text:
    STATE of Florida, Petitioner, v. Darrell FARMER, and William C. Gridley, Circuit Judge, Ninth Judicial Circuit, In and For Orange County, Respondents.
    No. 80-379.
    District Court of Appeal of Florida, Fifth District.
    June 11, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for petitioner.
    William C. Gridley, in pro. per.
   COBB, Judge.

By a petition for writ of certiorari, the Attorney General of the State of Florida seeks review of an order entered by the respondent, William C. Gridley, Circuit Judge of the Ninth Judicial Circuit of Florida, granting a defendant’s motion for reconsideration of degree of guilt. By suggestion for writ of prohibition, the petitioner asks this Court to prevent the circuit court from acting without jurisdiction by resentencing the defendant.

On October 18, 1974, after trial by jury, defendant Farmer was convicted of first-degree murder and sentenced to life imprisonment. On November 15, 1974, Farmer filed a motion for reconsideration of degree of guilt pursuant to Florida Rule of Criminal Procedure 3.620, which was denied on May 16, 1975. Farmer’s conviction was affirmed, Farmer v. State, 326 So.2d 32 (Fla. 4th DCA 1976), cert. dismissed, 340 So.2d 927 (Fla.1976). On March 17, 1976, sua sponte, the trial judge, William C. Gridley, filed a memorandum in the court file making observations as to the background circumstances of the case, noting that post-trial motions were not timely filed and that because the time limit was jurisdictional, the trial court had no authority to hear or rule upon the merits of the Rule 3.620 motion. The memorandum went on to state that “the sentencing court stands ready and willing to entertain a motion by the defense under Florida Rule of Criminal Procedure 3.850.” Farmer then filed a motion for post-conviction relief on August 29, 1977. This motion was denied by Judge Pfeiffer on January 4, 1978. Denial of defendant’s motion for post-conviction relief was affirmed by the Fourth District Court of Appeal on February 9, 1979. Farmer v. State, 366 So.2d 1271 (Fla. 4th DCA 1979), cert. denied, 378 So.2d 344 (Fla.1979).

Over five years after Farmer’s conviction, Judge Gridley attempted a “boot-strap assumption of jurisdiction.” On March 4, 1980, Judge Gridley signed a putative order without a hearing and without notice to the parties granting the defendant’s 1974 motion for reconsideration of degree of guilt. Judge Gridley determined that he should have interceded within the fifteen-day period provided by Florida Rules of Criminal Procedure 3.850 and 3.620 because, in his opinion, the evidence did not sustain the verdict of first-degree murder, but was sufficient to sustain a finding of guilt of second-degree murder. Judge Gridley determined that the defendant had been denied his constitutional right to due process of law. The March 4th order postponed resentencing for thirty days to allow the state time to file for rehearing or to file an objection. The State of Florida then petitioned this Court to review Judge Gridley’s boot-strap assumption of jurisdiction and putative order of March 4th.

On April 25, 1980, this Court issued an order to show cause why the writ of certio-rari and writ of prohibition should not issue. Respondent was ordered to show a jurisdictional basis for the putative order signed March 4,1980, and to show why the order is not in direct contravention and derogation of two previous mandates directed to the Circuit Court of Orange County in this case in Farmer v. State, 326 So.2d 32 (Fla. 4th DCA 1976), and Farmer v. State, 366 So.2d 1271 (Fla. 4th DCA 1979). Proceedings were stayed pursuant to Rule 9.100(f), Florida Rules of Appellate Procedure, pending disposition. Judge Gridley’s response fails to show a jurisdictional basis for the putative order signed March 4, 1980.

The law in Florida is clear. Relief under Rule 3.620, Florida Rules of Criminal Procedure, is dependent upon a motion for new trial. Rule 3.590(a) states that a motion for new trial may be made within four days, or such greater time as the court may allow, not to exceed fifteen days, after the rendition of the verdict or finding of the court. These time limits are jurisdictional. The failure to file a Rule 3.620 new trial motion within the time limit divests the trial court of jurisdiction to hear such post-trial motions. See Long v. State, 96 So.2d 897 (Fla.1957); Farrior v. State, 76 So.2d 148 (Fla.1954); State v. Morris, 359 So.2d 478 (Fla. 1st DCA 1978), cert. denied, 365 So.2d 713 (Fla.1978); State v. Pinto, 273 So.2d 408 (Fla.3d DCA 1973), cert. dismissed, 283 So.2d 367 (Fla.1973); Thomas v. State, 250 So.2d 308 (Fla. 4th DCA 1971); Clark v. State, 176 So.2d 353 (Fla. 2d DCA 1965); Miller v. State, 134 So.2d 513 (Fla. 1st DCA 1961). In the instant case, the verdict was rendered on October 18, 1974, and the motion to reconsider the degree of guilt was filed on November 15,1974, twenty-eight days later. The law is clear that the trial court was without jurisdiction to hear the motion for reconsideration of degree of guilt. Judge Gridley’s putative order of March 4,1980, was a material departure from the essential requirements of law. Certiorari is the proper remedy. See State ex rel. Wainwright v. Booth, 291 So.2d 74 (Fla. 2d DCA 1974), cert. discharged, 300 So.2d 257 (Fla.1974).

In addition, the suggestion for writ of prohibition has affirmatively shown a lack of jurisdiction in the lower court. We find prohibition to be the proper remedy to prevent the lower court from taking further actions in excess of its power. See Florida Admin. Comm. v. District Ct. of App., First Dist., 351 So.2d 712 (Fla.1977); State ex rel. Gibbs v. Circuit Ct. of Eleventh Judicial Circuit In and For Dade County, Fla., 140 Fla. 378, 191 So. 699 (1939). In the instant case the respondent circuit judge affirmatively represents in his response to the Attorney General’s petition that, in the absence of a favorable jurisdictional ruling by this Court, he does not intend to do anything further in this cause and that the issuance of a writ of prohibition is unnecessary. Based on this representation, we decline to issue the writ at this time.

Certiorari is granted and the putative order of March 4, 1980, is quashed.

IT IS SO ORDERED.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.


source: Caselaw Access Project

author: BOOTH, JOHN W., Associate Judge.

license: Public Domain

text:
    Ruby Jean TROUTMAN, Appellant, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellee.
    No. 79-70.
    District Court of Appeal of Florida, Fifth District.
    June 11, 1980.

      David C. Beers of Rogers & Dowling, P. A., Orlando, for appellant.
    Gordon H. Harris of Gray, Adams, Harris & Robinson, P. A., Orlando, for appellee.
   BOOTH, JOHN W., Associate Judge.

Miss Troutman was an employee at Walt Disney World beginning June 28, 1978. At all times subsequent to her original hiring, she worked 40 hours per week. She was changed from a casual (temporary) employee to a non-casual (permanent) employee on August 20, 1978. On September 30, 1978, Troutman was involved in a serious automobile collision and sustained injuries. Troutman applied for medical, weekly income, and disability benefits from Prudential but was denied any benefits on the ground that she was not covered by the policy.

Troutman then filed a complaint seeking those benefits that had been denied to her under the group policy issued by Prudential to Walt Disney Productions and Associated Companies, and attached the certificates of insurance of the three coverages as exhibits to the complaint. Prudential filed an answer and affirmative defenses that denied insurance coverage to Troutman under the terms of the group policy and attached a rider marked Exhibit “B” relating to an employment waiting period.

Prudential filed a motion for summary judgment. At the summary judgment hearing, the court accepted, as filed in open court, a rider marked Amended Exhibit “B” to Prudential’s answer and affirmative defenses. The court granted Prudential’s motion for summary judgment and entered a final summary judgment. The point on appeal is whether the trial court erred in deciding that Prudential’s policy did not cover Ruby Jean Troutman with group insurance benefits.

The original Exhibit “B” attached to Prudential’s answer in this civil action is a rider that provided employment waiting periods required to be met by Walt Disney World employees before they would become covered under the group policy.

That employment waiting period read as follows:

EMPLOYMENT WAITING PERIOD: The following period of continuous service on a full time basis with the employer — full-time employees in the eligible classes on the policy date: See below: Other employees: See below:
Employees not on a Casual Payroll:
Exempt Salaried Employees — None
All Other Employees — The period extending from the Employee’s date of hire or transferred to Regular Payroll to the earliest of January 1, April 1, July 1, or October 1, next following the month of continuous service.
Full-time Employees on Casual Payroll: The period extending from the Employee’s date of hire or transfer to Regular payroll to the earliest of January 1, April 1, July 1, or October 1, next following two hundred straight-time days of work during twelve consecutive months, providing the Employee was employed one or more days during the six consecutive months prior to said twelve consecutive months.

Amended Exhibit “B” to Prudential’s answer is a rider that further amended the employment waiting period under the group policy. It read as follows:

1. Each insurance form listed below is attached to this Amendment and forms part of the Group Policy as of such insurance form’s effective date:
GRP 31300 Gen M-lOl(l-lO) effective May 1, 1978.
2. Effective May 1, 1978, the employment waiting period shall be the following period of continuous service on a full-time basis with the employer.
Exempt Salaried Employees — None
All other employees — The period extending from the date of the Employees employment with the Employer to the first day of the month coinciding with or next following one month of continuous service on a full-time basis with the Employer.
This provision shall not apply to Employees in the eligible classes on the day prior to the effective date of this provision except to the extent provided in the subsection “Employment Waiting Period Changes” added to the Eligibility section of the Insurance Plan Provisions of the Group Policy by the “MODIFICATIONS OF ‘ELIGIBILITY’ SECTION.”
3. At the expiration of April 30, 1978, the following insurance forms of the Group Policy shall terminate:
GRP 31300 Gen M-101 effective August 1, 1975.

