author: MELVIN, Judge.

text:
    Bernard L. SAMSON and Walter P. Loebenberg, Petitioners, v. BUREAU OF COMMUNITY MEDICAL FACILITIES PLANNING OF DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, State of Florida and Community Hospital of New Port Richey, Inc., Respondents.
    No. EE-459.
    District Court of Appeal of Florida, First District.
    Oct. 24, 1978.
    John W. Hamilton of Ware & Hamilton, St. Petersburg, for petitioners.
    Jack B. McPherson of Allgood, McPherson, Stewart & Bray, New Port Richey, and Douglas E. Whitney, Orlando, for respondents.
   MELVIN, Judge.

The dispositive issue in this case is whether the Bureau of Community Medical Facilities Planning of Department of Health & Rehabilitative Services (the Bureau) is bound by time limitations set forth by the laws of the United States and the State of Florida, and by its own regulations.

Petitioners, Samson and Loebenberg, seek timely review of the final agency action of the Bureau in denying their application for a certificate of need for the construction of a 200-bed hospital in the Bayonet Point Community, Pasco County. The respondent, Community Hospital of New Port Richey, Pasco County, opposed the issuance of a certificate of need to the petitioners and, on that basis, was allowed to intervene in this cause. For the reasons stated below, we reverse the final order of the Bureau and mandate the issuance of the certificate of need to the petitioners.

The petitioners, pursuant to Sections 381.493-381.497, Florida Statutes (1975) submitted their application for a certificate of need to the Bureau on November 24, 1975. The petitioners’ application was considered as complete by the Bureau on December 2, 1975.

The record indicates that the Trustees of the Florida West Coast Health Planning Council, Inc., met on January 20, 1976, considered the petitioners’ application, and voted to approve it, thereby overruling the earlier decision of one of its sub-councils to recommend the denial of the application. On the following day, January 21,1976, the executive director of the Florida West Coast Health Planning Council issued the conclusion and recommendation of the Council recommending that petitioners’ application be approved, stating that its review was conducted in accordance with criteria and regulations adopted pursuant to Section 381.494(5), Florida Statutes (1975).

On February 19 and 20, 1976, the State Hospital Advisory Council (S.H.A.C.) held a public hearing and took testimony on the petitioners’ application.

At the conclusion of its meeting, S.H.A.C. voted on two motions to recommend approval of the application and one to deny: each failing by four to four tie votes. A subcommittee of two each approving and disapproving members was chosen to accompany Forehand, the manager of the Bureau, on an on-site inspection for additional fact finding. While discussing the task of the subcommittee, several members of the council evidenced concern that they secure an extension of time from the petitioners less they not return a recommendation to Forehand prior to March 1, 1976. The petitioners were consulted and orally agreed to a 60-day extension. When Cham-lis, a Medical Facilities Specialist with the Bureau, attempted to more specifically pinpoint the extension deadline, the following occurred:

“Mr. Chamlis: Mr. Samson, with your granting of sixty days that would be in essence the month of March and the month of April. Your sixty days, would you grant an extention [sic] to Mr. Forehand until not later than 1 May of ’76 for him to render his decision?
“Mr. Samson: If Mr. Forehand wants until May he may have until 1 May.”

Thereafter, in a letter dated May 11, 1976, the Chairman of the on-site inspection subcommittee informed the Chairman of S.H.A.C. that, based upon the May 3 and 4, 1976 survey, it was the subcommittee’s unanimous decision that the application be denied.

In a letter dated May 18,1976, petitioners made demand upon Forehand to issue a certificate of need for the Bureau’s failure to render a timely decision by May 1, 1976.

Thereafter, in a memorandum dated May 21, 1976, Chamlis recounted to Forehand the terms of the oral extension and expressed his opinion that the Bureau was obliged to issue the certificate of need for its failure to meet the May 1, 1976 extension deadline. Chamlis’ memorandum continued stating that:

“HEW is extremely adamant about the time limits allowed for review and decision by the DPA and has clearly indicated that failure of the DPA to render a decision by the due date automatically means State approval regardless of the circumstances. . . . ”

In a letter dated May 21,1976, the Chairman of S.H.A.C. reported to Forehand that the majority of S.H.A.C. had, by letter, concurred in the subcommittee’s recommended denial.

On May 24, 1976, Forehand wrote petitioners advising them of his denial of their application. Thereafter, petitioners made their timely demand for administrative review pursuant to Chapter 120, Florida Statutes.

At the administrative hearing, the Bureau stipulated that the petitioners had complied with state law and were entitled to a certificate of need as defined in Chapter 381, Florida Statutes (1975). Thus, it was stipulated that the hearing would focus on whether the petitioners had complied with Section 1122 of Social Security Act, as added by Section 221(a), Public Law 92-603, and were, therefore, deserving of a certificate.

On October 12, 1976, the hearing officer entered his order finding, among others, that the Bureau had, by written stipulation and statements of counsel, admitted that it failed to grant or deny petitioners’ application within the time period required by Subsection 381.494(6), Florida Statutes (1975), and Subsection 10I-1.03(a)(5), Florida Administrative Code. The hearing officer further found that petitioners’ sole extension was oral and effective only to May 1, 1976, but that respondent had waited until May 24, 1976, to prepare its letter denying petitioners’ application, which letter was received by petitioners on May 26, 1976.

Lastly, the hearing officer concluded that the failure of the respondent to render its decision on the application within the time constraints imposed by the applicable federal rules and regulations had the effect of a determination that the proposed capital expenditure was in conformity with the pertinent standards, criteria and plans. The hearing officer, accordingly, recommended approval of the application.

Following the entry of the hearing officer’s order, the Bureau and the Intervenor filed a Petition for Writ of Certiorari, which was dismissed by this Court for want of jurisdiction.

On January 10,1977, the Bureau, through its manager, Forehand, entered its final agency order rejecting certain conclusions of fact and law set forth in the hearing officer’s order finding and concluding that:

“. . . the [petitioners’] application is not in conformity with the standards, criteria and plans of the United States Department of Health, Education and Welfare, and that the application be denied.”

There exists an agreement between the Secretary of Health, Education and Welfare and the State of Florida to carry out the provisions of Section 1122 of Social Security Act, as added by Section 221(a), Public Law 92-603. This agreement provides that the Bureau is the Designated Planning Agency (DPA) for the purposes of the agreement and, further, provides that, among others, 42 CFR, 100.106(a)(4), is applicable to the agreement. 42 CFR, 100.106(a)(4) provides, in part:

“4. Except as provided in paragraph (a)(3) of this section, the designated planning agency shall, prior to the date set out in the written notice of intention submitted pursuant to paragraph (a)(1) of this section as the expected date for the obligation of the proposed expenditure (but, subject to the provisions of paragraph (a)(3) of this section in no event later than 90 days after the receipt of such notice unless the person proposing the capital expenditure agrees to a longer period), provide written notification to the person proposing such capital expenditure (i) that such capital expenditure has been determined by such agency to be in conformity with the standards, criteria and plans described in § 100.104(a)(2); or (ii) that such agency has elected not to review the proposed capital expenditure (which election shall be equivalent to a determination by such agency that such expenditure is in conformity with such standards, criteria, and plans), in which event the designated planning agency shall notify the Secretary of its reasons for electing not to review the proposed capital expenditure; or (iii) that such agency after having consulted with, and taken into consideration the findings and recommendations of, the other agencies described in § 100.105 (to the extent that such proposed capital expenditure is within the respective fields of responsibility of such other agencies), has determined that the proposed capital expenditure would not be in conformity with the standards, criteria, or plans described in § 100.-104(a)(2). The failure of the designated planning agency to provide any such notification within the time limitations set forth above shall have the effect of a determination described in paragraph (a)(4)(i) of this section. . . ,”

Thus, by federal regulation and by the terms of the agreement that it entered into, the Bureau was bound in such situations to either: 1) Provide written notification that the proposed capital expenditure was in conformity with the applicable standards and criteria; 2) provide written notification that it would not review the proposed capital expenditure, which would have the effect of a favorable review; or 3) provide written notice that the proposed capital expenditure did not conform to the applicable standards and criteria.

Viewing the record in a manner most favorable to the Bureau and assuming without deciding that the petitioners’ verbal extension to May 1, 1976, was valid, it is readily apparent that the Bureau failed to provide written notification of its intentions by that date, which failure has the effect of a favorable determination.

