author: ERVIN, Judge.

text:
    Thomas James WHIGHAM, Appellant, v. STATE of Florida, Appellee.
    No. YY-379.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1981.

      Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ERVIN, Judge.

Whigham appeals his conviction and sentences on charges of kidnapping and sexual battery. We find no merit to the claim that his second trial, following a mistrial that was brought about by a prosecutor’s comment on the “Golden Rule” in closing argument, should have been barred on double jeopardy grounds. Under the circumstances of this case, the comments did not amount to “grossly negligent or intentional misconduct.” See United States v. Davis, 589 F.2d 904 (5th Cir. 1979).

However, we agree that this cause should be returned to the trial judge for correction of the commitment papers which now state that Whigham “cannot be released without permission of this court.” The order of commitment must conform to Chapter 947, Florida Statutes, as the judge expressed at the sentencing hearing. Jurisdiction of the trial court is limited to the first third of the maximum sentence imposed for the most serious felony. Section 947.16(3).

Accordingly, this cause is remanded to the trial court for proceedings consistent with this opinion.

WENTWORTH and JOANOS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    GENERAL DEVELOPMENT CORP. and the Travelers Ins. Co., Appellants, v. Thomas G. PRICE, Appellee.
    No. ZZ-229.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1981.
    Keith A. Mann of Dickinson, O’Riorden, Gibbons, Quale, Shields & Carlton, P. A., Sarasota, for appellants.
    Gary L. Wilkins of Wotitzky, Wotitzky, Mandell, Batsel & Wilkins, Port Charlotte, for appellee.
   PER CURIAM.

The deputy commissioner’s determination that the employer/carrier improperly offset workers’ compensation payments to reflect Social Security benefits to claimant’s dependent is reversed in light of our decision in Modern Plating Co. v. Whitton, 394 So.2d 515 (Fla. 1st DCA 1981). However, we remand for possible redetermination of payments due in light of possible adjustment to claimant’s average weekly wage for profit-sharing benefits. In all other respects, the deputy’s orders are supported by substantial competent evidence.

AFFIRMED in part, REVERSED in part, and REMANDED.

ROBERT P. SMITH, Jr., C. J., and McCORD and MILLS, JJ., concur.


text:
    Robert Livingston LEE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. ZZ-331.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1981.
    Michael E. Allen, Public Defender, and David J. Busch, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Lee appeals an order that attempted to correct two illegal “split” sentences — of five years’ probation conditioned on two years’ incarceration — by imposing concurrent indeterminate sentences of two to five years. Imposition of a two-year minimum term for an indeterminate sentence was error, because section 921.18, Fla.Stat. (1979), limits the minimum term in such cases to six months. Cox v. State, 344 So.2d 1324 (Fla. 2d DCA 1977), cert. den., 354 So.2d 979 (Fla.1977). Under Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), the corrected sentences are otherwise proper. Therefore, the sentences are AFFIRMED in part and REVERSED in part. The case is REMANDED for correction of the sentences by imposing a minimum term of six months. Appellant need not be present for correction of the sentences.

ROBERT P. SMITH, Jr., C. J., and McCORD and MILLS, JJ., concur.


text:
    Michael BROWN, Appellant, v. STATE of Florida, Appellee.
    No. ZZ-390.
    District Court of Appeal of Florida, First District.
    Oct. 16, 1981.
    Michael Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant has raised two points in this appeal from his conviction of sexual battery. We affirm as to both.

In Point I, appellant asserts that the trial court violated Florida Rule of Criminal Procedure 3.410 in giving the jury an additional instruction, upon the jury’s tender of a question, without prior consultation with the parties’ attorneys. However, although defense counsel at trial objected to the instruction on other grounds after the jury returned to the jury room, he did not raise the Rule 3.410 objection which is raised on appeal. Point I, therefore, has not been properly preserved for review on appeal. Compare Castor v. State, 365 So.2d 701 (Fla.1978).

As his second point, appellant contends that a prosecutorial comment in closing argument requires reversal. The prosecutor’s comment was not of such a prejudicial nature as to mandate reversal.

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and McCORD and MILLS, JJ., concur.


text:
    Degusta Blake ZEIGLER, Appellant, v. STATE of Florida, Appellee.
    No. XX-86.
    District Court of Appeal of Florida, First District.
    Oct. 20, 1981.