Troutman contends that she was covered under the terms of the second rider because she was working full-time from June 28, 1978 and, therefore, under the language of that rider, she would have been covered as of August 1, 1978.

Prudential contends that Troutman was not a full-time employee until she was made a permanent employee on August 20, 1978. Therefore, she would not have been covered until October 1, 1978.

The initial rider distinguished between non-casual (permanent) and casual (temporary) employees as to waiting periods. However, both types of employees were added to the coverage on a quarterly basis. The rider submitted at the hearing no longer differentiated between non-casual (permanent) and casual (temporary) employees. It only referred to employees working on a “full-time basis.” It also changed the coverage system from a quarterly to a monthly system.

While it may be that the second rider was only intended to modify the coverage of the non-exempt permanent employees, there was nothing on the rider so limiting it. As it was written, Troutman was covered under the rider identified as Amended Exhibit “B.” The Final Summary Judgment is reversed and the case is remanded to the trial court to proceed in a manner consistent with this opinion. Troutman’s motion before this Court for attorney’s fees is also remanded to the trial court for the assessment of attorney’s fees incurred by the appellant in this appeal in the event that judgment is rendered by the trial court against the insurer as provided by Section 627.428, Florida Statutes.

REVERSED and REMANDED.

DAUKSCH, C. J., and COBB, J., concur.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Leo C. HYDER and S. D. Hyder, Individually and d/b/a H & H Construction Company, Appellants, v. ACOUSTI ENGINEERING COMPANY OF FLORIDA and United States Fidelity and Guaranty Company, Appellees.
    No. 79-76.
    District Court of Appeal of Florida, Fifth District.
    June 11, 1980.

      Christopher W. Wickersham, Daytona Beach, for appellants.
    Charles D. Hood, Jr., Daytona Beach, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a final judgment of the Circuit Court for Volusia County.

The question presented is whether section 627.756, Florida Statutes (1977), limits an award of attorney’s fees to 12.5 percent of the damages awarded by the jury against a subcontractor who has obtained a performance bond notwithstanding that the subcontract agreement provided for a “reasonable” attorney’s fee.

We conclude there is no such limitation.

Appellants, Leo C. Hyder and S. D. Hy-der, d/b/a H & H Construction Company, subcontracted with appellee, Acousti Engineering Company, for certain renovations. Appellee, United States Fidelity and Guaranty Company, wrote a performance bond for Acousti. Thereafter, Acousti breached the subcontract and H & H Construction filed suit. The complaint was in two counts: Count I sought damages for breach of contract and for reasonable attorney’s fees as specified in the contract; Count II was against USF&G on its performance bond. The jury returned a verdict in the amount of $5,546.20. At a subsequent hearing, the court combined the attorney’s fee award against both Acousti and USF&G and limited the amount allowable to 12.5 percent or $693.28, pursuant to the statute. The parties have stipulated that were it not for the statute, the sum of $3,000.00 would be a reasonable fee.

The right of a party to an award of attorney’s fees must be established either by contract or by a specific statute. Joseph v. Houdaille-Duval-Wright Co., 213 So.2d 3 (Fla.3d DCA 1968). The contract between H & H Construction and Acousti clearly provided for an award of reasonable attorney’s fees. Acousti conceded that if USF&G had not written a bond, there would be no limitation as imposed by the statute; however, it contends that the statute limits the recovery because of the presence of the bond. Acousti also acknowledges that had H & H Construction sued only Acousti and not joined USF&G, reasonable attorney’s fees could also have been recovered.

In their complaint, H & H Construction carefully sought reasonable attorney’s fees and damages against Acousti and sought only damages against USF&G on its performance bond. Entitlement to reasonable fees should not turn on the technical point of combining two counts in one suit rather than filing two separate actions.

Section 627.756(2), applies only to suits against a surety insurer. It has no application to suits between the contracting parties.

Therefore, the judgment dated June 15, 1979, is hereby REVERSED and REMANDED with directions to enter judgment for H & H Construction in the amount of $3,000.00 with interest from the date judgment appealed was entered.

REVERSED and REMANDED.

ORFINGER, J., and MELVIN, WOODROW M., Associate Judge, concur.

      . Bonds for construction contracts; attorney fees in case of suit — Section 627.428 (attorney fee) shall also apply as to suits brought by owners, subcontractors, laborers and material men against a surety insurer under payment or performance bonds written by the insurer under the laws of Florida to indemnify such owners, subcontractors, laborers and material men against pecuniary loss by breach of a building or construction contract; except, that the amount to be so recovered for fees or compensation of such a plaintiffs attorney shall not be more than 12.5 percent of the amount which the judgment or decree awards such plaintiff under the bond (exclusive of the costs of suit and attorney fees or compensation), nor shall it be less than $100 where the judgment or decree is for more than $500 nor less than $50 where the judgment or decree is $500 or less. Such owners, subcontractors, laborers and material men shall be deemed to be “insureds” or “beneficiaries” for the purposes of this section.


author: DANAHY, Judge.

text:
    Robert M. STITH, Appellant, v. Elizabeth N. STITH, Appellee.
    No. 78-1906.
    District Court of Appeal of Florida, Second District.
    June 11, 1980.

      Ronald A. Cyril of Nelson, Hesse, Cyril, Weber, Smith & Widman, Sarasota, for appellant.
    John M. Strickland of Livingston, Patterson & Strickland, P. A., Sarasota, for appel-lee.
   DANAHY, Judge.

In this dissolution of marriage proceeding the trial judge awarded the wife the sum of $240,000.00 in lump sum alimony payable in installments of $1,000.00 per month for a period of twenty years. Further, he directed the husband to secure that award by naming the wife as the irrevocable beneficiary of the husband’s revocable trust and maintaining all life insurance policies on his life payable to that trust as well as a separate $25,000.00 policy payable to the wife. The trial judge also reserved jurisdiction to review these provisions of the final judgment and to award periodic alimony if the circumstances require. We reverse with directions that the award be modified in accordance with this opinion.

The husband enjoys an after-tax income of approximately $50,000.00 per year and does not quarrel with the requirement that he pay the wife the sum of $1,000.00 per month under present circumstances; however, he contends that the monthly payment obligation should be simple periodic alimony rather than installments of a lump sum award. He points out that the award burdens him and his estate with a substantial obligation which is neither terminable upon the wife’s remarriage or death nor subject to modification should the circumstances of either party change. He suggests, for example, that the wife might die or remarry with $200,000.00 of the lump sum award remaining to be paid, eliminating her need for support but requiring the husband to continue making monthly payments of $1,000.00 per month for almost seventeen more years or, in the event of his death, requiring his estate to pay so much of the obligation as would then remain.

The husband further hypothesizes a situation in which he becomes incapacitated or suffers some other severe change of circumstances making it impossible for him to pay the monthly installments, but not enabling him to obtain relief from the continuing obligation. As the husband points out, a lump sum award gives rise to a vested right which is not subject to modification. Our supreme court recently affirmed that rule in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

In the final judgment, the trial judge stated in detail the circumstances which persuaded him to make the lump sum alimony award in this case. Those circumstances certainly justify the wife’s description of herself as a typical displaced homemaker. The parties were married for twenty-three years; the wife is now forty-six years old. Although she holds a college degree and a teacher’s certificate, she has not worked since the birth of the parties’ first child twenty-one years ago. Because of her age and lack of experience, her prospects for employment are not good. The wife points out that she spent the most economically productive years of her life as a mother and homemaker; that in doing so, she relinquished her opportunity for a career; that her prospects for future employment and remarriage are dim; that she has no estate and her prospects for creating one are minimal. The wife has assets worth approximately $50,000.00, including her one-half interest in the marital home.

The husband, on the other hand, finished law school after the marriage and advanced his professional career to a respectable level of success. He is currently employed as executive vice president in charge of the trust department of a bank. His income consists of his base salary plus fringe benefits and additional income from investments.

The husband is the grantor and sole beneficiary of a revocable trust to which a substantial amount of life insurance on his life is payable. The face amount of that insurance is $215,850.00, from which loans in the amount of $28,500.00 are deductible. The husband has other assets (some of which are in the trust) totaling approximately $387,-000.00. He claims that he has liabilities of approximately $287,000.00, producing a net worth of approximately $100,000.00. The husband’s liabilities include the sum of $120,000.00 owed to himself as trustee of a trust established by his father for the benefit of his sister.

The alimony award fashioned by the trial judge in this case was designed to meet a perceived need of the wife for protection in the event of the husband’s death. As the trial judge expressed it, the death of the husband after the entry of the final judgment would be tantamount to financial disaster for the wife. Certainly we cannot quarrel with that conclusion, which undoubtedly applies to a vast number of divorced wives who have no sources of support other than their ex-husbands and who are unable to support themselves. The question which confronts us is whether that risk may properly be addressed in the manner chosen by the trial judge in this case.

