source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    SOUTH CENTRAL BELL TELEPHONE CO. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 59851.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Norman C. Frost, M. Robert Sutherland, Birmingham, Ala., Ronald W. Tweedel, New Orleans, Victor A. Sachse, Jr., Victor A. Sachse, III, Breazeale, Sachse & Wilson, Baton Rouge, for plaintiff-appellant.
    Jeff McHugh David, Gen. Counsel, Baton Rouge, Saul Stone, Michael R. Fontham, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for defendant-appellee.
   MARCUS, Justice.

This is an appeal by South Central Bell Telephone Company, a wholly-owned subsidiary of American Telephone & Telegraph Company, from a judgment of the 19th Judicial District Court affirming an order of the Louisiana Public Service Commission which ordered South Central Bell to continue with expenditures sufficient for a full construction program to reduce the number of held applications of more than thirty days to zero by October 6,1977 and to be in a position as of that date to provide service when and where requested in the grade desired.

In March 1973, the Commission ordered South Central Bell to complete by July 1, 1976 and $870 million statewide construction program to eliminate all eight-party lines, to afford single line service to all who desired it, and to raise the quality of service in Louisiana. By June 30, 1976, South Central Bell had fully complied with the 1973 order and thereby achieved the standard of zero held applications.

On June 15, 1976, South Central Bell’s application for an $89 million increase in intrastate rates was denied in full by the Commission based on findings that during the 1975 historical test year South Central Bell had realized an overall rate of return of 8.7% and a return on equity in the range of 10.5-11.5%. Subsequent to this denial, the Commission received numerous complaints from consumers who’ were refused telephone service by the company based on representations of inadequate revenues. As a result, the Commission cited South Central Bell to show cause on September 24, 1976 “why an order should not be issued by the Louisiana Public Service Commission requiring that South Central Bell Telephone Company continue to maintain and provide reasonable and adequate telephone service to Louisiana telephone subscribers,” or, in the absence of providing said service, why it should not be held in contempt under La.R.S. 45:1186 and responsible for monetary damages as provided in La.R.S. 45:1196, et seq. A hearing was conducted on September 24 during which twenty-eight individuals testified as to the company’s refusal to provide telephone service to them. Appearing at the hearing on behalf of South Central Bell were Murray C. Fincher, vice-president, and David E. Buck, chief engineer, of the Louisiana operations of the company. Their testimony was to the effect that telephone service had been provided by the company when and where requested during the first six months of 1976 (about 54,000 telephone connections each month); however, the ability of the company to continue such service would be greatly curtailed as a result of the Commission’s denial of its application for a rate increase. As of September 1, 1976, South Central Bell had accumulated only 2,735 held applications; however, it was estimated that by the end of 1976, unfilled applications for telephone service would reach 4,600 and would increase to 14,000 to 15,000 by mid-1977, absent rate relief, as inadequate revenues would result in the company being unable to raise equity capital to provide full service.

On October 6, 1976, the Commission issued an order directing South Central Bell to provide full and adequate telephone service by providing telephones to all persons who testified before the Commission within thirty days and by reducing the number of held applications in Louisiana to zero by December 31, 1976. The order further provided that, in the event of telephone applications requiring an unusually large capital investment or other extraordinary circumstances, South Central Bell could apply to the Commission for relief from the order or an extension of time for filing such application. The order was enforceable pursuant to any remedy provided by Louisiana law, including the award of damages to individuals if appropriate.

On October 20, 1976, South Central Bell filed in the district court a petition seeking judicial review of the Commission’s order and a permanent injunction to prevent its enforcement. Subsequently, the company amended its petition by requesting the issuance of a preliminary injunction pending disposition of its request for a permanent injunction. South Central Bell contended that the Commission’s order was arbitrary, unreasonable and discriminatory in that the citation directed to the company did not give sufficient notice of the action contemplated by the Commission; the company was physically unable to achieve zero held applications by December 31, 1976; the Commission had not adopted rules prescribing standards for service adequacy for telephone companies in Louisiana; and the standard of zero held applications imposed in the order was not included in the model standards adopted by the National Association of Regulatory Utility Commissioners.

A hearing was held on December 6-7 at which Murray C. Fincher, D. M. Ballard, Daniel Matheson and Eugene W. Meyer testified on behalf of South Central Bell and Bruce M. Louiselle testified for the Commission. The witnesses on behalf of South Central Bell testified as to the company’s physical and financial inability to comply with the order of the Commission. The Commission objected to the introduction of evidence relative to the company’s financial status on the ground that it had no bearing on the reasonableness of the service order; rather, it was argued that such evidence should be confined to the rate case under review in a separate proceeding in the district court. However, the trial judge overruled the objection and the evidence was received.

On December 27, 1976, the district court issued a preliminary injunction enjoining the Commission from enforcing the order of October 6, 1976 (No. U-13141) and, pursuant to La.R.S. 45:1194, sent the transcript of Murray C. Fincher’s testimony to the Commission. The court’s decision to issue a preliminary injunction was based on the fact that the order of the Commission contained no definition of “held applications” and the testimony of Fincher indicated that a considerable amount of time and manpower would be needed to comply with the order. The court deferred action on the merits of South Central Bell’s application for a permanent injunction and judicial review of the order until the Commission had considered the evidence and reported its action to the court. La.R.S. 45:1194.

On December 30, 1976, after review of the case on remand from the district court, the Commission amended its previous order by extending the date for compliance to October 6, 1977, one year after the issuance of its original order. South Central Bell was ordered to continue with expenditures sufficient for a full construction program to reduce the number of held applications of more than thirty days in any base rate area in the state to zero by October 6, 1977, and the number of held applications for telephone service of more than thirty days outside the base rate areas to zero, with the exception of those applications for service in which the Commission consented to a longer delay pursuant to an application for relief filed by South Central Bell in exceptional cases. The order stated that the Commission would not accept as a conclusive basis for a delay longer than thirty days the mere claim of financial inability or the projection of South Central Bell that it would not earn a rate of return it deemed sufficient. However, with regard to particular service applications, an extraordinarily small projected return in relation to the necessary investment was to be considered by the Commission as to whether the expenditure was required under sound regulatory principles. Finally, South Central Bell was ordered to be in a position as of October 6, 1977 to provide service when and where requested in the grade desired, the status which it had achieved as of June 30, 1976.

After return of the record to the district court, the district court affirmed the Commission’s order as amended concluding that it was not arbitrary, unreasonable or capricious and that the general notice directed to South Central Bell was sufficient to support the order. The court further found that the model standards of the National Association of Regulatory Utility Commissioners were not binding on the Commission, and, even if they were, it was uncertain whether the order was more or less onerous than the model standards. Finally, the court found that the service standard adopted by the Commission was not discriminatory. South Central Bell took a devolutive appeal from this judgment. La.Const. art. 4, § 21(E).

La.Const. art. 4, § 21(B) provides that the Louisiana Public Service Commission “shall regulate all common carriers and public utilities and have such other regulatory authority as provided by law. It shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties, and shall have other powers and perform other duties as provided by law.” Under La.R.S. 45:1164, the power, authority and duties of the Commission shall affect and include all matters and things connected with, concerning, and growing out of the service to be given or rendered by public utilities except in the Parish of Orleans and other exceptions set forth in the statute. The Commission shall adopt all reasonable and just rules, regulations and orders affecting or connected with the service and operation of a telephone or telegraph business. La.R.S. 45:1166(A). Pursuant to these provisions, the Commission has broad power to regulate the service of telephone utilities and its power is sufficiently broad to include the adjustment of telephone service to customer needs. See Louisiana, Power & Light Company v. Louisiana Public Service Commission, 256 La. 656, 237 So.2d 673 (1970). According to the settled jurisprudence of this court, the orders of the Louisiana Public Service Commission must be accorded great weight and will not be overturned unless shown to be arbitrary, capricious or abusive of the Commission’s power. Louisiana Oilfield Carriers Association, Inc. v. Louisiana Public Service Commission, 281 So.2d 698 (La.1973); Central Louisiana Telephone Co. v. Louisiana Public Service Commission, 262 La. 819, 264 So.2d 905 (1972); Louisiana Power & Light Company v. Louisiana Public Service Commission, su pra; Arkansas & Louisiana Missouri Railway Company v. Louisiana Public Service Commission, 251 La. 963, 207 So.2d 760 (1968).

The primary contention raised by South Central Bell is that the district court erred in affirming the December 30 order of the Commission which imposed on the company a standard of zero held applications and regrade requests by October 6, 1977 in that such order was arbitrary and unreasonable in view of the fact that the Commission had never adopted a general standard for held applications for utilities subject to its regulation; the National Association of Regulatory Utility Commissioners had not proposed a standard of zero held applications in its Model Communications Service Rules; and the evidence established that the company did not have sufficient materials, manpower and capital to comply with the order by the October 6, 1977 deadline.

At the hearing before the district court (December 6-7, 1976) on the issue of the validity of the Commission’s original order (No. U-13141) which fixed December 31, 1976 as the date for compliance with the standard, South Central Bell presented the testimony of Murray C. Fincher, D. M. Ballard, Daniel Matheson and Eugene W. Meyer.