      Michael Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This an appeal of a judgment and sentence for manslaughter following a jury trial on a charge of second degree murder. We find merit in only one point raised by appellant. Because the trial court admitted extensive irrelevant evidence of a collateral crime, we reverse.

On New Years Eve 1978-79 an incident occurred in which appellant shot Diane Williams once with a pistol, killing her. Appellant had carried the pistol as he assisted the security guard in ejecting a customer who had threatened to throw a caustic substance on another customer and had engaged in a fight involving the throwing of barstools. As he reentered the bar, appellant shot Williams, who was on her way out of the bar. Appellant telephoned the police immediately following this shooting. As a result of this incident, appellant was charged with second degree murder and released on bond. In April, 1979, another incident occurred in which appellant shot Sheila Smith, with whom he lived, four times, killing her. Again, appellant was charged with second degree murder. The case involving Smith was tried first and resulted in conviction of second degree murder.

At the trial on the charge resulting from Williams’ death, a number of references to the Smith killing were made. For example, Dr. Floro, a forensic pathologist, described the cause of Smith’s death, as well as of Williams’ death, giving a detailed description of the points at which the four bullets entered Smith’s body. At the beginning of his opening statement, the prosecutor had said this was a peculiar case because the jury would hear testimony about two homicides of which appellant was accused. In addition, a police officer was permitted to read portions of a statement which had been taken from appellant after he was apprehended following the Smith shooting. The statement related solely to the Smith shooting and included no references to the Williams’ shooting, which had occurred four months earlier. The statement described appellant’s dissatisfaction with Smith’s friends and various domestic points of contention. Finally, the statement included a description of a struggle over the gun which Smith drew after appellant announced his intention to leave, and related that after the gun went off once and Smith had been shot, appellant took the gun and shot her three more times. After shooting Smith, appellant fled.

The State’s theory in introducing the collateral crime evidence was that it was relevant to appellant’s state of mind or absence of mistake in shooting Williams. We disagree and hold that the evidence relating to the Smith murder was inadmissible. Under Williams v. State, 110 So.2d 654 (Fla.1959):

[Ejvidence of any facts relevant to a material fact in issue except where the sole relevancy is character or propensity of the accused is admissible unless precluded by some specific exception or rule of exclusion. This rule we hold applies to relevant similar fact evidence.. . even though it points to the commission of another crime.

Common examples of elements which similar fact evidence is relevant to prove include motive, intent, absence of mistake, common scheme or plan, identity, or a system or general pattern of criminality. Id.; Ruffin v. State, 397 So.2d 277 (Fla.1981). In the instant case, the similarities between the two shootings, that both victims were black women and both were shot with a handgun, were completely superficial. The differences were numerous and significant. Under the circumstances, with no significant similarities to render the evidence logically probative of any fact in issue, the collateral crime evidence was simply not relevant for any purpose other than to show criminal propensity, and it was inadmissible for this purpose.

Even if the collateral crime evidence were relevant, in our opinion it became a feature of the trial in this case. Davis v. State, 276 So.2d 846 (Fla.2d DCA 1973) aff’d State v. Davis, 290 So.2d 30 (Fla.1974). Under the circumstances we cannot say the admission of the collateral crime evidence in this case was harmless error. Clark v. State, 378 So.2d 1315 (Fla. 3rd DCA 1980).

REVERSED and REMANDED for a new trial.

McCORD and SHIVERS, JJ., and LILES, WOODIE A. (Retired) Associate Judge, concur.


author: BERANEK, Judge.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, et al., Petitioners, v. Mary GRAHAM, etc., et al., Respondents. CALDWELL-SCOTT CONSTRUCTION COMPANY, INC., Petitioner, v. Mary GRAHAM, Respondent.
    Nos. 81-1200, 81-1202.
    District Court of Appeal of Florida, Fourth District.
    Oct. 21, 1981.
    Steven F. Billing of Hainline, Billing & Cochran, P. A., Clifford B. Selwood, Jr., of Carey, Dwyer, Cole, Selwood & Bernard, P. A., and Nancy Little Hoffmann, Fort Laud-erdale, for petitioners, USF&G, Vander Linde and Jackson.
    Nancy Schleifer of Peters, Pickle, Flynn, Nieomoeller, Stieglitz & Downs, Miami, for petitioner, Caldwell-Scott Const. Co., Inc.
    M. Daniel Huges and E. Hugh Chappell, Jr., of Chappell, Brandt & Gore, P. A., Fort Lauderdale, for respondent, Graham.
   BERANEK, Judge.

