text:
    POLK COUNTY, a political subdivision of the State of Florida, Appellant, v. James R. DEATON et al., Appellees.
    No. 77-1099.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.

      Carolyn K. Fulmer, Bartow, for appellant.
    Michael D. Martin, Lakeland, for appel-lees.
   PER CURIAM.

On this appeal, Polk County argues that the trial court erred in awarding attorney’s fees to the appellees in this case. We agree and reverse on that point.

James R. Deaton and others filed a complaint alleging that a storm water detention pond which Polk County had built constituted a nuisance. They asked the court to award damages and abate the nuisance by ordering its removal. After several hearings, the court entered final judgment in which it denied damages, and allowed the pond to remain with modifications. The judgment also awarded $3000 in attorney’s fees to appellees.

An award for attorney’s fees is only proper where authorized by contract, where authorized by legislative enactment, or where awarded for services performed in creating or bringing into court a fund or other property. Kittel v. Kittel, 210 So.2d 1 (Fla. 1968). We cannot find nor have appellees demonstrated that any of these circumstances apply to the present case.

Moreover, we reject appellees’ contention that Department of Citrus v. Griffin, 332 So.2d 54 (Fla.2d DCA 1976), controls here. It is true that in this case, as in Griffin, there was successful litigation which benefited a great number of people. However, unlike the case sub judice, Griffin contained the element of a fund from which the Court could award attorney’s fees. No such fund is available in this case.

In view of this, we vacate that part of the final judgment which awards attorney’s fees and affirm the judgment in all other respects.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida ex rel. Jack R. LUND, D.O., Relator, v. The Honorable Lawrence E. KEOUGH and the Honorable Edward H. Bergstrom, Jr., Respondents.
    No. 77-1655.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 1977.

      Peter 0. Brick, Port Richey, for relator.
    John J. Lazzara of Lazzara & Gomez, Tampa, for respondents.
   PER CURIAM.

This is a petition for writ of mandamus in a case which is similar in many respects to State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla. 3d DCA 1977). Here, as in Vann, the judicial referee had stayed the malpractice mediation proceedings on his own motion pending the determination of the constitutionality of Section 768.133, Florida Statutes (1975). After the constitutionality of this statute had been upheld, the judicial referee determined that he had had no authority to extend the period of time within which the mediation panel could meet beyond ten months from when the claim was filed, and he dismissed the panel.

A subsequent civil action in malpractice was filed, and the defendant doctor filed a motion for a stay order to permit further medical mediation proceedings. The circuit judge observed that the cause should be stayed so as to permit the medical mediation proceedings to resume but concluded that he did not have the power to overrule a fellow circuit judge acting in the capacity of a judicial referee and denied the motion for a stay order.

Pursuant to the rationale of Vann, we agree with the second judge’s views on whether the mediation panel should have been dismissed. See also State ex rel. McGuirk v. Cowart, 344 So.2d 624 (Fla. 3d DCA 1977). We respectfully disagree with his conclusion that he could not grant a stay pending medical mediation proceedings. Cf. Richards v. Foulk, 345 So.2d 402 (Fla. 3d DCA 1977). We do not suggest that the circuit judge should be in a position to second-guess the judicial referee in the procedures followed during mediation, but the order which terminated the panel’s jurisdiction in this case had the effect of denying the relator due process. Vann, supra. The medical mediation proceedings, in which the first circuit judge participated solely in the capacity of a judicial referee, were necessarily subordinate to the malpractice action in the sense that the second circuit judge had the right to consider whether the mediation proceedings were properly terminated in order to determine his own jurisdiction to proceed.

We have chosen to treat the petition for mandamus as a petition for certiorari which is hereby granted. The order denying the motion to stay is quashed with directions to enter an order staying the case pending prompt and timely medical mediation proceedings.

BOARDMAN, C. J., and GRIMES and SCHEB, JJ., concur.


author: McCORD, Chief Judge.

text:
    In the Matter of the ADOPTION OF Deborah Leigh MIXON and Sherri Lynn Mixon. Mary MIXON, Appellant, v. Catherine Mixon CURTIS, Appellee.
    No. DD-418.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1977.
    Sara B. Anderson, Jacksonville, for appellant.
    Hugh A. Carithers, Jr. of Sheppard, Fletcher, Hand & Adams, Jacksonville, for appellee.
   McCORD, Chief Judge.

This is an appeal from an order denying appellant’s petition for adoption of two minor girls, ages 7 and 8. She is not a blood relative of the children but was married to the children’s father from 1971 until 1975. She began caring for the children prior to her marriage to their father and continued caring for them during the marriage and after dissolution of the marriage. Custody of the children was previously awarded to the father upon dissolution of his marriage to the mother by the same court (and judge) from which this appeal is taken. Prior to the hearing on this petition for adoption, the father had been separated from the two children and his other children by appellant for several years. He did not appear at the final hearing and was found by the court to have abandoned the children several years previously. The court also found that the mother had abandoned the children six years ago. The paternal grandmother of the children had filed a separate adoption petition seeking adoption of the two children, but the trial court found that she had displayed little interest in them and denied her petition.

In denying appellant’s petition, the court found that because appellant was allowing a married man to live in her household, the environment which she was providing for the children was “not such as this court can approve as constituting a proper environment in which to rear two little girls.” Appellant filed a motion for rehearing contending that the trial court erred in denying the petition for adoption and alleging that there was new evidence which should be presented. The alleged new evidence was to the effect that subsequent to the denial of the petition, the father had removed the children from their school; that such demonstrated that he had the intention of reassuming custody of them. The motion for rehearing was denied.

Appellant’s only contentions on appeal are that the trial court erred in failing to enter a custody order upon denying the petition for adoption and erred in failing to grant a rehearing on the basis of newly discovered evidence. She points to § 63.142, Florida Statutes (1975), the statute governing hearing and disposition of a petition for adoption, referring particularly to subsection (3) of said statute which states as follows:

“If the petition is dismissed, the court shall determine the person that is to have custody of the minor.”

Appellant contends that upon denial of her petition, the trial court erred in not complying with this statute. Appellee, on the other hand, contends that such was unnecessary as the trial court had already determined in the final judgment of dissolution of the marriage of the children’s mother and father that the father would have custody. We agree with appellee. Apparently the trial court did not wish to disturb his previous order granting custody to the father even though in this adoption proceeding, he found that the father had abandoned the children several years ago. While this finding seems somewhat inconsistent with the court’s leaving its previous custody order unchanged, the failure to make another determination of custody did not violate the statute because custody had already been determined. From the evidence and findings of the court based thereon, it appears likely that the trial court considered it had no alternative on the matter of custody of these children — that none of the parties before the court in the adoption proceeding should be given custody. He, therefore, left custody as he had previously adjudicated it.

This appears to be a situation in which the Division of Family Services should make an investigation and determine whether or not for the welfare of these children it should seek their custody. We therefore, will forward a copy of this opinion to that agency.

AFFIRMED.

SMITH and MELVIN, JJ., concur.


text:
    FLORIDA DEPARTMENT OF OFFENDER REHABILITATION, Petitioner, v. John P. WALSH, Respondent.
    No. EE-93.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1977.
    Raymond W. Gearey, Tallahassee, for petitioner.
    Jerry G. Traynham of Patterson & Black, Tallahassee, for respondent.
   PER CURIAM.

Petitioner seeks reversal of the final order of the Florida Division of Administrative Hearings of October 29,1976, that held petitioner’s Administrative Directive Number 19 to be a rule within the purview of Section 120.52(14), Florida Statutes (1975). The provisions of the directive come within the operation of Section 120.52, Florida Statutes. It was not adopted as a rule as required, and is therefore void. The constitutional measurement or applications of the directive is not properly before the court.

The petition is denied.

SMITH, Acting C. J., and ERVIN and MELVIN, JJ., concur.


text:
    William Lee HARDEN, Appellant, v. STATE of Florida, Appellee.
    No. GG-18.
    District Court of Appeal of Florida, First District.
    Dec. 2, 1977.
    Michael J. Minerva, Public Defender and Teodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed. See Royster v. State, 164 So.2d 26 (Fla. 3 DCA 1964); Simpson v. State, 164 So.2d 224 (Fla. 3 DCA 1964); Everett v. State, 161 So.2d 714 (Fla 3 DCA 1964); Crespo v. State, 339 So.2d 697 (Fla 3 DCA 1976); Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967); Belsky v. State, 231 So.2d 256 (Fla. 3 DCA 1970); Brown v. State, 223 So.2d 337 (Fla. 3 DCA 1969); and Ford v. State, 210 So.2d 33 (Fla. 2 DCA 1968).

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


author: GRIMES, Acting Chief Judge.

text:
    Tom Fairfield BROWN and Gary R. Brown, as the Co-Personal Representatives of the Estate of James H. Harrell, Deceased, Appellants, v. SUPERIOR PONTIAC-GMC, INC., a Florida Corporation, and Jim Harrell Pontiac, Inc., an Alabama Corporation, Appellees.
    No. 77-311.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1977.

      August M. Van Eepoel of Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, for appellants.
    Charles F. Clark and Claude H. Tison, Jr. of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee Jim Harrell Pontiac, Inc.
    No appearance for appellee Superior Pontiac-GMC, Inc.
   GRIMES, Acting Chief Judge.

The issue presented on this appeal is whether a stockholder who dissents from the sale of his corporation’s assets is a creditor under Florida’s bulk transfer statutes, Chapter 676, Florida Statutes (1975).