Murray C. Fincher, vice-president in charge of the Louisiana operations of South Central Bell, testified that the company was unable to achieve the standard of zero held applications as ordered by the Commission by the December 31 deadline because the company could not supply the materials, manpower and capital necessary for the achievement of this standard within the time period ordered by the Commission. His testimony covered the specific needs of central office equipment and outside plant as well as the cost, time and manpower required to complete the projects. Fincher also testified with respect to the amount of capital needed to finance the construction program. He estimated an expenditure of $20 million in excess of the $244 million which South Central Bell had spent in 1976 would be required and projected a $288 million capital expenditure for the construction program in 1977. However, he emphasized that, absent rate relief, South Central Bell’s earnings in 1976 would not be sufficient to attract the amount of capital necessary for the construction program. Therefore, the company would not spend the $288 million in 1977 for the construction program but would spend only $190 to $200 million. As a result, adequate service to Louisiana consumers would not be provided and the number of unfilled applications for telephone service would increase. On cross-examination, Fincher admitted that South Central Bell had achieved the service standard of zero held applications by June 30, 1976.

D. M. Ballard, assistant chief accountant of South Central Bell, testified that South Central Bell maintains its books in accordance with the approved system of accounting and based on these records, he concluded that the rate of return on equity in Louisiana had steadily declined from 9.54% in 1973 to 7.14% in the third quarter of 1976, despite periodic rate increases accorded by the Commission.

Daniel Matheson, vice-president in the revenue requirements department of South Central Bell, testified that sufficient capital resources would not be available to South Central Bell to enable it to provide adequate telephone service in Louisiana under the rate structure authorized by the Commission. The lack of capital resources was attributed to the fact that the return on equity of about 8% in 1976 was too low to attract investors and would further decline in 1977. Moreover, the company had experienced a decline in its earnings-interest ratio in recent years. Reduction of interest coverage would ultimately lead to a downgrading of South Central Bell’s obligations which are presently rated AAA by major bond agencies. This would adversely affect the company’s ability to obtain needed funds and increase their cost. On cross-examination, Matheson acknowledged that AT&T, the primary entity which raises equity capital for the Bell System, had never denied South Central Bell’s request for capital where it considered that its subsidiary’s earnings were progressing so as to justify its commitment. He explained that AT&T raises equity capital by the issuance of shares of its stock on the open market which stock was presently selling about 17% above book value. In 1975, AT&T’s return on equity was 9.8% which figure had risen to 12% in the last quarter of 1976.

Eugene W. Meyer, vice-president and director of the utility corporate finance department of Kidder Peabody and Company, Inc., expressed an opinion that a utility which was allegedly similar financially to South Central Bell and which was required in 1977 to undertake a $289 million construction program of which $144 million must be externally financed could not attract sufficient debt and/or equity capital to finance that portion of the 1977 construction program which had to be raised from outside investors.

Bruce M. Louiselle, vice-president of David A. Kosh & Associates, a firm of public utility consultants, testified on behalf of the Commission. He expressed an opinion that a telephone company financially similar to South Central Bell which was required to implement a $259 million construction program of which $144 million must be externally financed could attract the required outside capital on reasonable terms to finance such a construction program. He stated that potential sources of capital available to South Central Bell were long and short term debt capital and equity capital which could be obtained through AT&T. His opinion was based on findings by the Commission relative to the financial condition of South Central Bell in a recent rate hearing denying South Central Bell’s application for an $89 million increase in intrastate rates.

After a careful review of the record, we conclude that the Commission’s order dated December 30, 1976 was not arbitrary or unreasonable in directing South Central Bell to achieve the standard of zero held applications and regrade requests by October 6,1977. At the outset, it should be observed that the Commission has not adopted the Model Communications Service Rules of the National Association of Regulatory Utility Commissioners and therefore is not bound by them. But, even if it were, an examination of those rules creates uncertainty as to whether or not they impose a more onerous standard for held applications than that ordered by the Commission in view of the fact that the model rules suggested that 85 to 90% of a utility’s regular service order installations be completed within five working days of the receipt of the application for service. The Commission’s order relative to regrade requests is similar to that set forth in the model rules, i. e., a regrade order normally should be filled no later than thirty days after the customer has made application for a different 'grade of service.

Pursuant to constitutional and statutory provisions, the Commission is given broad power to regulate the service of telephone utilities and may adopt all reasonable and just rules, regulations and orders affecting or connected with the service or operation of such business. La.Const. art. 4, § 21(B); La.R.S. 45:1164, 1166. The standard of zero held applications and regrade requests imposed by the Commission in its December 30 order was the same standard mandated by the Commission in 1973 and actually achieved by South Central Bell as of June 30, 1976. Moreover, the order directed South Central Bell to correct service deficiencies which had arisen within a period of only three to six months of the order. We are satisfied from the evidence that adequate sources of capital were available to South Central Bell from which it could derive the necessary funds to implement the order of the Commission. South Central Bell’s bonds were rated AAA thereby assuring the company the widest access to the monetary market at the lowest cost, and equity capital was available to South Central Bell through AT&T. Furthermore, South Central Bell’s contention that it was unable to comply with the Commission’s order since it could not supply within a short period of time the materials and labor necessary for achievement of the standard of zero held applications and regrade requests, as attested to by Fincher, loses its validity in view of the fact that the Commission in its December 30 order extended the date for South Central Bell’s compliance from December 31, 1976 to October 6, 1977, a period of one year from the issuance of the Commission’s original order and of seven months from the affirmance of the December 30 order by the district court. Clearly, South Central Bell had the financial and physical ability to comply with the December 30 service order of the Commission without any undue adverse effect on the operation of the company. However, should the expenditure necessary to implement this order adversely affect its earnings (return on equity), the appropriate proceeding by which the company may seek relief is the institution of a rate proceeding. Accordingly, under these circumstances, we find that the order of the Commission was a reasonable and proper exercise of its regulatory power.

South Central Bell next contends that the district court erred by failing to transmit to the Commission for its consideration on remand of the case the transcript of the testimony of D. M. Ballard, Daniel Matheson and Eugene W. Meyer as required by La.R.S. 45:1194. The transcript of Murray C. Fincher’s testimony was sent by the district court to the Commission on its request.

La.R.S. 45:1194 provides in pertinent part that if, upon the trial of any suit brought to contest an order of the Commission, the plaintiff introduces evidence which is found to be different from that offered upon the hearing before the Commission, or additional thereto, the court, before proceeding to render judgment, unless the parties to such action stipulate in writing to the contrary, shall send a transcript of such evidence to the Commission. The record of these proceedings in the district court seems to indicate that counsel for both parties contemplated a waiver of the requirement of submission to the Commission of the evidence presented to the district court. However, even in the absence of a waiver of the submission requirement, the district court’s failure to send a transcript of the evidence to the Commission is of no moment. For the most part, the evidence presented by the witnesses had been received by the Commission in connection with its recent hearings on South Central Bell’s application for a rate increase. Moreover, the evidence was received and considered by both the district court and this court in determining the reasonableness of the Commission’s order. We therefore conclude that the district court did not commit reversible error under the circumstances here presented.

Finally, South Central Bell contends that the district court erred in affirming the Commission’s imposition of a standard of zero held regrade requests in its order dated December 30, 1976, since South Central Bell was not given notice or an opportunity to present evidence on the standard either before the Commission or the district court. The citation ordered South Central Bell to show cause on September 24, 1976, why an order should not be issued by the Commission “requiring that South Central Bell Telephone Company continue to maintain and provide reasonable and adequate telephone service to Louisiana telephone subscribers. . . . ” This citation afforded adequate notice to South Central Bell that any aspect of the provision of reasonable and adequate telephone service, including the elimination of held regrade requests, was within the scope of the Commission’s inquiry at the September 24 hearing. Hence, we find no merit in this contention.

For the foregoing reasons, we conclude that the order of the Commission dated December 30, 1976 was a reasonable and proper exercise of the regulatory power of the Commission. Accordingly, the district court did not err in affirming the order.

DECREE

For the reasons assigned, the judgment of the district court is affirmed.

SUMMERS, J., concurs in result.

      . Ex Parte South Central Bell Telephone Co., 98 PUR.3d 185 (La.Pub.Serv.Comm., 1973).

      . Ex Parte South Central Bell Telephone Co., 15 P.U.R. 4th 87 (La.Pub.Serv.Comm., 1976).

      . Order No. U-13141.

      . La.Const. art. 4, § 21(E); La.R.S. 45:1192.

      . South Central Bell Telephone Co. v. La. Public Service Commission, 352 So.2d 964 No. 196,534, 19th Jud.Dist.Ct., Division I, Parish of East Baton Rouge, State of Louisiana.

      . In its petition, South Central Bell stated that, since it had served all of the individuals who appeared before the Commission at the September 24 hearing or had explained the circumstances which rendered such service impossible in certain cases in accordance with the order of the Commission, that portion of the order was not challenged.

      .The Commission applied to this court for supervisory writs asserting error in the district court’s issuance of a preliminary injunction based on Fincher’s testimony as to the difficulty of compliance with the order. The Commission contended that the issuance of the preliminary injunction based on this testimony prior to its consideration by the Commission on remand was improper. However, this court denied the application as moot after the Commission on December 30 modified its previous order of October 6 by extending the deadline for compliance from December 31, 1976 to October 6, 1977. South Central Bell Telephone Co. v. La. Public Service Commission, 341 So.2d 1124 (La. 1977).

      . Order No. U-13141-A.

      . In a letter dated October 3, 1977, the Commission notified South Central Bell that it had granted its request for exceptions to Order U-13141 as amended by U-13141-A requiring held applications for telephone service and applications for regrades of service to be eliminated by October 6, 1977. However, exceptions were conditioned on the company commencing construction of the enumerated projects within thirty days.

