author: SCHEB, Chief Judge. GRIMES, Judge,

text:
    Levie CODIE, Appellant, v. STATE of Florida, Appellee.
    No. 81-330.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 1981.

      Peter D. Ringsmuth of Smith, Carta & Ringsmuth, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

Appellant, Levie Codie, raises several points in challenging his conviction for carrying a concealed weapon, but only one merits discussion. He contends that the trial court erred in refusing to suppress certain evidence seized by an officer who detained him for the purpose of obtaining his identification. Since we conclude the trial court correctly determined the officer had a well-founded suspicion to detain appellant, we affirm its denial of his motion to suppress.

The facts in this case as revealed at the hearing on the motion to suppress are undisputed. Deputy Charles Clifton of the Lee County Sheriff’s Department was on road patrol in North Fort Myers on May 23, 1980. At approximately 12:15 a. m. he observed a Camaro and a Cadillac stopped in the side parking lot of a gas station which was closed. The Camaro was parked facing U. S. Highway 41 and the Cadillac was parked nearby facing in the opposite direction so that the drivers’ doors were adjacent to each other. The parking lot was not enclosed and the cars were some twenty to thirty feet from U. S. 41 and twelve feet from a public road that runs perpendicular to U. S. 41. As Deputy Clifton drove in behind the Camaro, he observed two people, one in each car.

Deputy Clifton left his car and approached the Camaro on the passenger side. At this point, the Cadillac backed out and drove away. The deputy walked up to the open passenger window of the Camaro and asked the occupant, appellant, for identification. Clifton stated that he was standing behind the passenger door of the vehicle for safety reasons. It was at this point that he detained appellant for the purpose of determining his identity. The deputy then walked around the back of the Camaro to the driver’s side and asked appellant for his driver’s license. While appellant retrieved his license, the deputy shined his flashlight into the car and observed a canvas gun case on the floor. He then asked appellant to step out of the car and frisked him for weapons. Upon finding no weapon, the deputy asked appellant where his gun was. Appellant responded, “What gun?” or “What?” Without asking appellant’s permission, the officer reached into the vehicle for the pistol case and saw a pistol stuck between the seat and the console of the Camaro. The wooden grips and about two inches of the pistol were visible. The officer testified that he recognized the pistol for what it was. He stated that prior to that time he was unable to see the pistol, because appellant’s body and the seating arrangement of the vehicle blocked his view.

Deputy Clifton testified that while crimes had been committed in the area recently, he had received no reports of criminal activity on that particular night. He said that because he was personally acquainted with the owner of the filling station, he knew that neither of the vehicles belonged to him.

Only Deputy Clifton testified and, after hearing his testimony and arguments of counsel, the court denied appellant’s motion to suppress. A jury subsequently found Codie guilty of carrying a concealed firearm. The trial judge placed him on probation for five years with a condition that he serve fifteen days in jail. He also ordered him to pay a $2,000 fine. This appeal ensued.

Our “stop and frisk” law, Florida Statute 901.151(2) (1979), provides:

Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such a person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.

The law applies to vehicle stops and the court has held that to stop and briefly detain a vehicle, an officer must have a “well-founded suspicion” that its occupants might be involved in illegal activity. State v. Payton, 344 So.2d 648 (Fla.2d DCA 1977). The officer’s suspicion must be based on observed facts interpreted in light of the officer’s knowledge and experience. State v. W. O. R., 382 So.2d 763 (Fla.2d DCA 1980). Thus, the legality of each stop is dependent upon the facts within the detaining officer’s knowledge. This standard does not require that there be a high probability of guilt; however, a mere suspicion is not enough. State v. Spurling, 385 So.2d 672 (Fla.2d DCA 1980). Reasonable men can differ as to whether the circumstances witnessed by an officer give a foundation to his suspicion. Then certain factors such as the time, location, physical appearance of the suspect, his behavior, the appearance and manner of operation of any vehicle involved, or anything incongruous or unusual in the situation can be evaluated to determine whether they suggest possible illegal activity. State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978).

We applied this test in State v. Spurling. There we found that an officer’s initial stop was lawful and reversed the trial court’s order of suppression. In Spurling the arresting officer was on a routine patrol at a bowling alley when he observed the defendant urinating on the side of a truck. The officer was patrolling the bowling alley as a result of complaints from the management that persons had been loitering in their parking lot and consuming alcoholic beverages or using drugs. The officer approached the defendant and asked him for information in order to fill out a field interrogation report. While talking with the defendant, the officer noted that he was unstable, that his speech was slurred and that he smelled of alcohol. When the officer attempted to obtain the truck’s identification number, the defendant began shouting at him in profane language, and the officer arrested him for disorderly intoxication. A pat-down search revealed a quantity of marijuana in the defendant’s pants. This court concluded that the circumstances observed by the officer justified his initial detention of the defendant for the purpose of obtaining identification.

In the present case Deputy Clifton did not witness any actual illegal activity prior to detaining appellant. However, application of the factors enumerated in State v. Stevens reveals that the deputy did have a well-founded suspicion to approach appellant and detain him for the purpose of ascertaining his identity. The officer spotted appellant’s car shortly after midnight parked in a dimly lit area in the side parking lot of a gas station. Appellant appeared to be conversing with the driver of another car which departed upon approach of the officer. The deputy was aware that there had been numerous reports of recent criminal activity in the area, and he knew that neither of the vehicles belonged to the station owner. As the supreme court noted in State v. Ecker, 311 So.2d 104, 110 (Fla.1975):

The whole purpose of the [stop and frisk] statute is to provide law enforcement with a suitable tool to prevent crime and allow a specific means to eliminate a situation which a reasonable man would believe could cause a breach of the peace or a criminal threat to persons or property.

In the present case the deputy witnessed no actual illegal activity prior to detaining appellant as did the officer in Spurting. On the other hand, the instant case is somewhat more compelling. Here, Deputy Clifton approached appellant who was parked in a dark area on private property after business hours; while, in Spurling, the officer detained a person in a parking lot available to patrons during regular business hours.

While reasonable men could reach different conclusions concerning whether the officer had a founded suspicion to approach appellant and detain him for the purpose of ascertaining his identity, the trial court found the facts and rational inferences from those facts justified the officer’s investigatory detention. Given the presumption of correctness with which the trial court’s ruling on a motion to suppress comes to this court, and viewing the evidence and the inferences capable of being drawn therefrom in the light most favorable to the state, we agree that Deputy Clifton had a well-founded suspicion to detain appellant.

We have examined and find no merit to the appellant’s other contentions. Accordingly, we affirm appellant’s conviction.

SCHOONOVER, J., concurs.

GRIMES, J., dissents with opinion.

GRIMES, Judge,

dissenting.

I cannot see how the presence of two automobiles parked in such a manner that the drivers merely appear to be talking to each other in the side parking lot of a closed filling station adjacent to a public highway at midnight is enough to give a passing deputy a well-founded suspicion of criminal activity. See McClure v. State, 358 So.2d 1187 (Fla.2d DCA 1978); Lower v. State, 348 So.2d 410 (Fla.2d DCA 1977).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Marvin SPELL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 81-650.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 1981.
    Jerry Hill, Public Defender, and Kathe Kates Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the conviction of appellant without prejudice to appellant raising the question of the illegality of his sentence in a Florida Rule of Criminal Procedure 3.850 motion under the holding in Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981).