Jim Harrell Pontiac, Inc. was an Alabama corporation which operated an automobile agency in Tampa. On October 30, 1975, this corporation entered into a written agreement to sell its assets to Bay Pontiac Company (now Superior Pontiac-GMC, Inc.). In anticipation of the sale, Bay Pontiac published a notice of the bulk transfer on November 1, 1975.

On November 10, 1975, the stockholders of Jim Harrell Pontiac, Inc. held a meeting to authorize the sale. At this meeting, the estate of James H. Harrell, which owned 25% of the common stock of the corporation, objected to the proposed sale and voted against it. Nevertheless, the holders of the required percentage of stock approved the sale. Thereupon, Harrell’s estate filed a dissenting stockholder’s demand and sought a determination of the fair value of its minority stock interest pursuant to Alabama Code Title 10, Section 21(62). Harrell’s estate also filed with Bay Pontiac a notice of its claim against Jim Harrell Pontiac, Inc. The sale of assets was closed on November 11,1975. Thereafter, Bay Pontiac interpleaded the purchase money and sought the court’s directions as to whom it should be paid.

There is no doubt that Harrell’s estate is entitled to the fair value of its stock as a dissenting minority stockholder. The question is whether the estate qualifies as a bulk transfer creditor so that it may be paid directly by Bay Pontiac out of the purchase price of the assets. The trial court ruled against the estate. We agree.

The obvious purpose of the bulk transfer statutes is to protect ordinary trade creditors who have a right to expect that their bills will be paid from the assets of an ongoing business. Though the applicable definition of creditor is broad, we do not believe that the legislature intended to include a dissenting stockholder within the protection afforded by the bulk transfer statutes.

Moreover, only those creditors holding claims based on transactions or events occurring before the bulk transfer are protected. Section 676.109, Florida Statutes (1975). While under the dissenting stockholder statute the shares of stock are to be valued as of the day preceding the bulk sale, it is the consummation of the sale and not the valuation date which gives rise to the right of redemption. Until the sale was closed, the Harrell estate occupied the status of a stockholder rather than a creditor and, as such, could not be a bulk transfer creditor. Cf. Oklahoma Hotel Building Co. v. Houghton, 202 Okl. 591, 216 P.2d 288 (1949).

AFFIRMED.

SCHEB and OTT, JJ., concur.

      . This statute is Alabama’s counterpart to Florida’s Section 607.247, Florida Statutes (1975).

      . § 671.201(12), Fla.Stat. (1975).


text:
    Ervin JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 77-622.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The order revoking appellant’s probation and sentencing him to prison is affirmed, but this case is remanded for resentencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1) Florida Statutes (1975); Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). The appellant does not have to be present at resentencing.

GRIMES, Acting C. J., and SCHEB and DANAHY, JJ., concur.


text:
    James Doyle WOODIE, Appellant, v. STATE of Florida, Appellee.
    No. 77-1036.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1977.
    Jack 0. Johnson, Public Defender, and Victoria J. Powell, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and .Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. See State v. Wilcox, 351 So.2d 89 (Fla.2d DCA 1977), and Massey v. State, 348 So.2d 1244 (Fla. 1st DCA 1977).

The judgment and sentence of the court, while indicating that appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed, as required by Section 921.161(1), Florida Statutes (1975). Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Remanded for correction of the sentence; otherwise affirmed. Appellant need not be present for this purpose.

GRIMES, Acting C. J., and SCHEB and DANAHY, JJ., concur.


text:
    Daniel Wilbur GARDNER, Appellant, v. STATE of Florida, Appellee.
    No. 77-1164.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 1977.

      Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The only point which merits discussion is the propriety of appellant’s sentence to life in prison “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for its imposition as a sentence for any offense. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977).

Remanded for the purpose of striking the language “at hard labor” from the sentencing order; otherwise affirmed. Appellant need not be present for this purpose.

GRIMES, Acting C. J., and SCHEB and DANAHY, JJ., concur.


author: PEARSON, Judge.

text:
    A. UNITED AUTO RENTAL, INC., and Insurance Company of North America, Appellants, v. Jeffrey BRADLEY and Detroit Automobile Inter-Insurance Exchange, a Foreign Corporation, Appellees.
    No. 76-455.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Papy, DuVal, Poole & Usich, Coral Gables, Jeanne Heyward, Miami, for appellants.
    Fowler, White, Burnett, Hurley, Banick & Knight and Henry Burnett, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

This is a dispute between insurance companies concerning which of them has the primary coverage and the right of an indemnity. The order appealed dismissed the cross-claim and third party complaint for indemnity filed by defendants A. United Auto Rental, Inc., and Insurance Company of North America against cross defendant Jeffrey Bradley and counter defendant Detroit Automobile Inter-Insurance Exchange. The cross-claim and third party complaint claimed indemnity from Bradley and Detroit Automobile Inter-Insurance Exchange upon the grounds that Bradley, as the driver of an automobile involved in an accident, was the wrongdoer and that he and Detroit, his insurer, had the primary responsibility for insurance coverage. Bradley had rented the car he was driving from A. United Auto Rental, Inc.

The rental agreement Bradley signed did not provide for a specific charge for insurance, but rather provided that if the driver had no insurance, he would be covered to the limits of liability specified in the Financial Responsibility Laws of the State of Florida. It also provided that in the event Bradley did have insurance, the rental company’s insurance would not cover him. The contract between A. United Auto Rental, Inc., and Insurance Company of North America provided that for bodily injury the rental company would be covered to the extent of $100,000 per person and $300,000 per occurrence.

A. United Auto Rental, Inc., and its insurance company claimed that in event of a verdict for the plaintiff they should be entitled to indemnity in the full amount of the judgment from Bradley and Detroit in the amount of its insurance. The trial court dismissed the claims for indemnity under the holding of this court in Executive Rent-A-Car, Inc. v. Uditsky, 297 So.2d 340 (Fla.3d DCA 1974).

When this appeal was ready for oral argument, the appellants moved for a stay of further proceedings pending (1) the disposition of a petition for writ of certiorari pending in the Supreme Court of Florida (where jurisdiction had already been granted) in Diversified Services, Inc. v. Jackson, 330 So.2d 830 (Fla.3d DCA 1976), and (2) the disposition of a question certified to the Supreme Court of Florida pursuant to Florida Appellate Rule 4.61 by the United States Circuit Court of Appeals, Fifth Circuit, in Insurance Company of North America v. Avis Rent-A-Car System, Inc., 533 F.2d 310 (5th Cir. 1976). The opinions in these matters have now been filed by the Supreme Court of Florida, as follows: Diversified Services, Inc. v. Jackson, 348 So.2d 1155 (Fla.1977); and Insurance Company of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977). Thereupon, this appeal came on for oral argument and determination by this court.

We think that a reading of the opinion of the Supreme Court of Florida in Insurance Company of North America v. Avis Rent-A-Car System, Inc., supra, substantially changes the law applicable to this cause and, as a result of the decision therein, the order of the trial court dismissing the cross-claim and third party complaint of the appellants must be reversed. Upon remand, the trial court is directed to allow the claim for indemnity in accordance with the holding of the Supreme Court of Florida in Insurance Company of North America v. Avis Rent-A-Car System, Inc., 348 So.2d 1149 (Fla.1977), particularly with regard to the following portion therein:

“With the public policy questions resolved, we turn to the contracts of insurance on which indemnification is sought and refused. The terms of the policy written by Liberty Mutual to Avis clearly provide that $100,000 is to be the per person primary coverage, but that a $500,000 per person limit was available to Avis for its negligence or its responsibility as owner in the event any lessee did not carry adequate insurance of its own to compensate for the negligent operation of the vehicle. INA’s policy clearly provided that it was not to be responsible for any primary coverage made available from a rental car company, which in this case meant that INA was relieved of responsibility for the first $100,000 of damages caused by its negligent insured. The provisions in these policies mesh perfectly to require payment from the respective companies in precisely the proportions on which they agreed in settling their respective liabilities for the first $300,000 of damages caused by the accident.”

Reversed and remanded with directions.

      . See Section 324.021(7), Florida Statutes (1975), specifying a $15,000.00 minimum liability limit at the time of the accident here at issue.


text:
    Eugene FULTON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1487.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen. and Jose R. Rodriguez, Legal Intern, for appellee.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL, (Ret.), Associate Judge.
   PER CURIAM.

By information, the appellant was charged in separate counts with robbery, attempted murder, and unlawful possession of a firearm while engaged in a criminal offense. On a jury trial, he was acquitted of the charge of the attempt to commit murder and was convicted on the other charges. Judgment was entered thereon. The court imposed a sentence of imprisonment for thirty years on the robbery conviction and for three years on the conviction for the third offense mentioned above, with provision for the sentences to be served concurrently. The defendant appealed.

On consideration of the record, briefs, and argument, we hold that no reversible error has been shown. In the circumstances presented, the trial court was not in error in permitting the victim to testify without the victim first being submitted to psychiatric examination. The court properly denied the defendant’s request that the victim be so examined, based on unsubstantiated reports relating to mental instability of the victim. The refusal of the trial court to give the standard jury charges was not reversible error in this case, where charges given by the court were sufficient under the law applicable to the case. Yost v. State, 243 So.2d 469 (Fla.3rd DCA 1971); Dunlap v. State, 252 So.2d 292 (Fla.2nd DCA 1971); White v. State, 324 So.2d 115 (Fla.3rd DCA 1975). The imposition of separate sentences for the two offenses of which the defendant was convicted was proper. Estevez v. State, 313 So.2d 692 (Fla.1975); Swyers v. State, 334 So.2d 278 (Fla.3rd DCA 1976); Johnson v. State, 338 So.2d 556 (Fla.3rd DCA 1976).