      . Rule 702.2(a) of the Model Communications Service Rules of the association provides that a suggested percentage of 85 to 90% of the utility’s regular service order installations shall normally be completed within five working days, the intervals to commence with the receipt of the application unless a later date is requested by the applicant. Rule 702.2(b) requires that a regrade order normally be filled no later than thirty days after the customer has made application for a different grade of service except where the customer requests a later date.

      . Ex Parte South Central Bell, 15 PUR 4th 87 (La.Pub.Serv.Comm., 1976).

      . La.Const. art. 4, § 21(D)(2) provides that, - within twelve months of the effective filing date of a proposed rate schedule which would result in a change of rates, the Commission shall render a full decision on each application, petition and proposed rate schedule.


author: SANDERS, Chief Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Leonard TURNER.
    No. 59654.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Dissenting Opinion Nov. 21, 1977.

      Arthur A. Lemann, III, Supervising Atty., New Orleans, Roland A. Ditta, Student Practitioner, Loyola Law School Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The District Attorney for Orleans Parish charged defendant, Leonard Turner, with possession of heroin, a violation of LSA-R.S. 40:966. After a mistrial, a new trial, and a series of continuances, the defendant was tried and found guilty. The court subsequently found him to be a multiple offender and sentenced him to ten-years’ imprisonment in the custody of the Louisiana Department of Corrections. On appeal to this Court, defendant relies upon three assignments of error for reversal of his conviction and sentence.

Defendant’s assignments of error are procedural in nature. Defendant was arrested by New Orleans police officer on November 14,1974, for possession of heroin and carrying a concealed weapon. The District Attorney’s Office filed separate bills of information against the defendant, to which defendant entered not guilty pleas. Defendant was subsequently found not guilty of the weapons charge.

Defendant went to trial on the possession of heroin charge on February 26, 1975, and the court declared a mistrial after the jury was unable to reach a verdict. Defendant alleges that the first trial resulted in a mistrial because a material defense witness, Dewey Scott, testified on behalf of the defendant and directly contradicted the State’s only witnesses to the alleged offense, Police Officers Bass and Marziale.

Defendant again went to trial in April of 1975 on the possession charge, and, at this second trial, was found guilty as charged. The trial court, however, granted defendant’s motion for a new trial because of the absence of defense witness, Scott, who though present in court at the time the witnesses were sequestered, disappeared before he testified.

A third trial was set for the first week in July, but, on the day set for trial, the State nolle prosequied the charge after its request for a continuance had been denied.

On July 17, 1975, the State filed a new bill of information, charging defendant with the same crime: possession of heroin. This case was allotted to another section of the court, and, on motion of the defense, arraignment on the second bill of information was continued on July 21 and July 28. On August 1, defendant pleaded not guilty, and the court granted him ten days in which to file special pleadings. On August 6, 1975, he filed a Motion to Suppress Evidence. On August 29, the hearing on the Motion to Suppress was continued on motion of the defense. On September 3, the hearing was continued on the State’s motion, and on September 11, another continuance was granted on joint motion of the State and defense. On September 24, on a defense motion, the case was transferred to the court section to which the first charge had been allotted.

On November 10, 1975, the trial was rescheduled on motion of the defense. On November 25, the State was granted a continuance. Finally, on January 12, 1976, the trial took place, resulting in the conviction of defendant.

ASSIGNMENT OF ERROR NO. 1

Here, defendant complains of the overruling of his motion to quash the second bill of information based upon the allegation that he had been denied a speedy trial.

We are in complete agreement with the defense statement of the constitutional principles:

“The Sixth Amendment to the United States Constitution provides in pertinent part, ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . ’ This right to a speedy trial has been declared to be a ‘fundamental’ constitutional right and therefore it is applicable to the states via the Due Process Clause of the Fourteenth Amendment of the federal constitution. Klopfer v. North Carolina, 356 [386] U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 36 L.Ed.2d 26 (1970); State v. Harris, 297 So.2d 431 (La.1974).”

After an examination of the record, however, we conclude that defendant was not denied a spefedy trial. In his Per Curiam, the trial judge correctly disposes of defendant’s contention:

“The asserted denial of the right to a speedy trial is an issue which is determined by a balancing test, in which the conduct of both the prosecution and the defense are weighed. In this test, four main factors are considered; the length of the delay; the reasons for the delay; the defendant’s assertion of his right to a speedy trial; the prejudice to the defendant by the delay. State v. Harris [La.], 297 So.2d 431 (74); State v. Jones [La.], 320 So.2d 182 (75).
“In this case, although the cumulative period of delay was fourteen months, the defendant was brought to trial within three months. When a mistrial was granted in that case, the defendant was brought to trial again within two months. When a new trial was granted, the defendant was to be tried again within three months, in July, 1975. On that scheduled date, the State nolle pressed the case. This action and the State’s subsequent refiling of a second Bill of Information reflect some procrastination on the part of the State, however much of the post-July delay including the time consumed by the reassignment of the case to this section and the continuance granted in November, 1975 were caused by defense counsel. In fact, when the continuance was granted in November, the State did not express any unwillingness to go to trial at that time.
“The defendant’s real complaint is that the prosecution overstepped its authority by nolle prossing the case in July, 1975, and then soon thereafter reinstating proceeding against the defendant on the same charge. Although a nolle prosse is a valid disposition of a case, it does not bar the right to a subsequent prosecution. State v. Franton [La.], 319 So.2d 405 (75). Thus it is permissible for the State to recharge and reinstate proceedings against the defendant. Further this course of action was initiated by the State within a short period of time.
“The defendant did not assert his right to a speedy trial until the day of trial in January, 1976. Additionally, he failed to show that this delay prejudiced his defense. In State v. Moore [La.], 300 So.2d 492 (74) and State v. Jones, Supra, the Court held that in the absence of such an assertion of ones right and a showing of prejudice, a defendant has not been denied his right to a speedy trial.
“In light of the reason for the delay, the failure of the defendant to properly assert his right to a speedy trial or to show any prejudice to his defense, I believe that this time period did not constitute an inordinate delay and consequently that the defendant was not denied a speedy trial.”

In an effort to show prejudice, counsel argues for the first time on appeal that the delay caused by the filing of the second bill of information resulted in the absence of a material defense witness, Scott, at the last trial. The argument is without merit, as there is no showing that the delay had anything to do with his non-appearance or that he was available at any time after the second trial.

Assignment of Error No. 1 is without a merit.

ASSIGNMENT OF ERROR NO. 2

Defendant alleges that the trial court’s refusal to grant the defendant’s motion for continuance, due to the failure of the clerk of court to subpoena a material defense witness for trial, constituted reversible error.

The granting of a continuance rests in the sound discretion of the trial judge, and his ruling will not be disturbed absent a clear showing of abuse of discretion. LSA-C.Cr.P. art. 709; State v. Williams, 262 La. 317, 263 So.2d 306 (1972).

The defendant applied for and was granted a continuance of the November 10, 1975, trial upon his showing that his witness, Dewey Scott, was absent. At the time the trial court granted the continuance, the trial court instructed defense counsel to write a letter to the Clerk of the Criminal District Court for the Parish of Orleans, requesting that Scott’s name be added to the witness list. At the trial, defense counsel called the court’s attention to the fact that Dewey Scott had not been subpoenaed. When questioned about the letter counsel had been instructed to write to the Clerk of Court, defense counsel explained that he really did not know what action he had taken to obtain the presence of Dewey Scott at the trial, and that perhaps his office had been derelict, but that he nevertheless wanted Scott present at trial.

In his Per Curiam, the trial judge states:

“Upon considering the previous delays based on the failure of this witness to either appear and testify, and failure of counsel to comply with the instructions given to insure the attendance of this witness, the motion for a continuance was denied, however was issued contemporaneously an instanter subpoena and the State was requested to do everything possible to secure the presence of this witness at trial.”

In issuing the instanter subpoena, the trial judge ordered:

“Issue an instanter subpoena for Dewey Scott, 2016 Second Street. Now, I’ll ask the State to help you by expediting this subpoena and ask that you bring him down to the Sheriff’s Office and go with the Sheriff and immediately bring this witness in the court and find out where he is working, if he’s working. We will do everything that is possible to secure his presence in court.”

Article 709 of the Louisiana Code of Criminal Procedure provides:

“A motion for a continuance based upon the absence of a witness must state:
“(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
“(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
“(3) Facts showing due diligence used in an effort to procure attendance of the witness.”

Under the above article, the continuance was properly denied for at least two reasons: (1) defense counsel did not show due diligence in attempting to produce the witness; and (2) counsel in no way indicated “[fjacts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred.” Further, Dewey Scott had testified at the trial on the same offense which ended in a mistrial. Defense counsel could have requested that this testimony be used at the present trial if Dewey Scott could not be found. State v. Bell, La., 346 So.2d 1090 (1977); State v. Sylvester, La., 343 So.2d 1020 (1977); State v. Ford, La., 336 So.2d 817 (1976); State v. Ghoram, La., 328 So.2d 91 (1976). This, he failed to do.

Assignment of Error No. 2 is without merit.

ASSIGNMENT OF ERROR NO. 3

Here, defendant objects to the trial court’s refusal to permit defendant to introduce evidence of the fact that defendant had been acquitted on the charge of carrying a concealed weapon, which arose from the same factual situation as the possession of heroin charge for which defendant was being tried.