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


text:
    David ROTH, Appellant, v. STATE of Florida, Appellee.
    No. 81-662.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 1981.
    Jerry Hill, Public Defender, Bartow, and Elizabeth L. Hapner, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed as to condition (1). As to condition (8), we affirm as to appellant’s failure to keep his appointments at the job bank as instructed by his probation officer. Appellant’s further violation of condition (8), that he failed to make payments towards restitution as instructed, is stricken from the order of revocation of probation, and conditions (2) and (23) are also stricken, as there was no determination of appellant’s financial condition such that payment could be made. See Coxon v. State, 365 So.2d 1067 (Fla. 2d DCA 1979). Further, condition (7) is stricken from the order of revocation of probation as there was no evidence that appellant failed to work diligently at a lawful occupation to the best of his ability.

We decline to set aside the revocation, because the failure to file reports for four consecutive months as required by condition (1) and repeated failure to follow the probation officer’s instructions to visit the job bank are substantial violations. Wheeler v. State, 344 So.2d 630 (Fla. 2d DCA 1977).

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


text:
    Herbert Lee TERRY, Appellant, v. STATE of Florida, Appellee.
    No. 81-1053.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 1981.

      Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant seeks review of an order revoking his probation based upon three violations. The violations of condition (1), filing monthly reports, and condition (2), paying supervision costs, are set aside because the only evidence of those violations at the revocation hearing was hearsay. Jones v. State, 348 So.2d 942 (Fla. 2d DCA 1977).

Nevertheless, we decline to set aside the revocation of probation pursuant to Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA 1976). Here, it is evident from the record that the judge would have revoked probation based solely upon the substantive violation of appellant’s commission of burglary which is amply supported by the evidence. Jones v. State.

Accordingly, the violations of condition (1) and condition (2) are stricken from the order of revocation of probation. In all other respects the order is affirmed.

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


text:
    Richard R. ALVAREZ, Appellant, v. Ilse ALVAREZ, Appellee.
    No. 81-1100.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 1981.
    Robert A. Herce of Herce & Martinez, Tampa, for appellant.
    Charles F. Mixon, Jr., Law Offices of Charles F. Mixon, Jr., P. A., Tampa, for appellee.
   PER CURIAM.

We construe paragraph 6 of the final judgment as not requiring the husband to make mortgage payments on the marital home awarded to the wife. She is to be wholly responsible for those payments. As so construed, we affirm the judgment below.

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


text:
    James L. WILLIS and Patricia Willis, his wife, Petitioners, v. HILLSBOROUGH HOMES, INC., Respondent.
    No. 81-1246.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 1981.

      Carl G. Rassler, Tampa, for petitioners.
   PER CURIAM.

Certiorari denied. We decline to reach the merits of the petition for certiorari because if petitioners’ contentions are meritorious they will have a remedy by way of a direct appeal. Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla. 2d DCA 1973).

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


text:
    The STATE of Florida, Appellant, v. James POULIN, Appellee.
    No. 81-783.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 1981.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Robin Greene, Asst. Public Defender, for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Appellee having confessed error in this cause in light of the ruling of the Fifth Circuit Court of Appeals, reported as United States v. Sandler, 644 F.2d 1163 (5th Cir. 1981), the order granting the motion to suppress, here under review, entered on April 8, 1981, be and the same is hereby reversed and the matter is returned to the trial court for further proceedings.

Reversed and remanded with directions.


text:
    The STATE of Florida, Appellant, v. Alfred WITHERSPOON, Appellee.
    No. 77-1892.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1981.
    Jim Smith, Atty. Gen., Janet Reno, State Atty., and Ira N. Loewy and Dennis Cur-ran, Asst. State Attys., for appellant.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and DANIEL S. PEARSON, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on January 16, 1979 (366 So.2d 487) affirmed the order of the circuit court of Dade Comity, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed July 30, 1981 and mandate now lodged in this court, reversed this court’s judgment, 402 So.2d 1184.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued on February 1, 1979 is withdrawn, the judgment of this court filed January 16, 1979 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed from is reversed. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedure).


text:
    Robert L. PAYNE, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2278.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1981.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason and Anthony C. Musto, Asst. At-tys. Gen., for appellee.
    Before HUBBART, C. J., and HENDRY and PEARSON, TILLMAN (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on June 12, 1979 (372 So.2d 152) reversing and remanding with directions the order of the circuit court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed October 8, 1981 and mandate now lodged in this court, reversed this court’s judgment, 404 So.2d 1055.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued on July 13, 1979 is withdrawn, the judgment of this court filed June 12, 1979 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed from is reinstated and affirmed. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedure).


text:
    The STATE of Florida, Appellant, v. Martin KATZ, Appellee.
    No. 78-1273.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1981.
    Jim Smith, Atty. Gen., Janet Reno, State Atty. and Ira N. Loewy and Dennis Curran, Asst. State Attys., for appellant.
    Henry Gonzalez, Miami, Julius Lucius Echeles and Caroline Jaffe, Chicago, III., for appellee.
    Before HUBBART, C.J., and HENDRY and DANIEL S. PEARSON, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on June 26, 1979 (372 So.2d 201) affirmed the order of the circuit court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed July 30, 1981 and mandate now lodged in this court, reversed this court’s judgment, 402 So.2d 1184.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued on July 12, 1979 is withdrawn, the judgment of this court filed June 26, 1979 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, the order of the trial court appealed from is reversed: Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedure).


text:
    Ricardo REDONDO, Appellant, v. The STATE of Florida, Appellee.
    No. 79-116.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 1981.
    Henry R. Carr and Peter Kutner, Miami, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason and Theda R. James, Asst. Attys. Gen., for appellee.
    Before HUBBART, C.J., SCHWARTZ, J., and PEARSON, TILLMAN (Ret.), Associate Judge.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on March 4, 1980, 380 So.2d 1107, reversing the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 403 So.2d 954, by its opinion and judgment filed July 23, 1981 and mandate now lodged in this court, affirmed in part and reversed in part.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on March 20, 1980 is withdrawn the judgment of this court filed in this cause on March 4, 1980, except as is affirmed by the judgment of the Supreme Court dated July 23, 1981, is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment and sentence appealed from herein is reversed in part and affirmed in part and the cause is remanded to the trial court for a new trial on the charge of simple battery. Costs allowed shall be taxed in the trial court (Rule 9.400 a Florida Rules of Appellate Procedure).


text:
    Edward CERRITO and Joan R. Cerrito, Appellants, v. Jacqueline R. KOVITCH and Ed-Jo Corp. of Florida, Inc., a Florida corporation, Appellees.
    No. 81-1609.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.

      Timothy H. Kenney of Winkel, Sims, Kenney & Crosswell, Palm Beach, for appellants.
    Richard W. Wasserman, Miami Beach, for appellee Jacqueline R. Kovitch.
   ON MOTION FOR REVIEW OF DENIAL OF STAY

PER CURIAM.

We are asked to review an order requiring the mortgagors to post a supersedeas bond in an amount equal to the outstanding balance owed on a promissory note (secured by mortgage) plus fifteen percent thereof. Supersedeas is sought to stay the foreclosure sale of real property pending appeal of a final judgment in foreclosure.

Rule 9.310, Florida Rules of Appellate Procedure establishes as a general rule that “A stay pending review may be conditioned upon the posting of a good and sufficient bond, other conditions, or both.” The trial court is thereby given considerable latitude in controlling the circumstances under which the proceedings may be stayed pending review.

We are none-the-less concerned that the trial court here may have been misled and may have felt compelled to apply a standard more severe than our interpretation of the rule requires.

This rule (Rule 9.310, supra) replaces former appellate rules 5.1 through 5.12. Under the former rules specific provisions were made for “Bond Where Judgment is for Recovery of Money Not Secured” (Rule 5.7); “Bond When Judgment is for Recovery of Money Otherwise Secured” (Rule 5.8); and “Bond When Judgment is Other Than for Money” (Rule 5.9).