We hold that, pursuant to Section 1122 of Social Security Act, as added by Section 221(a), Public Law 92-603, Chapter 381.494 (6)(c), Florida Statutes (1975), and Rule 10I-1.03(a)(5), F.A.C., the Bureau’s failure to comply with the time limitations set forth above is tantamount to its approval of the petitioners’ application.

Section 120.57(1)(b)(9), Florida Statutes (1975), provides that the agency in its final order may reject or modify the conclusions of law and interpretations of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from review of the complete record that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.

Upon our review of the entire record in this case, we hold that the Bureau erred in modifying the recommended order of the hearing officer. While the Bureau rejected and modified the hearing officer’s recommended order with substituted findings, we are of the conclusion that the factual issues surrounding the order and the modified order were susceptible of ordinary methods of proof not of the type in which the Bureau may rightfully claim special insight, and that the record supports the findings of the hearing officer. McDonald v. Dept. of Banking and Finance, 346 So.2d 569 at 579 (Fla. 1st DCA 1977).

The Order appealed from is reversed with directions that the hearing officer’s recommended final order be entered in lieu thereof.

SMITH, Acting Chief Judge, and ERVIN, J., concur.

      . Among others, the legislative intent of these sections is to define service needs in specific geographic areas and assist health-care facilities in those areas to develop programs of service that will assure the best possible service to the community, while giving every consideration to the elimination of unnecessary duplication of health services and the provision of health services not currently available or insufficiently provided within the community. Section 381.493(2), Florida Statutes (1975).

      . Pursuant to Section 381.495, Florida Statutes (1975), the Division of Health, Department of Health and Rehabilitative Services, is proscribed from issuing a license to a health-care facility which has failed to receive a certificate of need.

      . The Council is the applicable “Health systems agency” for the area including Pasco County, as defined in Section 381.493(3)(h), Florida Statutes (1975).

      . It appears that this Council is an agency, such as are described in Section 381.493(3)(k) and 381.494(6)(b), Florida Statutes (1975), with which the Bureau may consult in matters of policy, affecting the administration of Sections 381.493-381.497, and in promulgating rules, regulations and minimum standards for the issuance of certificates of need.

      . March 1, 1976, was the 90-day deadline imposed by Section 381.494(6)(c), Florida Statutes (1975), from the date the Bureau accepted petitioners’ application to be complete on December 2, 1975.

      . The intervenors declined to so stipulate but were allowed to intervene only on the condition that it be bound by the stipulation.

      . The Bureau, apparently tracking the time limitation imposed by the Federal Regulation [42 CFR (Code of Federal Regulations) 100.-106(a)(4)] promulgated Rule 101-1.03(a)(5), F.A.C., which purported to bind the Bureau thusly:
      “5. Normally, the review period allowed from the time the DPA declares an application complete until a decision must be rendered is ninety (90) days. * * * [T]he DPA may extend the review period for a specific time, but only with written consent of the provider. The failure of the DPA to complete the review within these time limitations will be constured [sic] as approval of the proposed capital expenditure.”
      The Bureau subsequently repealed this rule, effective January 1, 1977. Rule 101-1.03.

        . Bureau of Community Med. Fac., Etc. v. Samson, 341 So.2d 1071 (Fla.App. 1977), wherein this Court held that the hearing officer designated in the matter was not an “agency” for purposes of rendering final agency action and, thus, his order was not subject to judicial review.

      . The Agreement which was signed by Forehand on behalf of the State contains the identical language.

      . Effective July 1, 1977, the Legislature amended this section to provide that:
      “If the department fails to render a determination within 90 days, or within an otherwise extended period, from the day the application is declared to be complete, it shall be deemed that the application for a certificate of need is denied.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DIVISION OF PARI-MUTUEL WAGERING DEPARTMENT OF BUSINESS REGULATION, State of Florida, Appellant, v. W. F. CAPLE, Appellee.
    No. 76-1569.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 1978.
    William A. Hatch, Tallahassee, for appellant.
    Rentz, McClellan & Haggard, Miami, for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and KEHOE, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on September 13, 1977, 350 So.2d 488, affirming the order granting permanent injunction 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, 362 So.2d 1350, by its opinion and judgment filed September 21, 1978 and mandate now lodged in this court, quashed this court’s judgment with directions to remand to the trial court to dissolve the permanent injunction.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on October 26, 1977 is withdrawn, the judgment of this court filed September 13, 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 order of the Circuit Court is reversed and the permanent injunction is dissolved. Costs allowed shall be taxed in the circuit court (Rule 3.16 b, Florida Appellate Rules).


text:
    Francisco CHURRUCA et al., Appellants, v. MIAMI JAI ALAI, INC., et al., Appellees.
    No. 78-1173.
    District Court of Appeal of Florida, Third District.
    Oct. 31, 1978.

      Heller & Kaplan, Miami, for appellants.
    Subin, Shams, Rosenbluth & Moran, Orlando, for appellees.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Appellants question the correctness of the trial court’s order severing the action against defendant/appellee, Volusia Jai Alai, Inc., and transferring the same to the Circuit Court of Volusia County, Florida.

Prior to the filing of its brief, the appel-lee filed a request herein that the order appealed be reversed, inasmuch as the point on appeal is confessed to be meritorious.

Therefore the order appealed is reversed.

Reversed.


author: TATE, Justice.

text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. Theodore J. ADAMS, Jr., Respondent.
    No. 59057.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    La. State Bar Ass’n, Committee on Professional Responsibility, Leonard Führer, Chairman, Alexandria, Wood Brown, III, New Orleans, Sam J. D’Amico, Baton Rouge, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tallulah, John F. Pugh, Thibodaux, A. Russell Roberts, Me-tairie, John B. Scofield, Lake Charles, Thomas 0. Collins, Jr., Executive Counsel, New Orleans, for petitioner.
    Arthur A. Lemann, III, New Orleans, for respondent.
   TATE, Justice.

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

(1)

This disciplinary action was filed following the respondent’s conviction of the crime of public bribery, La.R.S. 14:118 (1975), a felony, and his sentence to five years imprisonment without hard labor, suspended. See Article XV, Section 8. Pending determination of disciplinary proceedings, the respondent’s license to practice law was suspended on January 4, 1977 — this court approving the committee’s determination that the conviction was of a serious crime reflecting upon the respondent’s moral fitness to practice law. Article XV, Section 8(2)-(4).

Pursuant to the committee’s petition for disciplinary action based upon this conviction, a commissioner was appointed and heard evidence. Article XV, § 8 subd. 6, subd. 7(a), (b).

At this hearing, the certificate of conviction is conclusive evidence of guilt of the crime, subd. 7(c), and “the sole issue to be determined shall be whether the crime warrants discipline, and if so, the extent thereof. At the hearing the respondent may offer evidence only of mitigating circumstances not inconsistent with the essential elements of the crime for which he was convicted as determined by the statute defining the crime.” Subd. 7(d).

The offense of public bribery occurred when the relator, acting as salaried attorney for the Charity Hospital, accepted $2,000 from a prospective lessee of service station property owned by Charity. Through an intermediary (who relator claimed had instigated the bribery), the relator had agreed to accept this sum for his services in facilitating board approval of the proposed lease in favor of this lease. (The record reflects, however, that the lessee received no special consideration in the terms in the lease.)

The relator admits his guilt of the crime. The extenuating circumstances relied upon reveal his honorable and unblemished record (until this incident) as a young lawyer from the time of his admission to the bar in 1970, unusually severe financial and emotional distress arising from a business venture and anticipated birth of a child, and the claim that the scheme originated with an older lawyer, the lessee’s attorney, in whose professional judgment the relator had confidence.

In his report, the commissioner noted these facts and some of these extenuating circumstances and found that the offense for which the relator is charged is a serious crime involving moral turpitude which warrants discipline. In view of the relator’s excellent record and character prior to and after the offense, as well as the real indications of the relator’s contrition and his sincerity for rehabilitation, the commissioner recommended “suspension for a determinate period, say five years.”

(2)

We nevertheless find that the serious crime of which convicted reflects so seriously upon his moral fitness to practice law as to require disbarment as the appropriate disciplinary action. The act of which convicted was not only of a serious degree of immorality, but it also involved a breach of the relator’s professional and fiduciary duty as an attorney for a public body in dealing with the public.