The trial judge correctly refused to allow defendant to introduce testimony and documentary evidence of the acquittal for the reasons assigned in his Per Curiam:

“This evidence was not relevant to the issue of whether the defendant possessed heroin. Because the defendant was acquitted of a concealed weapon charge did not prove that he did not have heroin in his possession.
“The admission of this evidence involved a question of relevancy, and this determination is a matter for the discretion of the trial judge. State v. Juregain [La.], 324 So.2d 428 (75); State v. Pickett [La.], 325 So.2d 252 (75).”

Assignment of Error No. 3 is without merit.

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

TATE, J., dissents for reasons assigned by CALOGERO, J.

DIXON, J., dissents.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

Defendant Turner was represented by court-appointed counsel aided by properly-authorized student practitioners. On earlier trials of this matter and others, counsel had subpoenaed an important defense witness whose testimony had been very helpful in refuting the state’s case against him (this very case, in fact, which had earlier ended in a mistrial). At trial set on November 10th, it was discovered that this witness through a mistake had not been subpoenaed and was not present. Defendant’s motion for a continuance was granted, but the trial court cautioned defense counsel to arrange to have the witness subpoenaed for the newly-set trial. However, counsel again failed to arrange for the subpoena and the witness did not appear. Counsel’s motion for a continuance was denied, trial was held, and defendant was convicted.

Normally, complaints concerning ineffective counsel are reserved for consideration in connection with a later-filed writ of ha-beas corpus. In this case, however, the faulty representation by court-appointed counsel and student practitioners preceded the trial date and was apparent to the judge who was specifically asked to grant a continuance. Under these circumstances, when the judge, through the simple expedient of granting a continuance, could have obviated the prejudice suffered by this defendant because of neglect on the part of court-appointed counsel, I believe that the judge erred in denying the continuance motion. Therefore, I respectfully dissent.

      . It is not clear whose mistake this was. It is clear that the state’s earlier nolle prossing and reinstitution of the charge gave rise to the occasion for omission of the witness’ name from the subpoena list.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Ruben BIAS.
    No. 59695.
    Supreme Court of Louisiana.
    Nov. 14, 1977.
    Rehearing Denied Dec. 14, 1977.

      James B. Supple, Franklin, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Walter J. Senette, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

On our first review of this armed robbery conviction we found potentially reversible error in the trial court’s refusal to consider evidence that intoxication affected the vol-untariness of defendant’s oral inculpatory statement. Since there was no other trial error, we remanded for another hearing on the voluntariness of defendant’s statement. State v. Bias, 337 So.2d 426 (La.1976).

After hearing testimony by defense witnesses and State rebuttal witnesses, the district court found that the statement had been made voluntarily. Defendant appealed and contends that the trial court erred in ruling that the defendant’s statement was admissible because the State failed to prove beyond a reasonable doubt that it had been made voluntarily.

We agree with the defendant that the State must prove affirmatively and beyond a reasonable doubt that the inculpato-ry statement was made freely and voluntarily. La.R.S. 15:451-52; La.C.Cr.P. art. 703(C); State v. Trudell, 350 So.2d 658 (La. 1977); State v. Glover, 343 So.2d 118 (La. 1977). However, in reviewing the trial judge’s application of this standard to the evidence his conclusions on credibility are entitled to the respect due those made by one who saw the witnesses and heard them testify. State v. Adams, 347 So.2d 195 (La. 1977); State v. Ross, 343 So.2d 722 (La. 1977); State v. Simmons, 340 So.2d 1357 (La.1976); State v. Hills, 337 So.2d 1155 (La.1976).

When we assess the evidence taken in the district court on this issue with these principles in mind, we find that the trial judge did not commit error. Testimony adduced at the evidentiary hearing indicated that, although the defendant had been drinking on the evening of his arrest, he had not consumed any alcoholic liquids for several hours prior to his interrogation. Further, the defendant demonstrated at the hearing through his remarkable recall of that evening’s events that he probably was not so inebriated that his will was overborne or that his statement was rendered involuntary. The police officers who testified for the prosecution stated that defendant was not noticeably intoxicated at the time of his arrest and that he appeared to be well oriented and to understand his rights. The district judge in his oral remarks indicated that he considered the testimony of the defendant, his father and his friends to have been colored by his predicament. There is a sufficient basis in the evidence to justify the district judge’s decision to discount or disregard the testimony of these witnesses.

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

SANDERS, C. J., concurs.


author: SUMMERS, Justice. MARCUS, Justice

text:
    Lois Lancaster HALCOMB v. Roy Seale HALCOMB.
    No. 59779.
    Supreme Court of Louisiana.
    Nov. 14, 1977.

      Roy Seale Halcomb, Halcomb & Cole, Perriday, for defendant-applicant.
    Lyman S. Gore, Vidalia, for plaintiff-respondent.
   SUMMERS, Justice.

Lois Maxine Lancaster instituted suit on October 11, 1968 against her husband Roy Seale Halcomb for a separation from bed and board. There were four children of the marriage. In due time these proceedings resulted in an absolute divorce dated May 6, 1969 decreeing that the husband “shall pay to plaintiff the sum of ONE HUNDRED AND NO/100 ($100.00) DOLLARS per week child support assistance and the sum of TWENTY-FIVE AND NO/100 ($25.00) DOLLARS per week alimony for support of plaintiff” until her remarriage. The wife was also awarded the care, custody and control of the four children, issue of the marriage.

At the time of the 1969 judgment of divorce the older child, Roy Seale Halcomb, Jr., was 21 years of age but married and a college student. The husband nevertheless paid $100 per week as child support from the day the award was decreed, May 6, 1969, until April 10, 1970. On April 10, 1970, he reduced his payment to $75 per week without obtaining a modification or amendment of the judgment by the court, explaining that he no longer felt any obligation to support his oldest child because he was twenty-one and married. Payments were continued at $75 per week until June 19, 1970, when his second child was emancipated by marriage, at which time he again made a pro rata reduction to $50 per week. On December 4,1970 the third child became eighteen and emancipated by marriage, at which time the husband further reduced the child support payments to $25 per week, the remaining $25 representing the pro rata share of the youngest child who was still a minor. In no instance was a court ordered modification or amendment of the judgment obtained to authorize the husband to reduce these child support payments. In the meantime the wife had remarried, and alimony awarded to her is not at issue.

Alleging that the husband had failed to pay the child support awarded in the judgment of May 6, 1969, the wife filed a motion on November 25, 1975 ruling the husband to show cause why the amount of child support should not be determined and made executory. Her motion was amended on February 4, 1976 to join her three major children as parties plaintiff and amended again on February 20,1976 to file powers of attorney from the three major children. The husband answered and sought approval of the reductions in these proceedings.

Based upon the pertinent parts of the record thus formed, the trial judge determined the past due child support to be $11,844. Judgment was rendered accordingly on June 9, 1976, in favor of the wife and the three children who had attained majority. Thereafter, the husband moved for a new trial which was granted and the judgment of June 9, 1976 was set aside. Judgment was then rendered in favor of the husband denying the claims of the mother and children and dismissing their rule to show cause with prejudice. Only the wife appealed to the Third Circuit where the judgment of the trial court was reversed. 343 So.2d 1183. Writs were granted by this Court on application of the husband. 345 So.2d 907. The claim of the children for alimony is not before this Court. They did not appeal from the judgment of the trial court denying those claims.

The first issue is presented by the husband’s motion to dismiss the appeal, The motion is based upon the contention that an order for a thirty day extension of the time to prepare the record for appeal was signed after expiration of the date when the appeal was made returnable to the Third Circuit. The Court of Appeal found that the extension order was timely signed before the return date and denied the motion to dismiss. This is a fact question which the Court of Appeal resolved against the husband. No error is manifest in this finding and in that respect the judgment of the Court of Appeal is affirmed.

On the question of the amount of child support payments due and executory, the Court of Appeal rendered judgment in favor of the wife for the amount of the delinquent child support payments accumulated before her youngest child reached the age of majority or became emancipated.

The husband contends that the wife could not sue to collect any arrearages in child support payments on behalf of children who had reached the age of majority, the sole remedy being for the child who has reached the age of majority to sue under Article 229 of the Civil Code, requiring relatives in the direct ascending line to maintain their needy descendants.

The first question is whether the husband had the right to reduce the in globo child support award proportionately as each of the four children arrived at the age of majority or became emancipated. The answer to this question is found in Article 232 of the Civil Code:

“When the person who gives or receives alimony is replaced in such a situation that the one can no longer give, or that the other is no longer in need of it, in whole or in part, the discharge from or reduction of the alimony may be sued for and granted." (emphasis added).

Reduction of or discharge from a judgment condemning one to pay alimony must therefore be sued for by the party against whom the judgment was rendered. Cignoni v. Cignoni, 139 La. 978, 72 So. 707 (1916). Such a judgment is not a final judgment but is always subject to review and change as to future installments in the court which rendered it. Wright v. Wright, 189 La. 539, 179 So. 866 (1938).

Although not necessarily exclusive, an acceptable procedure for reduction or modification is to proceed by contradictory motion to have the amount of future alimony reduced, modified or terminated. Cf. La.Code Civ.Pro. art. 3945.