Translating these categories into the present unified rule we believe that the exception contained in 9.310(b)(1) to the effect that “when the order is solely for the payment of money, a stay pending review is automatic ... on posting of a good and sufficient bond equal to the amount ordered to be paid, plus 15% thereof ...” is intended to supplant former Rule 5.7 only. In our view a judgment for recovery of money otherwise secured, as by a mortgage on real property, calls into play the general rule set out in (a) rather than the exception contained in (b). This conclusion is reinforced by the fact that a final judgment in foreclosure is not an order “solely for the payment of money.”

We therefore grant the motion for review. Proceedings in the lower tribunal are hereby stayed pending further order of that court.

Because of the rationale upon which we base reversal it is not necessary to determine whether, under the circumstances, bond in the amount of $35,000 constitutes an abuse of discretion per se. Nor would we be in a position to make such a determination even if it were ripe for consideration. No facts have been brought forward to this Court establishing the present fair market value of the property, the extent of other liens, if any, or waste or other damages which may be occasioned by delay. The trial court, on remand, will necessarily consider each of those factors and perhaps others in determining the amount of bond and conditions to be imposed. Our review of any subsequent order establishing bond would necessarily require examination of the trial court’s findings on each of the pertinent factors.

We reverse the order of October 14, 1981 and remand for further proceedings in accordance with the foregoing. The rationale of Fidelity & Deposit Co. of Maryland v. Atlantic National Bank, 234 So.2d 736 (Fla.3d DCA 1970) while not necessarily controlling, may be helpful. The stay we here impose shall terminate upon entry of a further order by the trial court establishing the terms of supersedeas.

REVERSED AND REMANDED.

LETTS, C. J., and HERSEY and HURLEY, JJ., concur.


text:
    Dennis A. HARAKAL, Appellant, v. STATE of Florida, Appellee.
    No. 81-1241.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 1981.
    John T. Robinson, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Williams v. State, 341 So.2d 214 (Fla. 2d DCA 1977); Barker v. State, 259 So.2d 200 (Fla. 2d DCA 1972).

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


author:
LOTTINGER, Justice Ad Hoc.

      MARCUS, Justice CALOGERO, Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Gremel HARRIS.
    No. 80-KA-2720.
    Supreme Court of Louisiana.
    June 22, 1981.
    On Rehearing Nov. 16, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Jeffery Hollingsworth, Kay Kirkpatrick, Asst. Dist. Attys., Baton Rouge, for plaintiff-appellee.
    Richard V. Burnes, Alexandria, for defendant-appellant.
   LOTTINGER, Justice Ad Hoc.

Defendant Gremel Harris was arrested in February 1979 and eventually charged by a bill of indictment with four counts of armed robbery, in violation of La.R.S. 14:64. During the interim between arrest and indictment, the defendant’s retained counsel filed a motion requesting appointment of a sanity commission to examine the accused. A district court judge granted counsel’s request, appointing a two-member sanity commission and scheduling a contradictory hearing with the state for April 16, 1979. This hearing was later continued without date when, on April 16, the sanity commission members reported that they had not yet had an opportunity to examine the accused.

On May 25, 1979, defendant, now represented by another retained attorney, filed a motion for reduction of bond, which was granted. Defendant apparently gained his release shortly thereafter, only to be arrested on October 9 for unauthorized use of a movable, on October 26 for additional armed robberies, and again on October 30 for simple escape. Before any further action was taken on these charges, the trial court granted the then attorney’s request to withdraw as counsel of record and appointed the East Baton Rouge Parish Public Defender’s Office to handle the accused’s defense. That office entered into plea bargain negotiations with the prosecution, which culminated in the acceptance of the accused’s pleas of guilty to four counts of armed robbery in exchange for dismissal of the other pending charges.

Prior to sentencing both the public defender and defendant’s newly retained counsel renewed the earlier request for appointment of a sanity commission. These requests were denied, as was the defendant’s motion to withdraw his guilty pleas. On August 4, 1980, the Honorable Doug Moreau sentenced the defendant to serve 50 years’ imprisonment on each count, said sentences to run consecutively with each other. On appeal, defendant urges ten assignments of error as grounds for reversal of his conviction and sentence. Three of the assignments of error have been abandoned, either expressly or by not arguing same.

ASSIGNMENTS OP ERROR NOS. 1, 2, 3 AND 7

By these assignments, the defense contends that the trial court erred in allowing the defendant to enter guilty pleas without first resolving the issue of capacity to proceed. Defendant further argues that the trial court erred in denying his second motion for appointment of a sanity commission.

Mental incapacity to proceed exists when, as a result of mental disease or defect, a defendant presently lacks the capacity to understand the proceedings against him or to assist in his defense. La.C.Cr.P. art. 641. The issue of present sanity or mental incapacity to proceed may be raised at any stage of the proceedings, La.C.Cr.P. art. 642, even after conviction. State v. Henson, 351 So.2d 1169 (La.1977); State v. Gunter, 208 La. 694, 23 So.2d 305 (1945). When the issue is raised, “there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.” La.C.Cr.P. art. 642. Once the issue is raised, if the trial judge has reasonable ground to doubt the defendant’s mental capacity to proceed, he shall order a mental examination. La.C.Cr.P. art. 643.

ORIGINAL SANITY COMMISSION REQUEST. In the instant case, the trial court found reasonable doubt as to the accused’s capacity to proceed and, accordingly ordered the appointment of a sanity commission to inquire into the mental condition of the accused. However, as a result of the confusion engendered by shifts in the District Court’s personnel and defendant’s repeated changes of counsel, this commission never reported its findings to the trial court. Yet, despite the absence of any hearing on this competency issue, the defendant was permitted to enter a plea of guilty as to each of the four armed robbery counts lodged against him. The defendant’s pleas were entered on February 20, 1980, nearly one full year after the original request for appointment of a sanity commission.

This procedure violated both the accused’s right to a contradictory hearing under La.C.Cr.P. art. 647 and the express mandate of La.C.Cr.P. art. 642 that “no further steps in the criminal prosecution” shall be taken until the defendant is found to have the mental capacity to proceed. As noted in State v. Bennett, 345 So.2d 1129, 1139 (La.1977), defendant “has a right to demand that the [court-ordered sanity] hearing be thorough and cannot be held responsible for the commission’s failure to complete its task.” This finding is a function of the due process requirement that a defendant be competent to stand trial. Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). It cannot be argued that the subsequent guilty pleas amounted to an implied withdrawal of the earlier request for mental examination because it is contradictory to say that where there is reasonable ground to doubt the defendant’s mental capacity to proceed, he could intelligently waive his right to have his capacity to stand trial determined. Pate v. Robinson, supra. For this reason, the trial court’s action constituted reversible error.

SECOND REQUESTED SANITY HEARING. Defendant further argues that the trial court abused its discretion in denying his second request for appointment of a sanity commission, filed shortly prior to sentencing. In support of this request, counsel presented an affidavit in which defendant’s mother, Marilyn Harris, described defendant’s recurring mental problems and traced their origin to a gun shot wound which he received at the age of 15. More specifically, Ms. Harris stated that she had recently been advised by Parish Coroner Hypolite Landry (one of the original appointees for defendant’s sanity commission) that her son had attempted to commit suicide while in jail. According to Ms. Harris, Dr. Landry suggested that she request a sanity commission hearing for her son.

Factually, this setting is closely analogous to that presented in State v. Henson, supra. In Henson, defense counsel bolstered his motion for appointment of a sanity commission by presenting a psychiatrist’s affidavit expressing the opinion that defendant was not presently able to understand the proceedings against him. Additionally, the defense introduced a week-old order signed by another district judge appointing a sanity commission to examine defendant with reference to his mental capacity to proceed with respect to other charges pending against him. Finding this evidence to present clear cause for doubt as to defendant’s mental capacity to proceed, this court ruled that the lower court had abused its discretion in failing to order a mental examination.

