author: BOYER, Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. F. W. E., a child, Appellee.
    No. JJ-256.
    District Court of Appeal of Florida, First District.
    June 29, 1978.

      Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender, Louis G. Carres, Asst. Public Defender, Earl B. Hooten, II, Jacksonville Beach, for appel-lee.
   BOYER, Acting Chief Judge.

We here consider an appeal by the State from an order granting a motion to suppress.

While walking down the hall of a high school in Jacksonville at approximately 10:00 a. m. on a school day the Dean of Boys observed a student (not appellee) go into the restroom. That student was described as “a special ed kid” who “has psychological learning disabilities”. Upon the Dean entering the restroom he saw the just mentioned student and appellee standing at the urinals and heard the other student say to appellee something to the effect of “Hey, man, how about selling me a ‘j’” . “It’s cool, man. You don’t have to worry about me. I know that you have got some drugs” or “I know that you have got some stuff.” The only thing that the Dean could remember appellee saying was “I don’t know what you are talking about, man.” Noticing the Dean, the other student left the restroom. Appellee was then taken to the Dean’s office where, the Dean testified, it became apparent to him that appellee “exemplified signs of being intoxicated, wobbly in his walking, un_you know, unbalanced. His eyes were bloodshot and red and his speech was somewhat impaired.” Upon being directed by the Dean to empty his pockets nothing was found. The Dean then directed appellee to take off his shoes and socks whereupon a bag of marijuana was found in a sock. The Dean testified that there were no other circumstances which gave rise to the search and that he did not otherwise see nor smell the marijuana before the search. The Dean called (or had called) appellee’s mother and the police, whereupon appellee was charged with being a delinquent child by being in possession of less than five grams of marijuana. A motion to suppress the warrant-less search on the ground that there was an absence of probable cause was granted by the trial judge who recited (citing Nelson v. State, 319 So.2d 154 (Fla. 2nd DCA 1975)) that the Dean “did not have reasonable suspicion for the search”.

The State presents one point on appeal which it phrases: “Did the trial court commit reversible error in suppressing tangible evidence by finding that reasonable suspicion did not exist at the time defendant was found to possess marijuana in his sock?” Appellee’s response is two-fold: First he urges that the trial judge properly found an absence of “reasonable suspicion”. Second, appellee takes the position that probable cause, not reasonable suspicion, is the proper standard and that clearly no probable cause was present. Arguing the point, ap-pellee contends that notwithstanding the verbiage employed in Nelson v. State, supra, the facts reveal that there did there exist probable cause.

That a child is entitled to the protection of the Fourth Amendment of the Constitution of the United States and Section 12, Article 1 of the Constitution of Florida is not an issue and is not questioned. However, it is clear that a child does not enjoy, for instance, a constitutional right of immunity from searches and seizures by its parents. To what extent, if any, the same principle applies to public school authorities standing in loco parentis has not been raised nor briefed by the parties and therefore is neither addressed nor decided by this decision. The parties to this case, as did apparently the court in Nelson v. State, supra, broached the facts with the assumption that constitutional considerations restrict, at least to some degree, searches and seizures by school authorities. We accordingly, for the purposes of this decision, approach the facts with the same presumption.

Subject to the foregoing caveat we agree with the reasoning of our sister court of the Second District as set forth in Nelson v. State and hold that reasonable suspicion, as distinguished from probable cause, existed under the facts of this case and was sufficient to sustain the action taken by the school authorities.

The first clause of the Fourth Amendment of the Federal Constitution and the first sentence of Section 12, Article 1, of the Florida Constitution, it will be noted, make no reference to probable cause and proscribe only “unreasonable” searches and seizures. Although, under decisions of the United States Supreme Court, the Supreme Court of Florida and this court, war-rantless searches and seizures are viewed initially as being unreasonable, several exceptions have been recognized: As examples, “stop and frisk”, “exigent circumstances”, etc. Although the circumstances of this case do not reveal the classical grounds for any of those heretofore recognized exceptions, we are nevertheless of the view that the relationship between grade school student and those school authorities charged with the responsibility of teaching, training and maintaining order is such as to justify and require relaxation of the constitutional strictures relating to searches and seizures.

Further, our examination of the record reveals sufficient facts sub judice to have established “reasonable suspicion” and to have therefore sustained the action taken by the Dean.

Accordingly, the order granting the motion to suppress is reversed and this case is remanded for further proceedings consistent herewith.

SMITH and BOOTH, JJ., concur.


source: Caselaw Access Project

author: MILLS, Acting Chief Judge.

license: Public Domain

text:
    Richard O’NEILL, Appellant, v. BARNETT BANK OF JACKSONVILLE, N. A., a National Banking Association, Appellee.
    No. II-94.
    District Court of Appeal of Florida, First District.
    June 30, 1978.

      William J. Deas, of Howell & Deas, Jacksonville, for appellant.
    James A. Bledsoe, Jr., of Mahoney, Had-low & Adams, Jacksonville, for appellee.
   MILLS, Acting Chief Judge.

O’Neill appeals from a final judgment entered in favor of Barnett following a nonjury trial in a replevin action. O’Neill, the buyer of an aircraft from Herlong Aviation (Herlong) in which Barnett had a prior security interest, contends that the trial court erred in finding that Barnett’s security interest in the aircraft was valid and enforceable as to him and erred in failing to find that Barnett was estopped to enforce its security interest.

Barnett financed the purchase of the aircraft by Herlong. Barnett obtained a security agreement from Herlong and perfected its security interest by registering it with the Federal Aviation Administration. It also filed a financing statement in the public records of Duval County and with the Secretary of State. Herlong represented to Barnett that the aircraft would be used for flight instruction and would not be a part of its sales inventory. The security agreement provided that Herlong would not sell the aircraft without the prior written consent of Barnett. Notwithstanding the terms of the agreement, Herlong sold the aircraft to O’Neill without Barnett’s consent.

At the time of the sale, Herlong, a fixed base operation, was engaged in the supply of fuel, maintenance, flight instruction and aircraft sales. The aircraft in litigation was being used by Herlong for rental purposes and had been rented to O’Neill on several occasions. At the time of the sale, O’Neill believed the aircraft was held by Herlong for rental purposes.

O’Neill did not make a search prior to nor at the time of purchase to see if there were any security interests on the aircraft. He did not have actual knowledge of Barnett’s security interest.

Herlong subsequently defaulted in the payments required by the note and security agreement and Barnett discovered the sale of the aircraft to O’Neill. It then filed a replevin action.

In determining this appeal, the issues we must resolve are whether O’Neill was a buyer of the aircraft in the ordinary course of Herlong’s business and whether Barnett’s prior security interest was superior to O’Neill’s subsequent ownership interest where it had properly registered its security interest with the Federal Aviation Administration. We resolve both issues in favor of Barnett.

Under Section 671.201(9), Florida Statutes (1975), a buyer in the ordinary course of business is a person who in good faith and without knowledge that the sale to him is in violation of the security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind. A buyer in ordinary course of business takes free of a security interest created by his seller even though the security is perfected and even though the buyer knows of its existence. Section 679.307(1), Florida Statutes (1975).

Prior to and at the time of the purchase, O’Neill knew that the aircraft was used by Herlong for rental purposes, he had rented it on several occasions, he knew it was not a part of Herlong’s sales inventory, he did not purchase it from Herlong’s sales inventory and he knew that Herlong was primarily engaged in supplying fuel, maintenance, flight instruction and sales of aircraft. O’Neill knew that Herlong’s principal business was fixed base operation, not the sale of aircraft. A sale incidental to the principal business does not make the seller a person in the business of selling goods of that kind. Hempstead Bank v. Andy’s Car Rental System, Inc., 35 A.D.2d 35, 312 N.Y.S.2d 317 (1970). Prior to and at the time of the sale of the aircraft, three registration certificates relating to prior owners were present in the aircraft, visible to O’Neill and read by him. The certificates stated:

“It is the responsibility of persons needing information as to recorded instruments affecting the aircraft identified in this certificate to make a personal search of the records or avail themselves of the services of an agent or attorney.”

O’Neill was not a buyer in the ordinary course of business as required by Section 671.201(9), therefore, Section 679.307(1) is not applicable to this case.

Registration of interests in aircraft is governed by federal law. Federal Aviation Act, 49 U.S.C. § 1401 et seq. Section 1403(a)(1) requires the Secretary of Transportation to establish a system for recording any interest in aircraft, including security interests. If the interest is properly registered, the interest shall be valid to all persons without further or other recordation. Section 1403(d). The substantive validity of any instrument creating an interest subject to the registration provisions is to be determined by the laws of the state in which the instrument is delivered. Section 1406. The priority or enforceability of interests in aircraft is determined by the federal statute.

In Dowell v. Beech Acceptance Corporation, Inc., 3 Cal.3d 544, 91 Cal.Rptr. 1, 476 P.2d 401 (Cal.1970), cert. den. 404 U.S. 823, 92 S.Ct. 45, 30 L.Ed.2d 50 (1971), the California Supreme Court carefully analyzed the federal statute and the buyer in ordinary course of business defense created by Section 9-307(1) of the Uniform Commercial Code and held that the Federal Aviation Act preempts Section 9-307(1) and renders a properly registered security interest enforceable against a buyer in ordinary course who subsequently purchases an aircraft. We adopt the logic and reasoning of the court in Dowell.

Section 329.01, Florida Statutes (1975), recognizes the total federal preemption of recordation of interests in aircraft and the rights derived therefrom. O’Neill claims that this Section is repealed by Section 680.103, Florida Statutes (1975), because it is inconsistent with the Code. We do not agree because this Section is consistent with Section 679.302(3)(a), Florida Statutes (1975).