Where a lump sum alimony award is justified, such an award can provide an ex-wife with sufficient security to minimize her risk that her sole means of support will be lost to her if her ex-husband should die, and an award designed for that purpose is appropriate. Grobard v. Grobard, 382 So.2d 117 (Fla. 3d DCA 1980). A lump sum award payable in installments is perfectly proper in an appropriate case. West v. West, 260 So.2d 541 (Fla. 1st DCA 1972). Further, jurisdiction may be retained, as the trial judge did in the instant case, to award periodic alimony if found necessary after the termination of lump sum alimony installment payments. Canakaris v. Canakaris, supra.

Unfortunately, the lump sum award to the wife in this case is not within the parameters set for lump sum alimony by the supreme court in Canakaris v. Canakaris, supra. In that case the court approved the award of lump sum alimony as a means of insuring an equitable distribution of property acquired during the marriage, as well as a means of providing support. The court emphasized that an award of alimony should be fashioned so as to achieve equity between the parties.

Applying the principles of Canakaris and the standard of review mandated by the supreme court in that case, we are compelled to conclude that the trial judge in this case abused his discretion in the lump sum award made to the wife. While the wife views with suspicion the husband’s liability in the amount of $120,000.00 owed to himself as trustee for his sister, there is nothing in the record to support the conclusion that this is not a bona fide debt. The fact remains that the husband has a net worth of $100,000.00, plus his $40,000.00 share of the equity in the marital home. A lump sum award of $240,000.00 to the wife on the facts in this case simply cannot be justified as an equitable distribution of property acquired during the marriage.

Nevertheless, we have explored the possibility of accommodating both the wife’s need to be protected in the event of the husband’s death and the husband’s desire to be relieved of any further alimony obligation in the event the wife should die or remarry prior to the husband’s death, or in the event of a substantial reduction in the husband’s economic circumstances. We first considered whether this could be accomplished by an award of permanent periodic alimony which is made a charge against the husband’s estate. We initially wrote this opinion to state that although two of our sister courts have approved an alimony award charged against the obli-gor’s estate, Rouse v. Rouse, 313 So.2d 458 (Fla. 3d DCA 1975), and Davis v. Davis, 358 So.2d 126 (Fla. 1st DCA 1978), we felt that there was a serious question whether a trial judge in Florida has the authority to make such an award based on circumstances such as those in the case before us. In the course of our writing, the supreme court rendered a decision dispelling any such question by making it clear that under the law of Florida, the obligation to pay alimony dies with the obligated party. O'Malley v. Pan American Bank of Orlando, N.A., 384 So.2d 1258 (Fla.Sup.Ct. May 8, 1980). Reaffirming its decision in Aldrich v. Aldrich, 163 So.2d 276 (Fla.1964), the court referred to the law in this respect as clearly established and settled.

Under the rule that the duty of support ends with death and, therefore, alimony must terminate at the death of the party required to pay it, Florida courts have disapproved provisions in final judgments requiring a former husband to maintain insurance on his life for the benefit of his former wife in the event he should predecease her. The courts viewed such a requirement as tantamount to an award of alimony extending beyond the husband’s death. Perkins v. Perkins, 310 So.2d 438 (Fla. 4th DCA 1975); Putman v. Putman, 154 So.2d 717 (Fla. 3d DCA 1963). That appears to be a traditional view, Annot., 59 A.L.R.3d 9 (1974). Our supreme court, however, has not expressly embraced that view.

In a continuing marriage, a husband who has not accumulated substantial assets may use life insurance to provide his wife with an adequate estate for her protection in the event of his death. We think it unfortunate to forbid imposing such an arrangement on an ex-husband for the benefit of his ex-wife on the theory that life insurance under such circumstances can only be viewed as security for an alimony obligation and, therefore, is improper because the alimony obligation cannot extend beyond death.

Without elevating form over substance, we believe the solution to the problem lies in viewing life insurance as an asset which can be the subject of a lump sum award to the wife, just as any other asset. As we have noted, the husband in this case has accumulated net assets of $100,000.00. The life insurance policies payable to the husband’s revocable trust and his separate $25,000.00 policy are also assets available to the husband and we see no impediment to awarding those assets to the wife as lump sum alimony. Such an award can be framed in terms which will protect the wife if the husband predeceases her while she remains unmarried, but at the same time terminate the husband’s obligation to the wife in the event of her death or remarriage prior to his death. The husband’s income justifies a requirement that the husband pay the premiums on those life insurance policies as a form of additional periodic alimony. Cf. Cyphers v. Cyphers, 373 So.2d 442 (Fla. 2d DCA 1979) (the requirement that a husband contribute a monthly amount toward a major medical insurance policy for the wife considered part of the wife’s permanent periodic alimony).

Accordingly, we reverse the award of lump sum alimony in this case with directions that the wife be awarded permanent periodic alimony in the amount of $1,000.00 per month plus the ownership, as lump sum alimony, of the husband’s $25,-000.00 life insurance policy and those life insurance policies on the husband’s life which are presently part of his revocable trust, subject to the following conditions:

1.The wife may not assign the policies to anyone and shall have no right to borrow against the policies or to surrender them for their cash surrender value.

2. Should the wife die or remarry pri- or to the husband’s death, ownership of the policies shall revert to the husband or his designee.

3. The parties shall cause the wife to be irrevocably designated beneficiary of the policies contingent upon her also being the owner of the policies at the husband’s death; that is, if at the husband’s death, the wife is living and has not remarried. Otherwise, the proceeds are to be payable to a beneficiary selected by the husband or, if none, to his estate.

4. The husband shall pay all premiums due on the policies and all interest due on the existing loans against the policies until the death or remarriage of the wife, or until his death, whichever shall first occur.

5. The parties shall cause a copy of the conditions of the award to be sent to each of the life insurance companies which issued the policies and shall file in the trial court an acknowledgment of receipt from each company.

The trial judge will, of course, retain jurisdiction to modify the permanent periodic alimony awards should the circumstances of either party change substantially.

In all other respects, the final judgment is affirmed.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED WITH DIRECTIONS.

      . Typically such women are too young to qualify for social security benefits and have no minor child qualifying them to receive AFDC benefits. Our opinion in Desilets v. Desilets, 377 So.2d 761 (Fla. 2d DCA 1979), describes such an ex-wife. The consequence of losing the alimony on which such women depend may be poverty subsistence. Forty-nine per cent of all widows and single women in the United States have incomes which are at or below the poverty level of income officially defined by the Bureau of the Census of the U.S. Department of Commerce. Bureau of Labor Statistics (U.S. Department of Labor), Facts on Women Workers (January 1980).

      . In 1971 the Florida alimony statute was amended to provide that in determining a proper award of alimony, the court may consider any factor necessary to do justice and equity between the parties. Ch. 71-241, § 10, Laws of Fla. That provision has remained in the alimony statute, which was next amended as of October 1, 1978, to direct that all relevant economic factors be considered in determining an alimony award, including those specific factors listed in the statute, and to permit the trial judge to consider “any other factor necessary to do equity and justice between the parties.” § 61.08, Fla.Stat. (1979). The 1978 amendment does not apply to the instant case and was not applied in Canakaris.


author: PER CURIAM.

text:
    William L. BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 79-1009.
    District Court of Appeal of Florida, Second District.
    June 11, 1980.

      Jack 0. Johnson, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant’s conviction and sentence are affirmed; however, the cause is remanded with directions to delete from the sentence the requirement appellant serve at least three years before being eligible for parole. Wright v. State, 342 So.2d 565 (Fla. 1st DCA 1977).

SCHEB, Acting C. J., and RYDER and CAMPBELL, JJ., concur.


text:
    D. J. B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 79-1691.
    District Court of Appeal of Florida, Second District.
    June 11, 1980.
    Jack 0. Johnson, Public Defender and David A. Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant’s commitment is affirmed; however, the cause is remanded with directions to amend the commitment order to identify and specify the maximum time of commitment appellant may be required to serve for each offense. Darden v. State, 306 So.2d 581 (Fla. 2d DCA 1975).

SCHEB, Acting C. J., and RYDER and CAMPBELL, JJ., concur.


author: HOBSON, Judge.

text:
    Patricia E. KLING, Appellant, v. Josie Ann CARR, as Personal Representative, Appellee.
    No. 79-1709.
    District Court of Appeal of Florida, Second District.
    June 11, 1980.

      James E. Aker of Icard, Merrill, Cullis, Timm & Furen, P. A., Sarasota, for appellant.
    James A. Garland, Bradenton, for appel-lee.
   HOBSON, Judge.

The 24-year marriage of George A. Carr and Patricia E. (Carr) Kling was dissolved April 25, 1977. The final judgment of dissolution adopted and incorporated a written property settlement agreement which contained the following corporate property clause:

CORPORATE PROPERTY:
The Husband and Wife own jointly Stockyard Feed and Supply, Inc. The Wife agrees to sell her one half interest to the Husband upon terms and a price to be determined by June 1, 1977. However, the minimum monthly payment shall be at least $400.00 per month. In arriving at a price the parties shall take into consideration the value of the stock as determined by the corporate tax consultant. There are now corporate profits on deposit that shall be evenly divided between the Husband and Wife. The Husband agrees to pay to the Wife out of the corporate account, the sum of $250.00 per week until such time as the Wife’s share has been distributed to her. .

George Carr died August 26, 1978. During his lifetime the parties had attempted to enforce and execute the terms of the agreement but were never able to arrive at an agreement on the value of the corporate real estate. Nevertheless, George paid Patricia a total of $11,800 in weekly payments towards her share of the business profits and the corporate stock.