In the present case, defendant’s alleged attempted suicide suggested a serious deterioration of his mental condition since the time of his guilty plea hearing. Coupled with the earlier, and as yet unfilled, order for examination of the accused’s mental condition, as well as Dr. Landry’s apparent conclusion that such examination was to be recommended, this evidence appeared sufficient under Henson to arouse reasonable doubts as to defendant’s continued capacity to proceed. It was therefore error for the trial judge to deny this second requested sanity commission.

Though we find that the trial court clearly committed error in proceeding in this case once the initial sanity commission was appointed without resolving the issue of sanity, and in failing to appoint a sanity commission at the second request, we find it unnecessary to set aside the guilty pleas and the sentence inasmuch as the issue of capacity may be clarified on remand. State v. Knox, 370 So.2d 886 (La.1979); State v. Bennett, 345 So.2d 1129 (La.1977); State v. Simmons, 328 So.2d 149 (La.1976). We will therefore remand the case to the trial court for a reappointment of the original sanity commission which shall consider both requests for a determination of capacity, and for a contradictory hearing on the defendant’s capacity at the time of his plea, reserving to the trial judge the right to set aside the guilty plea and sentence should he find that the defendant lacked the mental capacity to proceed. If, on the other hand, the trial judge determines that the defendant was competent to plead guilty, the right to appeal from the ruling is reserved to the defendant. In the absence of such an appeal, the conviction and sentence will be affirmed.

ASSIGNMENT OF ERROR NO. 4

By this assignment, defendant contends that the trial court erred in accepting his guilty pleas when no factual basis was established for the pleas.

This contention lacks substance. The trial court carefully examined defendant as to the details of each count before asking the prosecution to confirm the defendant’s version. In instances where the prosecutor stated additional facts not mentioned by the defendant, the trial court asked the accused to confirm the state’s allegations before proceeding further. It is sufficient for purposes of this assignment to note that defendant’s admissions provided an adequate basis for his pleas. On those few occasions in which the defendant was unable to recall the names of his cohorts or the type of weapon used, the accused’s confusion appeared more readily attributable to the large number of armed robberies in which he had participated rather than a genuine inability to recall the incident in question.

ASSIGNMENTS OF ERROR NOS. 9 AND 10

By these assignments, defendant contends that the lower court’s imposition of consecutive prison sentences totaling 200 years was both unrealistic and excessive, in violation of Article 1, Section 20 of the Louisiana Constitution (1974).

In connection with his convictions for four counts of armed robbery, the defendant was sentenced to serve 50 years at hard labor on each count, said sentences to run consecutively. These sentences fall within the statutory range provided for the offense of armed robbery. La.R.S. 14:64.

This court has frequently noted that offenders without prior felony records ordinarily should receive concurrent rather than consecutive sentences, especially where the convictions arise out of the same course of conduct within a relatively short period. La.C.Cr.P. art. 883; State v. Cain, 382 So.2d 936 (La.1980); State v. Ortego, 382 So.2d 921 (La.1980). However, consecutive sentences may be justified when, due to his past conduct or repeated criminality over an extended period, the offender poses an unusual risk to the safety of the public, similar to that posed by habitual or dangerous offenders. State v. Watson, 372 So.2d 1205 (La.1979); State v. Cox, 369 So.2d 118 (La.1979).

In the case at bar the trial judge considered the defendant’s past criminality as a juvenile. From November of 1972 to February of 1976 the defendant committed the crimes of negligent injury, burglary, theft, receiving stolen things, unauthorized use of an immovable, criminal damage to property, and simple robbery. One month after his release from the Louisiana Training Institute, where he was confined until his seventeenth birthday, the defendant resumed his criminal pattern, begun as an adult by adding the convictions of possession of marijuana, contempt of court, simple battery, theft, DWI, resisting arrest, and possession of gambling paraphernalia. The present four counts of armed robbery occurred over a three week period between January 13, 1979 and February 6, 1979. Of the four counts of armed robbery, two were committed at different convenience stores, one at an automobile dealership, and another at a self-service gas station. In two of the robberies a shotgun was involved, and in the others a pistol was involved. Even during the pendency of his trial on the instant charges, the defendant was responsible for additional offenses including armed robberies. The defendant’s offenses did not arise out of a single course of conduct.

The trial judge was cognizant of the factors to be considered in imposing sentence as required by La.C.Cr.P. art. 894.1. The trial judge searched the record for some evidence of mitigation. Noting the absence of any mitigating factors and the serious harm threatened by defendant’s actions, the court, before sentencing, offered to listen to any mitigating factors which the defendant cared to relate. The defendant had no response. Though this sentence amounts to 200 years, the severity of the defendant’s criminal record convinces this court that the trial judge was well within his discretion in imposing the sentence which he did.

For the reasons assigned, the case is remanded to the district court for further proceedings in accordance with law and the views herein expressed.

REMANDED.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

Although defendant was allowed to plead guilty without formally withdrawing his request for a sanity commission to determine his capacity to proceed, the record indicates that defendant’s plea of guilty was knowingly and intelligently made by him in the presence of counsel after full compliance with Boykin. In my view, his plea of guilty amounted to an implied withdrawal of his request for a sanity commission to determine his capacity to proceed. However, I consider that the trial judge erred in denying defendant’s second request for appointment of a sanity commission filed shortly prior to sentencing. Defendant’s alleged attempted suicide along with Dr. Landry’s suggestion that defendant be given a sanity commission hearing gave the court reasonable ground to doubt defendant’s mental capacity to proceed. Hence, under State v. Henson, 351 So.2d 1169 (La.1977), any steps in the prosecution taken after this request for a sanity commission must be vacated and set aside. Accordingly, I would vacate defendant’s sentence and remand the case to the district court with instructions to the trial judge to appoint a sanity commission and to defer sentencing until it is determined that defendant has the capacity to proceed. I respectfully dissent.

On Rehearing

CALOGERO, Justice.

On original hearing in this case, we held that the trial judge committed reversible error when, after appointing a sanity commission to inquire into defendant’s mental capacity to proceed, he accepted defendant’s guilty pleas to four armed robberies without having received a report from the commission, without having conducted a hearing and without having determined that defendant was capable of proceeding.

We also determined that the trial judge erred in denying defendant’s motion for a second sanity commission immediately prior to sentencing, where the showing by affidavit of defendant’s mother was that her son had previously attempted suicide several times and that she had been informed by the East Baton Rouge Parish Coroner that defendant had again attempted suicide while in jail awaiting sentencing. The mother further stated that the coroner had told her that he could do nothing to assist defendant unless a sanity commission was appointed. In making this latter determination, we relied on State v. Henson, 351 So.2d 1169 (La.1977), a case very much on point.

Nevertheless, we desisted from reversing defendant’s convictions or upsetting his sentence and opted, rather, to remand to the trial court for reappointment of the original sanity commission. The commission was to consider defendant’s capacity to proceed at the time of the guilty pleas and at the time defendant was sentenced; and the court was thereafter to conduct an evidentiary hearing. We specifically reserved to the trial judge “the right to set aside the guilty plea and sentence should he find that defendant lacked the mental capacity to proceed.”

We granted this rehearing to reconsider our action in remanding the case for the aforestated purposes.

Upon reconsideration, we confirm our earlier ruling that the procedure employed below violated both the accused’s right to a contradictory hearing under La.C.Cr.P. art. 647 and the express mandate of La.C.Cr.P. art. 642 that no further steps in the criminal prosecution be taken until the defendant is found to have the mental capacity to proceed. However, for reasons we express hereinafter we now vacate all proceedings which took place after the appointment of the sanity commission on March 13, 1979.