Barnett’s security interest in the aircraft is superior to and enforceable against O’Neill’s subsequent ownership interest. This would be the case even if O’Neill was a buyer in ordinary course.

O’Neill’s estoppel argument is without merit because Section 672.403, Florida Statutes (1975), applies only to financing transactions which involve floor planning of inventory. Barnett did not floor plan the aircraft in litigation nor was O’Neill a buyer in ordinary course.

We affirm the judgment appealed.

ERVIN and MELVIN, JJ., concur.


author: CARROLL, Associate Judge.

text:
    EASTERN KOEX COMPANY, LTD., Appellant, v. BONANZA IMPORT AND EXPORT, INC., Appellee.
    Nos. 77-186, 77-187 and 77-188.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    Brian R. Hersh, Miami, for appellant.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Carl L. Laks, Miami, for appellee.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   CARROLL, Associate Judge.

The appellant, Eastern Koex Company, Ltd., filed an action against the appellee, Bonanza Import and Export, Inc., for damages for alleged breach of a contract for sale of merchandise. The defendant filed an answer incorporating a counterclaim for damages for alleged defects in the purchased merchandise. In the answer and counterclaim the defendant demanded jury trial on all issues in the action. Pursuant to a consent order the defendant filed an amended counterclaim, in which such demand for a jury trial was 'repeated. The plaintiff, through counsel, moved to dismiss and to strike the amended counterclaim. Before hearing thereon plaintiff’s counsel withdrew. Thereafter the court denied plaintiff’s motions and granted plaintiff twenty days within which to answer the amended counterclaim. When plaintiff failed to file an answer within the time allowed, the defendant moved for entry of default on the amended counterclaim, and a default order was entered. Also, an order was entered dismissing plaintiff’s complaint for failure of the plaintiff to file a non-resident cost bond.

A notice was given to plaintiff of a setting of the cause for non-jury trial on the unliquidated damages claimed in the amended counterclaim. The non-jury trial on damages was held, at which the counter-defendant was not present. For proof the counterclaimant filed an affidavit. Judgment on the counterclaim was entered against the counterdefendant, Eastern, for damages in the amount of $21,204.77, with provision for execution to issue.

Plaintiff learned of the judgment when execution was sought, and thereafter filed a motion, with which an answer was submitted, seeking to vacate the default on certain stated grounds, and moved under Florida Rules of Civil Procedure 1.540(b) to have the judgment set aside for failure of the trial on damages to have been held before a jury. Those motions of the coun-terdefendant came on for hearing before an alternate judge while the judge who had entered the default and judgment was absent on vacation. The judge who heard the matter denied the plaintiff’s motion to vacate the default, but granting the motion to set aside the judgment ordered that the judgment be set aside, and as grounds for that ruling stated: “The court finds that the motion has merit and the final judgment, as was entered, is in violation of the plaintiff’s right to a proper trial by jury with substantial competent evidence.” In that order the court required the defendant to file a bond in the amount of $15,000.00.

After return of the first judge from vacation, the counterclaimant moved to vacate the order by which the judgment had been set aside. After hearing thereon the court entered an order vacating the prior order which set aside the judgment, except for the provision therein requiring the posting of a bond, and the court made provision for the filing of an additional $7,000 bond by the counterdefendant in the event of appeal by the latter. Eastern appealed.

The order vacating the final judgment, which had been entered on a non-jury trial on issues relating to the unliquidated damages, was eminently correct, on authority of Loiselle v. Gladfelter, 160 So.2d 740 (Fla. 3d DCA 1964); Bader Bros. Van Lines, Inc. v. Jay, 183 So.2d 867 (Fla. 2d DCA 1966); and Grappell v. Lauderdale River Park Estates, 126 So.2d 574 (Fla. 3d DCA 1961). We hold, as contended for by appellant, that the subsequent order appealed from, which vacated the order that set aside the judgment, was error.

Loiselle v. Gladfelter, supra, was an action for damages for personal injuries, in which the plaintiff made a timely demand for jury trial. A default was entered against the defendant for failure to timely plead in response. Thereafter a non-jury trial was held on the unliquidated damages, at which the defendant did not appear. Judgment for damages was entered against the defendant. After denial of motion for new trial for failure of the trial on damages to have been held before a jury, the defendant appealed. In reversing, this court made reference to Florida Rules of Civil Procedure 2.1 (now 1.430), subparagraph (d) of which provides: “A demand for trial by-jury may not be withdrawn without the consent of the parties”, and held that the plaintiff’s withdrawal or waiver of the demand for jury trial would not operate to defeat the right of the defendant to jury trial on damages without his agreement thereto; that absence of the defendant from the trial on damages did not constitute waiver by the defendant of his right to jury trial on the issues relating to damages; and that notwithstanding the entry of a default against the defendant, the trial on damages should have been before a jury. This court certified that decision to the Supreme Court as being one involving a question of great public interest. The Supreme Court, in discharging certiorari, stated: “After further consideration thereof, we hold that the opinion of the District Court, supra, properly disposes of the questions of law presented and is approved by this court.” See Gladfelter v. Loiselle, 165 So.2d 767 (Fla.1964).

The denial of Eastern’s motion to set aside the entry of a default for its failure to answer is affirmed. For the reasons stated, we reverse the order entered on December 20, 1976 vacating the prior order of August 23, 1976 which set aside the judgment entered on the non-jury trial on damages, which latter order is hereby reinstated; and the cause is remanded for a new trial before a jury on damages.

      . When a default has been entered against a defendant and trial is to be had on claimed unliquidated damages, a defendant’s right to trial thereof by a jury as previously demanded is preserved under Florida Rules of Civil Procedure 1.500(e), but notice of such trial on damages is not required to be given to the defaulted defendant except as the trial court may determine that notice shall be given under the cited rule. See Stevenson v. Arnold, 250 So.2d 270 (Fla.1971). Therefore, it would appear to be incumbent on a defaulted defendant to obtain an order for notice of damage trial or, failing in that, to ascertain the time for such hearing in order to attend and participate therein. The recognition that under the rules a defaulted party may attend and be permitted to participate in a trial on damages, but that such party is not entitled to be given notice of trial, represents a legal paradox inviting recollection of a particular assessment of “the law” which was made by a character in Dickens’ “Oliver Twist”.


author: PER CURIAM.

text:
    INTERNATIONAL GRANITE AND MARBLE CORP., a Foreign Corporation qualified to do business in the State of Florida, Appellant, v. CITY NATIONAL BANK OF MIAMI, a corporation existing under and by virtue of the National Banking Laws of the United States of America, Appellee.
    No. 77-1697.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    Richard W. Wasserman, Miami Beach, for appellant.

      Lapidus & Hollander and Richard L. La-pidus, Miami, for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

This appeal questions the correctness of a summary judgment rendered in favor of appellee, City National Bank of Miami, in an action by appellant, International Granite and Marble Corp., wherein it was alleged that appellee negligently failed to discharge its obligations in connection with the collection of certain notes payable to appellant at appellee’s bank.

The trial court granted appellee’s motion for summary judgment upon the following findings:

“THIS CAUSE coming on to be heard before me the undersigned judge of the above entitled Court on Defendant, CITY NATIONAL BANK OF MIAMI’S Motion For Summary judgment and, prior to the hearing, Plaintiff, INTERNATIONAL GRANITE & MARBLE CORP., having filed an Affidavit to the effect that they were endeavoring to obtain Affidavits to controvert the testimony of CITY NATIONAL BANK OF MIAMI’S officers that, in the handling of the items which are the subject matter of this suit, CITY NATIONAL BANK OF MIAMI followed the instructions of Chase Manhattan Bank, that portion of the Motion For Summary judgment filed by the defendant which was bottomed on that defense was deferred. CITY NATIONAL BANK OF MIAMI proceeded to argue its Motion for Summary Judgment on grounds that a novation had occurred and that the Plaintiff had discharged the notes which are the subject matter of this action. Upon those grounds this Court finds there are no contested issues of fact as follows:
“1. CITY NATIONAL BANK OF MIAMI received for collection from Chase Manhattan Bank in July of 1974 a note payable by Tile Service, Inc. to the Plaintiff in the amount of $18,826.38, which note was payable at the CITY NATIONAL BANK OF MIAMI.
“2. On August 15, 1974, CITY NATIONAL BANK OF MIAMI received for collection from the Chase Manhattan Bank a note in the amount of $24,373.41 payable by Tile Service, Inc. to the Plaintiff which note was payable at the CITY NATIONAL BANK OF MIAMI.
“3. The CITY NATIONAL BANK OF MIAMI did not return the notes until October 31, 1974.
“4. After the return of the notes to Chase Manhattan Bank, the Plaintiff in this cause, INTERNATIONAL GRANITE & MARBLE CORP., continued to ship to Tile Service, Inc. further supplies.
“5. It has been admitted that on December 30, 1974, INTERNATIONAL GRANITE & MARBLE CORP. and Tile Service, Inc. entered into an Agreement which Agreement is part of the file and is attached to the FIRST REQUEST FOR ADMISSIONS. The Agreement covers among other debts the two notes which are the subject matter of this action. By the terms of the Agreement, INTERNATIONAL GRANITE & MARBLE CORP., Plaintiff herein, discharged the two notes, for the handling of which it seeks to hold liable in this action, CITY NATIONAL BANK OF MIAMI.
“6. As part of the Agreement, the payor of the two notes, which are the subject matter of this action, agreed to purchase all future supplies from INTERNATIONAL GRANITE & MARBLE CORP. INTERNATIONAL GRANITE & MARBLE CORP. agreed to take new notes for the past due debts which notes were to be personally endorsed by a principal of Tile Service, Inc.
“7. INTERNATIONAL GRANITE & MARBLE CORP. has admitted the execution of the Agreement and has admitted that the new notes were, in fact, given by Tile Service, Inc. and a new debt created thereby.
“8. By this action, Plaintiff, INTERNATIONAL GRANITE & MARBLE CORP., seeks to hold CITY NATIONAL BANK OF MIAMI liable for its handling of the original notes which were discharged by the Agreement of December 30, 1974.
“9. This Court finds as a matter of law that a novation occurred when the parties entered into and executed the Agreement of December 30, 1974, and that while the Agreement preserves whatever rights the Plaintiff may have under Florida’s mechanics lien law, it does not reserve any rights as against the CITY NATIONAL BANK OF MIAMI.”

