author: McCORD, Chief Judge.

text:
    BAPTIST MEMORIAL HOSPITAL, a corporation, D. W. Mobley, George Oliver, Edmond Rhett, Jr., and E. N. McCormick, Appellants, v. Alice J. BEATY and Dixie Gene Beaty, her husband, and Heather Diana Beaty, a minor, through Alice J. Beaty and Dixie Gene Beaty, her parents and natural guardians, Appellees.
    No. HH-135.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1978.
    S. William Fuller, Jr., of Howell, Howell, Liles & Braddock, Jacksonville, for appellants.
    Bruce S. Bullock and Martin J. Mickler of Bullock, Sharp & Childs, Jacksonville, for appellees.
   McCORD, Chief Judge.

Appellants have brought an interlocutory appeal from an order arising out of a claim filed against them with a medical malpractice mediation panel under the Medical Malpractice Reform Act. We treat the appeal as a petition for common law writ of certiorari.

This action arose on December 19, 1974, when appellants and E. N. McCormick rendered medical service to appellees. On June 25, 1976, appellees filed a claim with the Medical Malpractice Mediation Panel under the Medical Malpractice Reform Act against the three appellants and E. N. McCormick. All were served but only McCormick answered. No hearing was held and no extension was sought or granted within the 120-day period provided for by § 768.44(3), Florida Statutes (1976 Supp.). On June 24, 1977, appellees filed a common law malpractice action against appellants and E. N. McCormick. Appellants filed a motion to dismiss contending that the two-year statute of limitations [§ 95.11(4), Florida Statutes (1975)] had expired on January 9,1977 — two years since the cause of action arose on December 19, 1977, plus a 20-day period allowed by § 768.44(l)(c) for appellants to file answers to appellees’ claim during which 20-day period the statute of limitations was tolled. The trial court denied the motion to dismiss, and appellants filed the interlocutory appeal in this Court which we treat as a petition for common law writ of certiorari.

Appellees contend (and the trial court apparently agreed) that the statute of limitations was tolled against appellants pursuant to § 768.44(4) and extended to 60 days from the date on which the jurisdiction of the panel terminated, the 60-day period extending to June 24, 1977, the date on which the suit was filed. The determination of the respective contentions of appellants and appellees hinges upon the interpretation to be placed upon the following pertinent provisions of § 768.44, Florida Statutes (1976 Supp.).

“(l)(a) Any person . . . claiming damages ... on account of alleged malpractice . . . shall submit such claim to an appropriate medical liability mediation panel before that claim may be filed in any court of this state.
* * * * * *
(e) All parties named as defendants in the claim shall file an answer to such claim within 20 days of the date of service. No other pleadings shall be allowed. If no answer is filed within such time limit, the jurisdiction of the mediation panel over the subject matter shall terminate, and the parties may proceed in accordance with law.
(4) The filing of the claim shall toll any applicable statute of limitations, and such statute of limitations shall remain tolled until the hearing panel issues its written decision or the jurisdiction of the panel is otherwise terminated. In any event, a party shall have 60 days from the date the decision of the hearing panel is mailed to the parties or the date on which the jurisdiction of the panel is otherwise terminated in which to file a complaint in circuit court.” (Emphasis supplied.)

The question to be resolved is whether or not under the Medical Malpractice Act, where a claim is filed against several defendants, the filing of an answer by one of the defendants within the required 20 days will toll the two-year statute of limitation applicable to medical malpractice actions as to all of those against whom the claim is filed.

Appellees had no choice but to file their claim with the mediation panel before bringing a civil action against appellants and McCormick [§ 768.44(l)(a)]. Once the jurisdiction of the mediation panel had vested, appellees could not bring a common law action until the panel’s jurisdiction over the subject matter of the claim terminated and under § 768.44(4), they had 60 days from the date of termination within which to file their complaint in circuit court. Upon filing their claim with the mediation panel, jurisdiction of the panel (in the absence of a hearing being held on the claim) extended for 10 months from the date the claim was filed [§ 768.44(3)] unless no answer was filed within 20 days of the date of service. Here an answer was filed by McCormick within the prescribed time.

The phraseology used by the legislature indicates that it intended that jurisdiction of the panel would terminate if no answer were filed by any of the defendants; that if an answer were filed by any defendant, jurisdiction would continue ás to all. Had it intended otherwise, it could easily have said so. To read another meaning into the statute would alter its terms as written. This interpretation is entirely logical because a plaintiff who files a claim with a mediation panel against several defendants thereby indicates a desire to bring his action against them in one single lawsuit. If the construction of the statute advocated by appellants were adopted, appellees would be forced to file a separate lawsuit upon the same incident against the nonparticipating appellants and prosecute it during the continuation of the mediation proceedings with the remaining defendant. Then at the conclusion of mediation, appellees would have to litigate before the court in a separate lawsuit the claim against the remaining defendant thus creating a multiplicity of lawsuits.

We find no ambiguity in the plain wording of the statute. It is a cardinal rule of statutory construction that the plain meaning of a statute will not be disturbed in the absence of ambiguity or conflict. City of Miami v. Carter, 105 So.2d 5 (Fla.1958); Hooper v. State Road Department, 105 So.2d 515 (Fla. 2 DCA 1958).

The trial court did not err in denying appellant’s motion to dismiss the complaint of appellees.

Certiorari denied.

BOYER and SMITH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    VENDING UNLIMITED, INC., d/b/a Ace Saxon, a Florida Corporation, and Edward J. Stack, Appellants, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, and Charles A. Nuzum, Director, Appellees.
    No. JJ-406.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1978.
    David T. Price of Price & Byrne, Fort Lauderdale, for appellants.
    Dennis E. LaRosa; Jack M. Skelding, Jr. of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, Sherryll Martens Du-naj, Miami, A. J. Ryan, Jr., Dania, Lawrence A. Aschenbrenner, Washington, D. C., for appellees.
   PER CURIAM.

This case involves Indians, Indian reservations and taxes. Appellant Stack, though a public official, sought in his individual capacity as a citizen and taxpayer to require imposition of taxes on certain transactions involving the sale of cigarettes to and by Osceola, whose place of business is located on an Indian reservation within the boundaries of the State of Florida. Appel-lees took the unusual position, though with admirable candor, that the sales were not taxable by the taxing authorities of the State of Florida. Appellant, having been unsuccessful in his endeavor to require imposition of the tax, sought review here, relying primarily on Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed.2d 96 (1976). We find that ease to be distinguishable for the reason that, inter alia, the statute there involved is materially different from the relevant Florida statutes as written and construed. More on point is Confederated Tribes of Colville v. State of Washington, 446 F.Supp. 1339 (D.C.1978), which, though not controlling, is persuasive authority.

AFFIRMED.

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


text:
    Robert SOBEL, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1034.
    District Court of Appeal of Florida, Third District.
    Nov. 22, 1978.
    Stanley M. Goldstein and Geoffrey Charles Fleck, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on August 30, 1977 (349 So.2d 747) reversing the judgment and sentence of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 363 So.2d 324, by its opinion and judgment dated July 20,1978 now lodged in this court, quashed this court’s judgment with directions to reinstate the judgment and sentence of the trial court;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on September 30, 1977 is withdrawn, the judgment of this court filed August 30, 1977 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the judgment and sentence of the trial court is reinstated and affirmed. Costs allowed shall be taxed in the criminal court (Rule 9.400(a) Florida Rules Appellate Procedure).


author: BOYER, Judge.

text:
    Edith E. MARTIN, Appellant, v. Lieutenant Governor James H. WILLIAMS, as Secretary of Administration, State of Florida, and Robert L. Kennedy, Jr., as Director of the Division of Retirement, Department of Administration, State of Florida, Appellees.
    No. GG-275.
    District Court of Appeal of Florida, First District.
    Nov. 28, 1978.

      C. Everett Boyd and Richard W. Ervin of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.

      L. Keith Pafford, Tallahassee, for appel-lees.
   BOYER, Judge.

This is an appeal from an adverse final judgment entered by a circuit judge in a declaratory judgment action commenced by appellant. Involved is a dispute as to whether appellant, a State employee, may upon retiring for a second time, obtain credit for service as a State employee while a member of another State retirement system.

Appellant was employed as a secretary with the Attorney General of the State of Florida, and subsequently as a law clerk with the Supreme Court of Florida, from 1939 to 1952. In 1946, she became a member of the newly created State Officers and Employees Retirement System and was credited in that system with her state service from September 1939.

In 1955 the State Officers and Employees Retirement System was merged with the County Officers and Employees Retirement System to form the State and County Officers and Employees Retirement System (SCOERS). SCOERS was codified in Chapter 122 Florida Statutes. Appellant participated in SCOERS during subsequent employment with the Broward County State’s Attorney from 1956 to 1958 and later as an employee of the Second District Court of Appeal from 1958 to 1960. She voluntarily elected a reduced early retirement benefit under SCOERS at age 55 in March of 1965.

Appellant thereafter became reemployed on a full time basis as a research assistant with the Second District Court of Appeal on September 16, 1968.