The defendants in a wrongful death action brought by Mary Graham, personal representative of the estate of Moultrie Graham, filed these consolidated petitions for common law certiorari relating to a pretrial discovery matter. Prior to trial, the defendants alleged that a settlement agreement had been reached between the defendants and the plaintiff, and filed a “Motion to Enforce Settlement Agreement or, in the alternative, to Enter Judgment in accordance with the Settlement Agreement.” The trial court scheduled a hearing on the defendants’ motions to compel settlement prior to trial and each defendant sought to depose the plaintiff, her former lawyer, and another lawyer representing certain beneficiaries of the estate. The announced purpose of these depositions and other attempts at discovery has been to determine counsels’ authority to settle the case. The trial court denied the defendants’ motions to compel discovery based on attorney/client privilege. We are asked to review this order by certiorari.

In seeking to invoke the certiorari jurisdiction of this court, petitioners rely on Gold Coast Raceway, Inc. v. Ehrenfeld, 392 So.2d 1002 (Fla. 4th DCA 1981) and Travelers Indemnity Co. v. Hill, 388 So.2d 648 (Fla. 5th DCA 1980). The requirements for certiorari review have oft been stated. There must be a departure from the essential requirements of law which will cause material injury that cannot be rectified on plenary appeal. The rationale for denying certiorari, except under such extreme circumstances, has been set out in Chalfonte Development Corp. v. Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979); Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); and Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975). These authorities clearly indicate that the time, trouble, and expense of going through an unnecessary trial are not the kind of material injuries which are sufficient to justify invocation of a district court’s certiorari jurisdiction.

Here, we are faced with a discovery problem within a controversy which is separate and distinct from the main action. If the trial court grants the motion to compel settlement and enters a final judgment in accordance with the settlement agreement, there will be no trial on the merits, and the judgment will obviously be subject to immediate plenary appeal. On the other hand, if the court hears the motion to compel settlement, with or without the evidence in controversy, and denies the motion, the trial on the merits will proceed and result in a final judgment subject to appeal. We do not believe a trial court’s order denying a pretrial motion to compel settlement would be subject to interlocutory or certiorari review. Such an order is certainly not within the class of orders subject to interlocutory appeal under Florida Rule of Appellate Procedure 9.130. Further, it would not seem subject to certiorari review since the injury caused would, once again, be the necessity of going through an unnecessary trial.

We are thus convinced that defendants have failed to demonstrate a jurisdictional basis for review at this time. If an order denying a motion to compel settlement would not be subject to interlocutory or certiorari review, the discovery order within said controversy is likewise not now subject to review. We caution that this is a jurisdictional ruling only and that the question of whether the attorney/client privilege bars discovery of the matters in question is in no way determined by this opinion. The order of the trial court denying defendants’ motion to compel discovery may still be reviewed on appeal from an adverse final judgment if such eventually occurs.

We hereby recede from Gold Coast Raceway, Inc. v. Ehrenfeld, supra, to the extent that it authorizes certiorari review without a demonstration of material injury not remediable by appeal after final judgment. We further certify that our present decision is in conflict of the decision of the Fifth District Court of Appeal in Travelers Indemnity Co. v. Hill, supra. The petitions for common law certiorari are hereby denied.

DOWNEY and GLICKSTEIN, JJ., concur.


text:
    ESTATE OF John W. LAMAR, Deceased.
    No. 79-656.
    District Court of Appeal of Florida, Fourth District.
    Oct. 21, 1981.
    John D. Kruse of Kruse & Livoti, Fort Lauderdale, for appellant, Ruth Gloria Lamar.
    Jeffrey P. Swayman of Kaplan & Jaffe, P. A., Hollywood, for appellee, Estate.
   PER CURIAM.