In Pisciotto v. Cruda, 224 La. 862, 71 So.2d 226 (1954), the question was answered as follows:

“The jurisprudence is well settled that a judgment for alimony, as to the amount that has become past due, is the property of him in whose favor it has been given, and is protected against alteration or annulment except by the method and for the causes prescribed by law, Louisiana Code of Practice, Article 548; Snow v. Snow, 188 La. 660, 177 So. 793; Williams v. Williams, 211 La. 939, 31 So.2d 170; Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89; Wainwright v. Wainwright, 217 La. 563, 46 So.2d 902; that the right to receive such alimony in a lump sum is not waived by plaintiff’s failure to make periodic demands on the defendant, Gehrkin v. Gehrkin, supra; and that liability cannot be avoided by simply claiming that the alimony was not due, since a reduction of alimony or a discharge from the obligation to pay may be granted only from and -after the time when it is sought, by suit or in answer to a suit to enforce payment. Article 232, LSA-Civil Code; Snow v. Snow, supra, 188 La. at page 670, 177 So. 793, Gehrkin v. Gehrkin, supra: . . . ”

Until modified, therefore, the judgment awarding alimony is a determination of the rights of the parties and has acquired the authority of the thing adjudged. La. Code Civ.Pro. arts. 1841-42. Nevertheless, in another sense an alimony judgment is not final in that a modification, reduction or termination of such a judgment may be sued for. La.Civ.Code art. 160, 232. See also Wright v. Wright, 189 La. 539, 179 So. 866 (1938). In the absence of such a suit, however, the judgment cannot be altered or modified, Cotton v. Wright, 193 La. 520, 190 So. 665 (1939); Williams v. Williams, supra, except in certain instances where the award is terminated by operation of law. An example of an automatic revocation of alimony is when an award in favor of a wife is revoked when she remarries. La.Civil Code art. 160. Also, alimony pendente lite is terminated by the signing of a final judgment of divorce when the divorce decree makes no mention of future alimony. White v. Morris, 236 La. 767, 109 So.2d 87 (1959). However, unless automatic reduction, modification or termination is provided for by operation of law, the award remains enforceable notwithstanding that a cause for reduction may have occurred which would, upon proper suit, warrant such a reduction. Support for this rule is found in a proper regard for the integrity of judgments. Such a regard does not condone a practice which would allow those cast in judgment to invoke self-help and unilaterally relieve themselves of the obligation to comply. Any other rule of law would greatly impair the sanctity of judgments and the orderly processes of law. To condone such a practice would deprive the party, in whose favor the judgment has been rendered, of an opportunity to present countervailing evidence, and at the same time deny the judge an opportunity to review the award in light of the alleged mitigating cause which had developed since its rendition.

On the basis of the cited authority and the reasons assigned, the husband, in the case at bar, had no right to proportionately reduce the in globo award in favor of the children as they attained majority. Notwithstanding that the children who came of age may not have been entitled to continuing support, the question arises whether, after a contradictory hearing under the then current circumstances, the remaining minors were entitled to an increase to offset the reduction which the husband unilaterally put into effect.

And we decide also that the wife has the right under the authorities cited to sue for the past due child support payments. Article 3945 so states:

“When the payment of alimony under a judgment is in arrears, the party entitled thereto may proceed by contradictory motion to have the amount of past due alimony determined and made executory. On the trial of the contradictory motion, the court shall render judgment for the amount of past due alimony.”

Here the wife was by the terms of the judgment awarded the sum of $100 per week “child support assistance” and charged with the legal care, custody and control of the four children, issue of the marriage. These support funds were intended to be paid to her to enable her to discharge the obligation of custody, the support of the children. She is therefore “the party entitled thereto” and may proceed to have the amount of past due alimony determined and made executory because Article 3945 gives her the right.

The husband relies principally upon this Court’s decisions in Miller v. Miller, 321 So.2d 318 (La.1975) and Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973). In the Miller case the wife was seeking to have determined and declared executory the arrearage of an in globo award for alimony awarded to her and for support of three children. The trial court found that she had remarried and that one of the children had become fully emancipated by marriage. The trial court determined the arrearage and prorated the in globo award equally between the wife and children but disallowed claims for past due alimony by the wife subsequent to the date of her remarriage. On appeal to the First Circuit that part of the judgment disallowing any past due alimony to the wife after the date of her remarriage was affirmed, but the Court of Appeal reversed the judgment insofar as it terminated the award on a pro rata basis for past due support money to one of the children because he had attained the age of majority. The effect of this Court of Appeal decree was, in effect, to allow the wife to collect past due support for a child who had attained majority because the husband had not sued for a reduction.

On the husband’s application certiorari was granted. No writs were applied for by the wife and we did not consider the correctness of the Court of Appeal judgment terminating alimony in her favor as of the date of her remarriage; nor was the validity of the “in globo” nature of the award in question before this Court. In deciding the case we held that when a minor becomes fully emancipated by age or by marriage, his mother may no longer sue to have determined and made executory past due awards of child support from the father for the support of the child.

Insofar as that decision is in conflict with the pronouncements in this opinion, it cannot be approved. We agree that the wife may no longer institute original proceedings for the support of a child over whom she had custody after the child has reached majority; nor can she seek an increase of an award for the child’s future support after the child has reached majority. But this effect of a child’s majority does not apply to a motion by the mother to whom the award was made for the child’s support to have a child support award in arrears determined and made executory. The latter situation is distinguishable from the former in that an initial suit for support or a suit to increase a past award seeks to initiate a new claim on behalf of the adult child when the law has declared him capable of administering his own affairs and no longer entitled to child support; whereas, the latter situation involves an effort by the party to whom the award is due (the wife, not the child) to have determined and declared ex-ecutory unpaid sums due as child support in a judgment of court in her favor rendered during the child’s minority.

Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973) is distinguishable from the case at bar. There the husband filed a rule against his former wife for the reduction or termination of alimony and child support payments awarded to her in a divorce judgment. She answered, praying for an increase in both awards. One of the children had become a major in the meantime. In the holding that is pertinent to the issue before us in the case at bar, the Bernhardt Court held that the wife has no standing to claim child support for the child who was then a major. If the Bernhardt case is read in the restricted sense that the wife could not demand an increase of the award on behalf of the child who had reached majority, but was nevertheless entitled to receive past due alimony until the husband filed for reduction, the case is not contrary to our holding today.

For the reasons assigned, the judgment of the Court of Appeal is affirmed.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring)

I am of the opinion that Mrs. Halcomb is entitled to recover past-due child support payments from her former husband. However, had the child support judgment awarded a specific amount for the support of each child, rather than an in globo amount, I consider that the child support for a particular child would cease by operation of law upon the child’s majority. Moreover, even an in globo child support award would terminate by operation of law upon the majority of the youngest child. See Miller v. Miller, 321 So.2d 318 (La.1975) (Marcus, J., concurring). The wife would be the proper party to enforce the judgment for past-due child support which became due and owing prior to the majority of the children.


author: PER CURIAM.

text:
    STATE of Louisiana v. Lawrence T. WATTS.
    No. 59964.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Garland R. Rolling, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Knowles M. Tucker, Dist. Atty., Bernard E. Boudreaux, Jr., Edward M. Leonard, Jr., Walter J. Sen-ette, Jr., Asst. Dist. Attys., for plaintiff-ap-pellee.
   PER CURIAM.

The resentencing of defendant to twenty years imprisonment at hard labor is affirmed. See State v. Sledge, 340 So.2d 205 (La.1976); State v. Craig, 340 So.2d 191 (La.1976); State v. Lee, 340 So.2d 180 (La. 1976). However, the case is remanded to the trial court for correction of the sentence to reflect credit toward service of defendant’s sentence for time spent in actual custody prior to its imposition. La.C.Cr.P. art. 880.


text:
    STATE of Louisiana v. Clyde PORTER.
    No. 59926.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Daryl Gold, Leesville, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Ronald R. Inderbitzin, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Earl CROCKETT.
    No. 59946.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Elizabeth W. Cole, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant’s conviction and sentence are affirmed. However, the case is remanded to the Criminal District Court for an evi-dentiary hearing on the issue of whether defendant was represented by counsel, or had voluntarily waived his right to counsel, at the time he pled guilty to simple burglary in 1971, reserving to the trial court the right to modify the enhanced penalty imposed in the instant case should the facts so require. See State v. Franklin, 337 So.2d 1152 (La.1976); State v. Brashears, 321 So.2d 330 (La.1975); State v. Strange, 308 So.2d 795 (La.1975); City of Monroe v. Coleman, 304 So.2d 332 (La.1974); State v. Guillotte, 297 So.2d 423 (La.1974).


author: PER CURIAM. TATE, Justice

text:
    STATE of Louisiana v. Joseph ANDERSON.
    No. 59991.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    Robert W. Tillery, Ponchatoula, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard E. Yo-kum, Dist. Atty., William M. Quin, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

TATE, Justice

(dissenting).

I recognize that a serious issue exists whether the excessiveness of the sentence may be raised for the first time by a hearing sought following the conviction, sentence, and perfection of the appeal. La.C. Cr.P. art. 916; State v. Williams, 340 So.2d 1382 (La.1976). Cf., La.C.Cr.P. art. 363. Nevertheless, the post-conviction hearing shows that the defendant, a wage earner of stable family with four living children and without previous criminal record, was involved in a fight with a man who frequently got into barroom fights and was of bad community reputation. Although the circumstances may not relieve the defendant of guilt, the life sentence was excessive insofar as it prevented suspension of sentence or parole for forty years. La.Const. Art. 1, Section 20 (1974); State v. Williams, 340 So.2d 1382, 1384 (concurring opinion) (La.1976). I therefore respectfully dissent from affirmance of the sentence, insofar as parole and suspension of sentence are excluded for that length of time.


text:
    STATE of Louisiana v. Alphonse BAZILE.
    No. 60131.
    Supreme Court of Louisiana.
    Nov. 23, 1977.