Affirmed.


text:
    Otis Davis JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1497.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Marvin J. Emory, Jr., Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., HAVERFIELD, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Burau v. State, 353 So.2d 1183 (Fla. 3rd DCA 1977).


author: NATHAN, Judge.

text:
    Merline H. HUNT, as personal representative of the Estate of Fred T. Hunt, Deceased, and on her own behalf, and on behalf of David A. Hunt, Steve R. Hunt, and William A. Hunt, Appellant, v. PALM SPRINGS GENERAL HOSPITAL, INC., a Florida Corporation, et al., Appellees.
    No. 76-1846.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.

      Magill, Sevier & Reid and Victor H. Womack, Miami, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and A. H. Toothman and Thomas E. Scott, Jr., Miami, for appel-lees.
    Before PEARSON, NATHAN and KE-HOE, JJ.
   NATHAN, Judge.

This is an appeal from a directed verdict for defendants in an action alleging negligence on the part of Palm Springs General Hospital toward an emergency patient who had not been officially admitted. Although other assertions of error are made by appellants, we deal first with the primary issue of whether or not a directed verdict was properly rendered. The decision would be supportable only if there were a total absence of evidence upon which jury could find the defendant negligent, or if, as a matter of law, the defendant owed no duty to this patient. Because the facts of this case do not meet unequivocally the rigid requirements of this standard, we are compelled to reverse.

Appellants, plaintiffs below, are the wife and children of Fred T. Hunt who died in another hospital one day after having been denied admittance to Palm Springs. They allege his death was at least partially the result of Palm Springs’ refusal to admit or properly treat decedent on the day before his death.

Hunt had been receiving medication for many years for prior injuries, and apparently had become addicted to drugs. He had been without medication for several days prior to the morning of September 25,1972, when he experienced convulsions at home. He was rushed to the emergency room of Palm Springs, arriving there at approximately 1:20 A.M. He was examined by an unlicensed “resident physician” who called Dr. Pierleoni, a private physician who had attended Hunt previously. Dr. Pierleoni prescribed medication over the telephone, after which Hunt, his condition apparently improved, was sent home at about 2:45 A.M., without having been admitted.

Later that morning he again became ill and was returned to Palm Springs’ emergency room between 10:45 and 11:00 A.M. Shortly thereafter, Dr. Pierleoni saw him in a room in the emergency area, asked whether Hunt could be admitted, and was told that he could not be. Hunt owed Palm Springs debts from previous visits. Because of this, the hospital would not admit him unless it was determined by his attending physician that his condition was critical. Dr. Pierleoni did not deem Hunt to be critically ill at that time.

Although he had been placed in a room for a short while on his second arrival at Palm Springs, Hunt was soon moved into the hall. Much of the evidence of what occurred during the several hours between the time he was moved into the hall and the time he was transferred to Palmetto General Hospital, about 3:30 or 4:00 P.M., is conflicting. But it is agreed that Hunt was trembling, that his blood pressure and pulse rate were elevated, and that his temperature was not taken. Hunt’s son testified that he had to care for his father unaided by hospital personnel, and that no one else ever checked his father during the time he lay in the hallway. A nurse on duty in the emergency area testified that she must have checked Hunt every fifteen to thirty minutes because this was her standard procedure.

Hunt lived approximately twenty-six hours after he was transferred to Palmetto General. He died there on September 26, of brain damage allegedly the result of prolonged seizures.

Both sides presented expert testimony on the issue of causation. Plaintiff’s expert witness stated that Hunt’s death could have been avoided, that Palm Springs’ treatment of Hunt fell below acceptable standards of care, and that these deficiencies were causally related to his demise. Defendant’s expert witness contradicted this testimony. After both sides had concluded their cases, the court granted defendant’s motion for a directed verdict, stating that defendant’s expert witness had made it clear that nothing defendant did was a cause of death.

Appellee argues that it was not negligent, that even if it were, there was no causal relationship between any alleged negligence on its part and Hunt’s death, and that even if there were evidence from which a jury might find such a causal relationship, the directed verdict must be upheld because the hospital had no duty to Hunt since he had never been admitted and the responsibility for his care rested with his private physician.

The testimony of the expert witnesses conflicted. By directing the verdict for defendant, the trial court, in effect, weighed the testimony of each and decided one was more credible than the other. It is neither our prerogative nor the trial court’s to do this. Dayton Tire & Rubber Co. v. Davis, 348 So.2d 575 (Fla. 1st DCA 1977). This was not a situation in which no evidence as to either negligence or causation was presented. Expert opinion may support a jury verdict as long as it is grounded in fact, even though it involves a conclusion about causation. Cromarty v. Ford Motor Company, 341 So.2d 507 (Fla.1976). Proximate cause is a matter for the jury to decide as long as the facts presented are susceptible of more than one inference, and a case should not be withdrawn from a jury’s consideration unless, as a matter of law, no proper view of the evidence could sustain the position of the non-movant. Hernandez v. Clinica Pasteur, Inc., 293 So.2d 747 (Fla. 3d DCA 1974); Bourgeois v. Dade County, 99 So.2d 575 (Fla.1957).

This brings us to the final reason appellee gives for supporting the directed verdict. If Palm Springs owed no duty to the decedent, its negligence would be immaterial to this cause. This court’s decision in Parmerter v. Osteopathic General Hospital, 196 So.2d 505 (Fla. 3d DCA 1967) is on point and persuasive. In that case, summary judgment in favor of a hospital was reversed. The hospital had contended that because the plaintiff was under the care of a private physician who was neither its employee or its agent, it had no obligation to perform any of the allegedly negligent acts its unlicensed intern had committed. This court stated: “While . . . there are times when an employee of a hospital may be under the direction and control of a treating physician, the question of when his responsibility begins and the hospital’s ends is usually a question for the jury.” Id. at 507.

Similarly, in Reeves v. North Broward Hospital District, 191 So.2d 307 (Fla. 4th DCA 1966), the court, reversing a directed verdict for defendant, held that when an expert testified that there were sufficient symptoms evident to alert a medical practitioner that a serious problem existed, it was error to take from the jury its right to determine whether the hospital employees had failed to exercise such reasonable care as the deceased’s condition had required.

We hold that the questions of whether Palm Springs General Hospital owed Hunt a duty of care despite his non-admitted status while he lay in its emergency room area, and whether any breach of such duty occurred which was a causative factor in Hunt’s demise are for the jury to determine.

Appellant also asserts error in the trial court’s ruling that certain testimony was inadmissible. Appellant’s attorney had asked his expert witness a hypothetical question as to whether or not it was a breach of the duty of care for an emergency room “physician” not to perform further tests and administer other medications. Appellee’s attorney objected to the question, contending that there was a distinction between a “physician,” who must be licensed, and a “resident,” who need not be licensed, and that the distinction was relevant to the issue of responsibility for the decedent’s care. The trial court erred in sustaining the objection because the question of where to draw the line between the attending physician’s responsibility and that of the hospital is one for the jury to decide.

Appellant’s remaining point on appeal is deemed without merit.

Reversed and remanded for a new trial.

PEARSON, J., dissents.


author: KEHOE, Judge.

text:
    BUCKLEY TOWERS CONDOMINIUM, INC., etc., et al., Appellants, v. Minerva MILLIS, Individually and on behalf of Buckley Towers Condominium, Inc., etc., et al., Appellees.
    No. 76-2047.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Joseph S. Paglino, Miami, for appellants.
    Dubbin, Schiff, Berkman & Dubbin and Albert S. Dubbin and Evan Langbein, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant brings this appeal from an order of the trial court denying its motion to intervene in the cause as a party defendant. Appellant’s three points on appeal relate to the question of whether the trial court abused its discretion or erred by denying appellant’s motion. We have carefully considered each of these points and have concluded that the trial court did not abuse its discretion or err in denying the motion. Therefore, we affirm the order of the trial court dated October 7, 1976, denying appellant’s motion to intervene. See Miracle House Corporation v. Haige, 96 So.2d 417 (Fla.1957); Riviera Club v. Belle Mead Development Corp., 141 Fla. 538, 194 So. 783 (1959); Coral Bay Prop. Own. Ass’n v. City of Coral Gables, 305 So.2d 853 (Fla. 3d DCA 1974); Oster v. Cay Construction Company, 204 So.2d 539 (Fla. 4th DCA 1967); and Fla.R.Civ.P. 1.230.

Affirmed.


text:
    Concepcion M. FERNANDEZ, Appellant. v. PAN AMERICAN HOSPITAL CORPORATION, a Florida Corporation and Jose S. Lastra, M. D., Appellees (two cases).
    Nos. 76-2056, 77-592.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Levenstein, Burke & Associates and Linda Dakis, Miami, for appellant.
    Wicker, Smith, Blomquist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Preddy, Kutner & Hardy and Michael J. Parenti, III, Miami, for appellees.
    Before HENDRY, C. J., and NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976). See also Buck v. Mouradian, 100 So.2d 70 (Fla.3d DCA 1958).


text:
    Danny Lee WILLS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2147.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Danny Lee Wills, in pro per.
    Robert L. Shevin, Atty. Gen. and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

After a careful consideration of each of the points raised by appellant in this appeal, we are of the opinion that they are without merit. Therefore, the judgment and sentence appealed and the order denying appellant’s motion for a new trial are affirmed.

