemed to have acquiesced in the court’s ruling.” See State v. Lawson, 338 So.2d 627, 631 (La.1976); La.C.Cr.P. art. 775, Comment (e). Because the record does not indicate that defendant made any objection to the trial court’s declaration of a mistrial, he should be barred from subsequently complaining that the trial court’s action was improper.

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

      . Assignments of error neither briefed nor argued are considered abandoned. State v. Schwartz, 354 So.2d 1332 (La.1978).

      . The term “express consent” was not employed in the 1928 Code of Criminal Procedure. See e. g. arts. 274, 278.

      . In Lawson we erroneously cited comment (e) as the authority for this conclusion.

      . Article 841 as originally enacted provided: “An irregularity or error in the proceedings cannot be availed of after verdict unless it is objected to at the time of its occurrence and a bill of exceptions is reserved to the adverse ruling of the court on such objection. Failure to reserve a bill of exceptions at the time of an adverse ruling of the court operates as a waiver of the objection and as an acquiescence in the irregularity or ruling.
      This requirement shall not apply to:
      (1) A ground for arrest of judgment under Article 859, or the court’s ruling on a motion in arrest of judgment; or
      (2) The court’s ruling on a motion for a new trial based on the ground of bills of exceptions reserved during the trial.”
      It was subsequently amended by Act 297 of 1974 to provide:
      “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor. The requirement of an objection shall not apply to the court’s ruling on any written motion.”


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Roger Dale DOUCET.
    No. 62256.
    Supreme Court of Louisiana.
    April 9, 1979.

      Raymond D. Fuljenz, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Frank T. Salter, Jr., Dist. Atty., Adam L. Ortego, Jr., N. Pizzolatto, Jr., Asst. Dist. Attys., for plaintiff-appellee.
   ON REHEARING

CALOGERO, Justice.

Defendant Roger Dale Doucet was charged by bill of information with armed robbery, a violation of R.S. 14:64. He pleaded not guilty and not guilty by reason of insanity, was tried before a twelve person jury and was found guilty as charged. Thereafter, the court sentenced him to serve fifteen (15) years at hard labor. He appealed his conviction and sentence to this Court relying upon thirteen assignments of error.

In this Court the case was screened and placed on our summary docket calendar for oral argument. After oral argument we affirmed the conviction by per curiam, on November 22, 1978, notwithstanding that three members of the Court dissented in connection with assignment of error number five. We granted rehearing to reconsider the merit of that assignment of error.

By defendant’s fifth assignment he argues that the trial court erred in disallowing the late filing of a motion to suppress a witness’ identification testimony. The issue arose in the following context.

The crucial eyewitness to the offense, one Billy Weldon, had been subpoenaed by the state to appear at a hearing on a motion for a new trial in an unrelated armed robbery prosecution against this same defendant. Weldon apparently appeared in response to that subpoena some eight months prior to trial of the subject offense, sat in court at that hearing, presumably having ample opportunity to observe the defendant in court on that occasion. He was not called to present testimony at that time, for he was not a witness in connection with that crime.

Eight months later when this case was called for trial, defendant, represented by the court-appointed counsel who had represented him at the trial of the other case, as well as by retained counsel filed a written motion to suppress Weldon’s identification testimony on the grounds that the identification was tainted by the prior in-court viewing referred to hereinabove. The state contended that the motion should not be considered since the grounds therefor were known, or should have been known, to defense counsel well before trial, citing La. Code Crim.Pro. art. 703(A) which requires the filing of a motion to suppress no later than three judicial days before trial on the merits begins. See La.Code Crim.Pro. art. 703(A) infra.

Counsel for the defendant argued that while both the court appointed attorney and retained counsel had appeared at the motion for new trial on the unrelated case, they had not noticed Weldon’s presence in court at that hearing. The matter was allegedly discovered a “few days” before trial by appointed co-counsel. On that occasion he noticed documents in the record in the unrelated ease (number 11761 on the docket of the Fourteenth Judicial District Court) indicating that Weldon had indeed been subpoenaed by the district attorney and served by the sheriff in connection with the hearing on the motion for new trial. The trial judge refused to entertain the motion, to which defense counsel objected, reserving his complaint by assignment of error.

Louisiana Code of Criminal Procedure Article 703(A) provides:

“A motion filed under the provisions of this Paragraph must be filed no later than three judicial days before trial on the merits begins, except where the defendant receives notice of trial thirty days before trial on the merits, then such motion must be filed no later than fourteen calendar days before the trial on the merits begins, unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion. The court in its discretion may permit the filing of such a motion to suppress at any time before or during the trial.”