      E. Craig Lundberg, Allspach & Lundberg, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The record discloses that the defendant was sentenced on the same day his motion in arrest of judgment was denied and does not indicate that he waived the required twenty-four hour delay. La.C. Cr.P. art. 873. In addition, the minutes reflect that defendant was sentenced to life imprisonment without benefit of probation, parole or suspension of sentence, while La. R.S. 40:966 B(1) provides that the appropriate penalty when a defendant has been convicted of distribution of heroin is “life imprisonment at hard labor . . . ” without any qualification as to defendant’s eligibility for parole, probation or suspension of sentence. Compare La.R.S. 40:966 C(1). Although defendant did not object to these errors at time of sentencing or urge them on appeal, they are considered by this Court since they are discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. La. C.Cr.P. art. 920(2); State v. Young, 337 So.2d 1196 (La.1976).

Defendant’s conviction is affirmed, but the sentence imposed is vacated and set aside, and the case is remanded to the district court with instructions to sentence the defendant in accordance with law.


text:
    STATE of Louisiana v. Martin MESHELL, Jr.
    No. 59982.
    Supreme Court of Louisiana.
    Nov. 23, 1977.
    James B. O’Neill, Zwolle, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

On September 11,1975, the Sabine Parish Grand Jury indicted defendant, Martin Me-shell, Jr. for the crime of second degree murder, a violation of La.R.S. 14:30.1. Defendant was tried before a twelve person jury, convicted and sentenced to serve life imprisonment at hard labor without eligibility for parole for a period of twenty years.

On appeal, defendant urges in a single assignment of error that the trial court erred in denying his motion to quash the indictment on the ground that the statute upon which the prosecution was based had been repealed.

Defendant was charged on September 11, 1975 with a second degree murder committed on May 21, 1975. At those times, La. R.S. 14:30.1, defining the charged offense, provided:

Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill.
Whoever commits the crime of second degree murder shall be imprisoned at hard labor for life and shall not be eligible for parole, probation or suspension of sentence for a period of twenty years. Added by Acts 1973, No. 111, § 1.

However, in the interim between the institution of prosecution and the commencement of trial on March 5, 1977, La.R.S. 14:30.1 was amended to redefine the crime of second degree murder as follows:

Second degree murder is the killing of a human being when the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill. Acts 1976, No. 657, § 2.

A specific intent killing, such as that charged against defendant, was excluded from the purview of La.R.S. 14:30.1 and reclassified as first degree murder under the provisions of La.R.S. 14:30, as amended by Acts 1976, No. 657, § 1. The amending legislation, providing that “all laws or parts of laws in conflict herewith are hereby repealed,” Acts 1976, No. 657, § 4, repealed former La.R.S. 14:30.1(1) insofar as it had defined a category of second degree murder. Therefore, defendant argued that the prosecution against him must be abandoned since the statutory authority for it had been withdrawn.

This argument overlooks the provisions of La.R.S. 24:171, a general saving statute operating to “save” substantive offenses which have accrued under a repealed statute and to allow prosecution, after repeal, for an offense committed while the penal provision was in effect:

The repeal of any law shall not have the effect of releasing or extinguishing any penalty, forfeiture or liability, civil or criminal, incurred under such law unless the repealing act expressly so provides, and such law shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.

Under the general saving provision, the amendment of La.R.S. 14:30.1 did not extinguish or alter defendant’s liability for the offense committed under the former statute. See, State v. Terrell, 352 So.2d 220 (La.1977); State v. Paciera, 290 So.2d 681 (La.1974); State v. Gros, 205 La. 935, 18 So.2d 507 (1944).

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.

        . Additionally, a 1975 amendment amended the penalty provision of the statute to increase the period of ineligibility for parole, probation or suspension of sentence attending the mandatory life sentence from twenty to forty years. See, Acts 1975, No. 380, § 1.


text:
    STATE of Louisiana v. L’Dee J. SMITH.
    No. 60084.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
    James A. Hobbs, Blackwell, Chambliss, Hobbs & Henry, West Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Ralph THOMAS.
    No. 61133.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Ralph Thomas, applying for supervisory and/or remedial writs and for stay order. Parish of Orleans.

Writ denied. No abuse of discretion.

DIXON, J., is of the opinion the writ should be granted.


text:
    Alexon LANCLOS et al. v. Robert S. TOMLINSON, Jr., et al.
    No. 60576.
    Supreme Court of Louisiana.
    Oct. 26, 1977.
   In re: Alexon Landos and Pearl Colligan Landos, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry. 351 So.2d 1218.

Denied.

DENNIS and DIXON, JJ. would grant the writ.


author: SUMMERS, J.,

text:
    Nat G. KIEFER v. Judge Ernest N. MORIAL et al.
    No. 60987.
    Supreme Court of Louisiana.
    Nov. 9, 1977.
   In re: Nat G. Kiefer applying for writ of certiorari, prohibition and mandamus. 351 So.2d 1216.

Writ denied. Relator is not entitled to the relief sought.

SUMMERS, J.,

dissents. I would grant this writ. This Court has too hastily and not adequately considered the important issues presented.


author: SANDERS, C. J.,

text:
    EDWARDS DRIVE IN, INC. d/b/a Joy Drive In Theater and John Marcum d/b/a B. J.’s Pepper Patch v. Leonard E. YOKUM, District Attorney for the Parish of Tangipahoa.
    No. 61076.
    Supreme Court of Louisiana.
    Nov. 29, 1977.
   In re: Edwards Drive In, Inc. d/b/a Joy Drive In Theater and John Marcum d/b/a B. J.’s Pepper Patch, applying for writs of certiorari, prohibition, mandamus, and for stay order. Parish of Tangipahoa.

Writ granted. Search warrant quashed. Mass seizure. See Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964). Motion to suppress granted. All materials seized ordered released to relator.

SANDERS, C. J.,

dissents from the granting of the motion to suppress, being of the opinion that the seizure should be reduced to one copy of the film.

SUMMERS, J., dissents.


text:
    STATE of Louisiana v. Leonard J. FAGOT.
    No. 61073.
    Supreme Court of Louisiana.
    Nov. 29, 1977.
   In re: Leonard J. Fagot, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Jefferson.

Writ denied. Insufficient showing that the trial court abused its discretion.


text:
    STATE of Louisiana v. Grandville TENNENT.
    No. 60892.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Grandville Tennent applying for writ of mandamus. E. Feliciana Parish.

Denied.


text:
    Charles HARRISON v. ABRY BROTHERS, INC.
    No. 61017.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Charles Harrison, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 350 So.2d 278.

Writ denied.


text:
    STATE of Louisiana v. Lonnie JACOBS.
    No. 61074.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Lonnie Jacobs applying for writs of certiorari, prohibition and mandamus. Parish of Jackson.

Application denied; No error in ruling of trial judge.


text:
    Mrs. Elbert H. WILTHERWAX, Individually and on Behalf of her minor son, Jeffery Paul Istre v. BOYS VILLAGE, INC., et al.
    No. 60994.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: U. S. Fidelity and Guaranty Co. and Boys Village, Inc. applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit, Parish of Calcasieu.

Writ denied.


text:
    STATE of Louisiana v. Russell E. STRICKLAND.
    No. 60943.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: State of Louisiana applying for certiorari, mandamus and prohibition.

Denied; no error in ruling of the trial judge.


text:
    STATE of Louisiana v. Roy RINGO.
    No. 60910.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: State, thru District Attorney, Os-sie Brown, applying for supervisory writs. East Baton Rouge Parish.

Denied.


text:
    STATE of Louisiana ex rel. Jasper LYNCH v. Ross MAGGIO, Warden, State Penitentiary, Judge, Section “I”, Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 60894.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Jasper Lynch applying for remedial writs. Parish of Orleans.

Denied. Trial court acted December 20, 1976.


text:
    STATE of Louisiana ex rel. Johnny W. HINES v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 60887.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Johnny W. Hines applying for writ of habeas corpus. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Lincoln K. LEWIS.
    No. 60883.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Lincoln K. Lewis applying for writ of habeas corpus. Parish of St. Martin.

Writ denied.


text:
    STATE of Louisiana v. Vernon BRANAUGH.
    No. 60882.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Vernon Branaugh applying for writ of certiorari or review. Parish of East Baton Rouge.

Denied.


text:
    TRINITY NATIONAL BANK v. Billy G. MARTIN et al.
    No. 60874.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Trinity National Bank applying for writs of certiorari, prohibition, mandamus and review. Parish of Lincoln.

Writ denied.


text:
    STATE of Louisiana v. Cyril E. SCHOEN.
    No. 60873.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: State of Louisiana applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Erwin WILLIS and Rebecca Willis.
    No. 60865.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Erwin Willis and Rebecca Willis applying for writs of certiorari, prohibition, mandamus. Parish of Calcasieu.

Writ denied.


text:
    STATE of Louisiana v. Gerald HATCHER.
    No. 60863.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Gerald Hatcher applying for supervisory writs. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. John FULFORD v. C. Paul PHELPS, Secretary, Louisiana Department of Corrections.
    No. 60849.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: John Fulford applying for writs of certiorari and mandamus. Parish of East Baton Rouge.