Affirmed.


text:
    John JACOB, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2159.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger & Jose R. Rodriguez, Asst. At-tys. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See Russ v. State, 313 So.2d 758 (Fla.1975).


text:
    Israel MAGUEIRA, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2198.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Lewis M. Williams, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appealing from conviction of burglary, on a non-jury trial, the question presented by the appellant is “Whether the Circuit Court erred in denying defendant’s motion for judgment of acquittal after the close of all the testimony”.

As pointed out by the State, as appellee, no such motion was made or ruled on at the close of all the evidence. A motion of the defendant for acquittal had been made at the close of the presentation of evidence by the State. That motion was without statement of grounds therefor, as required by Fla.R.Crim.P. 3.380(b). See: G.W.B. v. State, 340 So.2d 969 (Fla. 1st DCA 1977). In absence of an appropriate and timely motion presenting to the court the issue of sufficiency of the evidence, the appellant’s argument here as to insufficiency of the evidence is inappropriate. In State v. Barber, 301 So.2d 7, 9 (Fla.1974) the Supreme Court said:

“The construction placed upon F.A.R. 6.16 by the district court was erroneous. As we have previously stated in the cases noted above, unless the issue of sufficiency of the evidence to sustain a verdict in a criminal case is first presented to the trial court by way of an appropriate motion, the issue is not reviewable on direct appeal from an adverse judgment. No such appropriate motion having been made in the trial court in this cause, the question of sufficiency of the evidence was not open to appellate review.”
* ^ if:

The judgment is affirmed.


text:
    Jose Maria QUINTANA, Appellant, v. The STATE of Florida, Appellee.
    No. 77-84.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.

      Maynard A. Gross, Miami and Robert A. Spiegel, Coral Gables, for appellant.
    Robert L. Shevin, Atty. Gen. and Linda Collins Hertz, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PER CURIAM.

The appellant was found guilty after non-jury trial of aiding or assisting in conducting a lottery, in violation of Section 849.09(l)(d), Florida Statutes (1975). This appeal is from the judgment and sentence upon that conviction. Three points are presented; the first urges that the court erred in denying defendant’s motion to exclude the contents of intercepted telephone conversations. The evidence was procured pursuant to a telephone intercept order entered in accordance with Section 934, Florida Statutes (1975). It is specifically urged that the “inventory” provided in the statute was not served within the ninety day period provided for by Section 934.09(7)(e), Florida Statutes (1975). This statute is, in part, as follows:

“Within a reasonable time but not later than ninety days after the termination of the period of an order or extension thereof, the issuing or denying judge shall cause to be served on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory . . .”

The record reveals that the inventory was served immediately after the determination by the investigating officers that the defendant’s voice appeared in the conversations. It was, therefore, proper under the portion of the statute above quoted, which provides for the service of the “inventory” upon such other parties to the intercepted communications as the judge may determine in his discretion to be in the interests of justice.

Appellant’s second and third points fail to present error on this record and need not be discussed further.

Affirmed.


text:
    Clarence BAKER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-554.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Clarence Baker, in pro per.

      Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen. and John C. Moppert, Legal Intern, for appellee.
    Before NATHAN, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Appellant, defendant below, brings this appeal from an order of the trial court, dated January 20, 1977, and recorded on January 28, 1977, denying a motion to vacate the judgment and sentence entered against him. The notice of appeal, filed on March 11, 1977, was filed untimely; therefore, this court lacks jurisdiction to entertain the appeal. See, e. g., Green v. State, 280 So.2d 701 (Fla. 4th DCA 1973); Sparks v. State, 262 So.2d 251 (Fla. 4th DCA 1972); Pitts v. State, 225 So.2d 352 (Fla. 1st DCA 1969); and Fla.App. Rule 3.2. Accordingly, the appeal is dismissed for lack of jurisdiction.

Dismissed.


text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. Elba GOMEZ a/k/a Elba Garcia, Appellee.
    No. 77-938.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.
    Jerry V. Wilkey, Coral Gables, for appellant.
    Jerold Feuer, North Miami Beach, for appellee.
    Before HENDRY, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

Affirmed upon authority of Johns v. Liberty Mutual Fire Insurance Company, 337 So.2d 830 (Fla.2d DCA 1976).


author: HUBBART, Judge.

text:
    Patrick B. MOORE and Allstate Insurance Company, a Foreign Corporation, Petitioners, v. HUNTINGTON NATIONAL BANK OF COLUMBUS, executor of the Estate of Jack L. Scott, Deceased for the benefit of Ludie A. Scott, surviving wife, Jill A. Scott, surviving daughter, Jeffrey K. Scott, surviving son, and Jerry L. Scott, surviving son, Respondents.
    No. 77-1100.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.

      Adams, George, Schulte & Ward and Amy Shield Levine, Miami, for petitioners.
    Lewis S. Eidson, Jr. and Mike S. Eidson, Miami, Gladson, Knecht & Sullivan, Coral Gables, Hawkesworth, Schmick, Ponzoli & Wassenberg, Petersen & Feder, Miami, for respondents.
    Before HENDRY, C. J., and HUBBART and KEHOE, JJ.
   HUBBART, Judge.

This case is a petition for writ of certiora-ri to review a pretrial circuit court order barring the defendants Partrick Moore and his insurer Allstate Insurance Co. from calling a particular witness at trial as an accident reconstruction expert in a wrongful death action. Specifically, the trial judge in his order excluded the expert witness from testifying because in the judge’s opinion the witness “has in other cases where he has testified as an expert witness been more of an advocate than a witness . . ” The plaintiff Huntington National Bank, as executor for the estate of the deceased Jack L. Scott, did not request the order in the trial court and has filed no brief before this court. The trial judge entered the order on his own motion.

The issue presented for review is whether a trial court may properly enter an order barring a party from calling an expert witness at trial on the ground that, in the opinion of the trial court, the witness is biased. We hold that such an order constitutes a departure from the essential requirements of law because it is the exclusive province of the jury, not the trial court, to pass upon the credibility of a witness. Shaw v. Puleo, 159 So.2d 641 (Fla.1964); Tooley v. Margulies, 79 So.2d 421 (Fla. 1955); Daniel v. Rogers, 72 So.2d 391 (Fla. 1954); Williams v. Puleo, 70 So.2d 290 (Fla. 1954). As such, the trial court had no authority to exclude the expert witness herein from testifying at trial on grounds other than the witness’ lack of qualifications as an expert in accident reconstruction. Up-church v. Barnes, 197 So.2d 26, 28-29 (Fla. 4th DCA 1967). No such showing or finding was ever made in this case.

Our decision today in no way precludes the trial judge from passing upon the expert qualifications of the witness herein at the time of trial, a matter in which the judge has wide discretion. Central Hardware Co. v. Stampler, 180 So.2d 205 (Fla. 3d DCA 1965). It is clearly the province of the trial court to initially determine whether such witness has acquired special knowledge in the field of accident reconstruction either by study of recognized authorities on the subject or by special traffic experience in order to be able to express his opinion before the jury on the facts or issues involved. Upchurch v. Barnes, 197 So.2d 26, 28 (Fla. 4th DCA 1967). We only conclude that the witness herein may not be excluded from testifying at trial because, in the opinion of the trial court, the witness is biased. That is a matter which is within the exclusive province of the jury to determine.

The petition for writ of certiorari is granted and the order under review is hereby quashed.


text:
    Arthur Duval EVANS et al., Appellants, v. Ruth BOGGESS et al., Appellees.
    No. 77-1145.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 1977.

      Marlow, Shofi, Ortmayer, Smith & Span-gler, Greene & Cooper and Robyn Greene, Miami, for appellants.
    Kenneth B. Sherouse, Jr., Miami, for ap-pellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellants, defendants below, bring this interlocutory appeal from an order dated May 10, 1977, entered by the trial court denying their motion to dismiss for improper venue. We are of the opinion that appellants’ motion to dismiss for improper venue should be treated as a motion to transfer and that the trial court improperly denied the motion. See Barr v. Barr, 343 So.2d 1326 (Fla. 3d DCA 1977); Winter v. Curtis, 311 So.2d 815 (Fla. 3d DCA 1975); Allen v. Summers, 273 So.2d 13 (Fla. 3d DCA 1973); and Sections 47.011 and 47.051, Florida Statutes (1973).

Therefore, the order appealed is reversed and, pursuant to Fla.R.Civ.Pro. 1.060, appellees may select the county to which the action is to be transferred; but if no such selection is made, the matter shall be determined by the trial court.

Reversed.


text:
    Helen E. WILLS and Howard A. Wills, her husband, Appellants, v. SEARS ROEBUCK & COMPANY, Appellee.
    No. 75-1532.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1977.
    Harvey M. Goldstein, Miami, for appellants.
    Helliwell, Melrose & DeWolf and Robert J. Schaffer, Miami, for appellee.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on July 27, 1976 (336 So.2d 1190) affirming the summary final judgment of the circuit court of Dade County, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed September 8, 1977, 351 So.2d 29, and mandate now lodged in this court, quashed this court’s judgment;

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on September 1, 1976 is withdrawn, the judgment of this court filed July 27,1976 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the summary final judgment of the trial court appealed herein is reversed and the cause is remanded for further proceedings not inconsistent with the opinion and judgment of the Supreme Court of Florida. Costs allowed shall be taxed in the trial court (Rule 3.16(b), Florida Appellate Rules).


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

text:
    STATE of Louisiana v. Freddie J. McZEAL.
    No. 59072.
    Supreme Court of Louisiana.
    May 16, 1977.
    Dissenting Opinion July 1, 1977.
    On Rehearing Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      Gordie R. White, Porteus R. Burke, New Iberia, for defendant-appellant.
    Robert Glass, Martzell & Montero, New Orleans, for defendant-appellant on rehearing.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Dracos D. Burke, Asst. Dist. Atty., for plaintiff-appellee.
    E. “Pete” Adams, Executive Director, Louisiana Dist. Attys. Assn., Baton Rouge, for amicus curiae.
   MARCUS, Justice.