After George’s death, Patricia filed a complaint for declaratory judgment to declare the value of her half interest in the corporate common stock; for a judgment in damages against the personal representative; and for supplemental relief to carry out the declaratory judgment. Testimony at trial disclosed that the corporate accountant, Mr. Sparkman, had prepared a final report on the value of the corporate stock, as of April 30, 1977, based in part on the county tax assessor’s valuation of the corporate real estate. Sparkman met with the parties in his office on July 6, 1977, and suggested that they engage a private appraiser to determine the fair market value of the corporate real estate. George first agreed to this proposition and then later refused to engage a private appraiser. In a letter to George dated January 17, 1978, Sparkman assessed the total value of the corporation to be $133,162.20, based on the stockholder’s equity as shown on the April 30,1977, financial statement plus the excess of the tax assessor’s valuation of the corporate real estate over the book value of the real estate. He stated that the figures were correct only if the county tax assessor’s figure was used as the basis for the value of the corporate real estate. Patricia testified that she never agreed to using the county tax assessor’s assessment figure in the final report and never received a copy of Sparkman’s letter.

Appellee’s appraiser testified that the corporate real estate was worth $100,000 as of June 1, 1977; however, this appraisal was not made until April 1979. Patricia’s appraiser stated that the property was worth $153,600 as of April, 1979, the date of trial. He further stated that the land had appreciated at a rate of from 18% to 24% per year since 1977. The county tax appraiser’s assessment, used in Sparkman’s report, valued the real estate at $65,420.

The trial court found, in part, that June 1, 1977, was the date intended by the parties to evaluate the corporate stock; that the parties agreed to use the corporate accountant’s evaluation to determine Patricia’s one-half interest; and that Patricia’s one-half interest amounted to $50,781.10. We reverse only that portion of the final judgment which found the value of Patricia’s one-half interest to be $50,781.10.

The valuation of the corporate real estate based on the county tax assessor’s figure is obviously too low. Even the corporate accountant so stated. In fairness, we hold that this cause should be remanded in order that the trial judge may receive evidence from both parties on the fair market value of the corporate real estate as of June 1, 1977. After determining the fair market value of the corporate real estate, the trial court shall substitute that figure in place of the county tax assessor’s valuation in calculating the value of the corporate stock. The procedure for determining the net amount due Patricia shall be the same as that utilized in the original judgment.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

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

      . Mr. Sparkman stated that the value of the corporate assets did not change between April 30 and June 1, 1977.

      . The trial judge calculated this net figure by taking one-half the value of the corporate stock and subtracting $11,800 already received by Patricia from the corporate profits, and less $4,000, the stipulated value of the automobile already received by Patricia.


text:
    James GRIFFEN, a/k/a James Griffin, Appellant, v. STATE of Florida, Appellee.
    No. 79-2256.
    District Court of Appeal of Florida, Second District.
    June 11, 1980.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged with attempted first degree murder with a firearm and was convicted as charged. The court properly imposed a life sentence. §§ 777.04(4)(a) and 775.087(l)(a), Fla.Stat. However, the judgment and sentence does not indicate that a firearm was used. The judgment is affirmed, but the case is remanded for correction of the judgment and sentence to reflect the specific crime for which appellant was convicted. Williams v. State, 360 So.2d 61 (Fla. 2d DCA 1978).

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


text:
    SUNSHINE SOUND ENTERPRISES, Appellant, v. Jeannette WILLIAMS, Appellee.
    No. 80-527.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Woodrow “Mac” Melvin, Jr., Miami, for appellant.
    Koppen & Watkins and George J. Lott, Miami, for appellee.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

The appellee having filed a confession of error in this cause, the order striking appellant’s answer, etc., dated February 11,1980, and the final judgment of same date be and they are hereby reversed, and the cause is remanded to the trial court for further proceedings.

Reversed and remanded, with directions.


author: SCHEB, Judge.

text:
    Frederick R. LYNCH, d/b/a Lynch Construction Co. et al., Appellants, v. FLORIDA MINING & MATERIALS CORP., a Florida Corporation, d/b/a Littrell Concrete, and Stevco of Ithaca, Inc., Appellees.
    No. 79-507.
    District Court of Appeal of Florida, Second District.
    May 14, 1980.
    Rehearing Denied June 11, 1980.

      Charles J. Cheves of Cheves & Rapkin, Venice, for appellants.
    Stephen F. Ellis and Malcolm J. Pitchford of Robertson, Robertson, Cummins & Pitch-ford, Sarasota, for appellee, Stevco of Ithaca.
   SCHEB, Judge.

Lynch Construction Company, a general contractor, challenges the trial court’s award of damages to a property owner for Lynch’s untimely and unworkmanlike construction of marine related improvements. We hold that the trial court improperly calculated the owner’s damages and direct that an amended judgment be entered.

On June 29, 1976, Stevco of Ithaca, Inc. contracted with Lynch to construct a building for the dry storage of boats, a small service building, and a seawall and boat ramp. The contract specified that the improvements were to be completed by September 15, and that time was of the essence. Construction lagged, however, and Lynch did not finish the projects by the fifteenth. In addition, Stevco claimed that there were deficiencies in construction of the storage building, and that Lynch had not constructed the seawall and boat ramp in accordance with specifications. As a result, on December 8, Stevco terminated the contract and refused to pay Lynch the balance due on it.

Lynch filed a claim of lien against Stev-co’s property. Subsequently, another lien claimant, Florida Mining & Materials Corporation, filed a suit to foreclose its lien and joined Lynch, Stevco, and Wickes Lumber and Building Supply Center, which had filed a materialman’s lien, as defendants. Lynch cross-claimed against Stevco for the balance due on the contract while Stevco cross-claimed against Lynch seeking damages and claiming that Lynch failed to timely perform in a workmanlike manner.

At the conclusion of a nonjury trial, the court found that Lynch had breached the contract and denied its claim against Stevco for the balance due. It also awarded Stev-co a judgment against Lynch for $39,578.55 which it itemized as follows:

a. Reasonable cost of correction and completion of steel building: $16,000.00
b. Reasonable cost of correction and completion of defective seawall: 7,500.00
c. Reasonable cost of correction and completion of defective boat ramp: 3,500.00
d. Reasonable cost of installation of boat racks in accordance with contract: 6,800.00
e. Forklift payments and construction loan interest payments: 5,778.55

The court denied Wickes’ claim of lien on Stevco’s property, but awarded it a judgment of $2,206.19 against Lynch.

Lynch now appeals contending that Stev-co’s refusal to allow it an opportunity to correct the defects excused its failure to timely perform in a workmanlike manner. Further, Lynch says that the evidence does not support the award of damages against it. Even if the evidence does support an award against it, Lynch argues, the court erred in failing to offset the unpaid contract balance against the damages sustained by Stevco. Finally, Lynch contends the judgment in favor of Wickes is excessive.

Lynch’s argument that Stevco improperly refused it an opportunity to correct the defects is based on Stevco’s failure to furnish a “punch list.” A punch list is a term sometimes used in construction to denote a memorandum given to a contractor by an owner listing minor complaints the owner wants resolved prior to completion of a project. In the present case Lynch did not terminate the contract until approximately three months after the scheduled completion date, a period roughly equal to the time allotted for performance of the contract. The evidence disclosed that during this time Stevco requested that Lynch correct the deficiencies. Consequently, Lynch cannot rely on Stevco’s failure to provide it with a punch list.

Despite the deficiencies, the evidence revealed that Lynch had substantially performed the contract. Thus, in basing Stevco’s award on the reasonable cost of remedying the defective construction, the court followed the proper measure of damages. Pinellas County v. Lee Construction Co. of Sanford, 375 So.2d 293 (Fla. 2d DCA 1978).

Lynch first attacks the award of damages contending that the evidence does not support the court’s award of $16,000 for correction and completion of the storage building. A general contractor who testified for Stevco opined that it would cost between $15,000 and $17,000 to correct construction deficiencies in the structure if it required removal of the roof. The court based this element of its award on this testimony. The expert, however, could not say that removal of the roof was required, and no other testimony indicated any need to remove the roof. Hence, this element of damage is not supported by the evidence and cannot stand. Saporito v. Bone, 195 So.2d 244 (Fla. 2d DCA 1967). Stevco’s expert did testify that it would cost $1,531.80 to square the building, $555.60 to correct deficiencies with the doors, $1,207.50 to properly secure the roof panels, $508.80 to install rollers on doors, and $354.20 to correct the roof vents. In addition, he estimated it would cost $2,180 to erect the small service building. No other testimony was offered by Stevco to show costs of correcting defects. Thus, the maximum damages that the evidence would support for deficiencies in the construction of the building was $6,337.90, and the award of $16,000 must be reduced to this amount.

Lynch also contends that the award of $3,500 to repair the boat ramp was excessive because one of Stevco’s expert witnesses testified that the ramp could be repaired for $1,120. Another of Stevco’s expert witnesses, a marine contractor, explained that if the boat ramp was repaired at the lower cost, however, it would be unsafe. He estimated that it would cost $3,500 to properly correct the defect, and his testimony sufficiently supports the court’s award.

Lynch’s evidence established that $6,800 was deleted from the contract on the basis that the boat racks were to be eliminated. Stevco did not refute this evidence. Thus, the court erred in assessing Lynch $6,800 as the cost of installing the boat racks in accordance with the contract.