That article allows the trial court discretion to refuse to permit filing of a motion only when it is not timely filed despite the fact that defense counsel was aware of the grounds and had an opportunity to file it timely. However, when the defendant has had no opportunity to file a motion or, as in this case, was unaware of the grounds for the motion, so as to permit its timely filing, the trial court has no discretion but must permit the filing of the motion even though it is not presented within the periods designated within the statute.

Furthermore, as we have stated in State v. Doucet, 359 So.2d 1239 (La.1978) (on rehearing) a motion to suppress on constitutional grounds should be entertained during trial “unless it can be shown that defendant’s failure to file a pre-trial motion was a deliberate strategic bypass of the State procedure.” In that case, involving this same defendant, but a different prosecution (case number 11761 in which Weldon was subpoenaed to appear at the motion for new trial), the Court found that defendant should have been permitted to file a motion to suppress evidence during trial where his failure to do so earlier was attributable to an erroneous but understandable belief that the suppression of the same evidence in another case barred its admission in the case under consideration.

In the instant case defendant’s motion to suppress Weldon’s identification testimony was based on constitutional grounds and his failure to file the motion timely was neither deliberate nor negligent. We can find no advantage that defendant might have derived from a strategic and deliberate failure to file the motion timely. Nor do we find that it was negligent on the part of his court-appointed or retained counsel not to notice Weldon at the back of the courtroom at the hearing on the motion for a new trial and to recognize him as a witness in this unrelated prosecution. Defendant’s own counsel was retained only shortly before the hearing on the motion for a new trial and was not yet involved in this case in which Weldon eventually testified. The fact that Weldon was present at the hearing on the motion for a new trial was discovered fortuitously by the court-appointed attorney when more than eight months afterwards he found in the record in the other prosecution a subpoena for Weldon’s appearance for the hearing on the motion for a new trial.

We conclude that counsel’s filing of the motion to suppress the identification should have been permitted. However, because we have found no trial error except this refusal to permit the filing of the motion, it is not necessary at this time to reverse defendant’s conviction and order a new trial. The possibility of reversible error may well be obviated upon a hearing on the motion to suppress. We therefore remand as per State v. Simmons, 328 So.2d 149 (La.1976) and reserve to the trial judge the power to grant a new trial if after a hearing on the motion to suppress he determines that the identification of defendant was tainted and that the testimony should have been excluded. If, on the other hand, the trial judge determines that the identification testimony was admissible, the right to appeal from such a ruling is reserved to defendant. In the absence of such an appeal, the conviction and sentence will be affirmed.

Decree

The case is therefore remanded to the district court for further proceedings in accordance with this opinion.

REMANDED.

MARCUS, J., concurs.

      . For a discussion of the procedure this Court employs in screening appeals and assigning them to the summary docket see State v. Duhon, 340 So.2d 151 (La.1976), as modified by Stafe v. Montgomery, 362 So.2d 769 (La.1978).

      . The trial of this case began on a Monday. When counsel attempted to file the motion on Tuesday afternoon, he stated that his co-counsel had discovered the subpoena only within the “past few days.” For the motion to have been filed timely, counsel would have had to discover the grounds and file the motion on the prior Wednesday, i. e. three judicial days before trial.

      . We are not unaware of two recent expressions by this Court placing a different slant on this article, statements not central to the holdings in the respective cases, that only the trial court’s discretion will permit the late filing of a motion to suppress even when defendant had no opportunity to file it within the designated period, or was unaware of the grounds for the motion. State v. Taylor, 363 So.2d 699 (La.1978), State v. Anderson, 333 So.2d 919 (La.1976).

      .The basis for defendant’s motion to suppress was that Weldon’s in-court identification of defendant would be influenced by the earlier viewing of defendant at the hearing on the motion for a new trial, and that because of this influence, there was a substantial possibility of misidentification. As the United States Supreme Court observed in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), “[i]t is the likelihood of misidentification which violates a defendant’s right to due process . ” and which may require the exclusion of the in-court identification testimony.


author: BLANCHE, Justice.

text:
    Milford L. FRYAR v. William F. GUSTE, Jr.
    Nos. 63149, 63166.
    Supreme Court of Louisiana.
    May 21, 1979.
    Rehearing Denied June 25, 1979.