The law is clear regarding the procedure to be followed once the defendant raises the issue of lack of mental capacity to proceed. La.C.Cr.P. art. 642 directs that when the question of the defendant’s mental capacity to proceed is raised there shall be no further steps in the criminal prosecution except the institution of prosecution until the defendant is found to have the mental capacity to proceed. The trial judge appointed a sanity commission and ordered a mental examination of defendant, thus indicating that there was “reasonable ground to doubt the defendant’s mental capacity to proceed.” La.C.Cr.P. art. 648. The court set April 16, 1979, as the date for the sanity commission to report and the hearing on defendant’s capacity to proceed to be held. The court minutes reflect that the hearing was not held that day because the sanity commission reported that it had not yet examined defendant. The court did not set a new date for a hearing or a report. The trial judge was not at liberty to conduct further proceedings against the defendant after this issue of mental capacity to proceed was raised until defendant was found, by lawful procedures, to have the capacity to proceed. La.C.Cr.P. art. 642; State v. Clark, 367 So.2d 311 (La.1979).

The pertinent inquiry in this rehearing, as indicated above, is whether we should have remanded the case for a belated determination of the defendant’s capacity at the time he entered the guilty pleas. In remanding in our original opinion, we relied upon State v. Knox, 370 So.2d 886 (La.1979); State v. Bennett, 345 So.2d 1129 (La.1977) and State v. Simmons, 328 So.2d 149 (La.1976).

While Simmons, supra, is authority for remanding for a post-trial validation of a ruling made by the trial judge before or during trial, it is not directly apposite to the matter at hand.

Bennett, supra, is distinguishable from the case before us, although it did concern the question of a defendant’s capacity to proceed. In Bennett, the trial judge had appointed a sanity commission which reported its findings to the judge; the judge had held a hearing on the issue and the judge had made the determination that the defendant possessed the capacity to proceed. The trial judge, however, had relied upon the conclusions of the examining physicians that the defendant was able to assist counsel rather than making an independent determination on this issue. As we said: “Only the court, not the doctor, is qualified to make this decision.” 345 So.2d at 1138.

Furthermore, our determination to have conducted anew a hearing on Bennett’s capacity to proceed was prompted by our concern that the record lacked sufficient medical evidence on which the trial judge could assess that defendant’s capacity. And in Bennett mental retardation rather than mental illness was at issue. As we explicitly stated in Bennett: “Unlike mental illness, which is a variable state, difficult to measure retrospectively, mental retardation is a more static condition and hence its effect upon defendant’s capacity to stand trial can be as easily determined now as it could have been contemporaneously with the trial.” 345 So.2d at 1139.

In the instant case, defendant’s allegation of insanity presents a different situation than was present in Bennett in that insanity is generally not static as is usually the case with mental retardation. A person once insane does not necessarily remain so; and a person who was once sane may become insane. It is therefore extremely difficult, if not impossible, for the sanity commission to examine this defendant on remand and determine whether defendant had the mental capacity to proceed on February 20, 1980, when the guilty pleas were entered.

Knox, supra, was a per curiam opinion of this Court and was somewhat closer to the facts in the instant case. It too, however, is distinguishable in that following the defendant’s assertion that he lacked capacity to proceed, appointment of a sanity commission and conducting of a hearing, the trial judge found that the defendant possessed the requisite capacity. Because the judge based his decision solely upon the written report of a single member of the sanity commission, we remanded the case to the trial court for reappointment of a sanity commission and for a resumption of the contradictory hearing on the defendant’s capacity.

State v. Weber, 364 So.2d 952 (La.1978), is another case where the trial judge proceeded only after having determined that the defendant was capable. The record in that case, however, prompted this Court to conclude that the trial judge based his ruling primarily upon the experts’ conclusions rather than upon his own assessment of the pertinent considerations. We therefore remanded for the trial court to re-evaluate defendant’s capacity at the time of his trial, and we set forth guidelines for the judge to use in making that new evaluation.

In the case before us, defendant put his sanity at issue. The trial judge found reasonable doubt as to the defendant’s capacity to proceed and appointed a sanity commission to inquire into his mental condition. The commission never reported its findings to the court (actually, defendant was probably not even examined) and there was never a contradictory hearing on the issue or a determination by the trial judge that this defendant had the capacity to proceed. Nevertheless, further proceedings were had, including the taking of defendant’s guilty pleas. The law is clear in this situation. Article 642 mandates that “no further steps in the criminal prosecution” shall be taken until the defendant is found to have the mental capacity to proceed.

Acceptance of defendant’s guilty pleas under these circumstances was clearly contrary to the law, and, we determine in this type of situation at least, not correctable retroactively. Defendant’s guilty pleas therefore must be nullified. Our initial ruling that it was error for the trial judge to deny defendant’s second requested sanity commission just prior to sentencing is no longer necessary in light of our nullifying all proceedings after appointment of the sanity commission. Also, defendant’s other assignments of error need not be considered.

Decree

For the foregoing reasons, our ruling on original hearing is set aside. All of the proceedings taken after the appointment of the sanity commission, including defendant’s guilty pleas, are vacated. Defendant’s convictions are reversed and the case remanded to the trial court for further proceedings.

ORIGINAL DECREE SET ASIDE; REVERSED AND REMANDED.

LEMMON, J., dissents and assigns reasons.

MARCUS, J., dissents for reasons assigned in dissent on original hearing.

LEMMON, Justice,

dissenting.

The sole fact that a sanity hearing was not held is not a proper ground for upsetting a guilty plea, especially when the trial court’s failure to hold the hearing prior to accepting the plea is not objected to by counsel or otherwise preserved for review on appeal. See C.Cr.P.Art. 841; State v. Crosby, 338 So.2d 584 (La.1976); State v. White, 404 So.2d 1202 (La.1981). Therefore, the determinative issue is whether defendant in fact had the capacity to enter a guilty plea when he did so. See Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). The need for finality in guilty pleas should only yield if the defendant in fact lacked mental capacity to proceed at the time of the plea. Only then is the defendant prejudiced by the failure to conduct the hearing.

Reversal of the conviction based on the guilty plea is therefore unnecessary at this time. The limited remand ordered on original hearing affords adequate protection of defendant’s constitutional rights. If sufficient evidence is available at a post-conviction hearing on remand to establish that defendant possessed mental capacity at the time of his guilty plea, then the conviction and sentence should be affirmed. If sufficient evidence is not available, then the guilty plea arguably should be set aside. However, because reversal at this time is unwarranted, I respectfully dissent.

      Judges Lottinger, Edwards, and Ponder of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche, and Watson.

      . The attorney claimed that defendant had “failed or refused” to cooperate in the preparation of an adequate defense and that the attorney’s fee due under his contractual employment had not been paid.

      . La.R.S. 14:64 B provides:
      “Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than 99 years, without benefit of parole, probation or suspension of sentence.”

      . In exchange for defendant’s guilty pleas to the four counts of armed robbery, the district attomey dropped two other charges against defendant.

      . The issue in Simmons was the correctness of the trial judge’s ruling that a confession was freely and voluntarily made and therefore admissible.

      . Since the proceedings after the appointment of the sanity commission are vacated, the plea bargain by which the state agreed to drop other charges against defendant (presumably entered coincident with defendant’s entering the guilty pleas) is also without effect.

      . These other assignments concern the adequacy of the Boykin examination and the length of the sentence imposed.