Further, Lynch challenges the court’s award of $5,778.55 consisting of construction loan interest and forklift expenses attributable to Lynch’s delay in completion, and of $7,500 to repair the seawall. The evidence, however, supports these awards.

As noted, Lynch contends the court erred in failing to offset the unpaid contract balance against Stevco’s award. Lynch correctly points out that the balance due on a contract should ordinarily be deducted from an owner’s damages for defective work. Dynamic Builders, Inc. v. Tull, 365 So.2d 1032 (Fla. 2d DCA 1979). The testimony revealed that $6,908 was still due Lynch which includes the sum Lynch is now obligated to pay Wickes. Thus, the trial court should have subtracted $6,908 from its award to Stevco.

Finally, Lynch contends that the judgment of $2,206.19 in favor of Wickes is incorrect. The testimony disclosed that Lynch had made some payments to Wickes which reduced Wickes’ claim to $1,800. Stevco agrees that there is no evidentiary support for an award to Wickes in excess of $1,800.

Thus, we conclude that the trial court properly awarded Stevco damages as follows:

Building: $6,337.90
Seawall: 7,500.00
Boat ramp: 3,500.00
Forklift and construction interest: 5,778.55
Total:' $23,116.45
Less balance due Lynch: 6,908.00
Total: $16,208.45

Accordingly, we vacate the judgment for $39,578.55, and direct the trial court to enter an amended judgment of $16,208.45 in Stevco’s favor. Further, we vacate the judgment in favor of Wickes for $2,206.19, and direct the trial court to enter an amended judgment in its favor for $1,800.

BOARDMAN, Acting C. J., and OTT, J., concur.

      . Florida Mining & Materials Corporation subsequently settled its claim and is not a party to this appeal.


author: SCHWARTZ, Judge.

text:
    Bennie JESS, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 78-2408.
    District Court of Appeal of Florida Third District.
    June 3, 1980.

      Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, Miami, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   SCHWARTZ, Judge.

Jess appeals from his conviction and maximum five-year sentence for uttering a forged instrument, which followed a revocation of probation. The trial judge found the defendant guilty of two separate violations of the conditions of probation: (a) the commission of a burglary and (b) the failure to file timely reports. As the state concedes, the burglary was not a proper basis for revocation because it was committed on May 19,1978, after Jess’s term of probation had already expired on December 12, 1977. Curry v. State, 362 So.2d 36 (Fla. 3d DCA 1978), cert. denied, 372 So.2d 471 (Fla.1979); Demchak v. State, 351 So.2d 1053 (Fla. 4th DCA 1977); § 948.06(1), Fla.Stat. (1979).

The allegation that the defendant had violated the condition of probation requiring the submission of monthly reports was made in an affidavit which was never withdrawn by the state and which had been filed on December 9, 1977, shortly before the end of the probationary period. Peyton v. State, 383 So.2d 737 (Fla. 3d DCA 1980); Maycock v. State, 281 So.2d 64 (Fla. 3d DCA 1973). Contrary to the appellant’s contention, we regard as irrelevant the fact that the identical allegation was also contained in an affidavit which was untimely filed on September 18, 1978, and which included the burglary charge. Cf. Carpenter v. State, 355 So.2d 492 (Fla. 3d DCA 1978). The defendant’s reliance upon the trial court’s statement at the revocation hearing that it was proceeding under the latter affidavit is misplaced. Obviously, that comment did not affect the court’s jurisdiction to revoke probation based upon the timely filed and still-effective affidavit of December 9,1977. Compare Wilcox v. State, 248 So.2d 692 (Fla. 4th DCA 1971) (prior information vitiated by filing of amended information restating alleged offense); State v. O’Neal, 174 So.2d 564 (Fla. 2d DCA 1965) (prosecution under original information formally discontinued).

Since there is ample evidence that Jess in fact committed the misnamed “technical” violations, the revocation may be supported on that basis alone. Page v. State, 363 So.2d 621 (Fla. 1st DCA 1978); Franklin v. State, 226 So.2d 461 (Fla. 2d DCA 1969). We do not know, however, whether the trial judge would have revoked the probation or imposed the same sentence on just that ground, without consideration of the burglary. We therefore think it appropriate to remand the cause so that the lower court may now make those determinations. Shanklin v. State, 369 So.2d 620 (Fla. 2d DCA 1979); Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA 1976); see McKeever v. State, 359 So.2d 905 (Fla. 2d DCA 1978); Jones v. State, 348 So.2d 942 (Fla. 2d DCA 1977); compare Scherer v. State, 366 So.2d 840 (Fla. 2d DCA 1979) (unsupported probation violation not substantial in relation to other charges; remand not required); Sampson v. State, 375 So.2d 325 (Fla. 2d DCA 1979) (trial court indicated that revocation and sentence based on each and every violation; remand not required).

Reversed and remanded.


author:
BLANCHE, Justice.
     CALOGERO, Justice, DENNIS, Justice,

text:
    Earl John OLIVIER v. Donald W. DOGA, Clerk of Court.
    No. 64532.
    Supreme Court of Louisiana.
    Nov. 12, 1979.
    Rehearing Denied Jan. 11, 1980.
    Dissenting Opinion May 23, 1980.
    Louis B. Viviano, A Professional Law Corp., Opelousas, for Louis B. Viviano, in-tervenor-applicant.
    John L. Olivier, Olivier & Brinkhaus, Sunset, for plaintiff-respondent.
   BLANCHE, Justice.

The legal issue that brought this matter before us is whether a contingency fee contract entered into between a wife and her attorney to represent her in the partition of the community is void as being against public policy when the contract is entered into after the separation of the husband and wife but before divorce. The Court of Appeal found that the contract was against public policy, relying on Succession of Butler, 294 So.2d 512 (La.1974). In Butler, we stated that a contingency fee contract should neither induce nor hinder a reconciliation of the parties and the tendency of such contracts to produce evil results makes them reprobated by law.

The Court of Appeal’s reliance on Butler is misplaced. The factual posture of this case is one wherein a wife seeks legal assistance to protect her interest in a community which her husband alleges does not exist. There is no public policy against a wife protecting her share in the community of acquets and gains existing between her and her husband. If public policy were an issue, it would be in favor of protecting her interest therein.

Involved here is a claim by the wife for money due on the dissolution of the community partnership with her husband. It is not necessary that the marriage be dissolved in order to effect a division of the community. The judgment of separation dissolved the community. See Cooper v. Cooper, 303 So.2d 319 (La.App. 4th Cir. 1974).

Inasmuch as the community has been terminated by the judgment of separation, the wife has every right to enter into a contract to protect her one-half interest therein in the event of its division.

The agreement between the parties to the contingent fee contract recognized this fact when it provided “to partition the community formerly existing” between the parties.

Accordingly, we find a valid agreement between the intervenor-attorney and the plaintiff’s former wife.

The next issue concerns the viability of a privilege on the proceeds of the judgment which the attorney-intervenor contends he has by virtue of R.S. 9:5001. The Court of Appeal found that the attorney lost his privilege against John Olivier, the judgment debtor, by failing to file an affidavit or other notice of his privilege under LSA-R.S. 9:5001 either in the mortgage records or in the suit record prior to the time the judgment was cancelled by the unilateral authorization of the judgment creditor. There are two statutes applicable to the privilege granted in favor of attorneys at law for the amount of their professional fees: LSA-R.S. 9:5001 and LSA-R.S. 37:218. In Calk v. Highland Construction & Manufacturing, 376 So.2d 495 (La.1979), Justice Calogero of this Court, in a scholarly opinion, traced the historical development of these statutes and expressed their meaning and application. Applicable here is that decision’s pronouncement with regard to LSA-R.S. 9:5001. The opinion holds that LSA-R.S. 9:5001 does not apply to settlements reached on suits filed by an attorney prior to judgment and that it is applicable only to judgments obtained by the attorney for his client. With regard to the effectiveness of the statute depending on recordation of the contract, Justice Ca-logero wrote:

“Under R.S. 9:5001, the attorney does not have to record the contract between himself and his client in order for the attorney to have priority on the proceeds recovered from a judgment on which a creditor has a claim under R.S. 13:3864.”

As a mere observation, attorney-intervenor a fortiori should not be required to record his contract as against the husband who is a party to the lawsuit; but as noted above in Calk, recordation was not necessary and it was error for the Court of Appeal to restrict the operative effect of R.S. 9:5001 by imposing on it the restrictive requirement of prior recordation of the contingency fee contract.

The Court of Appeal further failed to recognize that the contingency fee contract was recorded in both the suit record and the mortgage records only two days before the cancellation of the judgment.

For the above reasons, the judgment of the Court of Appeal is hereby reversed and set aside and it is ordered that this matter be remanded to the district court with instructions to order re-inscription of the judgment rendered in favor of Marsha Mock Fontenot and against Earl John Olivier, recorded in Civil Docket No. 73,360 on the docket of the 27th Judicial District Court, with full recognition of the attorney’s privilege granted therein in favor of relator-intervenor Louis B. Viviano as prescribed by law.

REVERSED AND REMANDED.

CALOGERO, J., dissents and assigns reasons.

DENNIS, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I believe the Court of Appeal properly decided that the contingency fee contract of November 18, 1974 in this case is void as against public policy. Succession of Butler, 294 So.2d 512 (La.1974); Aucoin v. Williams, 295 So.2d 868 (La.App. 3d Cir. 1974) writ refused 299 So.2d 798 (La.).