At the time of appellant’s retirement in 1965 and at the time of her reemployment in 1968 F.S. 122.16(l)(a) and F.S. 122.-16(l)(b) provided (in material part) as follows:

“122.16 Employment after retirement.— (l)(a) Any person who has accepted and is receiving retirement compensation under this chapter shall have such compensation suspended during any period of reemployment * * * Any person receiving retirement compensation under this chapter who becomes reemployed by the state * * * shall furnish timely notice in writing to the agency by which he is becoming employed, and to the comptroller of the fact that he is prohibited from receiving retirement compensation and salary at the same time * * ” “(b) The reemployment by the state * * of any person who has accepted and is receiving retirement compensation under this chapter shall have no effect on the average final compensation or the aggregate number of years of service of such person, nor shall any deductions for retirement contributions be made from the salary paid such person with respect to such reemployment.”

Pursuant to the mandate of the above quoted statute appellant notified the Comptroller’s office of her reemployment whereupon her retirement benefit under SCOERS was suspended. Her employer, however, failed to comply with paragraph (b) of the statute and deducted and reported to the Comptroller four per cent of appellant’s salary as her SCOERS’ retirement contribution.

Chapter 70-112, Laws of Florida, established the Florida Retirement System (FRS), Chapter 121 Florida Statutes, which became effective January 1, 1971. Initially there was no prohibition against retired members of “existing systems” participating in FRS. F.S. 121.051(1) Florida Statutes 1971, compelled membership in that system (FRS) of all officers and employees employed on or after December 1, 1970 (with certain exceptions not here material). F.S. 121.051(2)(a)l., Florida Statutes 1971, provided (in material part):

“Any officer or employee who is a member of an existing system, * * * may elect, if eligible, to become a member of this system at any time between April 15, 1971 and June 1, 1971, inclusive, by notifying his employer in writing of his desire to transfer membership from the existing system to this system. Any officer or employee who was a member of an existing system on December 1, 1970 and who did not elect to become a member of this system shall continue to be covered under the existing system subject to the provision of § 121.045.”

Pursuant to the last quoted statute, while appellant’s SCOERS’ benefits remained suspended because of her reemployment, she elected to participate in FRS, effective January 1, 1971.

Annual “contribution statements” were provided appellant during her participation in FRS reflecting the amount of contributions credited to her account in the FRS trust fund, which statements included her credits under SCOERS.

In April of 1976 appellant informed the Division of her intention to retire on August 31, 1976, and requested the Division to recalculate her retirement benefits and to advise her of the amount of same. The Division responded by letters of May 7 and May 25, 1976 advising that upon her reemployment in 1968 appellant was ineligible to contribute to the retirement system (SCOERS) but that upon her becoming a member of the Florida Retirement System (FRS), to which she had transferred as above recited, she became eligible to receive retirement benefits as a member of FRS only if she retired with ten years creditable service from December 1, 1970; that she could receive no credit whatsoever for her employment and contributions from September 1968 through November 30, 1970; that she would receive only her previous SCOERS’ retirement benefits which had been suspended during her period of reemployment and that she was entitled to receive refunds of her contributions from reemployment in September 1968 to the date of her anticipated retirement.

The Circuit Judge, in the final judgment here appealed, ordered and adjudged that:

“1. Plaintiff shall not receive any SCOERS retirement credit for any employment subsequent to her retirement under that system-in March, 1965;
“2. Defendants shall refund all money improperly withheld and reported by Plaintiff’s employer as SCOERS retirement contributions between September, 1968, and December, 1970, together with interest at the rate of 4% per annum;
“3. Defendants shall reinstate Plaintiff’s suspended SCOERS retirement benefit effective August, 1976, with all cost-of-living increases provided by law; and,
“4. Defendants shall pay to Plaintiff any benefit she may now or hereafter accrue based on her participation in FRS subsequent to December, 1970.”

Appellant urges on appeal that as a retiring member of FRS she is entitled to credit for the entire period of her state employment.

We agree with the appellee that for the period commencing with appellant’s reemployment to the date of her transfer to FRS she is entitled only to a refund of the wrongfully withheld contributions, plus interest. As already mentioned, during that period the applicable statute (F.S. 122.-16(l)(b)) specifically prohibited “any deductions for retirement contributions * * * from the salary paid such person with respect to such reemployment.” Clearly, under the provisions of that statute no retirement benefits could accrue during that period. We disagree, however, with the rate of interest urged by appellee and provided in the final judgment here appealed. Inasmuch as the unauthorized deductions for the retirement contributions during that period were at the instance of appellant’s employer and accepted and retained by the retirement trust fund appellant is entitled to interest from the date of the wrongful deduction to the date of refund at the legal rate of 6% per annum.

However, we agree with appellant that upon her retirement under the FRS, to which she rightfully and legally transferred from SCOERS, she is entitled to additional credit under the FRS for her time and contributions under SCOERS, viz: Under the facts of this case, for the period of employment from 1939 to her initial retirement in 1965.

As above noted, F.S. 121.051(2)(a)l., Florida Statutes 1971, which was in effect at the time appellant elected to transfer membership from the “existing system” (SCOERS) to FRS permitted such a transfer and contained no prohibition as a result of earlier retirement, the benefits incident to which were in suspension. While it is true that F.S. 121.051(2)(a)l. was amended by the legislature in 1972 by the addition of one sentence, to wit:

“A person who has retired under any state retirement system shall not be eligible to transfer to the Florida Retirement System created by this Chapter subsequent to such retirement.” (F.S. 121.-051(2)(a)l. Florida Statutes 1972 Supp.)

such amendment was not retroactive and could not have adversely affected appellant’s transfer, which had already been accomplished. Indeed, the very fact that the legislature saw fit to make such amendment signals its acknowledgment that prior to the effective date thereof that which was proscribed thereby was permitted. It will not be presumed that the legislature acted without purpose or reason.

Appellees concede in their brief that appellant actually, rightfully and legally transferred from the “existing system” of which she was a member to FRS effective January 1,1971 and then began accumulating “creditable service” under that system but denies that she is entitled, as creditable service, credit for her legally accumulated service under SCOERS. Without citing authority for the distinction, appellees concede in their brief that had appellant not initially retired under SCOERS she would be entitled to credit for her accumulated time and contributions under that system, saying:

“It is true that those who have never retired and never drawn benefits under an ‘existing system’ prior to participation in the Florida Retirement System may have their service credit under ‘existing systems’ used in calculating their ultimate benefits upon retirement.”

We find no authority prior to the 1972 amendment to F.S. 121.051(a)(2)l., above quoted, for that position. While it is true that F.S. 122.16(l)(b) provides that the reemployment of any person accepting and receiving retirement compensation under that chapter shall have no effect on the average final compensation or the aggregate number of years of service of such person for benefit computation, that provision is applicable only to SCOERS and has no application to FRS.

Although not discussed in the briefs, in order to avoid a needless second review of this case, we observe that in order for appellant to obtain credit under FRS for the service accumulated prior to retirement under SCOERS she must reimburse the system for those sums paid to her as benefits during her period of retirement and prior to suspension of the benefits, plus interest at the statutory rate.

Appellant also urges estoppel. Although we have recognized that under certain circumstances estoppel will lie against the state (George W. Davis and Sons, Inc. v. Askew, 343 So.2d 1329 (Fla. 1st DCA 1977)) we do not find the circumstances of this case to be such as to invoke that doctrine as to the period during which the illegal deductions were made and reported from the date of reemployment to the date that appellant transferred to FRS. As to the other credits accumulated under SCOERS, our disposition under the preceding point renders further consideration of the estoppel issue unnecessary.

AFFIRMED in part and REVERSED in part and REMANDED for further proceedings consistent herewith.

McCORD, C. J., and MILLS, J., concur.


author: PER CURIAM. BOYER, Acting Chief Judge,

text:
    MIAMI NATIONAL BANK, a National Banking Association, Appellant, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES; Division of Motor Vehicles, Ralph Davis, Executive Director of the Department of Highway Safety and Motor Vehicles, John Calvin, Director of the Division of Motor Vehicles, and American Motors Sales Corporation, Appellees.
    No. JJ-92.
    District Court of Appeal of Florida, First District.
    Nov. 28, 1978.
    Jose E. Martinez and William E. Sadow-ski of Helliwell, Melrose & DeWolf, Miami, for appellant.
    Enoch J. Whitney and Edwin E. Strickland, Tallahassee, Theodore R. Hainline of Hainline & Billing, Fort Lauderdale, for appellees.
   PER CURIAM.

Upon considering the briefs, the record, and oral argument, we find no reversible error.

Accordingly, the final order is affirmed.

MILLS and BOOTH, JJ., concur.

BOYER, Acting C. J., concurs specially.

BOYER, Acting Chief Judge,

concurring specially.

I concur in affirmance but only because of the language of Slaughter v. State ex rel. Harrell, 245 So.2d 126 (Fla. 1st DCA 1971) wherein this court stated:

“Mandamus is a harsh and extraordinary remedy. It is available to enforce a legal right that has already been clearly established, but not to establish a legal right. * * * ” (245 So.2d at page 128)


author: TATE, Justice. SUMMERS, J.,

text:
    Jimmie CARRIERE, Plaintiff-Appellant-Relator, v. PEE WEE’S EQUIPMENT COMPANY, Defendant-Appellee-Respondent.
    No. 61785.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Patrick C. Morrow, Morrow & Morrow, Opelousas, for defendant-appellee-respon-dent.
    Louis E. Bernard, Bernard & Angelle, Lafayette, for plaintiff-appellant-relator.
   TATE, Justice.