We deem it appropriate, however, to order the disbarment effective January 4, 1977, the date of the relator’s suspension from the practice of law because of these proceedings. In fixing this as the effective date, we take into consideration the relator’s excellent record before and after the offense, and the circumstance that a disbarred attorney may not apply for reinstatement until five years have elapsed from the date of his disbarment. Article XY, Section 12(a), Articles of Incorporation.

Decree

For the reasons assigned, it is ordered, adjudged, and decreed that Theodore J. Adams, Jr., be and he is hereby disbarred, effective January 4, 1977, from the practice of law in Louisiana. The respondent is to bear all costs of this proceeding.

DISBARMENT ORDERED.


author: TATE, Justice. SANDERS, Chief Justice

text:
    Virgie BOLDEN, Plaintiff-Appellant-Relator, v. GEORGIA CASUALTY AND SURETY COMPANY, Defendant-Appellee-Respondent.
    No. 61594.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      E. M. Nichols, Lake Charles, for plaintiff-appellant-relator.
    H. O. Lestage, III, Hall, Lestage & Les-tage, DeRidder, for defendant-appellee-re-spondent.
   TATE, Justice.

The plaintiff Bolden sues his employer’s insurer to recover workmen’s compensation benefits. The trial court held that Bolden’s claim had prescribed, and the court of appeal affirmed. 353 So.2d 492 (La.App. 3d Cir. 1977). These courts held that Bolden’s work-caused injury had developed more than one year prior to the date of suit.

We granted certiorari, 355 So.2d 265 (La. 1978), because we entertained doubt as to this conclusion. At issue is the proper interpretation of the provision of La. R.S. 23:1209 that “where the injury does not result at the time of, or develop immediately after the accident,” then the one-year limitation within which the plaintiff brings suit “shall not take effect until the expiration of one year from the time the injury develops” (except that no suit may be brought more than two years after the accident).

I.

In a work-accident of May 23, 1974, the plaintiff fell from a truck. His injuries were initially diagnosed as low-back strain. He was discharged as cured by his attending physician on August 17, 1974.

He did not file this suit until March 24, 1976, more than a year after the last payment of compensation.

After his medical discharge in August, 1974, Bolden did not return to work for his employer. He suffered continued complaints when he went to work mowing lawns; this time in the neck area, as well as the low-back. When he returned to his attending physician in November of 1974, the doctor felt that he had symptoms of cervical myostis (a muscle inflammation— not shown to be traumatically induced).

It was not until April of 1975, according to this physician, that symptoms manifested themselves of the actual cause of the pain and disability (cervical nerve root irritation — resulting from a small herniated disc in the upper region of the spinal column).

The claimant was subsequently referred to a neurosurgeon by another doctor. In September of 1975, after an operation, this specialist discovered and removed the herniated disc matter — the source of the symptoms of nerve root irritation in the neck area, and also the actual reason for the trauma-caused undoubted disability for which the plaintiff seeks workmen’s compensation.

As we construe it, this specialist’s testimony ascribes the most probable cause of this trauma-resultant disability as the claimant Bolden’s earlier accident of May, 1974, when he fell from the truck and sustained the more-immediately painful low-back injury. We do not find persuasive the defendant’s argements to construe otherwise this uncontradicted testimony.

II.

A recurrence or aggravation of an injury initially sustained at work is regarded as compensable and as resulting from the initial work-accident, even though the recurrence “develops” away from the premises and while the claimant is no longer employed by the master. Owens v. Liberty Mutual Insurance Company, 307 So.2d 313 (La. 1975). See also Burleigh v. Argonaut Insurance Company, 347 So.2d 13 (La.App. 3d Cir. 1977).

The defendant contends, however, that the recurrence or development of the present disability manifested itself by November, 1974 more than one year prior to the institution of the present suit in March, 1976 and, thus, is prescribed.

The defendant’s argument is factually based upon the plaintiff’s testimony of his back and neck difficulties when he attempted to work for other employers after his discharge, as well as upon the admitted fact that his neck difficulty (the cause of his present disability) was severe enough that in November, 1974 (more than a year before the suit) he consulted his original attending physician. (The latter, however, incorrectly ascribed a non-traumatic cause to the neck complaint.) The defendant forcefully argues that, therefore, by his own testimony the claimant was aware of his disability, although not of its cause.

In upholding this position, the intermediate court essentially relied upon our statement in Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522, 526 (1956): “Development, as applied to a compensable injury, signifies something more than occurrence and pain. It connotes the time when disability to perform work becomes manifest either to the injured employee or his employer.”

In context, this statement in Wallace was primarily applicable to the case of the retained employee, who continues to work with symptoms which might have been held to be disabling (if litigated) but which did not become manifestly disabling to the employee until he was forced to quit his work. We held that the disability did not become manifest or “develop” until that date, because to select an earlier date “would be dealing in conjecture.” 86 So.2d 525.

In subsequent jurisprudence applying Wallace, the intermediate courts, in overruling pleas of prescription, held that the injury or disability did not “develop” until the employee actually becomes unable to perform his former duties. This test is appropriate when, under the facts, the issue is whether the injured employee who returns to work is disabled at some conjectural time before the day when he actually is unable to continue at work due to his disability.

The defendant contends that this rule enunciated in Wallace implies a test applicable to the different factual issue reflected by the present circumstances. The formulation of the test of “development” proposed to be applicable is that manifestation or development of the subsequent disability occurs at the moment that the employee is physically unable to perform his duties, as measured (at a trial long after the moment) by the evaluation of all the factual and (later available) medical data.

This test, as thus formulated, is not necessarily implied by the Wallace principle, at least as applied to the present facts. (Moreover, if applied to the facts in the cases in the Wallace line, the test would have required prescription to be maintained in them rather than (as was the result) overruled.)

The underlying rationale of the Wallace rule is that an employee who becomes disabled after the prescriptive year (but within two years after the accident) will not be penalized by the loss of his compensation rights, unless he fails to bring suit to enforce them within one year after it is manifest, rather than conjectural, that he has a compensable claim. See also: Bigham v. Swift & Company, 229 La. 341, 86 So.2d 59 (1956); Johnson v. Cabot Carbon Company, 227 La. 941, 81 So.2d 2 (1955); Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218 (1952).

In the present case, -the employee may (or may not) have been able to perform work at the time he first reported his neck symptoms to his local doctor in November, 1974, but his legal disability was not manifest: The doctor had discharged him as cured of work-accident residual, and this physician ascribed the present symptoms to non-traumatic causes curable by conservative remedy. No more than in Wallace and the other decisions cited, should this undoubtedly disabled employee be penalized by the loss of his compensation rights because he did not bring suit within the year that he had a conjectural, rather than a manifest, compensable claim.

It was not until April, 1975, that the neck symptoms had sufficiently manifested themselves so that this physician or the plaintiff himself had any indication that they were traumatic in origin. The plaintiff brought suit in March, 1976, within a year of this manifestation or development of his injury. His claim, therefore, is not prescribed.

III.

The defendant contends, with some persuasiveness, that the medical failure to diagnose correctly the early symptoms did not prevent the disability from being manifest. It relies upon Hobley v. Phoenix of Hartford Insurance Company, 233 So.2d 589 (La. App. 4th Cir. 1970) and Guillory v. Maryland Casualty Company, 227 So.2d 620 (La. App. 3d Cir. 1969).

In both of these instances, however, the plaintiffs were aware of a traumatic injury at the time of the accident, but delayed until later in securing a medical diagnosis of the cause of their continued disability. The courts held, properly, that under the facts the traumatic injury or disability was manifest to the plaintiffs from the time they suffered it, not from the time they secured a medical diagnosis of it. The decisions are inapplicable to the present facts.

Generically, the present situation is more similar to that in Hebert v. Hartford Accident & Indemnity Company, 331 So.2d 222 (La.App. 3d Cir. 1976); certiorari denied 334 So.2d 229 (La. 1976) (“. . . no error of law”). There, following an initial injury and treatment, a workman was released to return to work. Although he still had residual symptoms, he continued working until, finally, his disability became fully manifest as total, and corrective surgery was required. In overruling the plea of prescription, the court noted that the (legally) disabling nature of the injury had become latent, so that “ ‘the later manifestation is regarded as the time when the injury “develops” (again), so that a suit brought within a year of re-manifestation is timely.’ ” 331 So.2d 225.