The sole point on appeal is whether the trial court erred in granting the appellee’s motion for summary judgment and ruling, as a matter of law, that the agreement of December 30,1974 entered into between the appellant and the debtor-maker, constituted a novation and did thereby discharge the notes held by the appellee for collection.

We have carefully considered the point on appeal in the light of the record on appeal, briefs and arguments of counsel and have concluded that no reversible error has been made to appear. Evans v. Borkowski, 139 So.2d 472, (Fla. 1st DCA 1962). Therefore the summary judgment appealed is affirmed.

Affirmed.


text:
    Cynthia Doris JONES, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-1862, 78-160.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Cynthia Doris Jones appeals from an order revoking probation with consequent adjudication of guilt and sentence on the original conviction, or imprisonment for a term of 5 years, and also appeals from a judgment holding her in contempt of court, for which no separate sentence was imposed.

We hold the revocation of probation order was improper because of procedural deficiencies. The record shows that when the application for revocation came on for hearing the defendant was not present and the matter was not then heard, and the affidavit submitted as the basis for the revocation was dismissed. When the matter again came on for hearing, that affidavit was not refiled, and no new or other affidavit was filed. Also, due apparently to the serious distraction created by highly improper and foul language of the defendant in the presence of the court, for which the defendant was adjudged in contempt, the revocation was entered without the required trial or hearing on the merits thereof.

The order revoking probation and the adjudication of guilt and sentence of imprisonment are reversed, and the cause is remanded for further proceedings thereon. On the appeal from the judgment of contempt, that judgment is affirmed and the cause remanded for imposition of sentence thereon.

It is so ordered.


text:
    Donald C. McKEE, Mildred M. McKee, Don Wussow and Arline P. Wussow, Appellants, v. Jeanne M. GREENE, Appellee.
    No. 77-2675.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    John J. Quinn, Key West, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and W. Sam Holland, Miami, John E. Bigler, Jr., Key West, for appellee.
    Before BARKDULL, NATHAN and HUBBART, JJ.
   PER CURIAM.

By this appeal, defendants in the trial court seek review of an adverse final judgment based upon a jury verdict.

The plaintiff in the trial court was the employee of the appellants. The employers did not provide workmen’s compensation insurance pursuant to Section 440.02, Florida Statutes (1973). Because the employers did not provide such benefits, they were not entitled to the defenses of contributory negligence, assumption of risk, or the fellow servant doctrine in this case. Therefore, they were liable to the plaintiff for any injuries sustained in her employment if they did not provide a safe place for her to work. This issue is one for a jury. See: Duncan v. Great Atlantic and Pacific Tea Company, 193 So.2d 458 (Fla.3d DCA 1966).

Therefore, the final judgment under review be and the same is hereby affirmed.


text:
    James McLEANE, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1005.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    James McLeane, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


text:
    Nathaniel WARREN, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1071.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    Nathaniel Warren, in pro. per.
    Robert L Shevill| Atty. Gen.; for appel-lee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

Petitioner pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post-conviction relief under Fla.R.Crim.P. 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.

Affirmed.


text:
    The DELTONA CORPORATION, Appellant, v. PICCADILLY ASSOCIATES, LTD., Green River Construction Company, Inc., and May Properties, Inc., Appellees.
    No. II-139.
    District Court of Appeal of Florida, First District.
    July 6, 1978.
    William S. Blakeman of Campbell, Dunlap, Coward & Blakeman, Bartow, for appellant.
    Nath C. Doughtie of Salter, West, Doughtie & Feiber, Gainesville, for appel-lees.
   PER CURIAM.

Appellant, having failed to comply with the mechanic’s lien law, sought to have imposed an equitable lien instead. The learned trial judge conducted a lengthy hearing, observed the witnesses and resolved the conflicting evidence favorably to appellees. Appellant has failed to demonstrate that he erred in so doing. The decision of the trial judge reaches this court clothed with a presumption of correctness.

AFFIRMED.

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


text:
    Charles R. CROCKETT, Petitioner, v. STATE of Florida, Respondent.
    No. JJ-204.
    District Court of Appeal of Florida, First District.
    July 6, 1978.
    Angus W. Harriett of Harriett & Sproull, Palatka, for petitioner.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for respondent.
   PER CURIAM.

The Petition for Writ of Certiorari is DENIED.

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


text:
    Nathaniel SNEAD, Appellant, v. TRAVELERS INDEMNITY COMPANY, Appellee.
    No. 77-1764.
    District Court of Appeal of Florida, Second District.
    July 7, 1978.
    John B. Cechman of Goldberg, Rubinstein & Buckley, Fort Myers, for appellant.
    William E. Partridge of Dart, Dickinson, O’Riorden, Gibbons & Quale, Sarasota, for appellee.
   PER CURIAM.

Reversed on authority of Comeau v. Safeco Insurance Company of America, 356 So.2d 790 (Fla.1978).

BOARDMAN, A. C. J., DANAHY, J., and PIERCE, J. (Ret.), concur.


text:
    Lewis Edward FULLER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 77-1877.
    District Court of Appeal of Florida, Second District.
    July 7, 1978.

      Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Lewis Edward Fuller, Jr., pro se.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error. Therefore, the judgment appealed is affirmed.

The only points which merit discussion are the propriety of appellant’s sentence to confinement “at hard labor” and the provision in the judgment and sentence form for a mandatory minimum imprisonment of three years to appellant’s sentence for possession of a firearm by a convicted felon.

To be imprisoned “at hard labor” is improper because no existing state statute provides for its imposition as a sentence for any offense. Speller v. State, 305 So.2d 231 (Fla.2d DCA 1974).

In pronouncing sentence upon appellant, the trial judge properly stated that Section 775.087(2), Florida Statutes, which requires a mandatory minimum three years’ imprisonment before a defendant is eligible for parole, would apply to appellant’s sentences for attempted third-degree murder (Count I) and attempted escape (Count II). The trial judge did not provide that the statute was to apply to appellant’s sentence for possession of a firearm by a convicted felon (Count III). However, through a clerical error, the judgment and sentence form reads “FLA. STATUTE 775.087 applies to Count II and Count III.” The form should be corrected to conform to the sentence as pronounced by the judge.

Remanded for the purpose of striking the language “at hard labor” from the sentencing order and for substituting the words “Count I” for “Count III” in the last sentence of the judgment and sentencing order which presently reads “FLA. STATUTE 775.087 applies to Count II and Count III”; otherwise, affirmed.

Appellant need not be present for this purpose,

GRIMES, C. J., and HOBSON and OTT, JJ-, concur,


text:
    J. Edward NORMAN, Appellant, v. STATE of Florida, Appellee.
    No. 78-138.
    District Court of Appeal of Florida, Second District.
    July 7, 1978.
    Jack O. Johnson, Public Defender, and P. Douglas Brinkmeyer, Chief Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appeal dismissed. See Section 924.06(3), Florida Statutes (1977).

GRIMES, C. J., and HOBSON and OTT, JJ., concur.


text:
    J. P. LANDAHL, Jr., Appellant, v. Melvin SMITH, Appellee.
    No. 78-328.
    District Court of Appeal of Florida, Second District.
    July 7, 1978.
    Edward DeV. Bunn, Arlington, Va., for appellant.
    No appearance by appellee.
   PER CURIAM.

Reversed. See PTS of Gainesville, Inc. v. Olivetti Corporation of America, 334 So.2d 324 (Fla. 1st DCA 1976).

BOARDMAN, A. C. J., and RYDER and DANAHY, JJ., concur.


text:
    CITY OF TAMPA, Petitioner, v. Alfonso SEDITA, Respondent.
    No. 78-726.
    District Court of Appeal of Florida, Second District.
    July 7, 1978.
    Thomas K. Morrison, Asst. City Atty., Tampa, for petitioner.
   PER CURIAM.

The petition for writ of certiorari is denied without prejudice to the right of petitioner to seek review of the matters therein by way of an appeal from the final judgment. Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla. 2d DCA 1973).

GRIMES, C. J., and HOBSON and OTT, JJ., concur.


author: ERVIN, Judge.

text:
    STATE of Florida, Appellant, v. N. B., a child, and G. O., a child, Appellees.
    No. II-255.
    District Court of Appeal of Florida, First District.
    July 10, 1978.

      Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellees.
   ERVIN, Judge.

The lower court entered an order quashing several indictments returned against appellees on the grounds that appellees were juveniles, had not been certified as adults, and that speedy trial time had expired prior to the return of the indictments. The state appeals. We reverse.