      . Some trial judges routinely grant requests for sanity hearings, even if defense counsel does not establish reasonable grounds to doubt defendant’s sanity. See C.Cr.P.Art. 643.
      The plea in this case was entered almost a year after the initial request for a sanity hearing. At the plea the trial judge exercised extreme care to insure that there was a factual basis for defendant’s plea and that the plea was voluntarily and intelligently entered. Defendant testified in detail as to each of the incidents, and the trial judge had a significant opportunity to observe his behavior and demeanor. The judge who accepted the plea, and defense counsel who advised defendant regarding the plea, obviously had no reasonable doubt as to defendant’s ability to understand the nature of the proceedings and to assist counsel in his defense. Nevertheless, at the post-conviction hearing, the burden should fall on the state to establish the defendant’s capacity, despite the presumption of sanity, because of the doubt cast on defendant’s capacity by the previous judge’s order for the sanity hearing. C.Cr.P. Art. 643.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. John J. STORMS, III.
    No. 80-KA-2931.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    Rehearing Denied Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., G. Thomas Porteous, Jr., Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    Robert N. Clarke, Westwego, for defendant-appellant.
   DENNIS, Justice.

Defendant, John J. Storms, III, was convicted by a jury of two offenses: aggravated rape, La.R.S. 14:42, for which he was sentenced to life imprisonment at hard labor without benefit of parole, probation or suspension of sentence; and aggravated crime against nature, La.R.S. 14:89.1, for which he was sentenced concurrently to fifteen years at hard labor. He advances six assignments of error in this appeal.

The evidence tended to prove that defendant Storms abducted a ten year old girl and for several days forced her to engage in various sexual acts at motels in the New Orleans area. The defendant transported the victim in his car, forcing her to ride under a quilt or in the luggage compartment. He was captured at a pay phone in Jefferson Parish while the victim was seated in his vehicle a short distance away.

ASSIGNMENT OF ERROR NO. 8

In this assignment, defendant argues that the indictment or information was defective for two reasons: (1) He was not properly informed of the nature and cause of the aggravated crime against nature charge; (2) His prosecution for aggravated rape, a crime punishable by life imprisonment, was improperly instituted by information rather than by grand jury indictment.

Defendant did not question the sufficiency of the indictment at trial, however. Only after verdict, in his motion in arrest of judgment, did he complain of these defects.

The Sixth Amendment to the United States Constitution, identically to Article I, § 13 of the 1974 Louisiana Constitution, provides that an accused in a criminal proceeding shall “be informed of the nature and cause of the accusation. . . . ”

Article 464 of the Code of Criminal Procedure provides that the indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. Under the jurisprudence of this court, however, if the sufficiency of an indictment or information is not questioned at the trial, the pleading must be held sufficient unless it is so defective that it does not, by any reasonable construction, set forth an identifiable offense against the laws of this state, and inform the defendant of the defendant of the statutory bases of the offense. State v. Gainey, 376 So.2d 1240 (La.1979); State v. James, 305 So.2d 514 (La.1974). Cf. 1 Wright, Federal Practice and Procedure, § 123 at pp. 225-226 (1969). As we stated in State v. James, supra, at 516:

“. . . where in fact an accused has been fairly informed of the charge against him by the indictment and has not been prejudiced by surprise or lack of notice, the technical sufficiency of the indictment may not be questioned after conviction where, as here, no objection was raised to it prior to the verdict and where, without unfairness, the accused may be protected against further prosecution for any offense or offenses charged by it through examination of the pleadings and the evidence in the instant prosecution.”

The sufficiency of the original indictment would have been subject to question at trial because it did not specify the type of sexual act or aggravation involved in the aggravated crime against nature. Since a short form indictment was not authorized for this offense, see La.C.Cr.P. art. 465, the written statement did not contain all of the essential facts constituting the offense charged as required for a long form indictment. La.C.Cr.P. art. 464.

The indictment may not be questioned after conviction, however, because the defendant was in fact fairly informed of the charge against him and was not prejudiced by surprise or lack of notice. His pretrial application for change of venue reflects that at least two weeks before trial his attorney had knowledge that the alleged victim was a ten year old girl. Five days before trial, the indictment was amended to add that the defendant committed the offense “by forcing the said [victim’s name] to place her mouth upon his penis.” During jury selection defense counsel moved for individual and sequestered voir dire on the ground, among others, that the case involved “an alleged kidnapping, aggravated rape, and aggravated crime against nature of pre-pubescent girl by a thirty-four (34) year old man.” On the second day of trial, which was devoted primarily to the voir dire examination of prospective jurors, the state filed a response to defendant’s pre-trial motion for discovery and bill of particulars, alleging that each aggravated offense was committed while defendant was armed with a knife and that on two occasions the victim was “at knife point.” Accordingly, we reject defendant’s argument that he was not adequately informed of the nature and cause of the accusation because the record reflects that he failed to raise this objection prior to verdict and that he was in fact informed of the statutory bases of the offense.

Originally, a three count indictment charged defendant with simple kidnapping, aggravated rape and aggravated crime against nature. Immediately prior to commencement of trial, the assistant district attorney abandoned the simple kidnapping prosecution by filing a bill of information charging the defendant only with the two sexual offenses. Since a prosecution of a crime punishable by life imprisonment, such as aggravated rape, must be initiated by indictment, La.Const. of 1974, art. 1 § 15, defendant contends that his conviction of this offense is void.

It is clear, however, that the prosecutor did not intend to bring a new prosecution against the defendant but merely sought to amend the indictment by deleting the kidnap charge. The district attorney is inherently empowered to amend an indictment in open court to charge the defendant with a lesser included offense. State v. Gilmore, 332 So.2d 789 (La.1976). This necessarily includes the power to amend the indictment so as to abandon or delete a charge altogether. Accordingly, the district attorney had the inherent authority to abandon the kidnap charge and proceed with the prosecution of the other offenses.

The prosecuting attorney’s unorthodox method of amending the indictment constituted a formal insufficiency which would have been subject to question at trial. However, the defendant did not raise any objection before verdict. Moreover, he was not actually deprived of the safeguards provided by the requirement of grand jury indictment, or any other element of fairness and due process. Accordingly, we conclude that, under the circumstances of this case, the prosecutor’s failure to use an approved method of amendment was not a substantial defect which may be questioned after conviction. See State v. James, supra.

This assignment of error is without merit.

Having reviewed the remaining assignments of error filed by the defendant, we find that they present no reversible merit and do not require published explanation because they do not present any question of unsettled law. Therefore, these assignments are discussed in an unpublished, but publicly recorded, appendix to this opinion.

The defendant’s convictions and sentences are affirmed.

AFFIRMED.

       Judges Frederick S. Ellis, Morris A. Lottinger, Jr., and Elven E. Ponder of the Court of Appeal, First Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Watson and Lemmon.


author: DIXON, Chief Justice. LEMMON, Justice,

text:
    STATE of Louisiana v. Verna BIBLE, Robert Steven Meziere and Billy W. Moore.
    No. 66584.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Lowen B. Lof-tin, Dist. Atty., William R. Coenen, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Carey J. Ellis, Jr. of Ellis & Ellis, Ray-ville, for defendants-appellants.
   DIXON, Chief Justice.

Defendants, Verna Bible, Robert Steven Meziere and Billy W. Moore, were convicted of possession of a narcotic drug (marijuana) with intent to distribute, in violation of R. S. 40:966. This court affirmed the defendants’ convictions and sentences, finding valid the search of a suitcase (containing marijuana) found during the lawful search of the vehicle in which defendants were riding. State v. Bible, 389 So.2d 42 (La.1980). Defendants sought review of that judgment in the United States Supreme Court. The Supreme Court granted certiorari and subsequently remanded the case to this court, - U.S. -, 101 S.Ct. 3153, 69 L.Ed.2d 1001, for further consideration in light of Robbins v. California, 453 U.S. -, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981).