See also: Payne v. Travelers Insurance Company, 299 So.2d 913 (La.App. 3d Cir. 1974); Seago v. Continental Casualty Company, 294 So.2d 912 (La.App. 2d Cir. 1974); Hodge v. T. L. James & Co., 57 So.2d 913 (La.App. 2d Cir. 1952); Manuel v. Travelers Insurance Company, 46 So.2d 319 (La.App. 1st Cir. 1950).

IV.

The plea of prescription had been referred to the merits, and the case was fully tried before the district court upheld the plea of prescription. As earlier noted, the preponderance of the evidence supports a finding of total disability from April, 1975, as well as in the initial uncontested period of May 23 through August 17, 1974.

During the initial period, the plaintiff had been paid compensation at the rate of $45.50 per week, apparently based upon his estimate to an adjuster that his earnings averaged $70.00 per week as a pulpwood cutter. However, at the trial his uncontra-dicted testimony proves earnings in excess of that which entitles him to the statutory maximum of $65.00 per week applicable on the date of the injury (May 23,1974) during total disability, not to exceed five hundred weeks in all. La. R.S. 23:1202 (1973), 1221(2) (1968).

Decree

For the reasons assigned, we reverse the judgment of the court of appeal sustaining the plea of prescription and dismissing the plaintiffs suit; and we do now order, adjudge, and decree judgment in favor of the plaintiff, Virgie Bolden, and against, the defendant, Georgia Casualty and Surety Company, holding the latter liable in the amount of $65.00 per week from May 23, 1974 through August 17, 1974, and from April 30,1975 on, for a period not to exceed five hundred weeks; less credit for compensation paid, with legal interest upon all delinquent installments of workmen’s compensation until paid. The plaintiff’s right to recover unpaid medical expenses is reserved. The defendant is taxed with all costs of these proceedings.

REVERSED AND REMANDED.

SANDERS, C. J., dissents and assigns reasons.

SUMMERS, J., dissents for reasons assigned by Court of Appeal.

SANDERS, Chief Justice

(dissenting).

This workmen’s compensation case involves an interpretation of the prescriptive provision contained in LSA—R.S. 23:1209. Plaintiff suffered an injury in an accident on May 23, 1974, and filed the present suit on March 24, 1976.

When plaintiff brought this suit against his employer’s compensation insurer, Georgia Casualty and Surety Company, he alleged that, because of a herniated disc, he has been permanently disabled since the 1974 accident. Defendant filed a plea of prescription, and it was referred to the merits. After trial on the merits, the district court sustained the plea of prescription. The court of appeal affirmed. 353 So.2d 492.

LSA-R.S. 23:1209 provides:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.” (Emphasis supplied.)

At trial, the parties stipulated the following facts:

“1. Plaintiff sustained an accidental personal injury on May 23, 1974, in the course and scope of his employment;
“2. Plaintiff’s injury was diagnosed by Doctor Henry S. Carter, as a lumbar sacral sprain;
“3. Plaintiff was hospitalized beginning May 23, 1974, and ending June 8, 1974;
“4. Plaintiff was discharged as cured by Doctor Carter on August 17, 1974;
“5. Plaintiff was paid weekly compensation benefits of $45.50 beginning May 23, 1974 and ending August 21, 1974;
“6. Plaintiff’s medical expenses for care and treatment for the injury were paid, the last payment being on September 27, 1974; and
“7. Plaintiff did not return to work for the employer after the accident of May 23, 1974.”

To supplement the stipulation, the parties introduced testimony on the prescription issue.

Although plaintiff was discharged by Dr. Carter on August 17, 1974, he did not return to work for his former employer. In the fall of 1974, after attempting to mow lawns, plaintiff began to experience pain in the cervical (neck) region, as distinguished from the lumbar sacral (lower back) sprain for which Dr. Carter had previously treated him. By November of 1974, this pain had become severe; plaintiff reported it to Dr. Carter. Plaintiff also saw Dr. McCarthy in Hattiesburg, Mississippi, who referred him to Dr. Smith, a neurosurgeon.

After examining plaintiff, Dr. Smith determined that surgery was indicated, and he performed a decompressive laminectomy on September 26,1975. At this time, it was discovered that plaintiff had a small herniated cervical disc.

On March 24, 1976, plaintiff brought this suit against his employer’s compensation insurer, alleging that because of the herniated disc he has been totally and permanently disabled from the date of the original accident. He sought maximum compensation benefits, maximim medical expenses, and an increase in the compensation payments already made.

Plaintiff’s claim has prescribed unless it falls under that portion of LSA-R.S. 23:1209, known as the “development of injury rule,” which provides:

“ . . [Wjhere the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

As this Court noted in Wallace v. Remington Rand, Inc., 229 La. 651, 86 So.2d 522 (1956), the cited provision establishes a prescription of one year, coupled with a per-emption of two years. The one-year prescription runs from the development of the injury.

Under the statute, the injury is considered to be developed when it becomes manifest that the employee is disabled from pursuing his employment. See Wallace v. Remington Rand, Inc., supra; Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So.2d 218 (1952).

Both lower courts found that the cervical disability manifested itself in November, 1974, when severe pain forced the employee to consult the attending physician. Hence, the courts held that the one-year prescription had run when this suit was filed on March 24, 1976. They did not reach the serious factual question of whether the cervical injury was causally related to the original accident.

The trial court’s factual finding that the injury developed in November, 1974,.is entitled to great weight. It should be disturbed on appeal only if there is no reasonable factual basis for it. Canter v. Koehring, La., 283 So.2d 716 (1973).

Plaintiff testified freely that he knew he was disabled from his employment at the time the attending physician discharged him. In the fall of 1974, he attempted to do yardwork, but was unable to do it. In November, 1974, he returned to the attending physician with severe neck pain. He further testified that from that time, he “had to be handled like a baby nearly.” In my opinion, the evidence fully supports the trial judge’s finding.

For the reasons assigned, I respectfully dissent.

      . La. R.S. 23:1209 (1950) provides in full (the italicized last sentence is the provision presently involved):
      “In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident." (Italics ours.)
      0 (The 1975 amendment of this section did not affect this provision or the issue before us.)

      . See, e. g.: Burleigh v. Argonaut Insurance Co., 347 So.2d 13 (La.App. 3d Cir. 1977); Harris v. Seaboard Fire & Marine Insurance Co., 337 So.2d 262 (La.App. 2d Cir. 1976), certiorari denied 339 So.2d 853 (La. 1976); Madison v. American Sugar Refining Co., 134 So.2d 646 (La.App. 4th Cir. 1961), limited certiorari granted on unrelated case and award amended, 243 La. 408, 144 So.2d 377 (1962).


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Melvin Kim NEITTE.
    No. 61707.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Arthur A. Lemann, III, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., S. Michael Henry, Asst. Dist. Atty., for plaintiff-respondent.
   DENNIS, Justice.

Defendant, Melvin Kim Neitte, was originally charged with simple robbery, La.R.S. 14:65. Pursuant to a plea bargain with the district attorney he pleaded guilty to a reduced charge of theft of property valued between $100 and $500, La.R.S. 14:67. The district court sentenced defendant to serve two years at hard labor.

Defendant unsuccessfully sought a writ of habeas corpus in the district court. We granted writs to review defendant’s contentions that his guilty plea had been induced in part by the district attorney’s promise to recommend probation in his case to the sentencing judge and that the district attorney had breached this part of the plea bargain.

In this Court the district attorney concedes that he made no recommendation of probation to the sentencing judge. However, he contends that no one in his office promised to make such a recommendation and that the defendant acknowledged during the Boykin examination that no promises had been made to him to induce his guilty plea other than the reduction of the charge against him.

The record designated for our review does not support the district attorney’s contentions. The subject of promises which may have induced his proposed guilty plea was not explored during the Boykin examination. At the hearing in the district court the defendant introduced a letter addressed to the defendant dated June 7, 1977 from the attorney who was defendant’s lawyer at that time. The letter followed the lawyer’s discussion of defendant’s case with the district attorney and outlined a proposed plea bargain:

H sfc * *
“[The district attorney] has advised me that he would be willing to reduce the charge of simple robbery to theft of under $500.
« * * *
“As a condition for the reduction of this charge, the District Attorney would expect that you would testify at the trial of David Charles ‘Pinky’ Ammons. Additionally, the District Attorney has indicated to me that he will write the judge a letter recommending that you be placed on supervised probation as a result of your cooperation in the Ammons trial.”

An assistant district attorney stipulated that a copy of this letter was sent to the district attorney bearing the following notation:

“Dear [district attorney], I believe the above fairly well represents our agreement by phone on June 6, 1977, concerning the plea bargain in this case.”