A former employee sued his employer for unpaid wages due him when he quit his employment, as well as for penalty wages and attorney’s fees. La.R.S. 23:631, 632. The district court awarded the plaintiff the sum of $161.93 for unpaid wages, but rejected his demand for penalty wages and attorney’s fees. Pretermitting the question whether proper demand had been made by Carriere, the court of appeal affirmed, holding that equitable defenses by the employee precluded the award of penalty wages and attorney fees. 361 So.2d 1223 (La.App. 3d Cir. 1978).

We granted plaintiff’s application for writs to review the denial of penalty attorney’s fees claimed because of the nonpayment of backwages judicially determined to be undoubtedly due. La., 363 So.2d 68 (1978). The intermediate court’s denial, relying on legislatively overruled jurisprudence, was in error.

(1)

The legislature has provided that an employer must pay an employee his wages shortly after his discharge or resignation, upon default being subject to the payment of additional penalty wages and attorney’s fees. La.R.S. 23:631, 632. See Appendix. Pertinently to the present issue, the legislation also provides that “Reasonable attorneys’ fees shall be allowed the laborer . in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after twenty-four hours shall have elapsed from the time of making the first demand following discharge or resignation.” La.R.S. 23:632 (1964). (Italics ours.)

Prior to a 1964 amendment, the statutory language had provided that attorney’s fees should be awarded in the event a “just suit” was filed. La.R.S. 23:632 (1950). The jurisprudence interpreting this language permitted the employer to escape penalty wages and attorney’s fees for an equitable defense thereto based upon a good faith dispute-by the employer, arising from reasonable and non-arbitrary belief, that he did not owe the wages for which (after judicial determination) he, was ultimately held liable. See, e. g., Mitchell v. First National Life Insurance Company of Louisiana, 236 La. 696, 109 So.2d 61 (1959) and Clevy v. O’Meara, 236 La. 640, 108 So.2d 538 (1959).

The 1964 amendment, providing for the mandatory award of attorney’s fees in the event of an employee’s “well-founded” suit for unpaid wages (i. e., instead of being awardable when a “just suit” was filed), legislatively overruled this jurisprudence, at least insofar as permitting equitable defenses to the award of attorney’s fees. Rubenstein Brothers v. LaForte, 320 So.2d 303 (La.App. 4th Cir. 1975); Miletello v. Noble Drilling Corp., 316 So.2d 505 (La.App. 2d Cir. 1975); Robertson v. International Motor Company of Houma, Inc., 314 So.2d 531 (La.App. 1st Cir. 1975); Scallan v. Mark Petroleum Corporation, 303 So.2d 498 (La.App. 2d Cir. 1974), cert. den., 307 So.2d 370 (La.1975) (“no error of law”); Porter v. Lombardino, 303 So.2d 493 (La.App. 2d Cir. 1974), cert. den., 307 So.2d 370 (La.1975) (“no error of law”). See also to same effect, Professor J. Denson Smith, 25 La.L. Rev. 26 (1964) and Nolfo v. Landeche, 339 So.2d 1331 (La.App. 1st Cir. 1976).

The intermediate court was therefore in error in holding that good-faith defenses by an employer to his wage liability permitted the courts to excuse him from the attorney’s fees mandatorily required by the legislature to be taxed as costs, when to recover wages due him an employee is forced to file a well-founded suit for their payment.

The intermediate court fell into error by following previous precedents of its own court, Colbert v. Mike-Baker Brick Company, 326 So.2d 900 (La.App. 3d Cir. 1976) and Becker v. Choate, 204 So.2d 680 (La.App. 3d Cir. 1967), which had erroneously overlooked the legislative overruling of the decisions upon which they were based. These decisions are expressly overruled, insofar as they rejected an employee’s claim for attorney’s fees.

In the instant case, accordingly, the employee is entitled to reasonable attorney’s fees occasioned by his suit to recover wages due him but not paid. The amount of these we fix at $750.

(2)

The cited jurisprudence held that the legislative amendment of 1964 overruled the prior jurisprudence only insofar as it excused the assessment of attorney’s fees against an employer by even a good-faith defense to a well-founded suit for unpaid wages. This jurisprudence correctly held that a good-faith non-arbitrary defense to liability for unpaid wages, i. e., a reasonable basis for resisting liability, still permitted the court to excuse the employer from the imposition of additional penalty wages (see footnote 1).

In the present instance, the employer resisted liability on the claim that, as an offset to the wages due, the employer was entitled to charge the employee for the cost of ten uniforms which the employer thought the employee had retained. The employee testified he had returned nine uniforms to the dirty laundry, a defense apparently accepted by the trial court in rejecting this credit.

The employer did not appeal the award of unpaid wages of $161.93. Although its defenses to this wage liability were rejected, we are unable to say that the lower courts erred in finding that the employer acted in good faith when it resisted liability for the unpaid wages.

The demand for penalty wages sought by the plaintiff employee (see footnote 1) was properly rejected.

(3)

The defendant re-urges its contention, pretermitted by the intermediate court, that, before any penalty or attorney’s fee may be awarded, La.R.S. 23:631 (1950) requires that the plaintiff must make formal demand for his wages upon his employer “at the place where the employer or laborer is usually paid.”

In the present case, the demand was made by telephone call by the plaintiff’s wife, which the district court held to be sufficient. The defendant urges that, nevertheless, this was insufficient formal demand, considering that penalties are strictly construed. Cf., Mitchell v. First National Life Insurance of Louisiana, 236 La. 696, 109 So.2d 61 (1959).

However, the defendant filed a general denial to the plaintiff’s claim for unpaid wages. When a defendant denies liability after suit is filed, technical deficiencies in a pre-suit demand are waived by him and will not defeat the imposition of statutory penalties designed to enforce prompt payment. Gatte v. Coal Operators Casualty Company, 256 La. 325, 236 So.2d 485 (1970) and jurisprudence cited therein.

Decree

For the reasons assigned, we affirm the award of unpaid wages, interest, and costs, but we amend the judgment so as to hold the defendant additionally liable as costs for $750 attorney’s fees. The defendant is taxed with all costs in this and the previous courts.

AMENDED AND AFFIRMED.

SUMMERS, J.,

dissents.

Appendix

Prior to 1977 amendments, these statutes (as in effect at the time of the plaintiffs resignation) provided:

LSA-R.S. 23:631 (1950) provided:

“It shall be the duty of every person employing laborers or other employees of any kind whatever when discharging any laborer or other employee, or when any such laborer or employee has resigned, within twenty-four hours after such discharge or resignation, to pay the laborer or employee the amount due under the terms of' employment whether the employment is by the day, week or month, upon demand being made upon the employer by the discharged or resigned laborer or employee at the place where the employee or laborer is usually paid.” (Italics ours.)

LSA-R.S. 23:632 (1964) provided:

“Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days’ wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorneys’ fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after twenty-four hours shall have elapsed from time of making the first demand following discharge or resignation.” (Italics ours.)

The amendments by Act 317 of 1977 to La.R.S. 23:631 eliminate the “demand” requirement, provide for payment within three days (instead of 24 hours), and permit such payment to be made by mail. The amendments to La.R.S. 23:632 lengthen the delay to allow the payment of wages due by the employer within three days (instead of 24 hours) to allow him to escape payment of attorney’s fees if the employee is required to file suit.

      . The law in effect at the time of the plaintiffs resignation provided for payment of back wages within twenty-four hours after demand “at the place where the employee or laborer is usually paid” La.R.S. 23:631 (1950), with the employer’s failure to do so to subject him to additional penalty wages of up to 90 days additional wages, La.R.S. 23:632 (1964), as well as attorney’s fees.

      . In failing to pay the wages due, the employer had first wished to discuss the matter of uniforms, as well as a small open account amount due (“six dollars and fifty cents or something,” the corporate officer testified, Tr. 50) and a $200 loan for the employee to buy a truck (admittedly a “side thing” to the wage issue, the official testified, Tr. 50).


author: TATE, Justice. SUMMERS, Justice

text:
    STATE of Louisiana v. Daisy ARMSTRONG et al. (Roger Williams Insurance Co.).
    No. 63271.
    Supreme Court of Louisiana.
    Nov. 2, 1978.
    Dissenting Opinion Nov. 21, 1978.

      Tucker & Schonekas, Gibson Tucker, Jr., Peter J. Castaño, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Ralph Capitelli, Fredericka Homberg, Louise S. Korns, Asst. Dist. At-tys., for plaintiffs-respondents.
   TATE, Justice.

At the instance of the surety on certain bail bonds, we granted certiorari, 363 So.2d 911, to review certain rulings made by the district court with regard to bail bonds by this defendant.

We consider the primary and dispositive issue before us to be whether, in a criminal prosecution, the trial court may entertain a collateral attack upon the legal qualifications of a surety company which has issued a bail bond for the release of an accused defendant, when that company is authorized by the commissioner of insurance to do business in Louisiana and thus is authorized by La.C.Cr.P. art. 323 to become surety for the release of a criminally accused person on bail.

Context Facts

The undisputed showing is that the surety (“Roger Williams”) was issued a certificate of authority to do business in Louisiana by the Louisiana commissioner of insurance, upon that official’s determination that the company possessed the qualifications and assets required by applicable law and regulation to become surety on bail bonds. (The district attorney contends, however, that the commissioner was in error in so doing, and that the company did not in fact possess the legally required qualifications and assets.)