Freddie J. McZeal was charged by the grand jury in the same indictment with separate counts of aggravated rape in violation of La.R.S. 14:42 and armed robbery in violation of La.R.S. 14:64. Defendant was tried for both offenses in a single jury trial and was found guilty as charged for each offense by a unanimous verdict. He was sentenced to death for the crime of aggravated rape and to serve ninety-nine years at hard labor without benefit of parole, probation or suspension of sentence for the crime of armed robbery. On appeal, defendant relies on ten assignments of error for reversal of his convictions and sentences.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge erred in denying his motion to quash the indictment. While defendant does not contest the fact that the offenses with which he was charged were based on the same transaction, he argues that a single indictment for aggravated rape and armed robbery contains a misjoinder of offenses under La.Code Crim.P. art. 493 since they are not triable by the same mode of trial. It is his contention that, because a unanimous verdict is required to return a conviction for aggravated rape while only ten out of twelve jurors must vote to convict a defendant of armed robbery, the offenses are not triable by the same mode of trial. La.Const. art. 1, § 17 (1974); La.Code Crim.P. art. 782. On the other hand, it is the position of the state that, where both offenses are tried before a jury of twelve persons, they are triable by the same mode of trial and therefore they may properly be joined. In denying defendant’s motion to quash, the trial judge accepted the state’s interpretation of La.Code Crim.P. art. 493. After the completion of the closing arguments, he instructed the jury that a unanimous verdict would be required to convict defendant of aggravated rape while ten of the twelve jurors would have to concur in order to find him guilty of armed robbery. A unanimous jury found defendant guilty of both offenses.

The joinder of offenses is governed by La.Code Crim.P. art. 493, which provides:

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

Since there is no dispute that these offenses were based on the same transaction, a resolution of the issue of whether their joinder was authorized by the above provision depends upon an interpretation of what is meant by the phrase “triable by the same mode of trial.”

La.Const. art. 1, § 17 (1974) states in pertinent part:

A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict.

See La.Code Crim.P. art. 782 for a similar statutory provision.

Because the crime of aggravated rape is a capital offense, it is tried before a jury of twelve persons. La.R.S. 14:42. The crime of armed robbery for which punishment is necessarily confinement at hard labor is also tried by a twelve-member jury. La. R.S. 14:64. Since both of these offenses are triable by a jury of twelve persons, they are “triable by the same mode of trial” within the meaning of La.Code Crim.P. art. 493 irrespective of the difference between them as to the number of jurors needed to vote for conviction in order to render a verdict. Therefore, these offenses may be charged in separate counts of the same indictment where they are based on the same act or transaction. Such is the case before us. Furthermore, the trial judge carefully instructed the jury as to the difference between the offenses in the number of votes required to return a verdict of guilty and a unanimous verdict of guilty was returned for each offense. We therefore conclude that the indictment which charged defendant in separate counts with aggravated rape and armed robbery, offenses which were based on the same transaction, was proper and hence defendant’s motion to quash was properly denied.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial judge erred in denying his challenge for cause of prospective juror Donald J. St. Germain who, on voir dire examination, expressed a personal prejudice against racial intermarriage and socializing with members of the black race. However, during the voir dire examination, the juror unequivocally denied that such prejudice would in any way interfere with his ability to render a fair and impartial verdict based upon the law and the evidence adduced at trial. Nevertheless, defendant contends that the juror’s racial prejudice in the area of intermarriage and social encounters rendered the juror “not impartial,” a proper ground upon which to exercise a challenge for cause under La.Code Crim.P. art. 797(2), and the denial of his challenge thereby prevented him from being tried by an impartial jury, a right guaranteed by the sixth amendment.

La.Code Crim.P. art. 797, in pertinent part, provides:

The state or the defendant may challenge a juror for cause on the ground that:
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence.

A prospective juror’s negative opinions on racial intermarriage and social preferences do not necessarily reflect on his ability to judge fairly and justly, free from prejudice. State v. Reed, 324 So.2d 373 (La.1975); State v. O’Conner, 320 So.2d 188 (La.1975). Rather, the true test of a juror’s qualification to serve is his ability to judge impartially based on the law and the evidence admitted at trial, as gleaned from the totality of his responses on voir dire examination.

A review of the record of the voir dire examination of the prospective juror indicates his ability to render a fair and impartial verdict. His comments as to his views on racial intermarriage and social preferences were isolated when compared with his other responses which demonstrated his ability to judge impartially. For this reason, defendant’s challenge for cause was properly denied.

The assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that the trial judge’s ruling which permitted the introduction of evidence of offenses which occurred on October 18, 1974 was erroneous. He argues that the state is bound by the representation contained in its opening statement that the crimes were committed on August 18, 1974, and therefore evidence pertaining to offenses which were committed on any other date was inadmissible.

The context facts which give rise to defendant’s objection are as follows. At one point in his opening statement, the district attorney inadvertently misstated the date of the offenses with which defendant was charged as August 18, 1974, rather than October 18, 1974. Of a total of six references to the date of the crimes contained in the district attorney’s opening statement, only one was incorrect. Furthermore, the indictment indicated that the offenses of aggravated rape and armed robbery had been committed by defendant on October 18, 1974. When the state subsequently sought • to introduce evidence that the crimes occurred on October 18, defendant objected to the evidence as beyond the scope of the state’s opening statement. His objection was overruled.

La.Code Crim.P. art. 766 sets forth the purpose of the district attorney’s opening statement:

The opening statement of the state shall explain the nature of the charge, and set forth, in general terms, the nature of the evidence by which the state expects to prove the charge.

Where a defendant is sufficiently apprised of the nature of the charge and of the evidence by which the state expects to prove the charge, then the fact that an erroneous date is given for the offense is of no importance. State v. Brown, 288 So.2d 339 (La.1974). In the case before us, defendant was informed of the correct date of the offenses with which he was charged in the indictment. In his opening statement, the district attorney both prior and subsequent to the inadvertent error correctly stated that the crimes occurred on October 18, 1974. Therefore, since defendant was sufficiently apprised of the nature of the charge and the evidence against him, he did not suffer any prejudice from the unintentional error on the district attorney’s part.

Assignment of Error No. 4 lacks substance.

ASSIGNMENTS OF ERROR NOS. 5 AND 8

Defendant contends that the trial judge erred in ruling that the in-court identifications of six eyewitnesses and two alleged accomplices were admissible. He argues that the in-court identifications were inadmissible in that the state failed to lay a proper foundation before their admission into evidence and they were tainted by im-permissibly suggestive out-of-court identifications made by the witnesses.

Charles LeBlanc, an employee of the clothing store where the offenses occurred, testified that about noon on October 18, 1974, defendant and two male companions entered the store and shopped around for about ten to fifteen minutes before leaving. About 3:00 p. m. on the same day, the three men returned to the store where LeBlanc was waiting on two customers, Brenda and Debra Landry. After looking over the merchandise for approximately fifteen minutes, one of the men asked LeBlanc to show him a pair of slacks located in the rear of the store. As LeBlanc proceeded to the back of the store, one of the three men ordered him as well as the two customers to put their hands up. LeBlanc was instructed to turn around and as he did so he saw defendant pointing a gun at him. He was then taken to the restroom in the rear of the store and told to lie face-down. Debra and Brenda Landry were likewise ordered at gunpoint by defendant to go to the back of the store and, after being placed in one of the dressing rooms, they were told to disrobe. About this time, two more shoppers, Donna Angeron and the rape victim, entered the store at which time they were grabbed by defendant and forced at gunpoint to walk to the rear of the building. Miss Angeron was instructed to lie on the floor of one of the dressing rooms while the rape victim was removed to a separate room where she was forced to disrobe and to lie on the floor. Defendant then raped the victim twice and struck her across her head. During the course of the rape, a fifth customer, Chris Lastrappe, entered the store and she witnessed defendant armed with a gun over the rape victim. Miss Angeron also was able to observe defendant rape the victim through an open space between the wall and the floor. All of the witnesses testified that the lighting in the store was good.

About a year after the crimes were committed, a lineup was conducted during which Charles LeBlanc, Brenda Landry and Donna Angeron identified defendants as one of the three perpetrators of the crimes. The rape victim was unable to identify defendant because of her highly distraught condition. Mugshots were also displayed to some of the witnesses, one of whom identified defendant and his two accomplices. At trial, defendant was identified by each of the six eyewitnesses as one of the perpetrators of the crimes. Objection was raised by defendant only to the in-court identifications while no attack was made on the out-of-court identifications.

Defendant’s contention that the in-court identifications of the six witnesses were inadmissible because the state failed to lay a proper foundation prior to their admission into evidence is without merit. The testimony of the witnesses established that they were present during the commission of the offenses. This showing constituted sufficient foundation upon which to permit the introduction into evidence of the in-court identifications.

Furthermore, after a review of the record, we find no showing that the out-of-court identifications made by some of the witnesses were impermissibly suggestive or conducive to mistaken identification so as to deny defendant due process of law. The fact that one of the witnesses (Charles Le-Blanc) may have been informed prior to his viewing the lineup that a suspect was in the lineup does not render the out-of-court identification impermissibly suggestive. State v. Knight, 323 So.2d 765 (La.1975); State v. Nance, 315 So.2d 695 (La.1975). Nor does a witness’ failure to identify a defendant at a pretrial lineup render a later in-court identification inadmissible, for the failure to identify a suspect at a pretrial lineup is a matter which addresses itself to the weight of a witness’ testimony rather than its admissibility. State v. Batiste, 318 So.2d 27 (La.1975).