Both the defendant and his former attorney testified that the letter correctly embodied the terms of the plea bargain reached with the district attorney and that the district attorney’s promise to recommend probation was a quid pro quo for defendant’s guilty plea and agreement to testify truthfully at the trial of David Charles Ammons. They further testified that this understanding was also based upon conversations between the district attorney and the defense counsel, which the latter related orally to the defendant. Moreover, the defendant testified that he would not have entered a guilty plea if he had known that the district attorney would not recommend that he receive probation.

The district attorney presented no testimony or other evidence to controvert the defendant’s evidence at the habeas corpus hearing. In brief the district attorney states that David Charles Ammons pleaded guilty to a reduced charge on June 24, 1977 and was sentenced to two years at hard labor on June 28, 1977. He argues that his promise to recommend probation was “conditional, unconfirmed,” meaning that it was conditioned upon the defendant Neitte actually giving testimony at Ammons’ trial, rather than being conditioned merely upon his agreement to testify. Thus, the district attorney contends that since he did not confirm his promise after Ammons pleaded guilty and before the defendant entered his guilty plea on September 30, 1977, Neitte should have known that he did not intend to recommend probation in his case.

Even if we could properly consider the factual statements in the district attorney’s brief as evidence, they do not overcome the positive, uncontradicted testimony of the defendant and his former attorney that the district attorney’s promise was given in return for Neitte’s agreement to testify and that it was not subject to withdrawal upon Ammons’ guilty plea. The district attorney’s interpretation of the letter is not unreasonable, but there is no evidence to support it. Nor are the facts outside the record which the district attorney wishes us to consider inconsistent with the testimony of the defendant and his former attorney. It is entirely possible that the district attorney was willing to bargain for the defendant’s mere agreement to testify in hopes that knowledge of the agreement would induce Ammons to plead guilty. Accordingly, the sequence of the guilty pleas, even if it was as represented in the district attorney’s brief, does not conflict with the version of the plea bargain testified to by defendant’s witnesses.

The only correct conclusion which may be reached from the record before us is that the district attorney either promised to recommend probation for the defendant in return for his guilty plea and mere agreement to testify against Ammons or led , the defendant to reasonably believe this was the agreement. If Neitte had breached his agreement by refusing to testify he could not have expected the district attorney to comply with his part of the agreement. However, considering the information contained in the letter and the oral reports of his attorney, Neitte could not have expected reasonably that Ammons’ guilty plea, which may have been induced by defendant’s readiness to testify, would release the district attorney from his promise.

It is well settled that whenever a guilty plea rests in any significant degree on an agreement or promise by the prosecutor, so that it can be viewed as part of the inducement or consideration, such promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The defendant was denied due process of law because the State failed to comply with the material representation or promise which induced the defendant’s guilty plea.

Accordingly, the case is hereby remanded with instructions to the district court to vacate the defendant’s guilty plea and sentence and allow him to reinstate his plea of not guilty.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Francisco LABRANO, Jr.
    No. 61731.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      Tilden H. Greenbaum, III, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

Originally, defendant, Francisco Labrano, Jr., was charged, in separate bills of information, with two counts of distribution of heroin, violations of LSA — R.S. 40:966. These bills were filed on July 11, 1974. Pursuant to a plea bargain, he pled guilty, on March 15, 1977, to two counts of attempted distribution of heroin and was sentenced to serve concurrent ten years’ sentences in the custody of the Director of the Louisiana Department of Corrections. At the time of his guilty plea, he reserved the right to appeal the district court’s ruling which denied his motion to quash.

Defendant alleges that the district court erred in denying his motion to quash on two grounds: (1) that the case had prescribed by virtue of the limitation on prosecution set forth in LSA-C.Cr.P. art. 578(2); and (2) that further prosecution of this case would deprive defendant of his right to a speedy trial under the Sixth Amendment of the United States Constitution.

Article 578 of the Louisiana Code of Criminal Procedure provides in pertinent part:

“Except as otherwise provided in this Chapter, no trial shall be commenced:
u * * sk
“(2) In other felony cases after two years from the date of institution of the prosecution;”

In the present case, more than two years elapsed between institution of prosecution and trial; however, Article 580 of the Louisiana Code of Criminal Procedure provides for suspension of the two years limitation on prosecution under the following circumstances which are present in this case:

“When a defendant files a motion to quash or other preliminary plea, the running of the periods of limitation established by Article 578 shall be suspended until the ruling of the court thereon; but in no case shall the state have less than one year after the ruling to commence the trial.”

The prosecution commenced with the filing of the bills of information on July 11, 1974. On April 26, 1976, almost three months prior to the expiration of the two years prescriptive period, defendant filed a motion for a bill of particulars and a prayer for oyer. A motion for bill of particulars is a preliminary plea which “triggers” the sus-pensive period set forth in Article 580. State v. Miller, 263 La. 138, 267 So.2d 550 (1972); State v. Bradford, 217 La. 32, 45 So.2d 897 (1949); Art. 580 Official Revision Comments. The present record does not reflect when, or if, the court ruled on the motion for bill of particulars in this case. This however, is of no consequence as the trial was held on March 15,1977, well within one year from the date the motion was filed.

There was no bar to prosecution under Articles 578 and 580 of the Louisiana Code of Criminal Procedure as contended by defendant.

Although further prosecution was not barred by the limitations in Articles 578 and 580, we must address defendant’s argument that he was denied his right to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

In State v. McDaniel, La., 340 So.2d 242 (1976), we stated:

“Trial was commenced well within the three year statutory limitation provided by article 578 of the Louisiana Code of Criminal Procedure. Furthermore, defendant did not vigorously assert his right to a speedy trial, but rather contributed to the delay by filing numerous motions which retarded the proceedings; and there is no indication that the State deliberately delayed the trial in an effort to hamper the defense. See, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Under the circumstances, we find no deprivation of the right to a speedy trial.”

Likewise, in State v. Moore, La., 300 So.2d 492 (1974), we stated:

“Guidelines for determining whether a criminal defendant has been denied his federal constitutional right to a speedy trial were set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors which are to be considered are the length of the delay, the reasons for the delay, the resulting prejudice to the defendant, and the defendant’s assertion of his right to a speedy trial.
“In Barker, the United States Supreme Court, while rejecting a rigid time formula, recognized the states’ right to set a time period for bringing accuseds to trial, provided that the prescribed time period is consistent with constitutional standards.”

In the case before us, the defendant’s constitutional rights were not violated. The delay from the filing of the bills of information until the arraignment was approximately 20 and V2 months. There was a nine month interval between arraignment and defendant’s initial assertion of his right to a speedy trial, filed on November 12, 1976. In lieu of trial, he pled guilty four months later. Failure to assert his right to a speedy trial soon after the arraignment is persuasive that he anticipated no prejudice in presenting his defense. Furthermore, defendant made no objection to any of the continuances and, in fact, joined in one continuance after he had filed his motion to quash, asserting his right to a speedy trial.

Under the totality of circumstances presented, the delay in bringing defendant to trial does not rise to constitutional proportions; defendant did not aggressively assert his right to speedy trial; and defendant has advanced no facts to support his allegation that the delay prejudiced his defense.

We conclude that the trial court correctly overruled his motion to quash.

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


text:
    STATE of Louisiana v. John E. KIRSCH.
    No. 61743.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      Edward C. Keeton, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., P.' Michael Cullen, Abbott J. Reeves, Asst. Dist. Attys., Research and Appeals Division, for plaintiff-appellee.
   SANDERS, Chief Justice.

The defendant, John E. Kirsch, was charged by Bill of Information with the crime of making an obscene and threatening phone call, a violation of LSA-R.S. 14:285. After a bench trial, he was found guilty and sentenced to six months’ imprisonment. Defendant appeals, relying upon ten assignments of error for reversal of the conviction and sentence. Assignment of Error No. 4 was neither briefed nor argued and is considered abandoned. See State v. Phillips, La., 337 So.2d 1157 (1976).

On June 27, 1977, about 4 o’clock a. m., a man telephoned the Spitelera residence. Mrs. Spitelera answered the telephone. Although she recognized the voice as that of the defendant, who had dated her daughter, she asked the caller to identify himself. He replied he was “John.” When she asked him why he wished to speak to her husband, he used threatening and obscene language. Shortly thereafter, Mr. Spitelera .contacted the police.