The issue was raised by the district attorney in this manner in the Criminal District Court for Orleans Parish:

In five criminal cases in which the four individuals charged had been released under an appearance bond with Roger Williams as surety, the prosecutor filed a “Rule to Show Cause Why New Or Additional Security Should Not Be Posted.” The prayer of each of the rules prayed only that Roger Williams and its agent show cause why new or additional security should not be posted.

The allegations upon which this relief was founded do not set forth any improper conduct by Roger Williams in the performance of its functions with regard to bail bonds, or any unlawful or immoral conduct with regard to its conduct in Orleans Parish. Instead, the prosecutor alleges certain alleged deficiencies in the corporate procedure by which Roger Williams had converted itself from a foreign into a domestic corporation and in its issuance of its stock shares, and he further alleges that $300,000 of the assets listed with the commissioner of insurance (as part of the $1,000,000 paid-in capital statutorily required for an insurer in the surety business, see La.R.S. 22:71, subd. A(19) (1966)) should not be considered sufficient, since this amount was allegedly encumbered.

At the hearing, the insurer objected that the only issue before the court was its financial responsibility insofar as the five bonds at issue. It did not seek to rebut in detail the state’s evidence tending to prove the allegations, although it introduced certain documentary evidence tending to prove that the $300,000 was not encumbered. Instead, the insurer produced by stipulation evidence that it had performed all its obligations as surety in the numerous instances it had furnished bail bonds in Orleans Parish.

I.

The prosecutor filed its rules to show cause under the purported authority of La. C.Cr.P. art. 321: “The court having trial jurisdiction over the offense charged, on its own motion or on motion of the state or defendant, for good cause may either increase or reduce the amount of bail, or require new or additional security.”

In ruling on the motion, the trial court did not require the defendants to furnish new or additional security, the only relief specifically sought by the motion. Instead, the trial court issued a blanket order to the clerk of court to accept no more bail bonds from Roger Williams. The court further ordered that the directors and officers of that company be personally responsible for the appearance of the four individual defendants for whom the surety had furnished bail bonds.

At this point, we note that the thrust of the attack upon Roger Williams appearing as surety on the bail bonds is not its insolvency or its actual failure or ability to perform adequately its responsibility as surety. Instead, the attack concerns whether Roger Williams met the statutory qualifications of an insurer authorized to do business as surety in Louisiana. The prosecutor alleges and attempts to prove that Roger Williams did not meet such qualifications. He does so, despite the certificate of authority to Roger Williams to act as surety on bail bonds, which had been issued by the state commissioner of insurance, who is constitutionally and statutorily authorized to determine Roger Williams’ qualifications to do so.

For reasons set forth below, this collateral attack upon the qualifications of an authorized surety is not contemplated or authorized in criminal prosecutions wherein the insurer has become surety upon a bail bond, as empowered to do so by the certificate of authority issued to it by the regulatory agency statutorily responsible for determining its qualifications to act as surety.

II.

La.C.Cr.P. art. 323 provides: “A surety company authorized to do business in the State of Louisiana may become surety for the release of a person on bail.”

This code article appears in a chapter entitled “Sureties.” After Article 323’s provision that a surety company may become surety, the remaining articles of the chapter (324-329) regulate the qualifications and formalities for personal sureties who may also become surety on bail bonds.

In context, the provision of Article 323 means that a surety company “authorized to do business in the State of Louisiana” means that such a surety company is legislatively entitled to act as surety on bail bonds, just as personal sureties meeting the qualifications of Article 324 are also statutorily entitled to become surety.

Article 321 does not contemplate that a prosecutor may defeat an accused’s release on bail by a collateral attack upon the certificate of authority of the commissioner of insurance authorizing the surety company to so act. We are re-enforced in this view by the legislative history and background of this article.

The Louisiana Code of Criminal Procedure was adopted in 1966 by the legislature upon recommendation of the Louisiana State Law Institute. The official revision comments to Article 323 note that the source of this article is La.R.S. 15:103, and that it is a restatement of the last clause of Article 103 of the 1928 Code to similar effect.

At the time Article 323 was enacted in 1966, Article 103 of the 1928 Code had been re-enacted in the Revised Statutes of 1950 as La.R.S. 15:103 and had been amended by Act 411 of 1962 so as to clarify its intent by the addition of a sentence which explicitly prohibited the courts from refusing to accept in criminal proceedings bail security furnished by any surety company authorized to do business in Louisiana by the commissioner of insurance.

The prosecutor forcefully argues that, despite the lack of shown intent to change the meaning of La.R.S. 15:103 (1962), the 1966 codification’s re-enactment without the amendatory 1962 language indicates a legislative intent to permit the courts to refuse bonds of surety companies, even though they are legally authorized to act as surety by certificate of authority issued by the commissioner of insurance.

This argument, we think, is unsupported by any shown legislative intent or by the purposes of the 1966 codification. As to the latter, the Report of the Institute to the Legislature stated that the 1966 codification was designed generally to clarify and complement existing Louisiana procedures, to set forth concise rules and eliminate unnecessary language and provisions (commenting also upon “piecemeal, though well-meaning amendments” to the 1928 code), to carefully safeguard the rights of the accused without hypertechnical rules to provide loopholes through which the guilty may escape or justice be delayed, and to make no change for the sake of change. See Report to Accompany the Project of the Proposed Louisiana Code of Criminal Procedure (1966), 4 West’s LSA Code of Criminal Procedure, p. xv (1969).

The absence of intent to change the prior meaning of Article 103 of the Louisiana Criminal Code of 1928, together with its (unnecessary) clarifying amendment of 1962 is, upon reflection, likewise supported by the primary purpose of the code articles regulating bail in criminal prosecutions:

That purpose is to effectuate the constitutional right of those who are, after all, merely accused of crime until convicted, to be released on bail pending trial. The provision of Article 323 that an authorized surety company may become surety for the release of a person on bail, just as the provision of Article 333 that a defendant criminally accused may furnish cash for the amount of his bail, is designed to assure that security meeting this statutory qualification should be accepted as sufficient when tendered by a criminally accused to secure his release pending trial (whatever discretion the trial court may have as to whether tendered personal sureties, Articles 324-29, possess the requisite qualifications).

III.

Other American jurisdictions, similarly to Louisiana, have statutory provisions which permit the trial court to test the sufficiency of a bail surety, yet likewise provide for the acceptance as surety of a state-authorized surety company. The few decisions we could find from these jurisdictions uniformly adopt the view that the qualifications of the surety company cannot be collaterally attacked and that they must be accepted as sufficient for the company to act as a bail surety. Kreiss v. Clerk of Superior Court in and for Cochise County, 111 Ariz. 373, 530 P.2d 365 (1975); McKinley v. Johnson, 401 P.2d 1007 (Okl.Cr.App.1965); International Fidelity Insurance Company v. Sheriff of Dallas County, 476 S.W.2d 115 (Tex.Cr.App.1972). See also Pride v. Anders, 266 S.C. 338, 223 S.E.2d 184 (1976).

The general principle, thus, is that a trial court may not entertain a collateral attack upon the qualifications of a surety company certified under state law by a state agency as possessing those qualifications: It may not by this collateral attack prevent the release on bail by those persons furnishing security by such a surety company.

Nevertheless, within its inherent power to regulate judicial proceedings before it, the trial court may inhibit or deny an authorized surety company from furnishing bail undertakings before that court, upon a finding (after notice and hearing) that the company is a poor moral or unsafe risk because of its prior illegal or immoral conduct in its bail business, or because it fails to comply with a valid rule or ruling of the court in connection with its bail undertakings in that court.

Insofar as the prosecutor attempts to rely upon decisions illustrative of the principle enunciated in the previous paragraph (see footnotes 4 and 5), they are inapposite to the issue before us. Likewise inapposite is State ex rel. Howell v. Schiele, 85 Ohio App. 356, 88 N.E.2d 215 (1949), affirmed 153 Ohio St. 235, 91 N.E.2d 5 (1950), also cited to us by the prosecutor. The decisions relied upon are not authority for the state’s contention that a court may entertain a collateral attack upon the qualifications of a state-qualified surety company to furnish bail bonds in criminal proceedings, by virtue of its inherent power to regulate its court or of its power to test the sufficiency of bail sureties.

Conclusion

In summary, where state law provides that a surety company authorized by a state regulatory agency may act as surety for the release of an accused person on bail, the general rule in Louisiana and elsewhere is that the trial court may not refuse to accept such company as bondsman because of the alleged insufficiency as surety of the company, where the refusal is based upon a collateral attack upon the qualifications and requisite assets certified to be in accordance with law by the state agency entrusted by law with the responsibility to make such determinations.

Accordingly, we find that the trial court order was improvidently issued, and we set it aside and rescind it, insofar as it purported to order the clerk of court to accept no more bail bonds from the Roger Williams Insurance Company, and insofar as it purported to hold the directors and officers of that company personally responsible for the appearance of the defendants for whom that surety had furnished bail bonds.

ORDER OF TRIAL COURT SET ASIDE AND RESCINDED IN CERTAIN ASPECTS.

SUMMERS, J., dissents and will assign reasons.

SUMMERS, Justice

(dissenting).

In five pending criminal cases in Orleans Parish, involving distribution of narcotics, theft and receiving stolen goods, the accused parties were free while awaiting trial under appearance bonds with Roger Williams Insurance Company as surety. Alleging that Roger Williams had not met the requirements of law as an insurance company authorized to do business in the State of Louisiana, the District Attorney ruled the surety’s agent and the surety into court to show cause why new or additional security should not be posted.