Both appellees, prior to the dates of their alleged offenses, had previously been certified as adults and were incarcerated at the Lake Butler Reception and Medical Center. An incident report was received by the assistant investigator for the Center which alleged that appellees had committed a sexual battery upon a fellow inmate on August 22, 1976. Both appellees were questioned on August 24 concerning the offense, advised of their Miranda rights and returned to custody. On November 16, 1976, an information was filed alleging that appellees had committed a sexual battery through the use of a deadly weapon or with actual physical force likely to cause serious personal injury upon another inmate. Appellees were arraigned February 7, 1977, at which time they entered pleas of not guilty. On May 20, 1977, they filed a motion to dismiss alleging that the circuit court was without jurisdiction since they were under the age of 18 at the time of the alleged offense. Before the court acted on the motion, on May 23, 1977, the grand jury returned six indictments against appellees charging them with committing sexual battery with force likely to cause serious personal injury upon the same victim on six different dates. A motion to dismiss alleged that none of the procedural requirements of the juvenile rules or statutes had been followed prior to the return of the indictments in that no juvenile intake was done, no petition of delinquency was filed, and no waiver hearing or trial was held. The lower court assented and dismissed the indictments.

We disagree with the lower court. Appellees, previously convicted as adults, were not entitled to the procedural safeguards of Chapter 39 or the Juvenile Rules of Procedure prior to their indictments as adults for the six alleged life felonies. Section 39.02(5)(c), Florida Statutes (1977), imposes no conditions to certification of a child to the adult division of the court when an indictment charging the child with a violation of law punishable by death or by life imprisonment is returned by the grand jury. The statute is clear that when such an event occurs, the juvenile division is divested of jurisdiction “and the child shall be handled in every respect as if he were an adult.” Cf. A.D.T. v. State, 318 So.2d 478 (Fla. 1st DCA 1975); Woods v. State, 323 So.2d 609 (Fla. 1st DCA 1975). If, however, the child is not indicted for a capital or life felony, the juvenile division shall exercise jurisdiction over the child until he has been appropriately certified to the adult division. E.H.N. v. Willis, 350 So.2d 829 (Fla. 1st DCA 1977).

The fact that more than 90 days had expired from the date appellees were taken into custody for the offenses charged prior to the return of the indictments did not preclude the adult division from exercising jurisdiction. The speedy trial limitations imposed by Rule 8.180 have no application to appellees. They had previously been certified and convicted as adults. Fla. R.Juv.P. 8.010, relating to the scope and purpose of the rules, provides that the rules “shall govern the procedures in the Circuit Court in the exercise of its jurisdiction over children alleged to be . . . adjudicated delinquent, dependent or ungovernable . .” The state did not elect to file a petition for delinquency against appellees. It properly chose to indict them without utilizing the procedures of either Chapter 39 or the juvenile rules. It is rather Fla.R. Crim.P. 3.191(b)(1) which governs the situation here. Subsection (b)(1) unequivocally provides that persons within a penal institution, as are appellees, who are charged by indictment or information, shall without demand be brought to trial within two years if the crime charged is a non-capital felony involving violence. Compare State v. Ben ton, 337 So.2d 797 (Fla.1976), in which the supreme court held that after a juvenile had been certified as an adult, the state must be prepared to try the juvenile within 180 days from the date he is taken into custody, noting that once the state elected to try the juvenile as an adult, it owed him adult procedural safeguards.

Subsection (b)(1) of the rule also provides that speedy trial time shall commence when the person is taken into custody as a result of the conduct or when the charge is filed, whichever is earlier. We agree with the trial court that appellees were taken into custody on August 24,1976, when they were advised of their Miranda rights, questioned about the incidents, and advised that charges would probably be filed, although they were not then formally arrested. We consider this case is controlled by Deloach v. State, 338 So.2d 1141 (Fla. 1st DCA 1976), where we held that a defendant was taken into custody for speedy trial purposes at a hospital and, although not placed in actual custody, was informed he was under arrest and subject to the officer’s directions. While Snead v. State, 346 So.2d 546 (Fla. 1st DCA 1976), and State ex rel. Dean v. Booth, 349 So.2d 806 (Fla. 2d DCA 1977), both held that defendants were not in custody following questioning after having been given their Miranda rights, both cases are distinguishable from the present in that the defendants involved in those cases were allowed to leave without being placed under formal arrest. We therefore hold that the two year speedy trial period provided by subsection (b)(1) applied and began to run from August 24, 1976.

The court’s order discharging defendants and quashing the indictments is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

MILLS, Acting C. J., and MELVIN, J., concur.

      . Fla.R.Juv.P. 8.180 provides in part:
      (a) Every case in which a petition has been filed alleging a child to be delinquent, ungovernable or dependent shall be brought to an adjudicatory hearing without demand within ninety (90) days of the earliest of the following dates:

        11) The date the complaint is filed with the intake officer as provided by statute.
      (2) . The date the child was taken into custody.
      (3) The date the petition was filed.


author: MARCUS, Justice. SUMMERS, J. DENNIS, J., CALOGERO, Justice,

text:
    STATE of Louisiana v. Roderick G. WILSON.
    No. 61315.
    Supreme Court of Louisiana.
    June 19, 1978.

      William J. O’Hara, III, Supervising Atty., New Orleans, Kim Allison Gandy, Mary Jana Bain, Student Practitioners Loyola Law School Clinic, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Nick F. Noriea, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Roderick G. Wilson was charged in the same information with two separate counts of armed robbery in violation of La.R.S. 14:64. After trial by jury, he was found guilty as charged on both counts. Separate sentences were imposed by the court on defendant for each conviction. Subsequently, the district attorney filed an information accusing defendant of a previous felony conviction under La.R.S. 15:529.1 (Habitual Offender Law). After hearing, the trial judge found defendant to be an habitual offender, vacated the previously imposed sentences, and sentenced him on each count to serve thirty-five years at hard labor without benefit of parole, probation or suspension of sentence. The court expressly directed the sentences to be served concurrently. Defendant was given credit toward service of his sentences for time spent in actual custody prior to imposition of sentences. On appeal, defendant relies on eleven assignments of error for reversal of his convictions and sentences.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends the trial judge erred in denying him the right to impeach his own witness. He argues that he was taken by surprise in that the witness’ testimony at trial was contrary to prior statements made by him to two other defense witnesses.

Elvis Bassrone was called as a defense witness. He was questioned as to whether he had ever stated to Darryl Lewis and defendant’s mother that he knew who had participated in the crimes charged and that defendant was not one of the participants. Bassrone responded in the negative. He likewise denied any participation on his part in the crimes. Thereafter, Darryl Lewis, defendant’s first cousin, was called by the defense and was asked whether Bassrone had ever related to him the details of the robberies. Thereupon, the trial judge interjected that the defense could not impeach its own witness absent a showing of surprise or hostility. However, the trial judge permitted defense counsel to recall Bass-rone to the stand so that an adequate foundation for the plea of surprise could be laid. Again, Bassrone denied that he had ever told Lewis or defendant’s mother that he knew who had committed the crimes charged. Upon questioning by the court, the witness also denied that he had ever made a statement to defense counsel’that he knew who the participants in the crimes were. Outside of the presence of the jury, a colloquy occurred between the court and counsel which revealed that defense counsel had not personally verified the witness’ testimony prior to trial but rather had received information from Lewis and defendant’s mother that Bassrone had made such statements. The trial judge ruled that the showing of surprise was inadequate and, therefore, defense counsel would not be permitted to impeach his own witness. Subsequently, Lewis and Mabel Wilson, defendant’s mother, testified at length that Bassrone had stated to them that he along with two other individuals had planned and committed the crimes and that defendant was not one of the participants.

Impeachment of one’s own witness is allowed under the following provision of La. R.S. 15:487:

No one can impeach his own witness, unless he have (sic) been taken by surprise by the testimony of such witness, or unless the witness show (sic) hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.

The meaning of “surprise” is set out in La.R.S. 15:488, as follows:

‘Surprise’ in the sense of the last preceding article does not arise out of the mere failure of the witness to testify as expected, but out of his testifying upon some material matter against the party introducing him and in favor of the other side.

Under the circumstances here presented, the defense could not anticipate what the witness’ testimony would be at trial and, therefore, could not claim to have been surprised by his testimony. State v. Browning, 290 So.2d 322 (La.1974); State v. Bodoin, 153 La. 641, 96 So. 501 (1923). Hence, the trial judge did not err in ruling that the showing of surprise was inadequate.

However, assuming arguendo that the showing of surprise was adequate and the trial judge erred in not permitting defense counsel to impeach the witness, the error was harmless as any prejudice resulting therefrom was counteracted or removed by later testimony. Had defendant been permitted to impeach Bassrone, at most he would have been able to place Bassrone’s prior contradictory statements before the jury. The subsequent testimony of Lewis and Mrs. Wilson established the content of these statements. Since the ultimate purpose of impeaching Bassrone was to place before the jury the fact that he had stated that defendant was not involved in the crimes, it was in fact accomplished by this later testimony. Hence, any prejudice resulting from the ruling of the trial judge was removed by the subsequent testimony of Lewis and Mrs. Wilson. State v. Clark, 325 So.2d 802 (La.1976).

Assignments of Error Nos. 1 and 2 are without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

Defendant contends the trial judge erred in permitting Lucille Stewart to testify on rebuttal on behalf of the state in that the witness had violated the order of sequestration. He further argues that the trial judge erred in refusing to instruct the jury that the witness had violated the order of sequestration.