ASSIGNMENT OF ERROR NO. 1

The defendant’s appeal is based primarily on several objections to testimony alleged to be hearsay. In Assignment of Error No. 1, the defendant complains of the State’s question addressed to Mr. Spitelera, husband of the recipient of the telephone call: Did you ever receive a complaint from your wife concerning a telephone call? The witness answered in the affirmative. After the answer, the defense objected, and the trial judge noted that the question had already been answered. Whereupon, defense counsel moved that the answer be stricken. The trial judge did not respond to the motion to strike.

In State v. Martin, La., 356 So.2d 1370 (1978), we defined hearsay as follows:

“ ‘Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ ”

The testimony that a complaint was made is non-hearsay. The content of the complaint was not given. The fact of the complaint was relevant to explain why the husband called the law enforcement officers.

The motion to strike evidence is unknown to the criminal procedure of Louisiana. State v. Vince, La., 305 So.2d 916 (1974); State v. Isaac, 261 La. 487, 260 So.2d 302 (1972). The failure of the trial judge to rule upon the motion to strike is of no legal consequence, because the testimony was non-hearsay and, as we have noted, the motion was foreign to Louisiana criminal procedure.

We conclude that the assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

When Mrs. Spitelera testified, she recited the text of the defendant’s telephone communication to her. She stated that he asked to speak to Mr. Spitelera; that she asked who was calling; and that the defendant identified himself by name. The defense objected on the grounds that the identification of the defendant was based on this hearsay testimony. The trial court allowed the prosecutor to lay a proper foundation establishing that Mrs. Spitelera could identify the defendant’s voice. This foundation was established when the witness testified that she was familiar with his voice, having spoken to the defendant over the telephone several times per week for several months.

The caller’s identification of himself was admissible to corroborate the witness’s own testimony identifying the voice. It formed part of the criminal act. LSA-R.S. 15:447, 448.

To sustain the charge, the State was required to prove that the obscene and threatening words were actually spoken in the telephone conversation. The testimony of the conversation was admissible, not to prove the truth of the content, but to show the fact of utterance. The testimony is non-hearsay. State v. Gonzales, 258 La. 103, 245 So.2d 372 (1971).

The assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 5

During the defense cross-examination of Mrs. Spitelera, the following interrogation occurred:

“By Defense Counsel
“Q. You never had any trouble with John [the defendant] before?
“A. Yes, we had trouble with John before.
“Q. What I mean, had he ever called you on the telephone for .
“A.He called my husband on the phone before.
“Q. He had talked to your husband on the phone before?
“A. Yes, he did.”

On redirect examination the prosecutor questioned Mrs. Spitelera concerning the nature of the trouble that they had with the defendant. The defense objected on the grounds that the testimony related to matters outside the scope of the Bill of Information, which charged that defendant committed a crime on June 27, 1977.

LSA-R.S. 15:281 states:

“The redirect examination must be confined to the subject matter of the cross-examination and to the explanation of statements elicited on cross-examination; but the application of this rule is within the discretion of the trial judge, provided that the opportunity be not denied to recross on the new matter brought out on the redirect.”

In State v. Overton, La., 337 So.2d 1201 (1976), this Court ruled, “Where defense counsel went on cross-examination, the State had the right to follow on redirect.” Since the defense inquired about the past relationship between the defendant and the Spiteleras, the prosecutor was entitled to elicit testimony on that subject on redirect examination.

ASSIGNMENT OF ERROR NO. 6

During the redirect examination of Mrs. Spitelera, the defense raised objections to hearsay testimony given by that witness and moved that the testimony be stricken from the record. The testimony related to the text of a telephone conversation between Mr. Spitelera and the defendant. The trial judge sustained the defendant’s objections, indicating that he would not consider the testimony.

In subsequent testimony, however, the witness testified that the defendant had previously threatened her husband. Defense counsel then asked the trial judge to “note” that the testimony was hearsay. The trial judge responded, “I understand.”

Ultimately, the defense moved to strike the testimony. The trial judge failed to specifically rule on this motion.

As we have observed, the motion to strike testimony is unknown to the criminal procedure of Louisiana. State v. Vince, supra; State v. Isaac, supra. However, as we interpret the record, the trial judge indicated by his initial ruling and subsequent response that he, as trier of the facts, would not consider the evidence.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 7

After Mrs. Spitelera had testified, the State recalled her husband to the witness stand. While trying to establish that this witness could identify the defendant from his voice, the prosecutor asked the witness whether he had ever taíked to the defendant. The witness answered that he had a phone conversation with the defendant in December of 1976. The defense objected, contending that the State had not laid a proper foundation for this evidence. The trial court sustained the defendant’s objection until a foundation was laid.

The State asked another question relating to this December telephone call, and the defense again objected. Counsel for defendant failed to state the grounds for that objection but contends on appeal that the objection was based on the theory that the question sought evidence beyond the scope of the Bill of Information.

LSA-C.Cr.P. Art. 841 states in pertinent part:

“An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.”

The defense failed to state the grounds for this objection at the trial on this matter. The trial judge had no opportunity to rule on this point. This Court will not consider this contention, which is raised for the first time on appeal. State v. Cobb, La., 334 So.2d 200 (1976).

ASSIGNMENT OF ERROR NO. 8

This assignment of error complains of the failure of the trial judge to rule upon the defense’s continuing objection to hearsay testimony. The assignment is cross-referenced to pages 27 and 28 of the trial transcript.

The objection on page 27 is the same objection referred to in Assignment of Error No. 7. Defense Counsel merely stated, “Objection, your honor” and assigned no grounds for the objection. As previously noted, this objection is not reviewable.

The second objection (Tr. p. 28) was phrased as follows: “Your honor, note my continuing objection to hearsay testimony.” It is true that the trial judge did not respond to this objection. However, we conclude that the objection lacks merit.

This objection relates to the testimony of Mr. Spitelera concerning the telephone conversation he had with defendant in December of 1976. The State was attempting to establish that there had been an altercation between Mr. Spitelera and the defendant prior to the crime charged.

The defense contended that the testimony concerning this December telephone call was hearsay. The argument is specious in that the testimony was not offered to prove the truth of the matters contained in an out-of-court statement but rather to prove that the altercation, in the form of the utterance, occurred. State v. Sheppard, La., 350 So.2d 615 (1977); State v. Monk, La., 315 So.2d 727 (1975); State v. Gonzales, supra.

ASSIGNMENT OF ERROR NO. 9

In this assignment of error, the defense contends that the trial court erred in overruling the defendant’s objections to questions propounded to Mr. Spitelera which allegedly went beyond the Bill of Information. This assignment also alleges that the trial court erred in allowing the State to recall Mr. Spitelera as a witness.

The trial court did not err in allowing the prosecuting attorney to recall Mr. Spitelera. Allowing the recall rested in the sound discretion of the trial judge. LSA-C.Cr.P. Art. 765(5); LSA-R.S. 15:281. The trial judge did not abuse his discretion by permitting the State to recall the witness in view of the fact that he also gave the defendant the opportunity to conduct further cross-examination. State v. Smith, La., 340 So.2d 247 (1976).

The contention that the testimony went beyond the Bill of Information was dealt with in Assignment of Error No. 5.

ASSIGNMENT OF ERROR NO. 10

The defendant argues in this assignment of error that the trial court erred in not sustaining his objection to one of the State’s questions posed to Mr. Spitelera. The contention was that the question required an answer which would have been hearsay. We note the State withdrew the question before it was answered and asked another question to which the defense did not object. Hence, there is no merit in this assignment of error.

ASSIGNMENT OF ERROR NO. 11

After defendant was sentenced, he filed a motion for a new trial, based on newly discovered evidence. Although the record does not reflect the trial judge’s ruling, the defendant alleges that the trial judge denied the motion for a new trial.

We note that the motion is not sworn to by the defendant or his counsel as required by Article 854 of the Louisiana Code of Criminal Procedure. Nonetheless, we have reviewed it and conclude that the matter set forth in the motion does not constitute newly discovered evidence. Rather, the allegation is that the defendant subsequently remembered a collateral fact that he did not include in his testimony at the trial. Such an allegation is legally insufficient to constitute newly discovered evidence or to warrant a new trial.

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


author: DIXON, Justice.

text:
    STATE of Louisiana v. Michael A. LEGGETT.
    No. 61766.
    Supreme Court of Louisiana.
    Oct. 9, 1978.