This appeal questions a final order dismissing a claim in a probate proceeding. We reverse and remand for further proceeding pursuant to Simpson v. Simpson, 108 So.2d 632 (Fla. 2d DCA 1959) and Reinhardt v. Reinhardt, 131 So.2d 509 (Fla. 2d DCA 1961).

REVERSED AND REMANDED.

BERANEK, HERSEY and ANSTEAD, JJ., concur.


author:
CALOGERO, Justice.
     CHIASSON, Justice Ad Hoc, MARCUS, Justice. LEMMON, Justice,

text:
    CITY OF BATON ROUGE v. Michael MALIK.
    No. 80-K-1775.
    Supreme Court of Louisiana.
    May 18, 1981.
    On Rehearing Sept. 28, 1981.

      William G. Whatley, Baton Rouge, for defendant.
    Ralph Tyson, Baton Rouge, for respondent.
   CALOGERO, Justice.

Defendant Michael Malik was charged by affidavits filed on June 6, 1979, with driving while his license was under revocation, a violation of R.S. 32:415, and with driving while intoxicated, a violation of Baton Rouge City Ordinance, Title 11:140. Defendant entered guilty pleas to both charges. On each charge, defendant received a sentence of sixty days in jail and a fine of two hundred dollars plus court costs. In default of payment of the fine, the trial judge sentenced defendant to serve an additional thirty days in jail. The sentences for both convictions were to run concurrently. Defendant appealed both convictions to the Nineteenth Judicial District Court for the Parish of East Baton Rouge, which affirmed.

Defendant applied to this Court for writs of certiorari on the basis of two assignments of error. We granted defendant’s application on assignment of error No. 2 concerning the prosecution in City Court on driving under revocation. We did not grant defendant’s application regarding his prosecution for DWI and therefore that matter is not before us. Following our grant to review his assignment of error No. 2, defendant requested a review of his DWI sentence which he contends is illegal. We granted this review also and consolidated the matters for consideration by this Court. 392 So.2d 694.

As to defendant’s assignment of error No. 2, we note that defendant had no right of appeal to the district court from the city court on the charge of driving under revocation. Revised Statutes 13:1896(B) provides that review or appeal of a judgment in any criminal case tried under a state statute in a city court is as set forth in C.Cr.P. art. 912.1. That Code of Criminal Procedure article provides for appeals to this Court when a fine exceeding five hundred dollars or imprisonment exceeding six months is actually imposed. The article further provides: “In all other cases not otherwise provided by law, the defendant has the right of judicial review by application for a writ of review to the supreme court.”

Under the facts of this case, defendant did not have a right to appeal to the district court because he was convicted in a city court of violating a state statute. Nor did defendant have a right to appeal to this Court because his sentence was less than six months and his fine less than five hundred dollars. His only remedy was, according to C.Cr.P. art. 912.1, to apply for writs in this Court to review the ruling of the city court. The Nineteenth Judicial District Court should have dismissed defendant’s appeal concerning his driving under revocation conviction for lack of jurisdiction to hear the appeal.

Nevertheless, rather than remand the case to the district court to dismiss the appeal for lack of jurisdiction, with the possibility of defendant thereafter again seeking writs here, we shall consider the issue under our general supervisory jurisdiction. La.Const. art. V, § 5(A). Defendant complains that his prosecution in city court by a city prosecutor for violation of a state statute contravenes our holding in State v. Short, 345 So.2d 37 (La.1977). Our disposition of this matter turns in part upon the fact that defendant entered a guilty plea and did not object to the prosecution.

Defendant’s guilty plea waived all but jurisdictional defects in the proceedings. State v. Crosby, 338 So.2d 584 (La. 1976); State v. Torres, 281 So.2d 451 (La. 1973). We therefore must review the jurisdiction of the city court. Jurisdiction focuses upon the right of a court to hear cases. Municipal courts have criminal jurisdiction over offenses which are committed within their territorial jurisdiction and which are not punishable by imprisonment at hard labor. R.S. 13:1894. This case involves an offense committed within the territorial limits of the City of Baton Rouge and the offense is not punishable by imprisonment at hard labor. R.S. 32:415.