DENNIS, Justice,

dissenting.

I respectfully dissent.

The majority has failed to consider the problem of failure of cause underlying the contingency fee contract. This contract was confected by the wife and her attorney in connection with the first partition suit. That suit never reached judgment, because the spouses reconciled and remarried while the suit was pending. They suffered marital difficulties once again, obtained another judgment of separation, and instituted a second partition suit. The attorney also represented the wife in this second suit, for which he now seeks his fee. He relies upon the contingency fee contract, agreed upon by the parties prior to the first partition suit, for the amount of fees due for his work in the second partition suit. Since the wife and the attorney did not agree that the contingency fee contract applied to the second suit, it is improper for the majority to hold that the contract is still valid. When the first partition suit was abandoned, the principal cause of the contract was destroyed, and the attorney, absent a clear fee agreement, could thereafter rely only on a quantum meruit or unjust enrichment recovery. See Robinson v. Bethay, 338 So.2d 969 (La.App. 4th Cir. 1976). Thus, the amount of the privilege enjoyed by this attorney must be determined according to the actual value of his services, not, as the court holds, the amount set forth in the contingency fee contract.

       Chief Judge PAUL B. LANDRY, Retired, is sitting by assignment as Associate Justice Ad Hoc in place of Tate, J. upon this case.

      . Civil Code art. 136 “. . . Separation from bed and board does not dissolve the bond of matrimony, since the separated husband and wife are not at liberty to marry again; but it puts an end to their conjugal cohabitation and to the common concerns which existed between them.”
      Civil Code art. 155 “. . . The judgment of separation from bed and board carries with it the separation of goods and effects and is retroactive to the date on which the original petition was filed in the action in which the judgment is rendered, but such retroactive effect shall be without prejudice (a) to the liability of the community for the attorney fees and costs incurred by the wife in the action in which the judgment is rendered . ”

      . Case decided by this Court on October 8, 1979.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Lawrence E. ROBINSON.
    No. 65722.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Ronald R. Inderbitzin, Asst. Dist. Atty., for plaintiff-appellee.
    William L. Lowe, Shreveport, for defendant-appellant.
   MARCUS, Justice.

Lawrence E. Robinson was indicted by the grand jury for the first degree murder of Mary Carlisle in violation of La.R.S. 14:30. After trial by jury, defendant was found guilty of manslaughter and was sentenced to serve three years at hard labor. On appeal, defendant relies on one assignment of error for reversal of his conviction and sentence.

Defendant was a tenant in the house of Mary Carlisle (victim), who had previously threatened to throw his stereo out of the house because he played it too loudly. On the evening in question, an argument occurred between the victim and defendant over the use of the stereo. As a result, defendant got disgusted and threw the stereo out of the back door, left the house and went to a bar where he drank several beers. He returned home about thirty to forty minutes later to find Mrs. Carlisle and one Albert Hunt sitting on the front porch. Mr. Hunt had parked his truck in the driveway. Defendant pulled his car into the driveway behind Hunt’s truck, raced his motor, honked his horn and complained that the truck was blocking the place where he wished to park his car. The truck was not moved. Defendant backed his car out of the driveway, parked it on the street and then entered the house through the rear entrance and proceeded up the back steps to his room on the second floor. Mrs. Carlisle went up the front stairs armed with a gun. Hunt heard the victim and defendant arguing and went to investigate. Defendant armed himself with a gun, shot Hunt on the landing of the stairway and fatally shot Mrs. Carlisle on the second floor. Hunt drove himself to the hospital. The hospital personnel notified the police who arrived at the Carlisle home minutes later. Defendant answered the door when they arrived. He was subsequently arrested and taken to the police station.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial judge erred in admitting in evidence an oral inculpatory statement made by him to an officer at the scene of the shooting and a recorded confession made by him later that evening at the police station. He argues that the oral statement was made without first having been advised of his Miranda rights and that neither statement was free and voluntary due to his intoxicated and stressful state at the time the statements were made.

At trial, outside the presence of the jury, a predicate was laid by the state for introduction of the confessions in evidence. The first police officers to arrive at the scene of the shooting were Officers Meriam and Burney. (Burney was deceased at the time of the trial.) They were responding to a call of hearing gunshots at that address. As they were starting to investigate, Sgt. Green arrived at the scene. He immediately joined the other officers in an attempt to learn what had happened. Upon reaching the top of the stairs and observing the body of Mrs. Carlisle on the floor, his information that there had been a shooting was confirmed. At about this time (within three minutes after he had arrived), defendant, while talking to no one in particular, stated that “he had shot the woman that was lying at the top of the stairs and also a white male subject that had come up the stairs to the first landing or thereabouts.” The statement was completely unsolicited. Sgt. Green stated that he immediately advised defendant of his Miranda rights. While defendant was being advised of his rights, he stopped talking and listened to Green but continued to talk about the incident after he had been administered his rights. By this time, Officers Head and Lupton had also arrived on the scene. They testified that defendant continued to talk about the incident. Accordingly, they read defendant his Miranda rights again from a “rights card” and had him sign the card in their presence after defendant read it. They stated that they wanted to make sure defendant understood what was going on. Although defendant was quiet and attentive while he was being read his rights, he continued to talk thereafter.

Officers Vansant and McGraw transported defendant to the police station. On the way, defendant tried to make a statement but was told by McGraw not to do so as he did not want to be responsible for any statements he might make on the way to the station. Defendant complied and made no statement. At the police station, Detectives Pittman and Foster again read defendant his Miranda rights from a rights card. The detectives testified that defendant signed the card in their presence after defendant read it. Thereafter, a recorded confession was taken from defendant. The typed transcript of the recorded statement was later made and signed by defendant in the presence of Pittman and Foster. Several other officers who were present at the scene testified but had little to add as they had had no contact with defendant. The testimony of all the officers was generally to the effect that, while defendant appeared to have had some drinks earlier in the evening and was nervous and upset, he was clearly not intoxicated and fully understood and realized the consequences of his statements at the time they were made. Each officer specifically stated that defendant was not threatened, intimidated, or promised anything by anyone to make the statements. Defendant offered no evidence to contradict the testimony of the police officers.

At the conclusion of the predicate, the trial judge ruled that defendant’s oral incul-patory statement made to Sgt. Green at the scene of the shooting was a voluntary and spontaneous statement and that the recorded confession taken at the police station was likewise admissible since it was freely and voluntarily made after defendant had been advised of his Miranda rights.

Before a confession can be introduced in evidence, the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. La. R.S. 15:451. It must also be established that an accused who makes a confession during custodial interrogation was first advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In Miranda, the United States Supreme Court observed: “By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been deprived of his freedom of action in any significant way.” Spontaneous and voluntary statements, not given as a result of police interrogation or compelling influence, are admissible in evidence without Miranda warnings even where a defendant is in custody. State v. George, 371 So.2d 762 (La.1979); State v. Thornton, 351 So.2d 480 (La.1977); State v. Sockwell, 337 So.2d 451 (La.1976); State v. Thomas, 310 So.2d 517 (La.1975); State v. Higginbotham, 261 La. 983, 261 So.2d 638 (1972); State v. Hall, 257 La. 253, 242 So.2d 239 (1970). Where the free and voluntary nature of a confession is challenged on the ground that the accused was intoxicated at the time of interrogation, the confession will be rendered inadmissible only when the intoxication is of such a degree as to negate defendant’s comprehension and to render him unconscious of the consequences of what he is saying. Whether intoxication exists and is of a degree sufficient to vitiate the voluntariness of the confession are questions of fact. State v. Rankin, 357 So.2d 803 (La.1978). The admissibility of a confession is in the first instance a question for the trial judge. His conclusions on the credibility and weight of the testimony relating to the voluntariness of a confession will not be overturned unless they are not supported by the evidence. State v. Hutto, 349 So.2d 318 (La.1977).

In the instant case, defendant was not subjected to custodial interrogation at the time he made the oral inculpatory statement to Sgt. Green. The statement was voluntary and spontaneous. Defendant was not threatened, coerced, or in any way forced to make the statement. Under these circumstances, no Miranda warnings were required. Defendant’s recorded statement taken at the police station was likewise freely and voluntarily made after having been advised of his Miranda rights on several occasions. The testimony of the officers clearly negates any claim of intoxication sufficient to vitiate the voluntariness of the confessions. We also reject defendant’s contention that his stressful state precluded him from making free and voluntary statements.

Accordingly, we conclude that the trial judge properly admitted the inculpatory statements in evidence. Assignment of Error No. 1 is without merit.

DECREE

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

      The Honorable RICHARD H. GAUTHIER participated in this decision as an Associate Justice Ad Hoc.


author:
CALOGERO, Justice.
     BLANCHE, Justice

text:
    Frances COLLINS et al. v. ORLEANS PARISH SCHOOL BOARD.
    No. 65842.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.

      Franklin V. Endom, Polack, Rosenberg, Rittenberg & Endom, New Orleans, for defendant-respondent.
    John P. Nelson, Jr., Larry Samuel, Nelson, Nelson & Lombard, Ltd., New Orleans, for plaintiff-applicant.
   CALOGERO, Justice.

This case arose when relator, a junior high school vocal music teacher employed by the Orleans Parish School Board, applied for a sabbatical leave for professional improvement. After the school board rejected her application, relator filed a mandamus proceeding in the district court seeking to compel the board to grant the leave. The district court denied the mandamus application and the Court of Appeal affirmed. We granted writs to review the lower court rulings. 376 So.2d 1269 (La.1979).