Roger Williams and its agents then moved to quash the rule nisi on the grounds that the company had a certificate to do business in Louisiana as a surety insurance company and the trial court had no authority to inquire into its qualifications, the court’s jurisdiction being limited to ascertaining whether Roger Williams had a current certificate of authority.

After a hearing at which evidence was presented, the trial judge denied the motion to quash and for extensive reasons assigned ordered the Clerk of the Criminal District Court to accept no more Roger Williams Company appearance bonds “unless the company posts with the clerk of court an amount in cash equal to face amount of the bond.”

In my view the trial judge was authorized to require the Roger Williams Company to furnish cash in the amount of the bonds it signed as surety under the facts and circumstances of this case.

At the present time, the Company is writing about sixty percent of the appearance bonds in the Orleans Parish District Court.

“Serious doubts” about the Roger Williams Insurance Company were raised in the judge’s mind by the State’s evidence. These doubts concerned the legal status, solvency and possible criminal activity of the company.

The evidence raised serious questions about the legality of the Company’s proper authorization as an insurance company under Louisiana law. No evidence was presented to rebut the State’s position in this matter. Furthermore, according to the trial judge, since the company began writing bail bonds in April 1977 it had apparently never met the capitalization requirements of Louisiana law (La.Rev.Stat. 22:71) requiring paid-in capital of $650,000 and a minimum surplus of $350,000 as a prerequisite to doing business as a Louisiana insurer.

Evidence was presented that the Company had attempted to conceal evidence by intentionally withholding pertinent information. No evidence was offered to contradict this possible criminal activity.

In order not to penalize the four defendants by increasing the amount of their bonds, in view of the questionable status of the company, the trial judge decided to hold the directors and officers of the company personally responsible for the appearance of the accused. He also ordered the Clerk of Court not to accept any but cash bonds from Roger Williams Insurance Company, until further order of court.

In addition to the inherent powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders, whenever not restricted, enlarged or modified by law, specific authority is conferred upon the trial court by Article 321 of the Code of Criminal Procedure to increase or reduce the amount of bail, “or require new or additional security.” See also La.Code Crim.Pro. arts. 16 and 17 for a statement of the inherent powers possessed by courts.

Bail is defined by Article 311 of the Code of Criminal Procedure as “the security given by a person to assure his appearance before the proper court whenever required.” And “security given” pertains to all bail, whether it be the bond of a surety company or a deposit of money or securities. See Comments to Art. 311.

In determining the amount of the bail Article 317 provides that it shall be “such as in the judgment of the magistrate will insure the presence of the defendant having regard to [t]he ability of the defendant to give bail, and . . . [a]ny other circumstances affecting the probability of the defendant’s appearance.”

According to Article 323 “A surety company authorized to do business in the State of Louisiana may become surety for the release of a person on bail.” This article does not say, and its clear and unequivocal language does not express an intent that a surety company is legislatively entitled to act as surety on bail bonds, as the opinion of the majority states. All it means is that a surety company “may” become surety if approved by the court. ,

The mere fact that the Legislature has deleted from a previous draft of Article 321 a provision which prohibited courts from refusing to accept bail furnished by any surety company authorized to do business in Louisiana constitutes an express rejection of the former prohibition. The amended Article 321 as quoted above does not mean that the prohibition remains by implication. The reasoning of the majority to that effect is untenable. See Act 411 of 1962.

A more probable and obvious conclusion is that the Legislature, considering the history of the former prohibition, found in its wisdom that such a compulsion imposed upon trial courts was incompatible with the administration of justice. For that reason the prohibition was abolished.

The view I have expressed is supported by elementary and fundamental authority. “Expressio unius est exclusio alterius” is a maxim applied to statutory interpretation. “[W]here a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions.” 2A Sutherland, Statutory Construction, Sec. 47.23 (4th Ed.). There is nothing peculiarly legal about this rule, rather it is a product of logic and common sense. It expresses the learning of common experience that generally when people say one thing they do not mean something else. Id. § 47.24.

Considered in the light of the court’s inherent powers and the explicit authority conferred by Article 321 to require “new or additional security”, I am satisfied that the “judgment of the magistrate” and his broad authority to consider “other circumstances affecting the probability of the defendant’s appearance,” conferred by Article 317, constitute ample authority to permit the trial judge to act as he did. He did not, and he is not, required to accept a questionable surety, only those “good and solvent.”

The trial judge did not, as the majority holds, void Roger William’s certificate of authority, nor does his judgment prohibit the company from writing bail bonds, except, pending further orders, in the Orleans Parish District Court.

In my view the majority has denied the trial judge a proper exercise of the powers delegated to him by the Legislature. In doing so this Court demeans the authority of the trial judge and inhibits his power to assure the appearance at trial of persons accused. As an example, we have been informed in the State’s brief, three of the five defendants involved in these bail bonds were fugitives.

I would approve the ruling of the trial judge.

      . In view of our holding below on what we have denoted as the principal issue, we do not reach the substantial additional issue that these orders were not authorized by pleadings giving fair notice that such broad decrees might be issued and affecting individual directors and officers who were not parties to the limited proceeding then before the court.

      . In full, the sentence provides: “Bail furnished by any surety company authorized by the commissioner of insurance, through its designated agents, shall not be refused by any court and shall be accepted on any bond required by law by the courts of this state for the violation of any ordinance of any municipality or police jury or act of the legislature, so long as the surety company or its agent shall furnish the necessary power of attorney.”

      . Somewhat similarly, in civil proceedings requiring security, an opponent desiring to defeat the bond-furnishing litigant’s rights by attacking the sufficiency and validity of a bond is not permitted to raise any issue of the insolvency of “a surety company licensed to do business in this state.” La.C.Civ.P. art. 5123.

      . Concord Casualty & Surety Co. v. United States, 69 F.2d 78 (CA 2, 1934) (26 instances in which surety had secured an impostor to appear instead of the defendant for whom the appearance bond had been issued); Summit Fidelity & Surety Co. v. Nimtz, 158 Neb. 762, 64 N.W.2d 803, 806 (1954) (professional bondsman had been convicted of charges arising from his activities as a professional bondsman); Taylor v. Waddy, 206 Tenn. 497, 334 N.W.2d 733 (1960) (while solvency of state-authorized bondsman could not be questioned, 334 S.W.2d 734, trial court could suspend his right to furnish bonds, after notice and hearing, for (unspecified) good cause relating to ethical misconduct in his bail business before the court).

      . United States v. Flynn, 190 F.2d 672 (CA 2, 1951) (new and different bail ordered furnished, because personal surety (the Civil Rights Congress) refused to answer valid query relating to their bail fund and their connection with the defendants, “a disregard of their responsibilities as sureties for the discovery and presentation before the court of their principals,” 190 F.2d 673); In re Johnson, 26 N.C.App. 745, 217 N.E.2d 85 (1975), certiorari denied 288 N.C. 241, 217 N.E.2d 664 (1975) (professional bondsman suspended from writing bonds in that court for a year because he failed to file or falsified weekly reports of outstanding bond commitments required to be filed by valid court rule).

      . This case merely held that municipal authorities, in a jurisdiction which gave them the power to license professional bondsmen, were not required to license as a bondsman a person with five criminal convictions, three of them of a felonious nature.


author: TATE, Justice

text:
    Beulah H. LOUETTE v. SECURITY INDUSTRIAL INSURANCE COMPANY.
    No. 62960.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Beulah H. Louette, et al., applying for Certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Iberia. 361 So.2d 1348.

Writ denied.

TATE, J., concurs in the denial and assigns reasons.

TATE, Justice

(concurring in denial).

I concur in the denial of review of the previous court’s rulings that the present suit does not sufficiently show a common right so as to justify a class action. Under the present pleadings, I do not believe the rulings were erroneous.

However, as indicated below, the plaintiff may easily amend her petition to delineate a proper class of claim with a common character to her own. The trial court could have sustained a class action, by itself limiting the class action to claims of this common character; but I am unable to say that it abused its discretion by dismissing the class action instead of so doing.

The pleaded facts show the following:

Plaintiff was the beneficiary of a burial insurance policy providing for payment of $600 funeral expenses for the named insured. La.R.S. 22:253 provides that such policies shall state the dollar value of the funeral to be furnished, and shall provide for cash payment if for any reason the beneficiary decides not to use the services of the insurer for the funeral. The beneficiary made such a claim, and the insurer declined to pay, on the basis that the policy provided that claims must be made within a year of death.

For reasons not at issue in this writ application, the trial court held the one-year defense to be valid, and dismissed the suit; the court of appeal reversed, holding that the only time limitation (under the facts of this case) was the ten-year prescriptive period for contracts. The court of appeal thus held that the plaintiff could maintain her suit, but not as a class action. 361 So.2d 1348 (La.App. 3d Cir. 1978).

The court of appeal conceded that two of the three requirements for a class action — a class so numerous that joinder is impossible, and parties who were adequate representatives of the class — were present. But the court held that there was no “common character of the right.”

Using the factors outlined in Williams v. State, 350 So.2d 131 (La.1977), and derived from Stevens v. Board of Trustees, 309 So.2d 144 (La.1975), these factors would tend to make this right have a common enough character to be the basis for a class action:

—Small enough damages ($600 here) to make individual suits inconvenient.