At the beginning of trial, the trial judge ordered the witnesses sequestered. During its case in chief, the state called to the stand Miss Stewart who was employed at a residence near where defendant and his family lived. She testified that Mabel Wilson, defendant’s mother, had related to her that, although she had instructed defendant to go downtown on the morning when the crimes were committed to pay her utility bill, he had not done so. Subsequently, Mrs. Wilson testified on behalf of the defendant that on the morning when the crimes were committed she sent defendant downtown to pay her utility bill and defendant did in fact pay the bill. The witness denied that she had ever made a statement to the contrary to Miss Stewart. At the close of defendant’s case, the state recalled Miss Stewart to the stand to rebut Mrs. Wilson’s testimony. Defendant objected to the witness’ rebuttal testimony on the ground that the witness had been present in the courtroom during a portion of the trial in violation of the order of sequestration. Outside of the presence of the jury, the prosecutor stated that the witness had been released from her subpoena after testifying but had apparently remained in the courtroom. However, she had been removed from the courtroom when Mrs. Wilson was called to testify on behalf of the defense and, therefore, she had not heard the testimony which she was being called to rebut. The trial judge indicated that he had personally observed the removal of the witness from the courtroom prior to the commencement of Mrs. Wilson’s testimony. Therefore, the trial judge ruled that Miss Stewart would be permitted to testify on rebuttal in spite of her violation of the order of sequestration. Thereafter, defendant requested that the trial judge instruct the jury that the witness had violated the order of sequestration which request was denied. Miss Stewart then testified that, on the day after the crimes were committed, Mrs. Wilson told her that defendant had not paid her utility bill on the previous morning.

The rule providing for sequestration of witnesses is contained in La.Code Crim.P. art. 764 which provides:

Upon its own motion the court may, and upon request of the state or the defendant the court shall, order that the witnesses be excluded from the courtroom or from where they can see or hear the proceedings and refrain from discussing the facts of the case or the testimony of any witness with anyone other than the district attorney or defense counsel. The court may modify its order in the interest of justice.

The purpose of this article requiring sequestration of witnesses is to prevent their being influenced by testimony of prior witnesses and to strengthen the role of cross-examination in developing the facts. State v. Mullins, 353 So.2d 243 (La.1977); State v. Bell, 346 So.2d 1090 (La.1977); State v. Ardoin, 340 So.2d 1362 (La.1976); State v. Batts, 324 So.2d 415 (La.1975); State v. Raymond, 258 La. 1, 245 So.2d 335 (1971). This provision vests discretion in the trial judge as to the disqualification of a witness when the rule of sequestration has been violated. State v. Mullins, supra; State v. Calloway, 343 So.2d 694 (La.1976); State v. Ardoin, supra; State v. Baker, 338 So.2d 1372 (La.1976); State v. Badon, 338 So.2d 665 (La.1976); State v. Batts, supra; State v. McKinney, 302 So.2d 917 (La.1974). The trial judge’s ruling will not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Mullins, supra; State v. Calloway, supra.

In the instant case, the testimony of the witness was offered to rebut the testimony of defendant’s mother that when the offenses were committed defendant had gone downtown to pay her utility bill and, therefore, could not have participated in the commission of the crimes. Miss Stewart had been removed from the courtroom before Mrs. Wilson testified at trial and, hence, her rebuttal testimony was in no way influenced by the testimony of Mrs. Wilson. Under these circumstances, defendant was not prejudiced by the violation of the order of sequestration. Hence, the trial judge did not abuse his discretion in permitting the witness to testify on rebuttal. Moreover, having determined that Miss Stewart was qualified to give rebuttal testimony in spite of the violation of the order of sequestration, the trial judge was not required to instruct the jury that the witness had violated the order of sequestration. Accordingly, he did not err in declining to do so.

Assignments of Error Nos. 4 and 5 are without merit.

ASSIGNMENTS OF ERROR NOS. 9, 10 and 11

In Assignments of Error Nos. 9 and 10, defendant contends the trial judge erred in denying his motions for speedy sentencing under the Habitual Offender Law (La.R.S. 15:529.1) and to quash the information which charged him with a previous felony conviction in which he alleged that the state acted unreasonably and in bad faith in failing to charge him as an habitual offender prior to September 9, 1977. He argues that, by deferring prosecution under La. R.S. 15:529.1 until after September 9, 1977, the state thereby deprived him of his right to a diminution of his sentences for good behavior under the provisions of La.R.S. 15:571.3, as amended by La. Acts 1977, No. 633, § 1. In Assignment of Error No. 11, defendant further contends that La.R.S. 15:571.3 as amended does not apply to the instant prosecution and, alternatively, if it does so apply, it is unconstitutional as an ex post facto law.

On August 18,1977, defendant was found guilty of two counts of armed robbery. During the course of the trial, defendant took the stand and disclosed a prior felony conviction for possession of stolen property. On September 8, the date set for sentencing on the present convictions, defendant filed a motion for speedy sentencing under the Habitual Offender Law in which he requested that the trial judge order the state to file an information charging him as an habitual offender prior to September 9, 1977, so that the effect of an amendment to La.R.S. 15:571.3, effective September 9, 1977, could be avoided. The amendment provided, inter alia, that no inmate in the custody of the Louisiana Department of Corrections who has been convicted one or more times under the laws of this state of armed robbery and who has been sentenced as an habitual offender under the Habitual Offender Law after September 9, 1977, shall be entitled to a diminution of sentence for good behavior. The trial judge denied the motion and sentenced defendant on his armed robbery convictions. On September 20, 1977, the district attorney filed an information accusing defendant of a previous felony conviction under La.R.S. 15:529.1 (Habitual Offender Law). At the hearing on this matter conducted on October 5, defendant moved to quash the habitual offender information on the ground that the state -had acted unreasonably and in bad faith in failing to charge him as an habitual offender prior to September 9, 1977, which failure resulted in his being deprived of his right to a diminution of his sentences for good behavior under the amended provisions of La.R.S. 15:571.3, effective September 9, 1977. The trial judge denied the motion. Thereafter, defendant was found to be an habitual offender under La.R.S. 15:529.1 and was sentenced accordingly.

In addressing the contentions asserted by defendant in these assignments of error, we must first determine whether the amended provisions of La.R.S. 15:571.3 are applicable to the instant case and, if so, whether the amended statute as applied to defendant is unconstitutional as an ex post facto law.

By La.Acts 1977, No. 633, § 1, effective September 9, 1977, La.R.S. 15:571.3 was amended to provide as follows:

C. (1) No inmate in the custody of the Louisiana Department of Corrections who has been convicted one or more times under the laws of this state of first or second degree murder; manslaughter; aggravated battery; aggravated, forcible or simple rape; aggravated kidnapping; aggravated or simple burglary; armed or simple robbery; any violation of R.S. 14:67 which is a felony; any violation of R.S. 14:95, R.S. 14:95.1, or R.S. 40:1751, et seq. which is a felony; any violation of the Louisiana Uniform Controlled Dangerous Substances Law which is a felony; or any felony defined as an attempt to commit one of the aforementioned crimes and who has been sentenced as a habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1 prior to or on September 9, 1977, shall be entitled to diminution of sentence for good behavior under this Part, if so ordered by the sentencing court.
(2) No inmate in the custody of the Louisiana Department of Corrections who has been convicted one or more times under the laws of this state of first or second degree murder; manslaughter; aggravated battery; aggravated, forcible or simple rape; aggravated kidnapping; aggravated or simple burglary; armed or simple robbery; any violation of R.S. 14:67 which is a felony; any violation of R.S. 14:95, R.S. 14:95.1, or R.S. 40:1751, et seq. which is a felony; any violation of the Louisiana Uniform Controlled Dangerous Substances Law which is a felony; or any felony defined as an attempt to commit one of the aforementioned crimes and who has been sentenced as a habitual offender under the Habitual Offender Law as set forth in R.S. 15:529.1 after September 9, 1977 shall be entitled to a diminution of sentence for good behavior under this Part. (Emphasis added.)

The purpose of the amendment was to make mandatory, instead of discretionary with the sentencing court, the prohibition against diminution of sentence for good behavior with respect to inmates convicted of certain crimes and sentenced as habitual offenders after the effective date of the amendment. Construing La.R.S. 15:571.3 C(l) and (2) together, we conclude that, where a defendant has been convicted one or more times of the offenses enumerated therein, he is not entitled to a diminution of sentence for good behavior when he is sentenced as an habitual offender under the terms of La.R.S. 15:529.1 after September 9, 1977. To construe the statute otherwise would carve from the coverage of the statute the situation where a defendant has been convicted of one of the enumerated felonies prior to the effective date of the statutory amendment but is not sentenced as an habitual offender until after that date. Such was not the legislative intent. Under the statute, whether the sentencing of a defendant as an habitual offender occurs prior to or after September 9, 1977, determines whether the prohibition against diminution of sentence for good behavior is discretionary with the sentencing court under La.R.S. 15:571.3 C(l) or mandatory under La.R.S. 15:571.3 C(2). Applying this statutory interpretation to the instant case, since defendant was sentenced as an habitual offender subsequent to September 9, 1977, and was convicted one or more times of armed robbery, although such convictions preceded the effective date of the amendment to La.R.S. 15:571.3, he is not entitled to a diminution of his sentences for good behavior under La.R.S. 15:571.3 C(2).