The events which led to the search and seizure in question began when a previously reliable and confidential informant told a state trooper of a forthcoming marijuana delivery. The informant told the state trooper of the date, place and approximate time of the delivery. He gave the trooper the name of one of the persons who was to make the delivery and described the automobile in which the delivery was to be made. Based on this information, the police officers set up a surveillance on the house trailer to which the marijuana was to be delivered.

Defendants Meziere and Moore were observed entering and leaving the trailer after having arrived in a vehicle (blue and white Monte Carlo) matching the description given by the informant. Moore carried a brown paper bag and Meziere carried a suitcase as they entered the trailer. Verna Bible remained in the vehicle. Approximately ten minutes later, Moore and Mezi-ere came out of the trailer. Moore was not carrying the paper bag but Meziere was still carrying the suitcase, which he placed back in the trunk of the vehicle. They got back into the vehicle and drove away. However, they were stopped and detained at a roadblock established by the officers. Defendants were then advised of their rights but were told that they were not under arrest.

Meanwhile, the officer who remained at the surveillance site observed Tommy Lin-gefelt leaving the trailer carrying what appeared to be the same paper bag that Moore took into the trailer. Lingefelt placed the bag on the seat of his truck, got in and drove in the same direction as the defendants; however, he was stopped before reaching the roadblock where the defendants were being detained. The officer discovered that the paper bag contained marijuana. He confiscated the marijuana, arrested Lingefelt and proceeded immediately to the roadblock. Upon his arrival, the officer informed the defendants that he intended to search the vehicle. He obtained the keys to the vehicle, opened the trunk and removed the suitcase. He opened the suitcase and found the marijuana which was the target of the defendants’ motion to suppress.

This court previously determined that the warrantless search of the suitcase was permissible under the so-called “automobile exception,” in that the officers had probable cause to search the entirety of the vehicle, including the trunk, glove compartment, luggage and other areas. This holding now appears inconsistent with the decision in Robbins v. California, supra.

In Robbins the defendant was stopped by officers of the California Highway Patrol because he had been driving erratically. When the defendant opened the station wagon’s door to get his registration, the officers smelled marijuana smoke. One of the officers frisked the defendant and discovered a vial of liquid. While searching the passenger compartment of the station wagon, they found marijuana and equipment for using it. After placing the defendant in the patrol car, the officers opened the tailgate, located a handle set flush in the deck, and lifted it to uncover a recessed luggage compartment. They found a tote bag and two packages wrapped in green opaque plastic. The officers unwrapped the packages and found that each contained fifteen pounds of marijuana. The California Court of Appeal, affirming the judgment of the trial court, found the warrantless opening of the packages constitutionally permissible.

The United States Supreme Court granted certiorari in Robbins “[bjeeause of the continuing uncertainty as to whether closed containers found during a lawful warrant-less search of an automobile may themselves be searched without a warrant.” 453 U.S. at -, 101 S.Ct. at 2844, 69 L.Ed.2d at 748. The Court reversed the judgment of the California Court, reaffirming its own decisions in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) and United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), which disapproved of warrantless searches of personal luggage found in automobiles.

The Court stated that “a closed piece of luggage found in a lawfully searched car is constitutionally protected to the same extent as are closed pieces of luggage found anywhere else.” 453 U.S. at -, 101 S.Ct. at 2845, 69 L.Ed.2d at 750. The Robbins decision recognizes that the automobile exception exists only because of the inherent mobility and diminished expectation of privacy which surrounds the automobile. In refusing to extend this exception to encompass closed pieces of luggage, the Court concluded that no diminished expectation of privacy characterizes luggage. It reasoned that when a person places an object in a closed opaque container, that person reasonably manifests an expectation that the contents will remain free from public examination. Because luggage is a common repository of personal effects, it is inevitably associated with privacy. Additionally, the Court noted that the circumstances which make it impracticable for the police to detain a vehicle on the open road while obtaining a search warrant would not be applicable to luggage, as luggage itself may be brought and kept under the control of the police (the Court chose not to discuss the apparent fact that the Constitutions— state and federal — protect against warrant-less seizures as well as warrantless searches); only in exigent circumstances should the warrant requirement be obviated.

We reaffirm our previous conclusion in the present case that the officers had probable cause to search the vehicle, and therefore conducted a lawful warrantless search under the automobile exception. We are unable to affirm, however, our previous conclusion that the lawful search of the vehicle included the warrantless opening of the suitcase. The state does not rely on any other exception to the warrant requirement in justifying its actions. Further, our examination of the record shows that there were no special exigencies of the situation which may have required the immediate opening of the luggage. The officers had possession and control of the suitcase, which, under Robbins, may be constitutionally seized without a warrant when there exist probable cause and exigent circumstances, but may not be opened until a magistrate has issued a warrant.

Accordingly, the defendants’ convictions and sentences are hereby reversed and set aside and the case is remanded to the trial court for proceedings not inconsistent with this opinion.

BLANCHE, J., dissents.

LEMMON, J., dissents and assigns reasons.

MARCUS, J., dissents for reasons assigned by LEMMON, J.

LEMMON, Justice,

dissenting.

On original hearing we upheld the war-rantless stopping and searching of the vehicle on the basis of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). We further upheld the warrantless seizure and search of the suitcase located in the trunk on two separate grounds.

First, we believed that Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), should not be applied retroactively to exclude evidence discovered as a result of searches of independent containers located in motor vehicles (even if there was probable cause to believe that the contraband was located exclusively within the container). We relied on the premise that Sanders announced a new prophylactic rule or at least extended previously announced exclusionary rules. See Arkansas v. Sanders, above, Blackmun, J., dissenting. We also relied on the Court’s opinion in United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1974), which noted that the deterrent purposes of the exclusionary rule are not furthered by suppressing fruits of good faith actions taken in reliance on existing standards. We disagreed with those courts who viewed Sanders as clearly dictated by United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). See United States v. Dion, 609 F.2d 1038 (2nd Cir. 1979), on rehearing, 615 F.2d 10 (2nd Cir. 1980).

Second, we reasoned that Sanders was distinguishable, because (as noted in Chief Justice Burger’s concurring opinion in Sanders) the only place within the vehicle (a taxicab) that the police had probable cause to search was the luggage. The officers’ sole justification for stopping the taxicab was their information about that piece of described luggage carried by Sanders into the taxicab.

In the present case the officers clearly had probable cause to believe that marijuana was being transported in the blue and white Monte Carlo, but did not have reason to believe that the marijuana was exclusively located in any particular area of the car or within any particular container. Their information was simply that the marijuana would be transported in the described Monte Carlo; their tip did not describe or even mention a particular container, as did the tip in Sanders. Therefore, we concluded that the holding of Sanders did not preclude police, given probable cause to believe that contraband was to be found somewhere in the automobile, from searching any area of the vehicle (including independent containers such as luggage) where the marijuana might reasonably be expected to be found.

Pretermitting the retroactively issue, I believe there is a valid distinction between this case and the “container” cases such as Chadwick, Sanders, and Robbins, which are cited and relied upon in the majority opinion. My conclusion is buttressed by the concurring opinions of Chief Justice Burger in Sanders and of Justice Powell in Robbins, as well as the dissenting opinion of Justice Stevens in Robbins. In the latter opinion Justice Stevens characterized Chadwick and Sanders as “container” cases, rather than “automobile” cases. This distinction accords with Chief Justice Burger’s concurrence in Sanders (which we adopted in Bible), in that the “automobile exception” logically applies to cases in which officers have probable cause to search a vehicle —“including the glove compartment, the trunk, and any containers in the vehicle that might reasonably contain the contraband”. (Emphasis supplied.) - U.S. at -, 101 S.Ct. at 2855 (Stevens, J., dissenting).