—Easily calculable damages (so that the absent plaintiff is not left unprotected, insofar as the other parties might not represent him adequately on this issue, which may often not be very “common”).

—A common issue of law, in that to the extent the company wrongfully withheld payment, they violated the same statute in each case — R.S. 22:253.

—Common facts: somebody died, somebody made a claim and did not get paid; and perhaps a course of conduct of selling many small burial insurance policies and then, after collecting small weekly, monthly, or annual charges over the years, denying payment on technical bases — with such small amounts at issue that the beneficiaries abandon their claims rather than sue.

However, under the present pleadings, a strong factor against the fairness of this suit being brought as a class action is, as the court of appeal noted, that the differing legal issues in many of the claims — that is, the differing reasons that the insurance company gave for not paying many of the policies — will predominate over the alleged common question (the violation of a conclu-sory statute that makes it illegal not to pay money in lieu of a funeral).

However, on the remand the plaintiff may easily cure this deficiency by an amendment to his petition, see La.C.Civ.P. arts. 934, 1153, so as to sustain her class action. See Stevens, cited above, at 309 So.2d 152.

If the “class” were defined as all those who were not paid because of the one-year prescription clause in the policy, I think it is apparent that there would be a common character of the right to the claim asserted by the plaintiff as the representative of a class. In my opinion, this would cure the objection to the class action reasonably found by the previous courts to bar it.

Accordingly, I concur in the denial of this application for certiorari.


text:
    STATE of Louisiana v. West ANDERSON, George McClow and Diana Anderson.
    No. 61961.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Dymond, Crull & Castaing, F. Irvin Dy-mond, William L. Crull, III, New Orleans, for West Anderson and Diana Anderson.
    John M. Blanchard, New Orleans, Orleans Indigent Defender Bd., for George McClow.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Howat A. Peters, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendants West and Diana Anderson were each indicted for two counts of distribution of heroin. Defendant George McClow was indicted for a single count of distribution of heroin. On March 18, 1976, the three defendants were jointly tried before a twelve person jury which found each defendant guilty as charged. Defendants West and Diana Anderson each received two life sentences at hard labor to run concurrently. Defendant George McClow also received the mandatory sentence of life imprisonment at hard labor pursuant to La. R.S. 40:966.

We are advised that defendant McClow died while the present appeal was pending. Accordingly, we hold that the judgment of conviction against George McClow is vacated and all proceedings in the prosecution against him are abated ab initio. See, State v. Morris, 328 So.2d 65 (La.1976).

Defendants West and Diana Anderson rely upon four assignments of error for reversal of their convictions and sentences. We have reviewed the record and find no merit in defendants’ assignments of error. Accordingly, we affirm their convictions and sentences.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Joseph B. RICHEY.
    No. 61990.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      Alton T. Moran, Director, Allen J. Ber-geron, Jr., Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

On December 29, 1975, April 12, 1976 and June 1, 1976, branch offices of the Louisiana National Bank in Baton Rouge were robbed by a black male who in each instance drove up to one of the bank’s drive-in windows and gave the teller a note demanding certain denominations of bills. This demand was coupled in each instance with a threat to detonate electronically a bomb in twenty to thirty seconds. During the robbery of June 1, 1976, the perpetrator attached the note to a simulated bomb made from a piece of wood wrapped in black tape and placed in the teller’s drawer. Joseph Richey was arrested that evening and charged on June 2, 1976 with three counts of armed robbery, a violation of R.S. 14:64. After a trial by jury, he was found guilty as charged for the robbery of June 1, 1976 and guilty of simple robbery on the other two counts, R.S. 14:65. The trial judge thereafter sentenced him to five years imprisonment on each of the simple robbery convictions and to ninety-nine years imprisonment for the conviction for armed robbery, all sentences to run consecutively. On appeal defendant relies on one of the three assignments of error filed below for reversal of his conviction and sentence.

Assignment of Error No. 1

Defendant assigns as error the trial court’s ruling admitting in evidence incriminating statements made to state and federal authorities on June 2, 1976. It is the defendant’s contention that these statements were induced by the belief that he would be released to federal authorities to be prosecuted in the federal system, a belief engendered by certain statements made to him by Joseph A. Whitmore, the associate chief of security of Troop A of the Louisiana State Police. The defendant also claims that he was led to believe that his transfer was certain after he signed a request for transfer to the federal authorities. The record reveals that several years before the instant case Richey was convicted of armed robbery and sentenced to a thirty year term in the state penitentiary. In return for cooperation in the investigation of the death of a security guard, Richey was transferred from Angola to a work release program with the state police in Baton Rouge where he worked in the fleet operations light shop installing red lights and sirens on new automobiles to convert them into state police vehicles. Richey’s interest in a transfer to federal jurisdiction therefore stemmed not only from a desire to be sentenced more leniently but also from a fear for his life if he returned to Angola.

Before a confession can be admitted in evidence, the state has the burden of proving its voluntary nature beyond a reasonable doubt. State v. Bias, 352 So.2d 1011 (La.1977); State v. Glover, 343 So.2d 118 (La.1977); R.S. 15:451. To this effect the state put forward the testimony of F.B.I. agents Howard and Litchfield, in whose presence the defendant confessed to the three crimes. Agent Howard testified that the defendant was read and appeared to understand his Miranda rights, that he eventually signed the official F.B.I. waiver form, and afterwards confessed to the three robberies. Besides testifying that he made no threats, promises or inducements to secure the statements, agent Howard specifically denied on cross-examination that he had promised Richey that only federal charges would be pursued if he would sign the confessions. Although Howard admitted that he knew of the danger to the defendant if he returned to Angola, he would concede only that he told the defendant of the federal charges against him and that Richey was anxious for the United States attorney to know of the statements and of his willingness to plead guilty to all charges at the federal level. Agent Litch-field’s testimony substantially corroborated that of Howard and included an unequivocal denial of any promises of exclusive federal prosecution.

At trial the defendant admitted the truth of the F.B.I. agents’ testimony but insisted that he had signed a form releasing him from state to federal custody before he made the inculpatory statements. This form was furnished by Officer Whitmore, the defendant’s supervisor at the work release program at State Police Headquarters. Although the form was entitled “Request for Transfer,” Richey contends that Whitmore told him the form would effect a transfer to federal authority. When called on rebuttal, Whitmore admitted giving Ri-chey the form, which he, however, described as a waiver of the right to a due process hearing before transfer from a minimum security facility to a maximum security one. However, Whitmore’s testimony does indicate that he did convey some misinformation to the defendant:

“ . . .It was my understanding that the crime that he committed was a Federal crime insofar as I was concerned it would be transferred over to Federal authorities for the disposition.
Q And you told him that?
A Yes sir I did.”
“Q Now had anybody told you this?
A Well sir according to the F.B.I. agents who worked the case they didn’t come right and say we are going to try him in Federal Court. They did indicate that to me that they would charge him and took this to mean that it would be handled by the Federal authorities, any further disposition on the ease.
Q And you conveyed this information to Joseph Richey?
A Yes sir I did.”

The defense alleges that the confessions resulted from a collusive working relationship between state and federal officials which tainted not only the confessions made to the F.B.I. agents but also subsequent confessions made to state officers. In brief the state responds that the defense reliance on the working relationship doctrine is misplaced. Moreover, the state argues that any false impression created by Officer Whitmore was ineffective to render the confessions involuntary because he had no authority to order a transfer to federal jurisdiction and, in any event, did not take the statements himself.

The source of the “working relationship” rule is Anderson v. United States, 318 U.S. 350, 63 S.Ct. 599, 87 L.Ed. 829 (1943), a companion case to McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). In McNabb, the Supreme Court held inadmissible a confession secured on the basis of an unreasonable delay in bringing the defendant before a magistrate, a violation of Rule 5(a) of the Federal Rules of Criminal Procedure. Anderson is a logical extension of the McNabb holding in that it holds confessions inadmissible if they were secured by state officials acting in collusion with federal authorities. The cases relied on in brief by the defense, United States v. Hathorn, 451 F.2d 1337 (5th Cir. 1971); United States v. Jackson, 448 F.2d 539 (5th Cir. 1971); and Kulyk v. United States, 414 F.2d 139 (5th Cir. 1969), deal with similar situations and are therefore inapposite to the instant prosecution.

However, we cannot accept the state’s interpretation of State v. Rogers, 324 So.2d 403 (La.1975), as holding that a promise made to a criminal defendant must come from one authorized to make such a promise in order to render involuntary a confession secured thereby. Although we noted in Rogers that the consent of the district attorney would have been necessary to dismiss state charges, our holding was limited to a finding that the evidence did not bear out the defendant’s assertion that he had received assurances that state charges would be dropped. Moreover, the state’s argument that replacing the inducer of the confession with another party cleanses the taint of involuntariness is without support in the jurisprudence. State v. Glover, supra, establishes that the central determination of voluntariness is whether the statements are the product of the defendant’s free and rational choice. The intervention of new officers along the chain from arrest to confession is merely a factor to be considered in determining the confession’s voluntary nature and in no way is dispositive of the matter.