But even if we assume arguendo that the out-of-court identifications were tainted, if the in-court identifications had a source independent of the out-of-court identifications, then the in-court identifications do not violate defendant’s due process rights. State v. Anthony, 332 So.2d 214 (La.1976); State v. Peevy, 321 So.2d 324 (La.1975); State v. Payton, 294 So.2d 211 (La.1974); State v. Moseley, 284 So.2d 749 (La.1973); State v. Newman, 283 So.2d 756 (La.1973); State v. Amphy, 259 La. 161, 249 So.2d 560 (1971); State v. Richey, 258 La. 1094, 249 So.2d 143 (1971).

In the instant case, the offenses were committed in a well-lighted store. Charles LeBlanc clearly saw defendant and his accomplices during their first visit to the store and recognized them when they subsequently returned. Defendant was viewed at close range by all six witnesses and each of the witnesses identified defendant as the armed participant in the offenses. In view of the totality of the surrounding circumstances, we are convinced that the in-court identifications were based independently upon the observations of the witnesses. Therefore, since the in-court identifications had a source independent of the out-of-court identifications they did not violate defendant’s due process rights.

Defendant’s attack on the in-court identifications by his two accomplices addresses itself to the credibility of their testimony which implicated him in the crimes rather than to the admissibility of their in-eourt identifications. The weight to be given a witness’ testimony is an issue which must be determined by the finder of fact. State v. Stevenson, 323 So.2d 762 (La.1975). Accordingly, this assignment of error is without merit.

Because Assignment of Error No. 8 is related to the above assignment of error, it will be discussed in conjunction with it. Defendant contends that the trial judge erred in refusing to give a special jury charge requested by him which pertained to the in-court identifications of the witnesses. The requested instruction was an excerpt from the decision of State v. Newman, 283 So.2d 756 (La.1973), which outlined the factors to be considered in determining whether a witness’ in-court identification was based on an independent source.

In his general charge to the jury, the trial judge instructed them that the burden was on the state to prove every element of the offenses beyond a reasonable doubt. Identification of the accused as the perpetrator of the crimes was one of the elements of proof required. To have given a special charge on the identification issue would have been improper in that it would have pinpointed this issue out of proportion with the other issues in this case. State v. Rose, 271 So.2d 863 (La.1973); State v. Richey, 258 La. 1094, 249 So.2d 143 (1971). Furthermore, the requested special charge would have required qualification, limitation, or explanation. La.Code Crim.P. art. 807. For these reasons, we conclude that the trial judge’s refusal to give defendant’s requested special charge was proper.

Assignment of Error No. 8 lacks substance.

ASSIGNMENT OF ERROR NO. 6

Defendant contends that the trial judge’s ruling which permitted the admission in evidence of a gun was erroneous since it had not been properly identified as the weapon used during the commission of the aggravated rape and the armed robbery.

About one year after the crimes had occurred, a gun was recovered by the police from the trunk of a car belonging to Robert Lee Sonnier, one of the defendant’s coworkers with whom he rode to work. Testimony revealed that defendant had asked Sonnier if he could borrow the keys to the car in order to place a brown paper bag inside of the vehicle. Sonnier testified that, although he did not actually see the contents of the bag, he knew that the bag contained the gun since defendant carried the weapon with him at all times. Later that day, the gun was retrieved by police from Sonnier’s car and upon its removal, the gun was marked for identification and was stored in the evidence locker at the police station. At trial, four eyewitnesses and one of defendant’s accomplices testified that the gun was similar in appearance to the weapon used during the commission of the offenses with which defendant was charged. Over defendant’s objection, the trial judge allowed the gun to be admitted in evidence.

Defendant’s contention that the gun was not properly identified as the weapon used during the commission of the crimes is unfounded. The witnesses testified that the weapon was similar to that used in the armed robbery and the aggravated rape. Additionally, Sonnier connected defendant with the gun which was recovered from Sonnier’s car and was properly stored by the police from that point until brought to court on the day of trial. Clearly, it was more probable than not that the weapon was related to the case and therefore the trial judge properly permitted its introduction in evidence. Lack of positive' identification or a defect in the chain of custody goes to the weight of the evidence rather than to its admissibility. State v. Freeman, 306 So.2d 703 (La.1975). Hence, there is no merit to Assignment of Error No. 6.

ASSIGNMENT OF ERROR NO. 9

Defendant was sentenced to death for his conviction of aggravated rape. He contends that this sentence must be set aside in view of the decision by the United States Supreme Court in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), which declared unconstitutional Louisiana’s mandatory death penalty for aggravated rape. Since Selman cases where defendants have been convicted of aggravated rape and sentenced to death, this court under the mandate of Selman has set aside and vacated the death sentences but, finding no reversible error, has affirmed the convictions. For the reasons set forth in State v. Craig, 340 So.2d 191 (La.1976), State v. Lee, 340 So.2d 180 (La.1976), and State v. Sledge, 340 So.2d 205 (La.1976), we have remanded the cases to the trial court for resentencing of defendants to the most serious penalty for a lesser included offense at the time of the commission of the crime. At the time of the commission of the present offense (October 18,1974), attempted aggravated rape was punishable by imprisonment at hard labor for not more than twenty years while the crime of simple rape carried a penalty of imprisonment at hard labor for not less than one nor more than twenty years. The legislature obviously intended to impose the most serious penalty available under the law. Thus, if we find no reversible error in this case, we will affirm the conviction but will remand the case for resentencing of defendant to the most serious penalty for the next lesser included offense which is twenty years at hard labor.

ASSIGNMENT OF ERROR NO. 10

Defendant contends that the trial judge erred in denying his motion for a new trial in which he asserts that a new trial is warranted on two grounds. First, he argues that a new trial should have been granted since inadmissible evidence was improperly permitted to be introduced at trial. This argument reasserts allegations previously reviewed in Assignments of Error Nos. 4, 5 and 6. For the reasons expressed therein, this contention lacks substance.

Next, defendant argues that a new trial should have been granted under La.Code Crim.P. art. 851(4) when it was discovered that at least two members of the jury had read local news accounts of the trial during their deliberation. The reading of these news releases, he contends, was prejudicial to him and furthermore violated La.Code Crim.P. art. 793, which prohibits a juror from referring to notes or from having access to any written evidence.

Attached to defendant’s motion for a new trial is an affidavit by defense counsel asserting that the prejudicial error was not discovered by defendant “until informed thereof during the jury’s deliberation.” Despite this fact, defendant did not object or move for a mistrial prior to verdict. Rather, objection was first asserted in his motion for a new trial. Defendant’s failure to raise the alleged prejudicial error or defect in the proceedings prior to the verdict contravenes the terms of articles 851 and 855 of the Code of Criminal Procedure, which allow the defendant to raise an alleged error or defect in the proceedings in a motion for a new trial only if it appears that, notwithstanding the exercise of reasonable diligence by the defendant, the error or defect was not discoverable before the verdict. Hence, the alleged error could not be raised in a motion for a new trial. Additionally, article 841 provides that an irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. State v. Martin, 316 So.2d 740 (La.1975). Moreover, in denying defendant’s motion, the trial judge assumed that the articles had in fact been read by at least two of the jurors but concluded that the articles were unbiased accounts of what had occurred in the courtroom in the presence of the jury and therefore were not prejudicial to defendant. The judge also noted that the jury had been instructed to decide the issue of guilt or innocence, solely on the basis of the evidence presented in the courtroom and the verdict, in his opinion, fairly reflected a finding based on that evidence. The trial judge did not err in denying defendant’s motion for a new trial.

In sum, Assignment of Error No. 10 is without merit.

DECREE

For the reasons assigned, the conviction and sentence for armed robbery are affirmed. The conviction for aggravated rape is affirmed and the case is remanded to the district court for resentencing of defendant for the offense of aggravated rape.

DIXON, J., concurs, disagreeing with assignment # 8.

DENNIS, J., dissents, and will assign reasons.

DENNIS, Justice,

dissenting.

In light of the rehearing which has been granted in this case I will not file written reasons for disagreement with the original majority opinion.

ON REHEARING

DENNIS, Justice.

A rehearing was ordered in this case to reconsider the question of whether capital and non-capital offenses may be joined for trial. For insight into how the present joinder rules should be applied we turn to the prior statutes and case law.

Before the adoption of the Code of Criminal Procedure of 1928, this Court followed the common law rule which permitted join-der of separate offenses arising out of the same criminal act or a continuous unlawful transaction. Such joinder, however, was further restricted by the requirement that the offenses must be subject to the same mode of appeal, State v. Nejin, 139 La. 912, 72 So. 452 (1916), and triable by the same type of jury. State v. Hataway, 153 La. 751, 96 So. 556 (1923).

In Hataway, the defendant was prosecuted for burglary and grand larceny, was tried by a jury of twelve, and was convicted of petty larceny. Because larceny was tria-ble under Article VII, § 41 of the 1921 Louisiana Constitution by a jury of five, or by judge, whereas burglary was triable only by a jury of twelve, the court reasoned that “the prosecution for the two offenses charged is not subject to one or the same method of procedure, or triable by the same tribunal or tribunals.” Id. p. 759, 96 So. p. 559.