Denied.


text:
    CITY OF BATON ROUGE v. James E. CHISHOLM.
    No. 60828.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: James E. Chisholm applying for writ of review. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Michael G. LACEY v. Bernard J. BAGERT, Judge, Criminal District Court, Parish of Orleans.
    No. 60753.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Michael G. Lacey, applying for writ of mandamus.

Writ denied; Mandamus application moot. The trial court ruled on the application November 18, 1977, denying it.


text:
    STATE of Louisiana ex rel. David CARTER v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 60646.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: David Carter applying for writs of habeas corpus, certiorari, prohibition, mandamus and other remedial writs. Parish of Jefferson.

Writ refused. No merit in application.


text:
    STATE of Louisiana ex rel. Irvin SCOTT, Milton Reed and Robert Des Dunes v. Oliver P. SCHULINGKAMP, Judge and Harry Connick, Dist. Atty., et al.
    No. 61026.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Irvin Scott, Milton Reed and Robert Des Dunes, applying for writ of mandamus-prohibition.

Writ refused. Appeal has been lodged, raising same point.


text:
    STATE of Louisiana v. Bernard HAMILTON.
    No. 60885.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Bernard Hamilton applying for writ of habeas corpus. Parish of Caddo.

Not considered. Applicant’s appeal from a conviction for the same offense is pending in this court.


text:
    STATE of Louisiana v. Mark SIMS.
    No. 60898.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In' re: Mark Sims applying for writs of certiorari and review. Parish of East Baton Rouge.

Writ granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Donovan W. Parker, Judge of the 19th Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 16th day of December, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Aubrey Joseph LeCOMPTE.
    No. 60895.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Aubrey Joseph LeCompte applying for writs of habeas corpus and mandamus. Parish of St. Martin.

Writ granted. Out of time appeal ordered. District Judge ordered to appoint appellate counsel.


text:
    STATE of Louisiana v. Gerald HATCHER.
    No. 60857.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Gerald Hatcher, applying for supervisory writs. Parish of Orleans.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Bernard J. Bagert, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 16th day of December, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel- shall show cause, in this court, on a date to be fixed by this court, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Roslyn DAVIS.
    No. 60838.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: State of Louisiana applying for writs of certiorari, mandamus and prohibition. Parish of Orleans.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Jerome M. Winsberg, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 16th day of December, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court why the relief prayed for in the petition of the relator should not be granted.


text:
    ALL STATE CREDIT PLAN, INC. v. Lovelace THEALL, Jr., et al.
    No. 60995.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: All State Credit Plan, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Vermilion. 350 So.2d 202.

Writ denied.


text:
    Charles M. TOLAR v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY.
    No. 60827.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Department of Public Safety applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 349 So.2d 922.

Denied.


text:
    STATE of Louisiana v. Barry E. BALLARD.
    No. 60933.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   In re: Barry E. Ballard applying for writs of certiorari, review and mandamus. Parish of Ouachita.

Granted. Full transcript ordered furnished to counsel urging inadequacy of former counsel, with leave to reopen evidentia-ry hearing on the issue on the basis of contentions thereupon based.

SANDERS, C. J., dissents.

SUMMERS, J.,

dissents. This applicant was properly represented by retained counsel and was tried before the judge who denied his application for a full transcript to serve as a basis for habeas relief — U.S. v. MacCollom, 426 U.S. 317, 96 S.Ct. 2086, 48 L.Ed.2d 666 (1976); Bonner v. Henderson, 517 F.2d 135 (5th Cir. 1975).

MARCUS, J., dissents.


text:
    STATE of Louisiana v. Perry SEGURA.
    No. 60859.
    Supreme Court of Louisiana.
    Dec. 2, 1977.
   PER CURIAM.

The defendant is charged in St. Charles Parish with public bribery. La.R.S. 14:118. The state’s answer to the bill of particulars shows that the offense was committed in Jefferson Parish. The trial court therefore erred in denying the motion to quash. State v. Bloomensteil, 235 La. 860, 106 So.2d 288 (1958). Consequently, we reverse its ruling and grant the motion to quash the indictment, unless the defect is cured within three days of the date of finality of this order. See La.C.Cr.P. art. 485.


author: DIXON, J.,

text:
    James Calvin WILLIAMS v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 61166.
    Supreme Court of Louisiana.
    Dec. 8, 1977.
   In re: James Calvin Williams applying for supervisory writs. Parish of East Baton Rouge.

Granted. The ruling of the Court of Appeal, First Circuit, is set aside and the ruling of the trial judge is approved and made the judgment of this Court.

DIXON, J.,

is of the opinion the writ should be denied. There is no error demonstrated in its ruling.


text:
    Gaston LEVESQUE et al. v. Milton R. SABA.
    No. 61169.
    Supreme Court of Louisiana.
    Dec. 8, 1977.
   In re: Milton R. Saba applying for supervisory and/or remedial writs and stay order. Parish of Orleans.

Application denied; no abuse of discretion shown.


text:
    Louis BABINEAUX v. Michael J. LEBLANC and Commercial Union Insurance Co.
    No. 61061.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Louis Babineaux applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 351 So.2d 317.

Writ denied.


text:
    James W. BOSTICK, Jr. v. Clarence P. FORET.
    No. 61057.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Clarence P. Foret, Richard T. McBride applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 351 So.2d 238.

Writ denied.


text:
    Robert JASMIN v. GAFFNEY, INC. and Northern Assurance Co.
    No. 61009.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Robert Jasmin, applying for certio-rari, or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 350 So.2d 281.

Grant. It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    RAY’S APPLIANCE AND AIR CONDITIONING v. K. AND D. ENTERPRISES, INC. Everett L. AYMOND, d/b/a Aymond Plumbing and Heating v. K. AND D. ENTERPRISES, INC., et al.
    No. 61005.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Ray’s Appliance and Air Conditioning, Inc. et al. Parish of Rapides. 350 So.2d 228.

Writ denied.


text:
    Kenneth R. COMPTON v. Ivy Marie BERTAUT.
    No. 61056.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Ivy Marie Bertaut applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson.

Writ denied.


text:
    WATTS BRO. BUILDERS, INC. v. ALTEX READY MIX CONCRETE CORP. ANDERSON DUNHAM, INC. v. JOHN P. CRYER CONSTRUCTION COMPANY et al.
    No. 60819.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Hanover Ins. Co. applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 349 So.2d 1304.

Writ denied.


text:
    STATE of Louisiana v. Linda DICKERSON.
    No. 61006.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Linda Dickerson, applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Charles R. AINSWORTH v. Nestor CURRAULT, Judge, 24th Judicial District, Section “C”, Jefferson Parish.
    No. 61104.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Charles R. Ainsworth applying for writ of mandamus.

Writ denied: The mandamus action is moot, since the trial court denied the habeas petition on November 2, 1977.


text:
    Bette Jean PATE, divorced wife of Milton Edward Dupuy v. Milton Edward DUPUY and Clarence Ory Dupuy, Jr.
    No. 61081.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Milton Edward Dupuy applying for writ of review. Parish of Orleans.

Writ denied.


text:
    STATE of Louisiana v. Barry E. BALLARD.
    No. 61055.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Barry E. Ballard applying for writs of certiorari, review and mandamus. Parish of Ouachita.

Denied.


text:
    Kenneth R. COMPTON v. Iby Marie BERTAUT.
    No. 61044.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Kenneth R. Compton applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson.

Writ denied.


text:
    STATE of Louisiana v. Lonnie D. AYRES.
    No. 61029.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Lonnie D. Ayres applying for writ of certiorari, prohibition, mandamus and/or review. Parish of Natchitoches.

Denied.


text:
    STATE of Louisiana ex rel. Oliver MARTIN, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 61024.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Oliver Martin, Jr. applying for writ of certiorari. Parish of East Baton Rouge.

Writ denied. Based on review of eviden-tiary hearing held on June 22, 1977, we find no merit to relator’s application.


text:
    Leon D. DENDINGER v. Dorothy Gill DENDINGER.
    No. 61007.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Dorothy Gill Dendinger, applying for supervisory writs, and writs of ^review, certiorari, mandamus and prohibition. Parish of E. Baton Rouge.

On the showing made, we will not interfere in the orderly process of the trial court.


text:
    Frank C. O’HALLERON, Individually and on Behalf of all others similarly situated v. L.E.C., INC.
    No. 60997.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: L.E.C., Inc. applying for supervisory writs of certiorari and/or review. Parish of St. Tammany.

Writ refused.


text:
    STATE of Louisiana v. Larry Joe PHILLIPS.
    No. 60975.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Larry Joe Phillips applying for writ of certiorari. Parish of Orleans.

Denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Otis JONES v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 60983.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Otis Jones applying for writ of habeas corpus. Parish of Evangeline.

Writ denied. Based on evidentiary hearings, no merit in relator’s application to this court.


text:
    STATE of Louisiana ex rel. Jim WILLIAMS v. Hon. Eugene E. LEON, Jr., Presiding Judge, 25th Judicial District Court, Parish of Plaquemines.
    No. 60966.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Jim Williams applying for writ of mandamus. Plaquemines Parish.