      John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DIXON, Justice.

Defendant, Michael A. Leggett, was charged by bill of information with armed robbery in violation of R.S. 14:64 and was appointed counsel from the Orleans Indigent Defenders Program. On the day of trial, defense counsel filed a motion for continuance to permit the defendant to retain private counsel and a motion to withdraw as counsel of record because of disagreement between defendant and counsel concerning the manner and method of defense. The court denied both motions but granted defendant’s request to represent himself with defense counsel as an adviser. Defendant was tried before a jury of twelve persons which found him guilty of armed robbery, and the court sentenced him to forty-nine and one-half years at hard labor as an habitual offender. On appeal, defendant relies on six assignments of error for reversal of his conviction and sentence.

On August 25, 1977 defendant, allegedly armed with an air pistol, robbed the Liberty Bank at 3939 Tulane Avenue in New Orleans. Defendant showed his gun to the bank teller, demanded money, and then jumped over the counter to take it. Taking the teller as a hostage, defendant left the bank. Outside the bank defendant abandoned the money bag when a tear gas device placed in the bag with the stolen money exploded. Defendant proceeded on foot a short distance and was apprehended by two United States Marshals and members of the New Orleans Police Department.

Assignments of Error Nos. 1 and 2

Defendant contends that the trial court erred when it denied defense motions to withdraw as counsel and motion for continuance. The motion for continuance alleged that defendant wanted time to retain an Ohio attorney as private counsel. The motion to withdraw alleged that defendant and his counsel were in opposition as to the manner and methods of defense.

Both the federal and state constitutions provide that the accused has the right to counsel of his own choosing to defend him on a criminal charge. However, this right does not permit arbitrary action which obstructs orderly procedures in the courts. State v. Dickerson, 353 So.2d 262 (La.1977); State v. Mackie, 352 So.2d 1297 (La.1977). Rather the right to choose one’s attorney is a right to be exercised at a reasonable time, in a reasonable manner, and at an appropriate stage within the procedural framework of the criminal justice system. There is no constitutional right to make a new choice of counsel on the very date the trial is to begin, with the attendant necessity of a continuance and its disrupting implications to the orderly trial of cases. Once the trial day has arrived, the question of withdrawal of counsel rests largely within the discretion of the trial judge. State v. Cousin, 307 So.2d 326 (La. 1975); State v. St. Amand, 274 So.2d 179 (La.1973). This court has frequently upheld the trial court’s denial of motions for continuances or withdrawal of counsel made on the day of trial when defendant is dissatisfied with his present attorney but had ample opportunity to retain private counsel. State v. Anthony, 347 So.2d 483 (La.1977); State v. Hegwood, 345 So.2d 1179 (La.1977); State v. Wiggins, 337 So.2d 1172 (La.1976); State v. Alexander, 334 So.2d 388 (La.1976); State v. Austin, 258 La. 273, 246 So.2d 12 (1971).

In the instant case, when the trial judge denied defense motions he considered the amount of time which had elapsed from the filing of the bill of information to the trial date. Also, the trial record indicates: that the Ohio attorney neither appeared in court to verify his retention nor communicated with the trial judge in any way; that defendant’s court appointed counsel contacted the Ohio attorney twice before trial, but he refused to speak to defense counsel over the phone; that defendant’s court appointed counsel filed pre-trial motions on defendant’s behalf and was fully versed with the facts of the case; that the motions for continuance and to withdraw were made on the day of trial; and that the Ohio attorney neither made an appearance nor contacted the court during the trial, or motion for new trial, or on appeal.

In State v. St. Amand, 274 So.2d at 189, defense counsel filed a motion to withdraw on the day of the trial because irreconcilable difference had become manifest between counsel and defendant over the conduct of the defense. Noting that in a per curiam the trial judge had stated his familiarity with the defense counsel’s ability, his diligence and thorough preparation, this court upheld the trial judge’s denial of the motion to withdraw. In the present case, counsel and defendant were apparently at odds over the propriety of a plea of not guilty by reason of insanity in the absence of any supporting evidence; however, when defendant was permitted to conduct his own defense, he never submitted a plea or evidence of insanity.

Assignments of Error Nos. 1 and 2 lack merit.

Assignment of Error No. 3

Defendant contends that the trial court erred in denying his oral motion before jury selection to wear civilian clothing at the trial and in forcing him to trial wearing prison clothing. Defendant relies on State v. Tennant, 262 La. 941, 265 So.2d 230 (1972) and State v. Johnson, 343 So.2d 155 (La.1977) for the proposition that to try a man in prison clothing infringes on the presumption of innocence and the defendant is required to be tried free of the stigma of prison clothes, because prison attire might unduly connote guilt.

In the past this court has found that the accused must prove by clear and convincing evidence that his prison attire deprived him of the right to appear in court with the dignity and self-respect of a free man. State v. Tennant, supra; State v. Kinchen, 290 So.2d 860 (La.1974); State v. Thomas, 325 So.2d 593 (La.1976). When examining this issue on appellate review, this court has focused on whether defendant demonstrated that his clothing at trial was readily identifiable as prison attire. In State v. Tennant, 262 La. at 947, 265 So.2d at 234, the court found that the uniform of East Baton Rouge Parish prisoners was not identifiable as prison clothing, and reasoned:

“Current dress fashions indicate that many young people show a preference for dungarees, jeans and similar attire. The work clothing worn by these young defendants, ranging between 18 and 26 years of age, described by the trial judge, would not necessarily be considered unusual, or peculiarly prison garb by today’s standard. There were no large stripes, numbers, names or other such markings usually associated with prison garb. The fact that this clothing was issued to prisoners in the East Baton Rouge Parish prison does not make it readily recognizable as prison garb by persons not familiar with that prison. We venture to say that all prisons do not issue clothing, and it is not shown that the clothes described are generally considered prison garb. For these reasons, we find that these defendants have failed to bear the burden of proof incumbent on them to establish that the clothing they wore was regarded by the jurors as ‘prison garb.’ ”

Similarly, this court found that gray coveralls, State v. Thomas, supra, and denim pants and shirts, State v. Nicolaus, 340 So.2d 296 (La.1976) and State v. Yates, 350 So.2d 1169 (La.1977) were not identifiable as prison clothing and that trying defendant in such attire over his objection did not constitute reversible error. The court’s analysis of the issue conforms with the United States Supreme Court in Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) where the court reasoned that the state cannot, consistent with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothing.

However, in Tennant, in Thomas, in Yates and in Nicholaus, the defense only objected to the prison clothing after voir dire or after trial began; in the instant case defense objected before voir dire. When the defense objects before the jury is impaneled and the objected is not simply a dilatory tactic, then the state is not prejudiced by allowing defendant the extra time to change to civilian clothing. The trial court erred in not allowing the defendant this right. Defendant should not be required to wear a prison jumpsuit at his trial, however attractive, if defendant objects and desires to wear his own civilian clothing.

In the instant case, however, the trial court’s error does not warrant reversal of the conviction. In contrast to the prejudice defendant suffered by being forced to wear prison clothing at his trial, other evidence in the record had far greater potential for prejudicial effect on the jury: defendant acknowledged incriminating involvement in the bank robbery during his cross-examination of every state witness; defendant was identified by all eyewitnesses (four bank employees), a United States Marshal and an arresting police officer; defendant was identified in seven photographs taken during the bank robbery by the bank surveillance camera; defendant took the stand against advice of his counsel and admitted that he had been previously convicted of robbery; and finally, while on the stand defendant admitted that he was the man in the bank who took the money.

Assignment of Error No. 4

Defendant contends that the trial court erred in admitting into evidence all items of evidence used by the state without a proper foundation and no chain of custody. The evidence consisted of photographs taken of the robbery by the bank surveillance camera (S-1-S-7), hat worn by the defendant (S-8), pants, coat and vest worn by defendant (S-9-S-11), the gun used in the robbery (S-12), plastic bag containing $3200 taken in the robbery (S-13) and shirt worn by defendant (S-14).

Concerning photographs S-l through S-7, it is a well settled rule that a photograph need not be identified by the person who took it to be admissible in evidence. State v. Robertson, 358 So.2d 931 (La.1978) and the cases cited therein. Generally, photographers are admissible in evidence when they are shown to have been accurately taken, to be a correct representation of the subject in controversy, and when they tend to shed light upon the matter before the court. State v. Robertson, supra; State v. Cass, 356 So.2d 936 (La.1977); State v. Freetime, 334 So.2d 207 (La.1976); State v. Lacoste, 256 La. 697, 237 So.2d 871 (1970). A proper foundation for admission in evidence of a photograph is laid when witnesses, having personal knowledge of the item or incident depicted by the photograph, identify it. State v. Robertson, supra. In the present case the photographs were identified by the bank teller and two other bank employees who witnessed the robbery.