In 1928, as part of Louisiana’s first Code of Criminal Procedure, the legislature enacted the following provision:

“When two or more crimes result from a single act, or from one continuous unlawful transaction, only one indictment will lie; but each of said distinct crimes, though some of them be felonies and others of them misdemeanors, may be separately charged in distinct counts in the same indictment.” La.C.Cr.P. art. 218 (1928).

In State v. Jacques, 171 La. 994, 132 So. 657 (1931), this Court declared Article 218 unconstitutional as being in conflict with the provisions of the state constitution relating to the trial of capital and non-capital felonies. The offenses charged in the single indictment were murder and robbery. Under Article VII, § 41 of the 1921 Louisiana Constitution both offenses were triable by twelve-person juries, but the former, being a capital offense, required a unanimous verdict, while the latter required that only nine jurors concur in a verdict. In declaring that the joinder of these offenses abridged the defendant’s state constitutional rights, we stated:

“The Constitution of the state has provided different tribunals for the trial of capital offenses, offenses necessarily punishable by imprisonment at hard labor, etc., and such procedure necessarily constitutes due process of law, and cannot be changed in any class of cases by a mere act of the Legislature.” (Emphasis supplied). Id. p. 999, 132 So. p. 658.

The Jacques decision was later distinguished in State v. White, 172 La. 1045, 136 So. 47 (1931) which approved the joinder for trial of two murder indictments. This Court held that Article 218 was not unconstitutional insofar as it pertained to joinder of offenses triable by the same type of tribunal, and explained:

In the case at bar the two murders with which defendant is charged resulted from one continuous unlawful transaction; they are offenses of the same nature; they are triable by a jury of twelve, all of whose members must concur to render a verdict of guilty as charged, or to return a verdict of not guilty; and they are offenses punishable alike by the same or a similar judgment.
“It is clear, therefore, that no constitutional objection can be urged against the inclusion in one indictment in separate counts of two murders, or other crimes of the same nature, when such crimes result from one continuous unlawful transaction, and are triable and punishable alike." 136 So. at 48. (Emphasis supplied).

The principal rule of the 1966 Code of Criminal Procedure governing joinder of offenses, Article 493, generally prohibited joinder, subject to a few narrow statutory exceptions. Article 493, as originally enacted, provided:

“No indictment shall charge more than one offense, except as otherwise provided in this Title, but the same offense may be charged in different ways in several counts.”

In 1975 the Louisiana legislature radically departed from the previous general rule that joinder of offenses within an indictment was impermissible. By Act 528 of 1975, Louisiana Code of Criminal Procedure Article 493 was amended to read as follows:

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

Except for the italicized portion of Article 493 quoted above, the enactment substantially tracks the language of Federal Rule of Criminal Procedure 8(a). The concluding proviso making joinder contingent upon the joined offenses being subject to the same mode of trial was adopted by the legislature as a House committee amendment. See, Official Journal of the Louisiana House of Representatives, 1975, Vol. 1, p. 1242. This modification of the federal rule language evinces an affirmative intent on the part of the legislature to limit the application of the joinder provision to a narrower class of cases than those provided for in the federal system. It is the interpretation of the phrase “same mode of trial,” which has led to the instant controversy-

It is readily apparent that the words “same mode of trial” could refer to more than one logical method of classifying trials in criminal cases. Article I, § 17 of the Louisiana Constitution of 1974, suggests four classes of trials: trial before a judge only; trial before a jury of six persons, five of whom must concur to render a verdict; trial before a jury of twelve persons, ten of whom must concur to render a verdict; and trial before a jury of twelve persons, all of whom must concur to render a verdict. These classifications are based upon both the character of the trier of fact and the requirement for reaching a verdict. By selecting different criteria, other classes of trials could be devised: if one focused on the presence or absence of a jury, there would be two modes of trial: non-jury and jury; if one focused on the number of triers of fact, there would be three modes of trial: judge, six-person jury, twelve-person jury.

The State asserts that the legislature intended that trials should be divided into three categories according to the number of triers of fact. In support of this argument, it points out that a major purpose of the modification of the joinder rule was to promote efficiency within the criminal justice system by expanding the instances in which joinder is allowed. Further, the State reasons that in case of a prejudicial joinder a defendant may obtain a severance of offenses before trial if “it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.” La.C.Cr.P. art. 495.1.

The premises advanced by the State are correct, but they do not support its interpretation of the crucial statutory language. Certainly, the ultimate thrust of Article 493 serves to enlarge the ambit of joinder, but the requirement that “the offenses joined must be triable by the same mode of trial” is obviously a countermeasure designed to narrow its scope somewhat. This wording and other deletions from the verbiage borrowed from the legislature’s source text, Federal Rule of Criminal Procedure 8(a), indicate clearly that the legislature did not intend to sanction cumulation of offenses to the extent possible in the federal system. It also suggests that the legislature was not unmindful of the fact that the policy of trial convenience in criminal procedure must yield in some instances to the overriding mandate that the defendant be given a fair and impartial trial. In discussing Federal Rule of Criminal Procedure 8, Professor Moore has stated:

“In liberal joinder the convenience is usually that of the prosecution — not simply convenience in presentation of proof, but convenience in obtaining convictions as well. Few will deny that there is a positive correlation between the number of defendants and offenses cumulated within a single trial, and the likelihood of conviction. The form which joinder takes gives rise to many questions of substance . , [I]n joinder what is ‘modern’ is often at odds with the goal of ‘fairness in administration’ * * *.” 8 Moore’s

Federal Practice ¶ 8.02[1].

The State’s argument that “mode of trial” should be defined broadly because a defendant may seek a severance as relief from a prejudicial joinder of offenses fails to recognize the difference between a mis-joinder and a permissible but prejudicial joinder. Under the Code of Criminal Procedure, when offenses are not properly joina-ble under Article 493, the defendant has a right to have the indictment quashed. La. C.Cr.P. art. 495. In contrast, if the offenses are joinable, but the joinder is prejudicial, a defendant is only entitled to seek a severance, which shall be granted before trial “if it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.” La.C.Cr.P. art. 495.1(a). Thus, Article 493 may be said to contain a built-in standard of prejudice which simply means that any form of join-der not permitted by the terms of the article is conclusively prejudicial. This leaves a large area outside the protection of Article 493, an area in which a severance under Article 495.1 is available, but an area in which a defendant is required to show that a severance “is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.” See State v. Carter, 352 So.2d 607 (La. 1977). The State’s argument, therefore, is faulty because it assumes the answer and works backwards. The first question that must be answered is whether Article 493 permits joinder of capital and non-capital offenses. Only then can it be determined which is the defendant’s proper remedy, a motion to quash or a motion to sever.

Thus, the question remains, what did the legislature intend by providing that joined offenses must be “triable by the same mode of trial?” In our past decisions, of which the drafters of the legislation were aware, this Court clearly indicated that it considered there to be four distinct kinds of criminal trials, as suggested by Article VII, § 41 of the 1921 Louisiana Constitution. Criminal cases in which the crime may be punishable with or without hard labor were distinguished from other cases as not being triable by “the same method of procedure” or by “the same tribunal.” State v. Hataway, supra, 96 So. at 559. Subsequently, cases in which the punishment may be capital were distinguished from non-capital cases as “not triable in the same manner” but triable before “different tribunals.” State v. Jacques, supra, 132 So. at 658. On the other hand, this Court referred to the trial of two capital crimes as being “triable and punishable alike.” State v. White, supra, 136 So. at 49. The language and the holdings of these cases indicated that for purposes of permitting joinder of offenses there were four kinds of trials based on the categories established by Article VII, § 41 of the 1921 Louisiana Constitution, viz., trials of capital offenses; trials of non-capital, necessarily hard labor offenses; trials of crimes punishable with or without hard labor; and judge trials. Since Article I, § 17 of the 1974 Louisiana Constitution continues the same categories of trials, it is very probable that the 1975 legislation requiring that “offenses joined must be triable by the same mode of trial” stems from the joinder considerations first expressed in the Hata-way and Nejin cases and later given state constitutional dimensions in the Jacques and White decisions.

We are aware that the analysis set forth in Jacques has been criticized and that the other cases do not deal specifically with the issue of whether joinder of capital and non-capital offenses is permissible. Nevertheless, the “same mode of trial” proviso reflects a probable intent to either codify the rule expressed in the language of these opinions or at least to avoid the constitutional problems therein discussed. In the unlikely event that the legislature intended to overrule the Jacques case, which was decided on constitutional grounds, it probably would have stated specifically that capital and non-capital offenses may be joined. Moreover, since our lawmakers have recognized in other areas that due process requires rigorous procedural safeguards for defendants in capital cases, we think a legislative aim to permit the trial of capital and non-capital cases before the same jury would have been expressed in more definite terms. Furthermore, the fact that the constitution itself places capital cases in a singular category by requiring a unanimous verdict suggests the need for very explicit language in any statute which attempts to set up a scheme at variance with this classification.

For these reasons we conclude that the legislature, by requiring that offenses joined for trial be triable by the same mode of trial, had reference to the four modes of trial indicated by Article I, § 17 of the 1974 Louisiana Constitution, viz., trial by judge, trial by jury in cases in which the punishment may be with or without hard labor, trial by jury in cases in which the punishment necessarily is with hard labor, and trial by jury in cases in which the punishment may be capital. We pretermit, as being unnecessary to our decision in this case, any discussion of whether a statute enacted with the clear intention to sanction the joinder of capital and non-capital offenses for trial would be in conformity with our state constitution.