The voluntariness of a confession is a question of fact for the trial judge, and his conclusions on the credibility of the witnesses and the weight of the testimony concerning its voluntariness should not be disturbed on appeal unless unsupported by the evidence. State v. Henry, 352 So.2d 643 (La.1977); State v. Ross, 343 So.2d 722 (La.1977). Although Officer Whitmore relayed some misinformation to the defendant, there is ample evidence to support the trial judge’s conclusion that the confessions were free and voluntary and not made under the influence of inducements or promises. The mere fact that misinformation has been relayed to the defendant does not automatically render involuntary any subsequent statement made by him. State v. Cotton, 341 So.2d 355 (La.1976). The record indicates that Richey, who had two years of college at the University of Pennsylvania, was motivated to confess by his desire to be prosecuted at the federal level to the exclusion of state charges. On the other hand, there is no evidence, beyond the defendant’s conjectures, of any collusive arrangement between Officer Whitmore and the F.B.I. agents.

Finally it must be noted that at trial the defendant took the stand and admitted his perpetration of all three crimes. Richey testified that he was “a minnow among big fish” in a conspiracy within the state police to discredit the commander and force his resignation. To this end he was instructed to commit a series of robberies for which he would be captured. His confessions, Richey explained, were “to put pressure on the state police.” Defendant’s own testimony belies his contention that the confessions were induced by false promises.

The conviction and sentence are affirmed.

      . Assignments of error neither briefed nor argued on appeal are considered abandoned. State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Lewis, 353 So.2d 703 (La.1977).

      . Under 18 U.S.C. § 2113(a) and (d), defendant faced a maximum penalty of twenty-five years imprisonment on each bank robbery charge. Under R.S. 14:64, he could receive up to ninety-nine years of imprisonment for each offense and a minimum of five years.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. William MONROE.
    No. 62000.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      A. J. Boudreaux, Indigent Defender Board, 24th Judicial District, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Robert A. Pitre, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   DENNIS, Justice.

In this case we consider whether evidence of a similar offense by the accused, offered to negative serious contentions of self defense and lack of criminal intent raised by his confession and insanity plea, was properly admitted to prove his intent to commit the charged crime, under circumstances indicating conclusively that the accused had done the act.

Defendant, William Monroe, pleaded not guilty and not guilty by reason of insanity in response to a bill of indictment charging him with second degree murder, La.R.S. 14:30.1. The defendant was convicted by a jury of manslaughter, La.R.S. 14:31, and sentenced to twenty-one years imprisonment at hard labor. On appeal defendant filed a brief presenting three arguments in support of seven assignments of error.

Evidence of Similar Offense to Negate Seif Defense and Lack of Intent

The defendant was charged with the second degree murder of Ulysses Martin, an elderly white male whose body was discovered July 31, 1976 on the river batture near the 500 block of First Street in Gretna, Louisiana, a known haunt for reputed derelicts and winos. Martin, who died as the result of asphyxia due to strangulation, also had a fracture of the right second rib and multiple bruises of both hands. Abrasions on the dead man’s neck could have been caused by rope, wire, fingernail or a similar object.

The similar offense, of which evidence was introduced over defendant’s objection, was the killing of Arnold Leschinsky, an elderly white male whose body was discovered in the same area on the following day, August 1, 1976. Leschinsky also died of strangulation and also had multiple bruises across both hands as well as a broken tooth. Abrasions on his neck could have been caused by an object similar to that used in the Martin strangulation.

The defendant admitted to police officers that he had killed both men but he claimed in his statements that he acted in self defense after being attacked on both occasions. His statements relating to both homicides were admitted into evidence at trial. The defendant introduced the testimony of a psychiatrist who expressed the opinion that, although Monroe could distinguish between right and wrong at the time of the offenses, he suffered from significant mental impairment and possibly paranoid schizophrenia.

The defendant contends that the evidence of the similar offense should have been excluded because it did not show sufficient probative value to outweigh its prejudicial effect.

Because the introduction of evidence of other acts of misconduct involves substantial risk of grave prejudice to a defendant, evidence of crimes related to the offense with which a defendant is charged is inadmissible except under special exceptions. State v. Prieur, 277 So.2d 126 (La.1973). The general rule is that the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a possibility that he committed the crime on trial because he is a man of criminal character. State v. Sutfield, 354 So.2d 1334 (La.1978). One of the other purposes for which such evidence may be relevant is to show, by the similar offense, that the act on trial was not inadvertent, accidental, unintentional, or without guilty knowledge. McCormick on Evidence, § 190 at p. 450 (Cleary ed. 1972); La.R.S. 15:455, 456. However, in order for such evidence to be admissible to prove intent, or for another permissible purpose, there must be a real and genuine contested issue of intent at trial; State v. Nelson, 357 So.2d 1100, 1103 (La.1978); State v. Prieur, supra, and the probative value of the evidence must outweigh its prejudicial effect. State v. Sutfield, supra, State v. Prieur, supra.

The reasons underlying the exception for proof of intent when genuinely at issue and the prerequisites to its application were set forth by Wigmore, who observed:

“To prove Intent, as a generic notion of criminal volition or wilfulness, including the various non-innocent mental states accompanying different criminal acts, there is employed an entirely different process of thought. The argument here is purely from the point of view of the doctrine of chances, — the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process or reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them.
"* * *
“ * * * A. In short, similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defence or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i. e., criminal, intent accompanying such an act; and the force of each additional instance will vary in each kind of offence according to the probability that the act could be repeated, within a limited time and under given circumstances, with an innocent intent. * * *
“It will be seen that the peculiar feature of this process of proof is that the act itself is assumed to be done, — either because (as usually) it is conceded, or because the jury are instructed not to consider the evidence from this point of view until they find the act to have been done and are proceeding to determine the intent. This explains what is a marked feature in the rulings of the Courts, namely a disinclination to insist on any feature of common purpose or general scheme as a necessary requirement for the other acts evidentially used. It is not here necessary to look for a general scheme or to discover a united system in all the acts; the attempt is merely to discover the intent accompanying the act in question; and the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent. The argument is based purely on the doctrine of chances, and it is the mere repetition of instances, and not their system or scheme, that satisfies our logical demand.
“Yet, in order to satisfy this demand, it is at least necessary that prior acts should be similar. Since it is the improbability of a like result being repeated by mere chance that carries probative weight, the essence of this probative effect is the likeness of the instance. * * *
“In short, there must be a similarity in the various instances in order to give them probative value, — as indeed the general logical canon requires (ante, § 33).” 2 Wigmore on Evidence, § 302 (3d ed. 1940).

Applying the relevant principles to the instant case we conclude that the trial judge properly invoked the exception and allowed the introduction of the similar offense evidence to negate self defense and lack of intent. There was little if any doubt that the defendant had killed Ulysses Martin. However, a real and genuine issue as to his specific intent to kill or cause great bodily harm, which the State had the burden of proving, La.R.S. 14:30.1, was raised by the evidence of self defense and insanity. The evidence of the subsequent act, which was strikingly similar, had great probative value to show the improbability that the defendant acted in self defense or without requisite intent in strangling two derelicts on successive nights at the same spot on the river batture.

Defendant further contends that the trial court erred in not allowing a full evi-dentiary hearing before admitting evidence of the similar offense. However, the State submitted the autopsy reports and defendant’s confessions to the judge who reviewed them out of the jury’s presence. Hence, there was an adequate “foundation laid, out of the jury’s presence, to show the admissibility of the evidence.” State v. Ghoram, 290 So.2d 850, 852 (La.1974).

Other Issues Argued

We have reviewed the record in this case in light of the defendant’s two other arguments and find that none of his remaining assignments of error have reversible merit.

Defendant contends that the trial judge erroneously restricted his attorney’s cross-examination of the police officer who requested that the defendant come with him to City Hall for questioning. The officer testified that without arresting the defendant or advising him of his rights he asked the defendant “if he’d mind accompanying me to City Hall and he said he would.” The officer was then asked questions apparently designed to determine what action the officer would have taken if the defendant had refused his request. The trial judge sustained an objection by the State on the ground that the question was speculative. We cannot say that the judge’s interpretation of the questions or his ruling was incorrect. Although the defendant did not contend that his confession was tainted as the product of an unlawful arrest, see, Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), his right to confront and cross-examine the officer who initially approached him on this issue could not have been properly curtailed at trial. However, taken in the context of the many other questions pertaining to the encounter that defense counsel successfully put to the officer, the ruling of the trial judge did not impinge on defendant’s right to cross examine. The particular question objected to appeared to be part of an attempt to discover what the officer would have done if the defendant-had refused to accompany him to City Hall. Since the defendant actually complied with the officer’s request, the evidence which would have been elicited by this type of question was irrelevant. Defense counsel was not hindered to any extent in addressing questions to the officer that were clearly designed to determine the actual circumstances surrounding the defendant’s agreement to accompany the officer to City Hall.

In his final argument the defendant correctly points out that the trial judge erred in his refusal to instruct the jury that a second-degree murder conviction requires the trial judge to impose a mandatory life sentence. The trial court is required, upon request of the defendant, to charge with regard to a mandatory penalty, because then the penalty is in effect determined by the jury rather than the judge. State v. Milby, 345 So.2d 18 (La.1977). Nevertheless, the error in the instant case probably did not result in a miscarriage of justice, prejudice to the substantial rights of the accused, or constitute a substantial violation of a constitutional or statutory right. La.C. Cr.P. art. 921. The jury here in fact returned the less serious verdict of manslaughter, which does not require a mandatory penalty.

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

      . Seven additional assignments are considered to have been abandoned because of the lack of supporting written or oral arguments.