Writ denied. Since the trial court has granted an out of time appeal and appointed counsel, the application is moot.


text:
    STATE of Louisiana v. Thomas H. BROWN.
    No. 60958.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Thomas H. Brown applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Gloria HARRIS, La. Correctional Institute for Women v. Victor G. WALKER, Warden.
    No. 60934.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Gloria Harris applying for writ of mandamus. Parish of Madison.

Writ denied. Moot. See trial court judgment of Nov. 21, 1977.


text:
    STATE of Louisiana v. Vincent L. SHAW.
    No. 60930.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Vincent L. Shaw applying for writ of review. Parish of Acadia.

Writ denied.


text:
    STATE of Louisiana ex rel. George GONZALES v. Hon. Frank V. ZACCARIA, Judge, 24th Judicial District Court, Parish of Jefferson.
    No. 60890.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: George Gonzales applying for writ of mandamus. Parish of Jefferson.

Writ denied as moot.


text:
    STATE of Louisiana ex rel. John ALEXANDER v. Israel M. AUGUSTINE, Judge, Criminal District Court, et al.
    No. 60889.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: John Alexander applying for writ of mandamus. Orleans Parish.

Writ denied. The motion is moot.


text:
    STATE of Louisiana ex rel. Leo CUMMINGS v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 61071.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Leo Cummings applying for writ of certiorari. Parish of Ouachita.

Writ granted in part. It is ordered that the trial court conduct an evidentiary hearing as to whether relator voluntarily and intelligently waived his right of appeal.

SUMMERS, J., dissents.


text:
    Ronnie E. McADAMS, Individually, etc. v. Dr. Alfred M. HOLDEN et al.
    No. 60722.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Second Petition for writ of review and/or certiorari. E. Baton Rouge Parish. 349 So.2d 900.

Not considered. The judgment is final. C.C.P. 2167. Rule IX § 6.


text:
    STATE of Louisiana v. James L. LEMOINE.
    No. 61013.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: James L. Lemoine, applying for writs of certiorari, prohibition and for stay order. Parish of Grant.

Writ granted in part, denied in part: Denied as to assignment of error as to the conviction itself. However, we note that the sentence of 60 days imposed for nonpayment of costs in addition to the six months maximum sentence imposed for the offense is not permitted by La.C.Cr.P. art. 884 (1968). The sentence is to this extent set aside, and the case remanded for resen-tencing in accordance with law.


text:
    Lillian B. DESHOTEL, etc., et al. v. CASUALTY RECIPROCAL EXCHANGE et al.
    No. 61015.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Glenn West, Sr., Geraldine Ann West and Casualty Reciprocal Exchange, applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, Parish of Jefferson Davis. 350 So.2d 283.

Writ denied.

SUMMERS, DIXON and DENNIS, JJ., are of the opinion the writs should be granted.


author: SANDERS, C. J., SUMMERS, J., CALOGERO and MARCUS, JJ.,

text:
    STATE of Louisiana v. Josh DOUGLAS, Jr.
    No. 61155.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: State of Louisiana applying for supervisory writs. Parish of E. Baton Rouge.

Writ denied. No abuse of discretion.

SANDERS, C. J.,

is of the opinion that a writ should be granted and an evidentiary hearing ordered to determine whether the other rape falls within the guidelines of State v. Carter.

SUMMERS, J.,

is of the opinion the writ should be denied. Applicant’s showing is not sufficient to warrant the exercise of this court’s supervisory jurisdiction.

CALOGERO and MARCUS, JJ.,

concur. We do not here decide whether evidence of one crime is admissible in trial of the other.


text:
    Jeffrey Allen ALCORN v. STATE of Louisiana, Through STATE PARKS AND RECREATION COMMISSION.
    No. 61028.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Jeffrey Allen Alcorn applying for supervisory writs. Parish of St. Mary.

Writ denied.

TATE and SUMMERS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Earl Edgar ALLEN, Sr.
    No. 61064.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Earl Edgar Allen, Sr., applying for writs of certiorari, prohibition and mandamus. Parish of Avoyelles.

Writ denied.

TATE and CALOGERO, JJ., would grant.


text:
    STATE of Louisiana ex rel. Norman SPOONER v. Hayden J. DEES, Warden Dixon Correctional Institute, et al.
    No. 61022.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Norman Spooner, applying the writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Orleans.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Larry J. RUDOLPH and Rockwood Insurance Co.
    No. 61020.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Rockwood Ins. Co. applying for writ of certiorari, prohibition, mandamus and stay order. Parish of Orleans.

Writ denied and stay order recalled.

CALOGERO, J., is of the opinion that a writ should be granted.


text:
    STATE of Louisiana v. Louis EVANS, Jr.
    No. 60988.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Louis Evans, Jr., applying for writ of certiorari, prohibition and mandamus. Parish of Natchitoches.

Denied.

DIXON and CALOGERO, JJ., are of the opinion a writ should be granted.


text:
    CAMERON MEADOWS LAND CO. v. Daniel R. BULLARD et al.
    No. 60571.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Daniel R. Bullard, et al applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Cameron.

Writ denied. The result is correct.

SUMMERS and DENNIS, JJ., are of the opinion that the writ should be granted.


text:
    STATE of Louisiana ex rel. Evans BROWN v. Charles FOTI, Jr., Sheriff.
    No. 61031.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Evans Brown applying for remedial writs. Parish of Orleans.

Writ granted. It is ordered that relator’s application filed in this court be transferred to the district court for proper disposition by that court.


text:
    STATE of Louisiana ex rel. Errol BROOKS v. Charles R. WARD, Judge, et al.
    No. 60977.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Errol Brooks, applying for writ of mandamus. Parish of Orleans.

Granted and transferred to trial court with instructions to rule.


text:
    STATE of Louisiana ex rel. Richard BROWN v. Harold M. TERRY, Sheriff of Caddo Parish.
    No. 60973.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Richard Brown applying for writ of habeas corpus. Parish of Caddo.

Writ granted. It is ordered that this application be transferred to the district court for action on it by trial judge.


text:
    STATE of Louisiana ex rel. Richard A. PASS v. STATE of Louisiana.
    No. 60866.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Richard A. Pass, applying for writ of habeas corpus. Parish of Orleans.

Granted. The trial judge is ordered to rule upon applicant’s petition for habeas corpus forthwith.


text:
    STATE of Louisiana v. Ronald D. ANDERSON.
    No. 61084.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: State of Louisiana applying for supervisory writs. Parish of East Baton Rouge.

Granted. The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Donovan W. Parker, Judge of the Nineteenth (19th) Judicial District, Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 23rd day of December, 1977, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Robert O’BRIEN, John O’Neill, John Herman, David Grussfeld, Steve Martin, Greg Orr, Michael Tidmarsh and Richard Badalaro.
    No. 61165.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Robert O’Brien, et al applying for writs of certiorari, prohibition, mandamus and habeas corpus and stay order. Parish of St. Bernard.

Writ granted. The ruling of the trial judge is set aside and the case is remanded for a new hearing on the motion to suppress. When the mover has shown that the evidence was seized without a search warrant, the burden of proof is on the State. Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970).


text:
    ECONOMY CARPETS MFG. & DIST., INC. v. BETTER BUSINESS BUREAU OF BATON ROUGE AREA, INC., et al.
    No. 61019.
    Supreme Court of Louisiana.
    Dec. 9, 1977.
   In re: Better Business Bureau of Baton Rouge Area, Inc. et al applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit (Parish of E. Baton Rouge), 351 So.2d 1246.

Writ denied.

SUMMERS and DIXON, JJ„ would grant the writ.


text:
    STATE of Louisiana v. Brenda SCHAFFNER.
    No. 61202.
    Supreme Court of Louisiana.
    Dec. 12, 1977.
   ORDER

The trial court is ordered to grant a mistrial, provided it is with the express consent of the defendant; if the consent of the defendant is not given, the writ is denied.

SUMMERS, J.,

dissents. On the showing made there is no abuse of discretion in the ruling of the trial judge.


text:
    STATE of Louisiana ex rel. Ronald CLESI v. CRIMINAL DISTRICT COURT.
    No. 61054.
    Supreme Court of Louisiana.
    Dec. 12, 1977.
   In re: Ronald Clesi applying for writ of mandamus (Parish of Orleans).

Writ denied: The minute entry and order of October 13 and 14, 1977, show that the petitioner was granted credit for presen-tence incarceration from February 5 through April 11,1975, per copies sent with this order to the applicant and to the Warden of the Dixon Correctional Institute. Assuming that the dates are correct, the petitioner states no claim for which he has not already received the relief requested. The petitioner is not entitled to credit on the present charges for presentence incarceration October 27, 1975 to November 3, 1976 on other charges, for which applicant received credit when sentenced on these other charges.


text:
    STATE of Louisiana ex rel. Melvin FRANK v. Judge Frank SHEA et al.
    No. 60612.
    Supreme Court of Louisiana.
    Dec. 13, 1977.
   In re: Melvin Frank, applying for writ of mandamus. (Parish of Orleans).

Writ granted. It is ordered that the relator be returned from the penitentiary to the Orleans Parish Prison until his appeal is disposed of.


text:
    STATE of Louisiana v. John R. KILLIAN.
    No. 61110.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: John R. Killian, applying for writs of certiorari, prohibition and mandamus.

Writ denied in part, granted in part; Denied as to conviction. However, sentence must be vacated to the extent in conflict. La.C.Cr.P. Art. 8S4 (1968), and remanded for re-sentencing.

CALOGERO and DENNIS, JJ., are of the opinion the writ should be granted.