Justice Powell concurred in the result in Robbins because he was willing to “share the plurality’s assumption that the police had probable cause to search the container rather than the automobile generally”. (Emphasis supplied.) - U.S. at -, 101 S.Ct. at 2849 (Powell, J., concurring). By viewing the case as a “container” case, he recognized a distinction, but pretermitted discussion until a “future case affording an opportunity for more thorough consideration of the basic principles at risk”. - U.S. at -, 101 S.Ct. at 2851 (Powell, J., concurring).

After a careful review of the various opinions in Robbins, I see no reason to depart from our carefully considered original position in this case. I would affirm the judgment.

      . Defendants’ petition for certiorari questioned the warrantless search of the suitcase and this court’s refusal to reverse their convictions based on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

      . Warrantless searches are unreasonable unless they fall under one of the specifically established and well delineated exceptions to the warrant requirement. In State v. Tant, 287 So.2d 458 (La.1973), this court stated: “[o]ne exception to the general rule is that a moving vehicle may be stopped and searched where ‘exigent circumstances’ make the securing of a search warrant impracticable.” Id. at 460. The Supreme Court in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), noting that probable cause is the minimum requirement for a search permitted by the Constitution, stated: “[o]nly in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a search.” Id. at 51, 90 S.Ct. at 1981, 26 L.Ed.2d at 428.
      This exception recognizes the societal costs and burdens placed on police officers by an inflexible requirement to obtain a warrant to search a legally stopped vehicle which is believed to be transporting contraband. Because of the inherent mobility of vehicles, that is, they can be quickly moved out of the jurisdiction in which the warrant must be sought, to require officers to obtain warrants to search legally stopped vehicles may prove to be impracticable. In its discussion of the automobile exception, the Court in Chambers v. Maroney, supra, explained:
      “. . . we see no difference between on the one hand seizing and holding a car [on the open road] before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a search warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment." 399 U.S. at 52, 90 S.Ct. at 1981, 26 L.Ed.2d at 428. (Emphasis added). The Court in Robbins v. California, supra, reasoned that automobile occupants’ expectation of privacy is diminished because the automobile is used for transportation — not as a repository of personal effects. Additionally, the automobile’s occupants and contents travel in plain view and automobiles are necessarily highly regulated by government.
      It should be noted that the “automobile exception” does not give the police unfettered authority to stop, detain and search vehicles at will or upon mere suspicion that the vehicle or its occupants may be involved in illegal activity. The United States Supreme Court has consistently maintained that “probable cause” is the minimum requirement for a search permitted by the Constitution. See Chambers v. Maroney, supra. It is also clear that “the exception does not invariably apply whenever automobiles are searched.” Arkansas v. Sanders, 442 U.S. at 760, 99 S.Ct. at 2591 n. 7, 61 L.Ed.2d at 243 n. 7.

      . The United States Supreme Court had previously granted certiorari in Robbins, vacated the California Court of Appeal judgment affirming the conviction, and remanded the case for further consideration in light of Arkansas v. Sanders, supra. On remand, the court of appeal again found the warrantless opening of the packages constitutionally permissible.

      . The United States Supreme Court has determined that all luggage may not be entitled to the full protection of the Fourth Amendment because the special exigencies of a situation may justify the warrantless opening of the luggage, for example, the police reasonably believe that the luggage contains explosives or other inherently dangerous items, or that it contains evidence which would lose its value unless opened immediately. But whether special exigencies of the situation dictate that the luggage be opened will depend upon its probable contents, not upon whether it is taken from an automobile. See Arkansas v. Sanders, supra.

      .In United States v. Peltier, above, the Court said “[i]t is indisputable .. . that in every case in which the court has addressed the retroactively problem in the context of the exclusionary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the fact finding process, the court has concluded that any such new constitutional principle would be accorded only prospective application.” See also Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), holding that Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), was not to be given retroactive effect.

      . The suitcase was an obvious place to look, because officers had earlier seen it handled by defendants. Nevertheless, the information giving rise to probable cause did not focus exclusively on the suitcase.

      . Furthermore, paraphrasing the’ rationale of Chambers v. Maroney, 399 U.S. at 52, 90 S.Ct. at 1981 (1970), I see no difference between, on the one hand, seizing a suitcase and holding it until the probable cause issue is presented to a magistrate and, on the other hand, carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable.

      . In Sanders Chief Justice Burger pointed out:
      “The breadth of the Court’s opinion and its repeated references to the ‘automobile’ from which respondent’s suitcase was seized at the time of his arrest, however,' might lead the reader to believe — as the dissenters apparently do — that this case involves the ‘automobile’ exception to the warrant requirement. See ante, at 762-765, and n.14 [at 2592-2594]. It does not. Here, as in Chadwick, it was the luggage being transported by respondent at the time of the arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband. The relationship between the automobile and the contraband was purely coincidental, as in Chadwick. The fact that the suitcase was resting in the trunk of the automobile at the time of respondent’s arrest does not turn this into an ‘automobile’ exception case. The Court need say no more.
      “This case simply does not present the question of whether a warrant is required before opening luggage when the police have probable cause to believe contraband is located somewhere in the vehicle, but when they do not know whether, for example, it is inside a piece of luggage in the trunk, in the glove compartment, or concealed in some part of the car’s structure.” 442 U.S. at 767, 99 S.Ct. at 2595.

      . Justice Powell said in pertinent part:
      “The dissenters argue, with some justice, that the controlling question should be the scope of the automobile exception to the warrant requirement. In their view, when the police have probable cause to search an automobile, rather than only to search a particular container that fortuitously is located in it, the exigencies that allow the police to search the entire automobile without a warrant support the warrantless search of every container found therein. See post, at 8 & n. 13 [101 S.Ct. at 2859 n.13] (STEVENS, J., dissenting). This analysis is entirely consistent with the holdings in Chadwick and Sanders, neither of which is an “automobile case,” because the police had probable cause to search the double-locked foot-locker and the suitcase respectively before either came near an automobile. See Chadwick, supra, [433 U.S.] at 11 [97 S.Ct. at 2483]; Sanders, supra, [442 U.S.] at 761 [99 S.Ct. at 2591]; see also id. at 766 [99 S.Ct. at 2594] (BURGER, C. J., concurring). Adoption of the dissenters’ view would require, however, rejection of a good deal of the reasoning in the latter case.
      “Resolving this case by expanding the scope of the automobile exception is attractive not so much for its logical virtue, but because it may provide ground for agreement by a majority of the presently fractured Court on an approach that would give more specific guidance to police and courts in this recurring situation — one that has lead to incessant litigation. I note, however, that this benefit would not be realized fully, as courts may find themselves deciding when probable cause ripened, or whether suspicion focused on the container or on the car in which it traveled.
      “The parties have not pressed this argument in this case and it is late in the Term for us to undertake sua sponte reconsideration of basic doctrines. Given these constraints, I adhere to statements in Sanders that the fact that the container was seized from an automobile is irrelevant to the question whether a warrant is needed to search its contents. Some future case affording an opportunity for more thorough consideration of the basic principles at risk may offer some better, if more radical, solution to the confusion that infects this benighted area of the law.”

      . In Robbins the opinion of the Court by Justice Stewart, now retired, was joined by Justices Brennan, Marshall, and White. Justice Stevens, Blackmun and Rehnquist dissented and apparently would agree with our original opinion in this case. Chief Justice Burger and Justice Powell concurred in the result in Robbins but have otherwise recognized a distinction between “container” cases and “automobile” cases.