      Frank M. Coates, Jr., Taylor, Porter, Brooks & Phillips, Baton Rouge, for plaintiff-applicant in No. 63149 and for plaintiff-respondent in No. 63166.
    William J. Guste, Jr., Atty. Gen., Ellis C. Magee, Executive Asst. Atty. Gen., Kenneth C. DeJean, Thomas S. Halligan, Asst. Attys. Gen., John DiGiulio, Staff Atty., Baton Rouge, for defendant-respondent in No. 63149 and defendant-applicant in No. 63166.

       Summers, C. J., would grant a rehearing.

   BLANCHE, Justice.

Plaintiff and defendant both complain of error in the Court of Appeal decision reversing the trial court’s dismissal of this suit and holding that certain of the files in the Attorney General’s office are public records subject to examination by the plaintiff, a person qualified to inspect such records under the Public Records Act.

Plaintiff, Milford L. Fryar, a reporter for Capital City Press, sought access to records in the custody of the office of defendant, the Attorney General of Louisiana. Plaintiff claimed a right to inspect under authority of the Public Records Act, LSA-R.S. 44:1, et seq. The records consist of files containing interviews conducted by staff members of the Attorney General’s office for the purpose of investigating alleged irregularities involving the Ascension Parish Police Jury.

In the spring of 1976 a Grand Jury in Ascension Parish was investigating the alleged irregularities. In late March, the District Attorney requested assistance from the Attorney General’s office. Several Department of Justice staff members went to Ascension Parish and conducted interviews of eleven persons; reports of the interviews were furnished to parish • authorities. No charges were brought by either the Grand Jury or the District Attorney, and the Grand Jury investigation in the parish was ended by mid-April of 1976.

In May of 1976 some citizens of the parish met with the Attorney General and requested that there be a further investigation. As a result of this meeting, the Attorney General’s staff once again interviewed persons in Ascension Parish. In all, fifty-two people were interviewed, some more than once. Some of those interviewed were persons who had been interviewed previously. Some had testified before the Grand Jury. Fourteen of those interviewed, who showed a reluctance to talk freely, were assured that any information they gave would remain confidential except for necessary appearances to testify in court or before another Grand Jury. Glen-wood L. Bullard, an investigator for the Louisiana Department of Justice, testified that if a person were reluctant to be interviewed, he would be assured that his information would be held in strictest confidence and that there was a specific state law which prohibited making this information available to anyone. However, if the person were willing to talk and expressed no reservations, no such assurances were given. Only fourteen were assured of confidentiality. Bullard also testified that nothing in the files would indicate to which persons this assurance was given, though he himself does know. These interviews were concluded in February of 1977, and the following month the reports were furnished to the District Attorney in Ascension Parish. He stated that since nothing new was disclosed by this investigation he considered the matter to be closed.

The district court denied plaintiff permission to view the files on two bases:

(1) That LSA-C.Cr.P. art. 434 requires persons having confidential access to information concerning grand jury proceedings to keep secret the testimony of witnesses appearing before the grand jury and all other matters occurring at or directly connected with the meeting of the grand jury;
(2) That much of the information contained in the report of the Attorney General was derived from confidential sources of information and was privileged under the provisions of LSA-R.S. 44:3(A)(2).

The Court of Appeal, First Circuit, reversed and remanded with instructions. As to the eleven persons who testified or were interviewed during the Grand Jury investigation, the Court held their identities and testimony must remain confidential under Louisiana Code of Criminal Procedure Article 434. As to the fourteen persons to whom an assurance of confidentiality was given, the Court found them to be confidential sources of information under R.S. 44:3(A)(2); however, the Court noted that the Attorney General cannot designate a person as a confidential source when that person gives information willingly. The Court found that the records pertaining to the other interviews are subject to scrutiny under the Public Records Act. The trial judge was ordered to make an in-camera examination of the Attorney General’s files and to conduct necessary hearings in order to remove from the files those portions which must remain confidential; then plaintiff would be permitted to inspect and copy the remainder of the material in the files.

The Attorney General complains of the decision and claims that all of the investigation was directly connected with the original Grand Jury investigation, that the records must remain confidential under Louisiana Code of Criminal Procedure Article 434, and that all of those interviewed are confidential sources of information who must be protected under R.S. 44:3.

Plaintiff complains of the decision and claims a right to inspect all files containing information not part of the actual testimony before the Grand Jury; included in this claimed right to inspect are those reports which the Attorney General agreed to keep confidential, since plaintiff claims the persons interviewed are not, in fact, confidential sources of information to whom R.S. 44:3 is designed to apply.