Alternatively, the state contends that the joinder was harmless .error under the circumstances of this case. It points out that the armed robbery and the aggravated rape were part of a continuous offense, and that the evidence on the trial of either would be admissible insofar as the other formed part of the res gestae. Since the death penalty for aggravated rape has been held invalid by the United States Supreme Court, Seaman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), the State argues, the defendant can hardly complain of what turned out to be the routine joinder of two offenses each necessarily punishable by confinement at hard labor.

The State relies on the case of State v. Peters, 298 So.2d 276 (La.1974), in which a majority of this Court held that the defect of misjoinder is not jurisdictional and that defendant’s failure to object to proceeding to trial on improperly joined offenses constituted a waiver since this objection must be raised by a timely motion to quash. In separate opinions other members of the Court noted disagreement with the decision that the defect could be waived, but indicated that it amounted to harmless error under the circumstances of the case. The State also cites La.C.Cr.P. art. 921 and federal authorities as general guides for finding harmless or non-prejudicial error.

The State’s reliance on these arguments and authorities is misplaced.

Under the joinder-quash-severance scheme of the code of criminal procedure any improper joinder under Article 493, as amended by Act 528 of 1975, is conclusively presumed to be prejudicial or harmful. As under Federal Rule of Criminal Procedure 8(a) which is the primary source of our present Article 493, this means that where the trial judge determines that offenses have been misjoined, he has no discretion to deny relief. Similarly, when an appellate court is faced with a decision below erroneously sustaining joinder, it should reverse and order separate trials. The reasons for the rule have been explained by Professor Wright, as follows;

“ * * * Indeed there would be no point in having Rule 8 if the harmless error concept were held applicable to it. If that concept could be applied, then defendant could obtain reversal only if the joinder were prejudicial to him. But Rule 14 provides for relief from prejudicial joinder, and a defendant can obtain reversal, in theory at least, if he has been prejudiced even though the joinder was proper. If misjoinder can be regarded as harmless error, then reversal could be had only for prejudice whether the initial joinder was proper or improper. If that were true, it would be pointless to define in Rule 8 the limits on joinder, since it would no longer be of significance whether those limits were complied with, and the draftsmen would have been better advised to allow unlimited joinder of offenses and defendants, subject to the power of the court to give relief if the joinder were prejudicial. They did not follow such a course, and the cases seem quite right that hold that misjoinder can never be harmless error.” 1 Wright, Federal Practice and Procedure, § 144 (1969).

The overwhelming weight of federal authority supports the view that if joinder is improper, severance is not a mere matter of discretion, and that joinder cannot be regarded as harmless error. Since our join-der procedure is based upon the federal rule these authorities are very persuasive precedents. Moreover, our legislature has explicitly declared in Article 495 that the defendant has the right to have an indictment quashed which improperly joins offenses. In view of the foregoing and the state constitutional dimensions which have been accorded to the prohibition against joinder of capital and non-capital offenses by our jurisprudence, we conclude that such an improper joinder cannot be considered as non-prejudicial or harmless error under Louisiana law.

The decision relied on by the State, State v. Peters, supra, dealt with Article 493 before it was amended to substantially incorporate the federal joinder rule and to provide that joined offenses must be triable by the same mode of trial. Furthermore, the case involved a defendant’s failure to object timely to proceeding to trial on misjoined offenses; in the instant case the defendant timely filed a motion to quash thereby objecting to the improper joinder of the offenses.

Aside from the logic of the statutory scheme, other considerations prompt us to presume, in the absence of clear statutory language to the contrary, a legislative intent to designate as conclusively prejudicial the joinder of a capital offense with other offenses for trial. In the case of such a misjoinder, a member of a jury who would vote to acquit the defendant of the capital offense if it were tried separately, would be under greater pressure to convict once the required number had reached a guilty verdict on the non-capital offense. The trial of a defendant on both capital and non-capital charges could induce a jury to convict on the non-capital charge as a compromise verdict, whereas the same jury might not convict if either charge were tried separately. The selection of a jury for trial of a capital case, because of the additional grounds for challenge for cause afforded the state, arguably tends to result in a jury which is more readily persuadable of a defendant’s guilt than juries selected for non-capital cases. Due to these concerns and others less articulable, there is a basic sense of justice which is affronted by the spectacle of a human being on trial for his life who is forced to divide his energies in defending against other crimes.

In the ultimate analysis, however, the State argues, if capital and non-capital offenses may not be joined, the defective joinder in the instant case was cured by the abrogation of the death penalty for aggravated rape with the decision of the United States Supreme Court in Selman v. Louisiana, supra. In effect, the State contends that since the crime of aggravated rape has been de-capitalized it may be tried by the same mode of trial as other non-capital hard labor felonies. However, in similar circumstances when the imposition and execution of a statutory death penalty has been judicially reprobated, we have held that the crime and procedural devices applicable to the conduct punishable by the statute remain intact. State v. Whatley, 320 So.2d 123 (La.1975); State v. Flood, 263 La. 700, 269 So.2d 212 (1972); State v. Holmes, 263 La. 685, 269 So.2d 207 (1972). It follows, therefore, that the defendant’s right to all of the procedural safeguards which accompany a capital charge remained intact. These necessarily included his right to be tried before a jury of twelve, all of whom must concur to render a verdict, and his a right to have quashed an indictment joining this offense with another offense not triable by the same mode of trial. Consequently, the misjoinder of offenses in this case was not cured or rendered benign by Selman.

For these reasons we are convinced that the violation of Article 493 and the error in the instant case was not a mere technicality. It was an impermissible, conclusively prejudicial, joinder, to which the defendant timely and properly objected. Under these circumstances, the error must be recognized as “prejudicial to the substantive rights of the accused [and] a substantial violation of a . statutory right.” La.C.Cr.P. art. 921.

Accordingly, the convictions and sentences of the defendant are reversed and the cases are remanded for separate trials.

SANDERS, C. J., dissents, adhering to the majority views on original hearing.

SUMMERS, J., dissents and adheres to the views expressed in the original opinion.

MARCUS, J., dissents for reasons expressed in original opinion.

      . Defendant has neither briefed nor argued Assignments of Error Nos. 1 and 7. 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).

      . In brief and oral argument, defendant has cited several cases which he contends support his position that the same mode of trial requires not only that the jury panel consist of the same number of jurors but also that a similar number of votes be required in order to render a verdict. State v. White, 172 La. 1045, 136 So. 47 (1931); State v. Jacques, 171 La. 994, 132 So. 657 (1931); State v. Hataway, 153 La. 751, 96 So. 556 (1923); State v. Nejin, 139 La. 912, 72 So. 452 (1916). These cases differ in their factual situations as well as in the legal principles and statutory provisions which governed at the time when they were decided. They are clearly distinguishable from the instant case.

      . Although the United States Supreme Court in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), struck down the death penalty in Louisiana, the invalidation of the death penalty did not affect the classification of aggravated rape, La.R.S. 14:42, as a capital offense and the procedural provisions for trying a capital case. See State v. Rhymes, 284 So.2d 923 (La. 1973).

      . Since defendant exhausted his peremptory challenges prior to the completion of the jury panel, his objection to the ruling of the trial judge in which the judge denied the challenge for cause is properly before his court. La.Code Crim.P. art. 800.

      . For an excellent discussion of the history of joinder of offenses in Louisiana, as well as a statutory analysis and construction contrary to that adopted herein, see Kelly, Joinder of Offenses: Louisiana’s New Approach in Historical Perspective, 37 La.L.Rev. 203 (1976).

      . The language of Federal Rule 8(a) which allows cumulation of “felonies or misdemeanors or both,” was altered by the legislature’s deletion of the words “or both.” ,

      . Article I, § 17 of the Louisiana Constitution of 1974 provides:
      “A criminal case in which the punishment may be capital shall be tried before a jury of twelve persons, all of whom must concur to render a verdict. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict. The accused shall have a right to full voir dire examination of prospective jurors and to challenge jurors peremptorily. The number of challenges shall be fixed by law. Except in capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury.

      . See Footnote 2, supra.

      . See, 8 Moore’s Federal Practice ¶ 8.02[1],

      . See, Kelly, Joinder of Offenses: Louisiana’s New Approach in Historical Perspective, 37 La. L.Rev. 203, 223 (1976).

      . Id. at 224.

        .See, e.g., La.C.Cr.P. arts. 382 (requiring that prosecution in a capital case be commenced by indictment); 512 (requiring that appointed counsel in capital cases have been admitted to the bar for five years); 557 (requiring the court to refuse a defendant’s unqualified guilty plea in a capital case); 791 (requiring jury sequestration in capital cases).

      . 8 Moore’s Federal Practice ¶ 8.04[2].

      . McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355 (1896); Metheany v. United States, 365 F.2d 90 (9th Cir. 1966); Cupo v. United States, 123 U.S.App.D.C. 324, 359 F.2d 990 (1966); cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967); King v. United States, 355 F.2d 700 (1st Cir. 1966); United States v. Spector, 326 F.2d 345 (7th Cir. 1963); Ward v. United States, 110 U.S.App. D.C. 136, 289 F.2d 877 (1961); Ingram v. United States, 272 F.2d 567 (4th Cir. 1959); United States v. Marionneaux, 514 F.2d 1244 (5th Cir. 1975); United States v. Graci, 504 F.2d 411 (3d Cir. 1974); Contra, Baker v. United States, 131 U.S.App.D.C. 7, 401 F.2d 958 (1968), on remand, 301 F.Supp. 973 (D.D.C.1969), affirmed, 139 U.S.App.D.C. 126, 430 F.2d 499 (1970)), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970); United States v. Graneilo, 365 F.2d 990 (2d Cir. 1966).

      . La.C.Cr.P. art. 798(2).