The facts of the case are not in dispute. Relator Frances Collins was employed by the Orleans Parish School Board in August of 1974 as a junior high school vocal music teacher. She is certified to teach all grades of vocal music and has a Master’s degree in music education. At the time of her application relator had taught continuously for six consecutive semesters. Prior to the 1977-78 school year relator timely applied for a sabbatical leave for the purpose of professional improvement stating in her initial application that she planned to take two courses, “Vocal Pedagogy” and “Systems of Teaching Voice” at the Loyola University School of Music. She later amended her application to indicate that she would take “Style Analysis I” and “Opera Literature” instead. On August 4, 1977 she was notified by the board that her application had been rejected.

The notification letter indicated that the reason for the rejection was that

“[tjhere was no assurance of mutual benefit. The courses planned do not appear to contribute substantially to the teacher’s ability to perform her present tasks nor do they offer the promise of the kind of growth needed for the future in her present position.”

Following the rejection relator applied for and was granted leave without pay to pursue study at Florida State University.

To be eligible for a sabbatical leave under Louisiana law, a teacher must be in active service for twelve or more consecutive semesters for a two semester sabbatical leave and six or more consecutive semesters for a one semester leave. R.S. 17:1171. The teacher must also comply with R.S. 17:1172-74 and make timely application for the leave. If the leave is for the purpose of professional improvement to pursue a course of study, the teacher must during each semester of leave “pursue a program of study, earning at least ten undergraduate, or six graduate, credit hours, at an institution of higher learning . . . ” (R.S. 17:1177) and make periodic reports of the manner in which the leave is being spent. R.S. 17:1178. If a teacher fails to comply with the requirements of R.S. 17:1177 and 1178, the leave may be terminated at any time. R.S. 17:1179.

Under R.S. 17:1176, applicants for sabbatical leave who are ineligible or who have not complied with the procedural provisions of R.S. 17:1172-74 shall have their applications rejected. The statute further provides that “all other applicants shall have their applications granted.” R.S. 17:1176 provides as follows:

“Any applicant who, at the expiration of the semester in which he applies, is ineligible for the sabbatical leave requested or who has not complied with the provisions of R.S. 17:1172 through 17:1174, shall have his or her application rejected, but all other applicants shall have their applications granted, provided that all leaves requested in such applications could be taken without violating the following provision: At no time during the school year shall the number of persons on sabbatical leave exceed five per centum of the total number of teachers employed in a given parish; in cases of sick leave this limit of five per centum may be exceeded.” (Emphasis provided.)

Applicant contends that under R.S. 17:1176 when a teacher has satisfied the eligibility and procedural requirements of R.S. 17:1171-74 and there are fewer than 5% of the teachers in the parish on sabbatical leave, the board has no discretion to reject an application when the teacher has applied for professional leave to pursue a course of study at an accredited educational institution. Alternatively she contends that even if the board has some discretion, the board in the instant case abused that discretion in finding that her planned course of study did not qualify her for leave for professional improvement.

In rejecting relator’s request for a sabbatical leave the board did not find that she was ineligible or that she had failed to comply with R.S. 17:1172-74; and it was stipulated at trial that at the time of relator’s application, fewer than 5% of the parish’s teachers were on leave. Furthermore relator’s application indicated that she planned to comply with the requirement under R.S. 17:1177 that she take either ten undergraduate or six graduate level credit hours at an accredited educational institution. The only reason for the board’s rejection of relator’s application was that her planned course of study would not “contribute to the teacher’s ability to perform her present tasks . . . nor offer the promise of the kind of growth needed for the future in her present position.”

Under the express language of R.S. 17:1176, the legislature has provided that only the applications of those teachers who are ineligible for leave or who have failed to comply with the provisions of R.S. 17:1172-74 shall be rejected and that “all other applicants shall have their applications granted” provided there are fewer than 5% of the teachers in the parish on leave. The legislature has not provided that when a teacher seeks a sabbatical leave for the purpose of “professional improvement” and plans to comply with the requirements that he or she take the stated number of semester credit hours, the school board may reject the application on the basis that the planned course of study will not contribute to the teacher’s ability to perform in his or her present position.

The legislature’s intent that the board not be given such discretion to reject applications of otherwise qualified applicants on the basis of the course content they plan to pursue is made evident by perusal of the 1977 amendment to R.S. 17:1177. By Acts 1977, No. 715, § 1, effective the beginning of the 1978-79 school year, the legislature amended R.S. 17:1177 to provide that when sabbatical leave is sought for the purpose of “professional or cultural improvement” and the teacher intends to do independent study or to engage in travel, the independent study or travel must be “approved by the employing school board.” The legislature’s specifically providing school boards with discretion in the areas of improvement through independent study or travel accents the absence of similar amendment allowing the boards discretion where professional improvement sabbatical leave is sought to pursue a course of study.

Implicit in the requirement that a teacher take six graduate or ten undergraduate credit hours at an accredited educational institution is the assumption that such course of study will contribute to a teacher’s professional improvement. And while a school board may have some discretion to deny an otherwise qualified applicant a leave for professional improvement if the proposed course of study is of no possible professional benefit, we need not here determine the nature and extent of that discretion, for in the instant case the Orleans Parish School Board clearly abused whatever discretion it may have. At the time of her application for sabbatical leave, relator was teaching vocal music at the junior high school level. Her proposed course of study consisted of two three-hour graduate level music courses at an accredited university. The board’s finding that the courses would be of no professional benefit to relator was clearly an abuse of whatever discretion the board might have in this area. We therefore conclude that the district court erred in denying relator’s application for a writ of mandamus and in failing to compel the Orleans Parish School Board to grant the requested sabbatical leave.

After oral argument, the Orleans Parish School Board filed a motion seeking a remand of this case so that the present employment status of relator might be determined after taking evidence in the district court. In that motion, the board argues that if relator is no longer an employee of the Orleans Parish School Board her application seeking to mandamus the board to grant her leave in the future must be denied. Alternatively, the board argues that even if the district court were to find that relator is still employed by the board, her leaves of absence without pay for the school years of 1977 and 1978 and her absence without leave during the 1979-80 school year have interrupted her services to the board and therefore make her ineligible for leave under R.S. 17:1171.

The issue of whether relator is presently an employee of the Orleans Parish School Board is relevant only insofar as her mandamus application can be construed as seeking to compel the board to grant a sabbatical leave subsequent to this date. Insofar as her mandamus application sought to compel the board to grant the leave for the fall semester of 1977, her present employment status is irrelevant. Her eligibility for that leave is to be determined as of the time of her application; any change in the status of her employment or eligibility since that date would not affect any relief to which she might be entitled.

Because of the judicial delays attendant upon appeal of the trial court’s denial of the mandamus application, the sabbatical leave to which relator was entitled was not granted for the period requested, and she consequently chose to take a leave without pay during which she took courses at Florida State University. Admittedly, relator might have sought expedited review of the trial court’s ruling under the supervisory jurisdiction of the Court of Appeal and this Court. However, considering the delays incident to the consideration of, grant, and disposition of a writ, it is unlikely that she could have obtained a judgment prior to the semester for which she requested leave.

Relator’s inability to obtain review of the trial court’s erroneous ruling is due to the delays inherent in our judicial system. She should not be left without a remedy under these circumstances. And indeed she may still, by amendment of her pleadings, convert the mandamus application into an appropriate action seeking the pay to which she was entitled during the fall semester of 1977.

Although this Court under Code of Civil Procedure, Article 2164 may render “any judgment which is just, legal, and proper upon the record on appeal” and could construe relator’s petition as an action for back pay, we deem it preferable in this case to remand the matter to the district court with leave to relator to amend her pleadings and thereafter prove the amount of pay to which she claims entitlement.

Decree

For the foregoing reasons the rulings of the district court and the Court of Appeal dismissing relator’s petition are reversed and the case remanded to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

BLANCHE, J., dissents and assigns reasons.

BLANCHE, Justice

(dissenting).

I respectfully dissent. The School Board was of the opinion that the courses which relator planned to take would not contribute substantially to her ability to perform her present teaching tasks, nor offer any growth needed for the future in her present assignment. The reasonableness of the Board’s decision in this regard is the real issue, and I am unable to say that this decision was unreasonable.

Professional improvement as a criterion for the purpose of taking a sabbatical leave necessarily involves the making of a decision, and I believe the Board was in the best position to make such a decision. The present opinion, in effect, allows the teacher to be the only judge of what courses will be taken for the purposes of professional improvement.

       Honorable EDWARD A. de la HOUSSAYE III participated in this decision as an Associate Justice Pro Tempore.

      . The mandamus proceeding was originally filed by three plaintiffs. The other two plaintiffs withdrew their claims against defendant before judgment in the district court.