Nor is the amendment to La.R.S. 15:571.3 unconstitutional as an ex post facto law. An ex post facto law is one which inflicts a greater punishment than the law annexed to the crime when committed. Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). La.R.S. 15:571.3 C(2) does not inflict a greater punishment for the enumerated crimes than when they were committed but only makes mandatory the prohibition against diminution of sentence for good behavior with respect to inmates convicted of those crimes and sentenced as habitual offenders after the effective date of the amendment. The awarding of good time has never been a vested right to which inmates convicted of certain enumerated crimes and sentenced as habitual offenders were entitled. Prior to the 1977 amendment to La.R.S. 15:571.3, the statute made discretionary with the sentencing court the determination of whether inmates convicted of the enumerated crimes and sentenced as habitual offenders would be entitled to diminution of sentence for good behavior. Furthermore, even if the sentencing court in the exercise of its discretion permitted the diminution of a defendant’s sentence for good behavior, under La.R.S. 15:571.4 the awarding of good time was granted within the discretion of the director of corrections upon recommendation of the warden or superintendent of adult correctional institutions of the Department of Corrections based upon a thorough evaluation of an individual inmate’s behavior, work performance and efforts toward self-improvement. Hence, prior to the amendment to La.R.S. 15:571.3, defendants convicted of the enumerated crimes and sentenced as habitual offenders possessed no vested right in having their sentences reduced for good behavior. The amendment to the statute which makes mandatory the prohibition against diminution of sentence with respect to that class of defendants, therefore, does not deprive those defendants of any vested right to good time. Since it does not deprive the class of defendants within its coverage of any vested right to good time, the statute as amended does not inflict a greater punishment for the enumerated offenses than when they were committed. Accordingly, it is not an ex post facto law.

Lastly, we reject defendant’s contention that the trial judge erred in denying defendant’s motions for speedy sentencing under the Habitual Offender Law and to quash the habitual offender information. This court has recognized that the enforcement of the Habitual Offender Law rests within the discretion of the district attorney. State v. Badon, 338 So.2d 665 (La.1976); State v. Overton, 337 So.2d 1201 (La.1976). However, the district attorney must file an habitual offender bill within a reasonable time after the prosecution knows that a defendant has a prior felony record. State v. Bell, 324 So.2d 451 (La.1975). Although La.R.S. 15:529.1 does not allow an indefinite time in which a district attorney may file an habitual offender bill once such information is available, neither does it impose a specific prescriptive period in which the district attorney must act upon the receipt of the necessary information. State v. McQueen, 308 So.2d 752 (La.1975). In the instant case, the district attorney filed an information accusing defendant of a previous felony conviction approximately one month after receipt of information that defendant had been previously convicted of a felony and after defendant’s convictions for the instant offenses and approximately two weeks after defendant was sentenced on those convictions. Under these circumstances, we do not consider that the district attorney acted unreasonably in delaying the institution of the habitual offender proceeding even though such delay resulted in the mandatory prohibition against diminution of defendant’s sentences for good behavior because of the amendment to La.R.S. 15:571.3 which went into effect in the interim.

Assignments of Error Nos. 9, 10 and 11 are without merit.

DECREE

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

SUMMERS, J.

While I agree with the treatment of other assignments, I dissent from the treatment of assignments 9, 10, & 11.

DENNIS, J.,

concurs, but disagrees with the statement of law regarding the sequestration of witness issue in assignments 4 & 5. See State v. Jones, 354 So.2d 530 (La.1978) and the interpretation of “surprise” in assignments 1 & 2.

CALOGERO, J., concurs in part and dissents in part and assigns reasons.

CALOGERO, Justice,

concurring in part and dissenting in part.

I concur in the affirmance of defendant’s conviction but would vacate his sentence for the following reasons.

By formal stipulation at his sentencing on September 8, 1977 defendant admitted that he had a prior conviction and that if he were double billed he would plead guilty to the double bill. The district attorney had known of defendant’s previous conviction at least since the date of trial, August 18, 1977. Furthermore, it is generally the practice in the Criminal District Court for the Parish of Orleans that the state files the habitual offender bill before a defendant is sentenced for the most recent crime for which he has been convicted. It is therefore hard for me to accept the state’s position in brief that a delay past September 9th in filing its habitual offender bill “was both reasonable and necessary due to the time required by the State for preparing its case on the multiple bill.” Absent any plausible reason, and there is none in this record, I can only conclude that the state in seeking to multiple bill defendant after September 9th was motivated by a desire to take advantage of the 1977 amendment to La.R.S. 15:571.3 which required that a person sentenced as a multiple offender after September 9, 1977 for committing certain enumerated crimes be entitled to no good time diminution.

Whatever discretion is otherwise afforded the state’s attorney in various aspects of the administration of the criminal law, I am not of the view that under this statute it was intended that the district attorney be afforded the discretion of seeing to it that a person who normally would have been sentenced as a habitual offender before the effective date was actually sentenced as such after the statute took effect.

For these reasons I believe that the sentencing enhancement which results from the amended law should not attach to defendant’s sentence as a habitual offender. I would affirm defendant’s conviction but vacate his sentence and remand the case for resentencing with the direction that the sentence be imposed as if imposed on September 9, 1977, before the amendment to R.S. 15:571.3 became effective.

      . Defendant has neither briefed nor argued Assignments of Error Nos. 3, 6, 7 and 8. Hence, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).


author: TATE, Justice. SANDERS, Chief Justice MARCUS, Justice

text:
    STATE of Louisiana, Respondent, v. Gerald A. BOSWORTH, Relator.
    No. 61492.
    Supreme Court of Louisiana.
    June 19, 1978.

      Robert Glass, Martzell & Montero, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-respondent.
   TATE, Justice.

The issue involves whether the defendant is entitled to access to his pre-sentence investigation report before sentence is imposed. We granted certiorari, 354 So.2d 1047 (1978), to review the trial court’s failure to afford such access under the circumstances shown.

The defendant Bosworth pleaded guilty to the crime of contributing to the delinquency of a juvenile. La.R.S. 14:92(A)(7). He did so, after being fully informed by the trial judge that the penalty could be imprisonment for not more than two years, with or without hard labor,' as well as a fine of one thousand dollars.

At the time the defendant pleaded guilty (August 24, 1977), the trial court ordered a pre-sentence investigation. La.C.Cr.P. art. 875. A pre-sentence investigation report makes recommendations to the court as to the rehabilitation potential of the defendant and as to whether or not he should be committed to a state penal facility or to a local rehabilitation center. La.R.S. 15:1132.

When the defendant appeared for a sentencing hearing, he moved to continue the sentencing. He also moved for the production of the pre-sentence investigation report, in order to afford his counsel an opportunity to review any adverse information reflected by the pre-sentence investigation report.

The defendant’s counsel explains that, at the time the defendant pleaded guilty, the accused and his counsel believed that he substantially met the factors reflected by the legislative guidelines favoring suspension of sentence or probation instead of imprisonment. La.C.Cr.P. art. 894.1 (1977). However, immediately prior to the sentencing, they had received an intimation that the sentence to be imposed was to consist not only of imprisonment, but additionally of imprisonment at hard labor in the state correctional system — rather than a suspended sentence (or at most imprisonment without hard labor in the parish facility), such as might reasonably be expected to be the most severe sentence for an offense of the nature committed by an accused of good community and professional reputation and without record of previous delinquency or criminal activity, in an isolated episode during a period of emotional strain (as contrasted with an organized commercial exploitation of a young girl). They therefore believed prejudicial or materially false information must have been contained in the pre-sentence investigation report and desired an opportunity for the defendant to deny or explain it.

Where, in imposing a heavy sentence, the trial court relies upon pre-sentence information which is materially false or which furnishes invalid information, the defendant must be given an opportunity to deny or explain such substantially significant misinformation. State v. Segers, 357 So.2d 1 (La.1978); State v. Underwood, 353 So.2d 1013 (La.1977). See also: United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); United States v. Espinoza, 481 F.2d 553 (CA 5, 1973).

In Underwood, this court held that, in order to avoid an excessive sentence improperly resulting from materially false information, the accused has a right to access to such records, with the court (after an in camera examination) to withhold only such information which is relevant or which is not protected by confidentiality. La.R.S. 15:574.12 F (1975). “Fundamental fairness to the defendant requires that the substance of all derogatory information which adversely affects his interest and which has not otherwise been disclosed in open court should be called to the attention of the defendant, his attorney, and others who are acting on his behalf.” American Bar Association Standards Relating to the Administration of Criminal Justice, Standards Relating to Sentencing Standards and Alternatives, Standard 4.4(a) (1968).

In Underwood, it is true, an apparently excessive sentence was imposed under circumstances where, after the sentence, it was discovered that the pre-sen-tence investigation report had contained materially false and substantially prejudicial misinformation. Nevertheless, important due process and fairness values require the sentencing court to disclose data unknown to the defendant upon which the court relies in exercising its sentencing discretion (subject to excision by the trial court as indicated in footnote 2); these values arguably are perhaps better served if the defendant, prior to sentence as well as after it, is afforded an opportunity to deny or to explain prejudicial misinformation otherwise secret to the sentencing judge himself. See United States v. Picard, 464 F.2d 215 (CA 1, 1972). See also reference in State v. Segers, 357 So.2d 1 (La.1978) to principle expressed by Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977).

For these reasons, we reverse the trial court’s denial of the defendant’s motion to disclose the pre-sentence investigation report (after in camera inspection to delete any “communications obviously made in the confidence they would not be disclosed” or where “confidentiality is essential to future useful relations between the source and the recorder,” La.R.S. 15:574.12 F(2), (3) (1975)). We also note that no full scale evidentiary trial is required at the sentencing hearing at which the defendant is given an opportunity to deny or explain adverse information which is prejudicially false or misleading.

Decree

The matter is remanded to the district court, for future proceedings consistent with this opinion.

ACCESS TO PRE-SENTENCE INVESTIGATION REPORT ORDERED; CASE REMANDED.