      . The similar acts used to negate inadvertence, defensive purpose, or any other form of innocent intent may have been done at a time subsequent to the charged offense. See, 2 Wigmore on Evidence, § 363 (3d ed. 1940).


text:
    STATE of Louisiana v. Tony CARDOZA and Calvin Warner.
    No. 62028.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    John M. Blanchard, Orleans Indigent Defender Program, New Orleans, for Tony Cardoza.
    William J. O’Hara, III, Supervising Atty., New Orleans, Mark R. Brouillard, Loyola Law School Clinic for Calvin Warner.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Robert F. Barnard, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Tony F. Cardoza and Calvin A. Warner were charged in the same information with unlawful possession of a firearm, to-wit: a pistol, after each had been previously convicted of manslaughter in violation cf La. R.S. 14:95.1. After trial by jury, defendants were found guilty as charged and were each sentenced to serve ten years at hard labor with credit toward service of their sentences from February 7, 1977. On appeal, defendants rely on six assignments of error for reversal of their convictions and sentences.

We have reviewed the record and find no merit to defendants’ assignments of error. Accordingly, we affirm their convictions and sentences.

DECREE

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

DENNIS, J., dissents.

      . Defendant Cardoza has neither briefed nor argued Assignments of Error Nos. 3 and 5; defendant Warner has neither briefed nor argued Assignments of Error Nos. 3, 4, and 5. Therefore, we consider these assignments of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).


text:
    STATE of Louisiana v. Byron WADE.
    Nos. 62046, 62784.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    James D. Sparks, Jr., Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John T. Seale, Dist. Atty., George F. Fox, Jr., Asst. Dist. Atty., for plaintiff-respondent.
   DIXON, Justice.

Defendant Byron Wade was charged by bill of information with distribution of marijuana in violation of R.S. 40:966(A). On March 8, 1978 defendant appeared in court with his retained counsel, withdrew his previous plea of not guilty after a colloquy and entered a plea of guilty as charged. Defense requested and received a delay in sentencing; on March 13, 1978 defendant again appeared in court, represented by another attorney who had agreed to act in place of defendant’s retained counsel, and asked to withdraw his guilty plea. When the trial judge denied defendant’s motion, defense counsel then requested that imposition or execution of sentence be delayed. After denying both of these motions, the trial court sentenced defendant to serve two years imprisonment with the Louisiana Department of Corrections assigned to East Carroll Parish Farm with no passes for one year. Defendant appealed, relying on two assignments of error.

Assignments of Error Nos. 1 and 2

In Assignment No. 1 defendant argues that the trial court erred in denying defendant’s motion to withdraw his plea of guilty pursuant to C.Cr.P. 559 which provides in part that the court may permit a plea of guilty to be withdrawn at any time before sentence. Defendant also contends that he was not, in effect, represented by counsel when sentenced. In Assignment No. 2 defendant contends that the plea bargain was not kept, and that his plea of guilty entered pursuant to the plea bargain should be withdrawn. Defendant contends that his attorney indicated that defendant would receive two years in parish jail and he was not advised of denial of passes.

The record indicates that on March 8, 1978, the day set for trial, defendant was in court with his retained counsel, Mr. Bassett, and the prosecuting attorney announced, “I believe, perhaps, a negotiated plea has been worked out in this case.” Mr. Bassett indirectly agreed, stating, “At this time we wish to withdraw our formal plea of not guilty and enter a plea of guilty.” The trial judge then proceeded to explain to the defendant his rights in a complete “Boykin” examination. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial judge also informed the defendant that the maximum penalty for distribution of marijuana is “ten years and a fine up to fifteen-thousand dollars,” and asked whether defendant had been advised by his lawyer of the negotiations between his attorney and the prosecutor about the sentence. The defendant said he understood it.

After the trial judge accepted defendant’s guilty plea, the court was asked to delay sentencing until March 13, 1978, and was notified that Mr. Bassett, defendant’s retained counsel, could not be present. All parties agreed to the substitution of Mr. Miller to represent defendant at the sentencing; the defendant again stated he understood the arrangement and had no objections. The court deferred sentencing and allowed defendant to remain free on bond, and dismissed the jury and witnesses.

On March 13, 1978 defendant appeared in court with Mr. Miller. The prosecutor announced that the defendant had informed him that he wished to retain new counsel and withdraw his plea of guilty. Upon questioning by the trial court, the prosecutor confirmed that there was a plea bargain that defendant would receive a two year sentence to the Department of Corrections with an initial assignment to the East Carroll Prison Farm. The judge added “and no passes for the period of one year.” At this point Mr. Miller formally moved to withdraw the guilty plea and the trial court denied the motion.

Mr. Miller then moved to delay imposition or execution of sentence to enable defendant’s newly retained counsel to take appropriate action on the motion to withdraw the plea of guilty. The trial court refused to grant the delay, again noting that the delay in sentencing was occasioned for the convenience of defendant, and formally sentenced defendant. Defendant then stated, “I want to say that I plead not guilty. I want to change to plead not guilty.”

Subsequent to sentencing, Mr. Sparks, the newly retained attorney, filed an appeal in this court and a petition for writ of habeas corpus in the district court. Defense’s petition for habeas asserted that the plea bargain entered into by defendant and the state was not kept and requested an evidentiary hearing “to present all facts with reference to the plea bargain, entrance of his plea of guilty, and otherwise . . ” When this writ application was denied by the district judge, the defendant filed an application with this court requesting an evidentiary hearing on the issue. This court granted this application (No. 62784) and ordered an evidentiary hearing to determine the nature of the plea bargain and whether it had been violated.

At the conclusion of the evidentiary hearing the district court modified the sentence by eliminating reference to weekend passes, but otherwise held that the plea bargain had been kept.

The court may permit a plea of guilty to be withdrawn at any time before sentence, C.Cr.P. 559, but the discretion is vested in the trial judge. State v. Andrasi, 343 So.2d 175 (La.1977); State v. Baudoin, 334 So.2d 186 (La.1976); State v. Glantz, 254 La. 306, 223 So.2d 813 (1969). The validity of plea agreements and of guilty pleas entered pursuant to those agreements has been consistently upheld. See Wharton’s Criminal Procedure, § 341 (pocket part) (Torcía, 13th ed. 1972), Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). However, where the state has not performed its part of the agreement, due process requires either specific performance of the promise by the prosecuting attorney or an opportunity for the accused to withdraw his guilty plea. Santobello v. New York, supra; State v. Crosby, 338 So.2d 584 (La.1976).

Defendant relies on State v. Baudoin, supra, a case before the court on application for habeas corpus after an evidentiary hearing, where this court found that the trial judge abused his discretion in denying the motion to withdraw the guilty pleas. In Baudoin, however, the evidence adduced from the evidentiary hearing showed that defendants entered their guilty pleas based on the representation by their defense counsel, who reasonably believed that a plea bargain existed as to the length of sentence and that the sentence actually imposed (six years) had no relation to the sentence that had been assured (six months).

In State v. Andrasi, supra, unlike Baudoin, the court concluded that the trial judge did not abuse his discretion in denying the motion to withdraw the guilty plea.

In the present case, defendant’s answers to the trial judge’s Boykin questions are convincing that defendant voluntarily waived his rights with full understanding of the consequences of his plea and the nature of his sentence. This court cannot find that the trial judge abused his discretion in denying defendant’s motion to- withdraw his guilty plea.

Defendant was effectively represented in the trial court, and there is ample evidence to conclude that the state substantially complied with the plea bargain.

The ruling of the district judge on the hearing concerning the plea bargain is affirmed, and the conviction and sentence are affirmed.


text:
    PLAQUEMINES MATERIALS, INC. v. Larry K. BESS.
    No. 62085.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      Robert E. Lee, Gretna, for defendant-applicant.
    Frank Klein, New Orleans, for plaintiff-respondent.
   DENNIS, Justice.

The single procedural issue presented by this case is whether relator’s payment of estimated court costs during the delay for taking a devolutive appeal is tantamount to the timely posting of security required by La.C.C.P. art. 2087, before its amendment effective January 1, 1978, and should have prevented the dismissal of his devolutive appeal.

At the time the appeal was dismissed in the instant case La.C.C.P. art. 2087 provided that the security for court costs of a devolutive appeal must be furnished within the same sixty-day delay provided for taking the appeal. It is undisputed that the relator did not furnish timely security but that he did pay the costs estimated by the clerk of court during the delay period. The court of appeal dismissed his appeal, and we granted relator’s writ to review the question presented. 358 So.2d 633 (La.1978).

We are impressed with the soundness of an earlier decision by the court of appeal, Bacmonila Garden Apartment, Inc. v. Williams, 355 So.2d 288 (La.App. 4th Cir. 1978), holding that the payment of estimated costs within the delay for appealing de-volutively is the equivalent of furnishing a cash bond for the costs. We agree and adopt the court of appeal’s opinion and rationale as our own. Because of the strong policy of the law favoring the maintenance of appeals unless a legal ground for dismissal is clearly shown, Davidge v. Magliola, 346 So.2d 177 (La.1977); Favrot v. Favrot, 252 La. 192, 210 So.2d 316 (1968), and since the object of security for payment of costs is the timely payment of costs, the payment of estimated costs within the delay for taking a devolutive appeal is equivalent to a timely furnishing of security.

For these reasons the judgment of the court of appeal is reversed and the case is remanded for further proceedings at respondent’s cost.