This Court granted writs.

The Court of Appeal was clearly correct in ruling that the interviews with the eleven persons conducted prior to adjournment of the Grand Jury were a part of the Grand Jury investigation and all matters connected therewith must remain confidential. LSA-C.Cr.P. art. 434.

From our reading of the record, we find that the Court of Appeal was correct in finding that interviews conducted after adjournment of the Grand Jury in April, 1976, were separate from the Grand Jury investigation and resulted from the urging of Ascension Parish citizens. For this reason, the interviews are not subject to the confidentiality requirement of Codg of Criminal Procedure Article 434, nor are the interviews subject to the blanket exceptions to the public’s right to inspect contained in R.S. 44:3. The Grand Jury investigation had terminated; the investigation by the District Attorney had terminated; no prosecution had resulted or would result from the information gathered by the Department of Justice. The District Attorney regarded the matter as closed.

The only issue which prompted the granting of this writ was the propriety of shielding the interviews of fourteen persons to whom it was claimed that a promise of confidentiality was given by investigators for the Department of Justice.

The Public Records Act, LSA-R.S. 44:1, et seq., provides for public access to information concerning state government as it is conducted through its many agencies. It is a product of Article 12, § 3 of the Louisiana Constitution of 1974 which sets forth the public policy with regard to public records of state bodies as follows:

“No person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law.”

The act did make certain exceptions to the constitutional mandate and excluded from disclosure certain records as follows:

“A. Nothing in this Chapter shall be construed to require disclosure of records, or the information contained therein, held by the offices of the attorney general, . which records are:
“(2) Records containing the identity of a confidential source of information or records which would tend to reveal the identity of a confidential source of information
“B. All records, files, documents, and communications, and information contained therein, pertaining to or tending to impart the identity of any confidential source of information of any of the state officers, agencies, or departments mentioned in Paragraph A above, shall be privileged . (Emphasis supplied)

From the foregoing language, it is clear that all records containing the identity of a confidential source of information or records which would tend to reveal the identity of a confidential source of information are excluded from disclosure. We have no thought of weakening any protection afforded by the statute to confidential informants, because we believe that without this assurance very few persons, if any, would come forth with information concerning the commission of covert crimes.

With regard to this issue, the testimony of Bullard, one of the Attorney General’s investigators, is as follows:

“Q. All right. On these interview forms, do you indicate one way or the other whether you have promised the person interviewed that his identity will be kept secret?
“A. No, sir, this is not a confidential informant; this is a confidential source.
“Q. I see. Well, you didn’t promise any of them that their identity would be kept secret?
“A. I advised them the information they provided me would be held in the strictest of confidence until such time as it was required by an official board of inquiry.
“Q. Only the information?
“A. The information, yes, sir.
“Q. All right. And that’s all you promised?
“A. Yes, sir.” (Emphasis supplied)

From the foregoing, it must be concluded that the identity of the person giving the information was not given under a promise of confidentiality. The only promise was that which related to the information and as to this information, it would only be held in confidence until such time as it was required by an official board of inquiry. Thus, we find that the Court of Appeal was in error in concluding as to these persons that a promise not to disclose their identity was a condition under which they were willing to give information.

We, therefore, believe that the defendant has not demonstrated that any of the fourteen reports referred to above were given on a promise that the identity of the person making the same was on the basis that his identity would be kept confidential and, accordingly, order the inspection of these reports.

Finally, we feel compelled to make the further observation that access to such reports may not be blocked by a simple statement from one of the investigators that persons furnishing information were assured of confidentiality. To permit such actions by the Attorney General or any other official would be, in effect, to allow bureaucratic procedures to abrogate the intent and purpose of the Public Records Act. We repeat that the act protects the identity of the confidential informant. We define a “confidential informant” as one who has or claims to have knowledge of a particular criminal matter or event and is only willing to give such information to representatives of a law enforcement agency provided his identity is kept secret or in confidence.

For these reasons, we affirm the opinion of the Court of Appeal in all respects, except as to that portion of its judgment prohibiting plaintiff, Milford L. Fryar, from inspecting or copying from the statements of fourteen witnesses whom the Court of Appeal found had testified in confidence; and as to these witnesses, the Court of Appeal judgment is reversed and the trial court is ordered to permit inspection and copying of and from these statements by the said plaintiff, Milford L. Fryar. Defendant shall pay all costs for which he may be liable under the law.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.