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

MARCUS, J., dissents and assigns reasons.

APPENDIX

Uniform Rules of Criminal Procedure, Rule 613, provides:

Before imposing sentence or making any other disposition upon acceptance of a plea or upon a verdict or finding of guilty, the court shall conduct a disposition hearing without unreasonable delay, as follows:
(1)The court shall afford the parties an opportunity to be heard on any matter relevant to the disposition.
(2) Except as provided in Rule 713, the court shall address the defendant personally to ascertain whether he wishes to make a statement in his own behalf and to present any information in mitigation of punishment or reason why he should not be sentenced and, if he does, afford him a reasonable opportunity to do so.
(3) The court shall impose sentence or make any other disposition authorized by law.
(4) Except as provided in Rule 713, the court shall inform the defendant personally of any right he has to appeal and his right to appointment of a lawyer, upon request, under the conditions specified in Rule 321(b).

The commentary to ABA Standards of Criminal Justice Relating to Sentencing Alternatives and Procedures, Standard 5.4, in part provides:

The purpose of the in-court proceedings prior to the pronouncement of sentence is three-fold: to inform the court as an aid to the exercise of its sentencing discretion, to give the parties an opportunity to assure both that the court’s information is accurate and that factors which they think relevant to the sentencing decision will come to its attention, and to allow for the imposition of sentence in an atmosphere which, while it may not affirmatively contribute to the rehabilitation of the offender, will at least not give him further cause to leave the sentencing stage with a sour attitude. Occasionally, of course, it will also be necessary for argument to be presented concerning the availability of a given sentencing alternative. See, e. g., United States v. Donovan, 242 F.2d 61, 64 (2d Cir. 1957).
None of these objectives necessarily require an elaborate trial-type hearing. Certainly the first and third do not: the judge can be assisted as much by informal proceedings as he can by a formal hearing, if not more; and informality may help rather than hinder the desire to avoid an unfortunate influence on the defendant.
The second matter though — that aspect of the sentencing proceeding the purpose of which is to afford the parties a chance to participate in the sentencing decision— may arguably require more formality. If no part of the presentence report is disclosed to the parties, i. e., if they must approach the sentencing proceeding blind to the information which the judge has about the defendant, then often the only way open to them to satisfy their obligations to the interests they represent will be to proceed with the cumbersome presentation of evidence, much of which the court may already have. On the other hand, if the information in the report is disclosed, and if there has been the opportunity for a conference of the sort described by section 4.5(b), then most factual disputes should have been resolved, and the sentencing proceeding normally could assume the air of an informal hearing at which the parties indicate their position on the relevance and importance of the information to which they are all privy. Only in the rare case where there is a factual dispute over a matter which is deemed important to the sentencing decision will there be the need for the reception of evidence in any formal sense. And that case, of course, is precisely the case in which evidence ought to be received.
Clearly the latter, more informal, more informative, and much more economical of judicial and lawyer time, is to be preferred. It is recommended here because of these features, plus the essential conviction that it does not sacrifice fairness to the parties in the name of economy and flexibility.

SANDERS, Chief Justice

(dissenting).

The defendant in this case has not as yet been sentenced. The majority orders that the pre-sentence investigation report be disclosed to him after the deletion of the confidential material. In so doing, the majority fails to give effect to the controlling codal article.

Article 877 of the Louisiana Code of Criminal Procedure provides, in pertinent part:

“Before imposing sentence the court may advise the defendant or his counsel of the factual contents and conclusions of any pre-sentence investigation report. The sources of confidential information shall not, however, be disclosed.”

This article vests the disclosure of the report in the discretion of the trial judge. See Comment C, LSA-C.Cr.P. Art. 877.

In the present case, the trial judge has imposed no sentence, nor will his reasons for imposing a particular sentence be available until the time of sentencing. Moreover, the defendant has made no showing of an abuse of discretion. Hence, I would not disturb the ruling of the trial judge.

For the reasons assigned, I respectfully dissent.

MARCUS, Justice

(dissenting).

La.Code Crim.P. art. 877 provides:

The pre-sentence or post-sentence investigation report shall be privileged and shall not be disclosed directly or indirectly to anyone other than the sentencing court, members of the division of probation and parole supervision, the officer in charge of the institution to which the defendant is committed, the parole board, the probation or the parole officer if the defendant is placed on probation or released on parole, medical authorities if the defendant is committed to a hospital, the pardon board, and the governor or his representative.
Before imposing sentence the court may advise the defendant or his counsel of the factual contents and conclusions of any pre-sentence investigation report. The sources of confidential information shall not, however, be disclosed.

Prior to imposition of sentence, disclosure to the defendant of the factual contents and conclusions of any pre-sentence investigation report lies within the sound discretion of the trial judge. Disclosure of the sources of confidential information is prohibited. Unless the statutory provision set forth above is unconstitutional, the refusal of the trial judge, based upon his sound discretion, to disclose to the defendant, pri- or to imposition of sentence, information contained in a pre-sentence investigation report should not be disturbed by this court on review.

We have held, in cases in which sentence had been imposed, that the defendant is entitled to access to the pre-sentence investigation report and to an opportunity to rebut any adverse information therein, if he has made a showing that the report contains materially and prejudicially false information. State v. Segers, 357 So.2d 1 (La.1978); State v. Underwood, 353 So.2d 1013 (La.1978). In my view, the instant case is clearly distinguishable from these cases.

In the instant case, no sentence has as yet been imposed. Moreover, defendant has made no showing that the pre-sentence investigation report contains materially and prejudicially false information. Rather, he merely alleges having received an intimation that the sentence to be imposed will exceed that which he believes might reasonably be expected to be imposed in the instant case.

I do not consider that the trial judge abused his discretion in refusing to allow defendant access to information contained in the pre-sentence investigation report. Accordingly, I respectfully dissent.

      . La.R.S. 15:574.12 F provides:
      “Whenever records covered by this Section are subpoenaed, the records shall be submitted to the appropriate court for a ruling as to whether the information should be turned over to the party who caused the subpoena to be issued. The court shall make this determination in camera. Should the court find:
      (1) That the information is not relevant to the proceedings, or
      (2) That the information was derived from communications which were obviously made in the confidence that they would not be disclosed, or
      (3) That confidentiality is essential to future useful relations between the source and the recorder of the information, the information shall be withheld.” (Italics ours.)
      The statute does not prohibit such access under R.S. 15:574.12 F to the defendant himself. We are re-enforced in this view, because the statute affords access to the pre-sentence report for a wide variety of individuals, including the district attorney and law enforcement personnel (without court authorization), La. R.S. 15:574.12 B (1975), social service agencies or approved researchers, 15:574.12 D, and rehabilitation agencies or individuals, public or private, 15:574.12 E.

      . Standard 4.4(b) continues:
      “This principle should be implemented by requiring that the sentencing court permit the defendant’s attorney, or the defendant himself if he has no attorney, to inspect the report. The prosecution should also be shown the report if it is shown to the defense. In extraordinary cases, the court should be permitted to except from disclosure parts of the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of rehabilitation, or sources of information which have been obtained on a promise of confidentiality. In all cases where parts of the report are not disclosed under such authority, the court should be required to state for the record the reasons for its action and to inform the defendant and his attorney that information has not been disclosed. The action of the court in excepting information from disclosure should be subject to appellate review.”

      . The pre-sentence investigation report was transmitted by the trial judge, sealed for our in camera inspection. None of the material found therein appears to be of an excisable nature. If the trial court is in doubt as to any particular informant, he may, before permitting disclosure, block out the name and identifying information concerned, but not the substance of the adverse information.

      . See State v. Underwood, 353 So.2d 1013, 1018 (La.1977). Cf. Uniform Rules of Criminal Procedure, Rule 613 (Nat.Conf.Com. Uniform State Laws, 1974) and ABA Standards Relating to Sentencing Alternatives and Procedures, Standard 5.5 (1968), Commentary, set forth in the appendix to this opinion.


author: SANDERS, Chief Justice.

text:
    Louis MASON v. Howard NORTON.
    No. 61493.
    Supreme Court of Louisiana.
    June 19, 1978.

      C. Alvin Tyler, C. Alvin Tyler & Associates, Baton Rouge, for plaintiff-applicant.
    Howard Norton, in pro. per.
   SANDERS, Chief Justice.

Louis Mason sued his employer, Howard Norton, for wages, penalty wages, and attorneys’ fees under LSA-R.S. 23:631 and 23:632. The trial court awarded the plaintiff judgment in the sum of $438.00 for unpaid wages, but rejected his demand for penalties and attorneys’ fees. The Court of Appeal affirmed. La.App., 353 So.2d 304 (1977). We granted the employee’s application for writs to review the judgment. La., 354 So.2d 1050 (1978).

The Court of Appeal found the facts to be largely undisputed. The defendant Norton is a painting contractor. He initially employed plaintiff Mason at a wage of $4.00 per hour, which was ultimately increased to $6.50 per hour. The oral agreement contemplated a normal work week of forty hours (five days at eight hours per day). Because of illness or weather conditions, plaintiff sometimes worked less than the normal hours, though in other weeks he exceeded forty hours. It was understood that the week’s wages would be paid to the employee each Friday. Occasionally, because of financial circumstances, the employer delayed payment until the following Monday or Tuesday, but the employees were notified in advance. On July 22,1976, Norton discharged Mason when he owed the employee $438.00. Mason made several demands for payment to no avail. This suit followed.

The case presents a single issue: whether an employee who is paid weekly by an hourly rate is entitled to penalty wages and attorneys’ fees under LSA-R.S. 23:631-632?