Concerning demonstrative evidence S-8 through S-14, the law requires that the objects be identified to admit them in evidence at trial. The identification can be visual, that is, by testimony at the trial that the object exhibited is the one related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered in evidence at trial. State v. Williams, 362 So.2d 530 (La.1978).

In the present case all the demonstrative evidence was identified by state witnesses: S — 8, the hat, by four witnesses; S-9, S-10 and S-ll, the three piece suit, by six witnesses; S-12, the gun, by four witnesses; S-13, the money bag, by two witnesses; and S — 14, the shirt, by one witness. Also, a police officer in the criminal investigation division identified all the demonstrative evidence and testified that he had received the evidence, marked, tagged and dated it for identification, and placed it in the robbery evidence book.

Assignment of Error No. 4 lacks merit.

Assignments of Error Nos. 5 and 6

Defendant contends that the trial court erred in instructing the jury according to the state’s special charge that provided:

“A person who commits a robbery by pointing an unloaded and unworkable gun at the victim can be adjudged guilty of armed robbery. Stated another way, a person can be convicted of an armed robbery even if the guñ is unloaded or unworkable because an unloaded or unworkable gun in the hands of a person intent on divesting another of his money is a dangerous weapon.”

Specifically, defendant contends that the air pistol taken from him at the time of his arrest was unworkable. The special charge concerns unloaded and unworkable guns and defendant contends that the special requested charge was prejudicial to his case because it was not a correct statement of law under State v. Levi, 259 La. 591, 250 So.2d 751 (La.1971); State v. McClinton, 329 So.2d 676 (La.1976); State v. Elam, 312 So.2d 318 (La.1975).

Defense’s position that the special charge is contrary to state law is undercut by the fact that the charge is taken directly from State v. Levi, 259 La. at 598-99, 250 So.2d at 754:

“. . . An unloaded revolver in the hands of a person intent on divesting another of his money is a dangerous weapon. We hold that a person who commits a robbery by pointing an unloaded and unworkable pistol at the victim can be adjudged guilty of armed robbery.

In Levi, the court stated that for the court to hold otherwise would be to build into Louisiana law an “unloaded weapon” defense that would defeat most prosecutions for armed robbery except when the offender is captured at the scene and his weapon seized. The court reasoned that to be classified as a dangerous weapon, a pistol need not be capable of firing.

In all three cases that defense cites in brief, the court found that a person may be convicted of robbery with a dangerous weapon even though the gun used is unloaded and/or unworkable. State v. McClinton, supra; State v. Elam, supra; State v. Levi, supra. But an unloaded and unworkable gun also can be considered a dangerous weapon, as defined by R.S. 14:2(3) which provides: “ ‘Dangerous weapon’ includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” In State v. Levi, 259 La. at 595, 250 So.2d at 753, the court reasoned that both a continuous threat and capability exist that an unworkable or unloaded gun will be used as a bludgeon, and explained:

“In making robbery with a dangerous weapon an aggravated offense with severe penalties, LSA-R.S. 14:64 was designed to deter robbery fraught with danger of serious physical harm, not only to the victim, but to any person at the scene. In such a robbery, harm may occur to the victim, to the culprit, or to a third party. It can occur in various ways. The victim may be shot or struck with the weapon by the culprit. The culprit may be shot or struck by the victim or a third party. A third party may be shot or struck by the culprit, the victim, or another third party. The highly charged atmosphere at the scene of a pistol-robbery is conducive to violence, whether the pistol is loaded or unloaded, workable or unworkable. Danger invites rescue. It also invites self-help. See State v. Johnston, 207 La. 161, 20 So.2d 741; Bass v. State, Fla.App., 232 So.2d 25; Baker v. United States, (U.S. 5th Cir.) 412 F.2d 1069.”

In the present case defendant was holding a 177 caliber Crossman air pistol or pellet pistol which was designed according to expert witness “to represent a 50 Wesson, a 357 Magnum target pistol.” The expert witness testified that the air pistol could possibly kill and could cause great bodily harm if shot at a person’s eye. All the witnesses to the bank robbery testified at trial that they believed defendant was armed with an ordinary pistol that could shoot regular bullets. Defendant’s contention that the special charge is contrary to state law lacks merit and the trial court did not err in failing to grant defense motion for a new trial on the grounds that the state did not prove use of a dangerous weapon, an essential element of R.S. 14:64.

Assignments of Error Nos. 5 and 6 lack merit.

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

SANDERS, C. J., concurs in the decree.

      . “BY THE COURT:
      The Bill of Information was filed the 25th day of August — on September 2nd, was filed September 2nd, or maybe September 6th, but going back it was filed in the early part of September, it was allotted, the arraignment was set for the 8th. On the 8th the defendant informed the court he would hire private counsel, was refixed for arraignment and examination for counsel for the 12th of September. The 12th of September the court appointed John Lawrence for arraignment. The trial was set for October 11th. September 30th motions were filed. The hearing was had on October 2nd. The hearing continued until October 11th. The hearing continued until October 12th. The hearing was held on October 12th, a trial date set forty days later, meaning today (November 22). The court will denied (sic) the motion to permit you to withdraw.”

      . Specifically, the motion to withdraw alleged: “The defendant and his counsel are in opposition as to the manner and methods of the defense; defendant demands to enter a plea of Not Guilty and Not Guilty by Reason of Insanity which defense counsel does not concurr (sic) and feels that there is no basis for such plea, the evidence being that defense counsel requested an evaluation by the Parish Prison medical facility which indicated no basis of any insanity, psychosis or mental disease affecting defendant and defendant has at all interviews with counsel been able to assist counsel, has clearly and intelligently discussed the offense alleged and defense counsel cannot in good conscience enter an insanity defense which would be a delaying tactic.

      . The following exchange occurred between the trial judge and the defendant concerning wearing his civilian clothing:
      “Let me ask you Mr. Leggett, do you feel as though you are at a disadvantage because of this uniform?” (Yellow jumpsuit).
      BY THE DEFENDANT:
      Would you say that again?
      BY THE COURT:
      Do you feel that as though you are at a disadvantage because of this dress?
      BY THE DEFENDANT:
      I feel I am disadvantage that nobody is here to see.
      BY THE COURT:
      We would have to disregard that answer, but particularly do you feel as though you are at a disadvantage with this clothing on? Do you think this clothing has anything to do with maybe presenting an improper picture of you? Do you feel as though this dress itself, the uni . this jumpsuit is .
      BY THE DEFENDANT:
      I rather have on my own clothes.
      BY THE COURT:
      But do you feel as though this clothing indicates anything to anyone?
      (LONG PAUSE)
      BY THE COURT:
      Do you find this jumpsuit improper in any way?

        BY THE DEFENDANT:
      I rather have on my own clothes.
      BY THE COURT:
      The court will . . . have a seat. The court will rule on this matter and the matter will go to trial.”

      . The record in the present case indicates that the defendant was never compared with other prisoners dressed in identical jumpsuits; no photographs of defendant at a line-up with other prisoners were introduced. Only two witnesses identified defendant as the “man in the yellow jumpsuit.” In Tennant, four co-defendants were seated together in court wearing identical blue and white striped denim suits that might cause jurors to wonder about the identical clothing and the informality of dress.

      . “BY THE DEFENDANT:
      I would just like to say as I stated in my opening remarks, I was in that bank on Tulane Street . . . may I see the pictures?
      BY THE COURT:
      Yes you may.
      BY THE DEFENDANT:
      As the pictures shows me in the bank was my finger on the gun handle? As you see I am not hurting no lady. I want to tell you ahead of time, I have been in trouble with the law before in Cleveland, Ohio. I never was convicted of armed robbery, I was convicted of just robbery, not armed robbery, as far as this charge goes, I am innocent of armed robbery. I didn’t arm robbed anyone, especially that woman. I would never take any citizen’s money. I was in the bank, I was in the process of getting the money out of the drawer, the bank guy came, I got behind the lady, I just wanted to keep from getting shot, because I know the bank guy would shoot me from behind . . . ”