      . R.S. 17:1177 as amended by Acts 1977, No. 715, § 1 provides as follows:
      “Every person on sabbatical leave for the purpose of rest and recuperation shall spend such leave in a manner calculated to attain that purpose.
      Every person on sabbatical leave for the purpose of professional or cultural improvement shall, during each semester of leave:
      (1)Pursue a program of study, earning at least ten undergraduate credit hours, six graduate credit hours, or be certified a full-time student at an institution of higher learning accredited by the board of education of the state or territory in which such institution is located, provided that in case less than fifteen weeks is so spent the number of weeks less than fifteen not so spent shall be spent in one or the other of the two alternatives below enumerated:
      (2) Pursue a program of independent study, research, authorship or investigation which involved an approximately equivalent amount of work and which is approved by the employing school board; or
      (3) Engage in travel which is so planned as to be of definite educational value and which is approved by the employing school board.”


author:
WATSON, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Marilyn L. HAMPTON.
    No. 66108.
    Supreme Court of Louisiana.
    May 19, 1980.
    Rehearing Denied June 23, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., John R. Harrison, Asst. Dist. Atty., for plaintiff-appellee.
    Bruce B. McKeithen, Lacroix & McKeithen, Monroe, for defendant-appellant.
   WATSON, Justice.

Marilyn Lee Hampton and Timothy George Baldwin were indicted by a grand jury for the first degree murder of Mary James Peters on April 4, 1978, in violation of LSA-R.S. 14:30. The trials were severed and Ms. Hampton was found guilty. After the sentencing portion of her trial, the jury unanimously recommended that she be sentenced to life imprisonment without benefit of probation, parole or suspension of sentence. Defendant Hampton has appealed, relying on six assignments of error.

FACTS

Marilyn Hampton and her three children resided for a while with Baldwin’s family in Cleveland, Ohio. Subsequently, Marilyn Hampton and Timothy Baldwin entered into a relationship and left the Baldwin home together in the company of William Odell Jones and Marilyn’s children. The group traveled to Florida and leased a 1978 black Ford van in Tampa. After leaving that state, they rented a cabin in Holmes County State Park, near Jackson, Mississippi. On April 4,1978, Baldwin and Hampton left Jones and the children at the cabin and drove to West Monroe in the van. The park manager, Mike Varnado, knew Baldwin drove away with an adult woman but could not identify her. He did see the three children and Jones at the park later that day. Jones knew that Marilyn and Tim intended to rob Mary James Peters, a former neighbor of the Baldwins, and use her money to settle down. Ms. Peters was legally blind but able to function on her own. A small woman, she was 5'1" tall and weighed 110 pounds. Although 85 years old, she lived alone. She kept her doors bolted and did not allow strangers to enter. There were three locks on the main entrance door. According to her daughter, Theresa Baragona, she was fond of Rita Baldwin but afraid of her husband, Tim. According to Jones, Marilyn was also afraid of him.

After arriving in West Monroe, Tim and Marilyn visited his daughter Michelle. They were at her apartment until about 8:00 P.M. A dark van was observed near the Peters’ home that night, sometime after 8:00 P.M. It remained parked for approximately two hours. During that time neighbors, Paul Rice and Robert Grisham, observed that someone or something in the house was apparently being beaten by a white male. They did not interfere. Subsequently, a male and a female were seen leaving the house. Rice could not swear Marilyn Hampton was the female but testified to a strong similarity. To Rice and Grisham, the woman appeared to be carrying something in her arms.

Ms. Peters was discovered the next day about 11:30 A.M. in a semi-comatose condition by Elsie May Brice, an employee of the Ouachita Council on Aging, Meals on Wheels. Ms. Peters’ face was black and bruised. She was lying on the kitchen floor moving her hands. A broken iron skillet, a telephone, a T.V. set and other items had been used to inflict the wounds. Ms. Peters could not communicate rationally, but attempted to defend herself against the police officers who were called to the scene. There were no signs of a forcible entry into the house. Ms. Peters died the following day, April 6, as the result of brain damage from the blows to her head inflicted in the severe beating.

Marilyn and Tim returned to Holmes Park around noon on April 5. Marilyn told Jones that “ . . . the lady [Ms. Peters] was still kicking,” when they left her. Marilyn Hampton and Timothy Baldwin were arrested in El Dorado, Arkansas, on April 8. Bonds and certificates of deposit belonging to Ms. Peters were seized from their van.

Ms. Peters did not smoke, but a package of Pall Mall cigarettes was found at the scene of the crime. That was Marilyn Hampton’s brand.

ASSIGNMENT OF ERROR NUMBER ONE

It is contended that there was insufficient evidence at the preliminary hearing to establish probable cause to charge Marilyn Hampton with first degree murder or a lesser included offense as required by LSA-C.Cr.P. art. 296.

Since Marilyn Hampton was found guilty by a jury, the question of probable cause to hold her for trial is now moot. State v. Luckett, 327 So.2d 365 (La., 1976).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends that the trial court should have granted a change of venue. LSA-C.Cr.P. art. 622.

Although, like all murders, this was an important news story in the West Monroe area, it did not receive any special attention from the media. Police Chief Mitchell, in a statement taped for television, said the offense was a “savage” one and a television reporter described it as a “brutal slaying”, both accurate descriptions. The coverage of the trial was termed average for a murder. Some of those called to testify at the hearing were completely unaware of the crime and others were unfamiliar with the details. Only one witness, Cheryl Yarb-rough, testified that the community thought those indicted were guilty. Ledvic Herlevic, who had known Ms. Peters all of her life and took her to church every Sunday, was dubious about defendant getting a fair trial in Ouachita Parish. However, even Herlevic thought those who had not known the victim personally might not have an opinion in the matter. Another witness, J. Eugene Spatafora, who had known Ms. Peters in the past, did not know of any community opinion in the matter and had not discussed it much.

Defendant did not prove that a fair trial in the community was impossible, and the trial court did not abuse its discretion in denying the change of venue. State v. Matthews, 354 So.2d 552 (La., 1978).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Defendant contends that the trial court erred in allowing hearsay testimony by State witness, Paul Rice. Rice said that after the man and woman emerging from the Peters’ home saw him and his companion, the woman turned and said “ . we’ll see you later, Mrs. Peters, . . . ” (Tr. 310). The statement was a part of the res gestae since it occurred as the defendant was leaving the scene of the murder, and shows an attempt on her part to prove that Ms. Peters was still alive at the time. LSA-R.S. 15:448. Further, the statement was not admitted into evidence as proof of its content, but only to show that the woman leaving the house turned and addressed a remark as she left. The truth of the statement was not at issue, but it clarified the sex and . complicity of one of the two people leaving the Peters’ premises. State v. Drew, 360 So.2d 500 (La., 1978).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

It is contended that the trial court erred in allowing hearsay testimony by Jones about statements allegedly made by the defendant. Jones said Marilyn Hampton was present in the van when Baldwin discussed the robbery and possible murder of Ms. Peters. There was no testimony by Jones about any statements made by Marilyn Hampton before the crime. Her presence at the conversations shows that she was aware of the nature of the trip to West Monroe and had the requisite specific intent to commit the murder. LSA-R.S. 15:446. After the crime, Marilyn made a voluntary statement to Jones that Ms. Peters was left still kicking. This free admission to her complicity in the crime was proper evidence. LSA-R.S. 15:449. An admission is a recognized exception to the hearsay rule. State v. Walker, 344 So.2d 990 (La., 1977).

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

It is contended that the trial court erred in allowing into evidence State exhibit S-16B, a small color photograph of the victim which established her identity and the cause of death. The photograph was admissible. State v. Trass, 347 So.2d 1156 (La., 1977). It is unpleasant, but not gruesome, and its probative value outweighs any prejudicial effect. Another photograph, S-16G was excluded as repetitious.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER SIX

Defendant contends that the jury verdict was contrary to the law and the evidence, and that the trial court erred in denying a timely motion for new trial. At the hearing on the motion it was argued that the only testimony to connect Marilyn Hampton with the crime was that of Jones. This contention is unfounded. There was ample other evidence to establish beyond a reasonable doubt that Marilyn Hampton was a participant in the robbery and murder. Marilyn Hampton and Timothy Baldwin left Michelle Baldwin’s apartment together around 8:00 P.M. the evening of the murder. They left together in the van which was subsequently seen parked in front of the Peters’ home. There is no reasonable doubt that the woman Rice and Gresham saw leaving the Peters’ home around 10:00 P.M. was Marilyn Hampton. The two were still together four days later in Arkansas when they were discovered with the fruits of the crime. Marilyn Hampton was a principal in the crime, and was guilty along with Baldwin of the murder. LSA-R.S. 14:24.

This assignment of error lacks merit.

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

AFFIRMED.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

In order to find Hampton’s conviction valid, we must be convinced, after reviewing the evidence in a light most favorable to the prosecution, that any rational trier of fact could have found each essential element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). One of the essential elements of a first degree murder prosecution is that the defendant specifically intended to kill or inflict great bodily harm when the killing is accomplished. La.R.S. 14:30. The evidence in this case adequately shows this requisite intent on the part of the defendant Hampton. She was present and participated in both the planning and execution of the robbery and knew that Baldwin would kill Mrs. Peters if he thought it was necessary. After Baldwin had already severely beaten Mrs. Peters, defendant told him that the victim was still moving. This prompted Baldwin to beat Mrs. Peters even more. After the robbery was completed and Baldwin and Hampton had returned to Mississipi, Hampton described the robbery and killing to her friend Jones without expressing any regret. No evidence was introduced which would indicate that Hampton ever tried to dissuade Baldwin from committing the murder, even though she knew ahead of time that he would kill Mrs. Peters. Nor does the evidence show that Hampton disapproved of the killing if necessary to complete the robbery.

       Honorable RICHARD GAUTHIER participated in this decision as Associate Justice Ad Hoc.