LSA-R.S. 23:631 provided:

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

And LSA-R.S. 23:632 provided:

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

In Fruge v. Muffoletto, 242 La. 569, 137 So.2d 336 (1962), this Court stated:

“In construing a statute, the primary object is to ascertain and, if possible, give effect to the intention and purpose of the legislature as expressed in the statute. Since the meaning is to be determined from a general consideration of the act as a whole, all parts, provisions or sections must be read together; each must be considered with respect to, or in the light of, all the other provisions, and construed in harmony with the whole. The intent as deduced from the whole will prevail over that of a particular part considered separately; meaning should be given, if possible, to each and every section, and the construction placed on one portion should not be such as to obliterate another; so, in determining the meaning of a word, phrase or clause, the entire statute is to be considered. * * * ” [Footnote omitted.]

LSA-R.S. 23:631 is designed to assure the prompt payment of wages upon an employee’s discharge or resignation. Pertinent to its scope, the statute refers to “laborers or other employees of any kind whatever” and to “any laborer or other employee.” These terms are sufficiently broad to include an employee paid weekly on an hourly basis.

The statute, however, later refers to “the terms of employment whether the employment is by the day, week or month.” The Court of Appeal reasoned that unless the pay, itself, was fixed at a specified amount per day, week, or month, the statute was inapplicable.

We disagree with this interpretation. This restrictive interpretation would exclude from statutory protection a large percentage of employees, contrary in our opinion to the legislative intent. When the statute is considered as a whole, as must be done, the phrase “by the day, week or month” is properly construed as describing the pay period, rather than the method of calculating wages. We agree with the decision of the Third Circuit Court of Appeal in Colbert v. Mike-Baker Brick Co. of New Iberia, Inc., La.App., 326 So.2d 900 (1976). There the court held:

“Though the evidence is clear that plaintiff was paid an hourly wage, it is equally clear that his employment was based upon a weekly pay period, i. e., he was paid weekly. We conclude that plaintiff’s employment was ‘by the . week.’ ”

See also Tuberville v. Foster, La.App., 113 So.2d 805 (1959).

Under, the employment agreement here, the plaintiff had a weekly pay period. Hence, he is covered by the statute.

The Court of Appeal relied upon three decisions of the Courts of Appeal: Gatti v. Southern Research Company, Inc., La.App., 271 So.2d 376 (1972); Dunn v. Bessie F. Hiern School, Inc., La.App., 209 So.2d 538; and Gros v. LeBlanc, La.App., 304 So.2d 49 (1974), holding the wage penalty statute inapplicable to the employees before the court.

Although these decisions contain dicta contrary to the views expressed here, they are distinguishable and the result reached is not necessarily erroneous.

In Gatti v. Southern Research Company, Inc., supra, an investigator was employed at an hourly rate for the duration of the case.

In Dunn v. Bessie F. Hiern School, Inc., supra, a school teacher was employed for a nine-month term at an annual salary to be paid over a period of twelve months.

In Gros v. LeBlanc, supra, a welder was working on a piecework basis, to be paid by the hour.

LSA-R.S. 23:632 provides for penalty wages and reasonable attorneys’ fees. In the present ease, when no tender of wages has as yet been made, the statute limits the penalty wages to “ninety days’ wages at the employee’s daily rate of pay.” Plaintiff’s normal daily rate of pay was $52.00 (eight hours at $6.50 per hour). Hence, he is entitled to penalty wages of $4,680.00. We fix reasonable attorneys’ fees in the sum of $900.00.

For the reasons assigned, the judgment of the Court of Appeal is reversed in part. Judgment is rendered in favor of plaintiff, Louis Mason, and against the defendant, Howard Norton, in the sum of $4,680.00 as penalty wages and in the further sum of $900.00 as attorneys’ fees. In all other respects, the judgment of the Court of Appeal is affirmed.

      . LSA-R.S. 23:631 was amended by Acts 1977, No. 317, § 1. The amendment does not apply here, since this case arose prior to the amendment.

      . LSA-R.S. 23:632 was amended by Acts 1977, No. 317, § 1. The amendment does not apply here, since this case arose prior to the amendment.


text:
    STATE of Louisiana v. Gilbert SMALL and Johnelle McCullough.
    No. 61305.
    Supreme Court of Louisiana.
    June 28, 1978.
    Milton P. Masinter, New Orleans, for Gilbert Small.
    James Brodtmann, Orleans Indigent Defender Program, New Orleans, for both defendants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John L. A. Lenfant, IV, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Lue Elbert SULLIVAN.
    No. 61326.
    Supreme Court of Louisiana.
    June 28, 1978.
    A. J. Boudreaux, Staff Appeals Counsel, Indigent Defender Bd., 24th Judicial Dist. Court, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Robert A. Pitre, Jr., Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Div., Gretna, for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Tyrone ADDISON.
    No. 61419.
    Supreme Court of Louisiana.
    June 28, 1978.
    Alvin N. Taylor, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. John R. MARTIN.
    No. 61434.
    Supreme Court of Louisiana.
    June 28, 1978.
    Ralph L. Barnett, Gretna, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Patrick C. Leitz, Asst. Dist. Atty., Abbott J. Reeves, Director, Research and Appeals Division, Gretna, for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Corey CLARK.
    No. 61490.
    Supreme Court of Louisiana.
    June 28, 1978.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Mister DONAHUE.
    No. 61521.
    Supreme Court of Louisiana.
    June 28, 1978.
    Joseph R. Raggio, Taylor & Raggio, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Carl Joseph DAVIS.
    No. 61523.
    Supreme Court of Louisiana.
    June 28, 1978.
    Alton T. Moran, Director, Allen J. Ber-geron, Jr., Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Gregory WALKER.
    No. 61526.
    Supreme Court of Louisiana.
    June 28, 1978.
    Frank G. DeSalvo, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Anthony WILLIS.
    No. 61544.
    Supreme Court of Louisiana.
    June 28, 1978.

      Allen R. Ingram, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Byron P. Legendre, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Albert LANDRY.
    No. 61551.
    Supreme Court of Louisiana.
    June 28, 1978.
    Robert J. Zibilich, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Arthur DAVIS.
    No. 61552.
    Supreme Court of Louisiana.
    June 28, 1978.
    Patrick J. Costa, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Tyrone Michael ROLLINS.
    No. 61576.
    Supreme Court of Louisiana.
    June 28, 1978.
    Jude Thaddeus Fanguy, Houma, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., James L. Alcock, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Duane DOUGLAS.
    No. 61618.
    Supreme Court of Louisiana.
    June 28, 1978.
    R. Judge Eames, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Richard M. BROWN.
    No. 61632.
    Supreme Court of Louisiana.
    June 28, 1978.
    Robert Zibilich, 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., Timothy W. Cerniglia, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Richard M. Brown was charged with second degree murder in violation of La.R.S. 14:30.1 and after trial by jury was found guilty as charged. Subsequently the trial court sentenced him to imprisonment for life without benefit of probation or parole. Defendant now appeals his conviction and sentence to this Court.

While we find no grounds for reversal of defendant’s conviction, we note ex proprio motu that the sentence imposed is illegal. La.C.Cr.P. art. 920(2). At the time of the commission of this offense on August 1, 1975, the appropriate penalty following a conviction for second degree murder was imprisonment at hard labor for life without eligibility for parole, probation or suspension of sentence for a period of twenty (20) years. La.R.S. 14:30.1, added by Acts 1973, No. 111, § 1. Accordingly, the case must be remanded for resentencing.

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. Lawrence L. KING.
    No. 61635.
    Supreme Court of Louisiana.
    June 28, 1978.

      Gilmer P. Hingle, DeCelle, Smith & Hin-gle, Monroe, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John C. Parker-son, Dist. Atty., Charles D. Jones, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Clarice WILLIAMS.
    No. 61656.
    Supreme Court of Louisiana.
    June 28, 1978.
    Charles E. McConnell, 26th Judicial District, Indigent Defender Board, Springfield, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Jr., Dist. Atty., James M. Johnson, First Asst. Dist. Atty., for plaintiff-appel-lee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Willie P. BLOCKMAN.
    No. 61662.
    Supreme Court of Louisiana.
    June 28, 1978.
    Robert J. Zibilich, 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.

Affirmed.


text:
    STATE of Louisiana v. Oscar NILSSON.
    No. 61689.
    Supreme Court of Louisiana.
    June 28, 1978.
    Thomas W. Mull, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Lindsay Larson, III, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Darryl WASHINGTON.
    No. 61697.
    Supreme Court of Louisiana.
    June 28, 1978.
    John Samaha, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


text:
    STATE of Louisiana v. Louella ROBERTSON.
    No. 61698.
    Supreme Court of Louisiana.
    June 28, 1978.
    Alton T. Moran, Director, Allen J. Ber-geron, Jr., App. Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.


author: PER CURIAM. TATE, J.,

text:
    STATE of Louisiana v. Earnest TURNER, Jr.
    No. 61717.
    Supreme Court of Louisiana.
    June 28, 1978.
    D. Michael Hayes, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., Eric R. Harrington, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

TATE, J.,

is of the opinion the case

should be remanded for the district court to set forth the reasons for the consecutive sentences. See La.C.Cr.P. art. 8941.


text:
    STATE of Louisiana v. Sheldon LEE and James Brown.
    No. 61729.
    Supreme Court of Louisiana.
    June 28, 1978.
    Clifford Cardone, Orleans Indigent Defender Program, New Orleans, for defendants-appellants.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John L. A. Lenfant, III, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.