In Short, supra, we overturned the DWI conviction of that defendant under a state DWI statute not imposing imprisonment at hard labor because the prosecution took place in a municipal court with the city prosecutor as the prosecuting attorney. In our view, the Louisiana Constitution of 1974, art. 5, § 26(B), directs that, although prosecution for state offenses not punishable by imprisonment at hard labor is proper in municipal court, that prosecution must be by the district attorney or his designated assistant and not by a city prosecutor. See also State ex rel. Guste v. Foote, 345 So.2d 502 (La.1977). Short, however, had objected to the prosecution by the city prosecutor and challenged the constitutionality of the statute permitting that procedure, thus preserving the issue for our review. This case at bar is distinguishable from Short. Not only did this defendant not object, he entered a guilty plea. While defendant did file a motion in arrest of judgment (C.Cr.P. art. 860) in the city court, that motion was directed only to the DWI conviction and did not include any objection to the conviction for driving while under revocation.

It is true that in this case the bill of information or affidavit was signed by an assistant city prosecutor for the City of Baton Rouge. However, prosecution in municipal court may be initiated by the filing of an affidavit. R.S. 13:1895. This affidavit may be signed by one other than a prosecutor. It is the handling of the prosecution which must be by a district attorney or his assistant. State v. Short, supra; La. Const, art. 5, § 26(B). Therefore the fact that the bill of information or affidavit was signed by an assistant city attorney seems to be of no moment. Because defendant entered a guilty plea, there was no prosecution by the City Prosecutor in the sense discussed in Short. Consequently defendant’s conviction for driving while his license was under revocation must stand.

We now turn our attention to defendant’s contention that the sentence he received for the DWI conviction is illegal. That sentence was a fine of two hundred dollars plus court costs and a sentence of sixty days in jail. In default of paying the fine and court costs, the trial judge imposed an additional thirty days in jail. Defendant contends that the aggregate jail sentence, ninety days if he does not pay the fine, exceeds the maximum sentence under City of Baton Rouge Ordinance, Title 11:140, which provides for a maximum sentence of sixty days in the parish jail and is therefore illegal.

Code of Criminal Procedure art. 884 allows a trial judge to impose a sentence of imprisonment in default of payment of a fine and/or court costs. In State v. Barnes, 365 So.2d 1282 (La.1978), we discussed the imposition of an additional prison sentence which might cause the total of the sentences to exceed the maximum imprisonment allowed by the statute. We said:

“In the case of a nonindigent defendant it is permissible to impose a prison term in default of a fine payment that would result in the defendant serving a longer term than the statutory maximum for the offense.” 365 So.2d at 1183.

See also: State v. Lukefahr, 363 So.2d 661 (La.1978); State v. Williams, 288 So.2d 319 (La.1974).

The record discloses that defendant is not an indigent. Consequently, it is permissible that the prison term imposed in default of payment of the fine, when added to the prison term imposed as part of the sentence, result in a longer term than the statutory maximum for the offense.

Decree

For the foregoing reasons, defendant’s conviction for driving under revocation and his sentence for the DWI conviction are affirmed.

Affirmed.

CHIASSON, J., ad hoc, concurs in part, dissents in part and assigns reasons.

COVINGTON and LEAR, JJ., ad hoc, concur in part, dissent in part for the reasons assigned by CHIASSON, J., ad hoc.

CHIASSON, Justice Ad Hoc,

concurring in part-and dissenting in part.

I concur with the affirmation of the conviction and sentence and disagree with certain findings and holdings by the majority.

Upon finding the district court had no jurisdiction of the appeal and that the Nineteenth Judicial District Court should have dismissed the appeal, this Court should remand the case to the district court for that purpose. This would have effectively put an end to this litigation because the record herein shows that the defendant failed to object to the prosecution by the City Attorney, if in fact this did occur, and the defendant would not have been entitled to obtain remedial writs from this Court. See La.C.Cr.P. art. 841 and Supreme Court Rule 10, Sec. 5(10) and the Explanatory Comments.

But, more importantly, I cannot agree with the conclusion which asserts there is no prosecution in cases in which a guilty plea has been entered. Although the affidavit which can initiate a criminal charge can be signed and filed by someone other than a district attorney, the Constitution in this case requires all further prosecution of said charge to be by the district attorney. See La.C.Cr.P. arts. 381 and 385, 1974 La. Const, art. V, Sec. 26(B). There can be no arraignment, acceptance of a written guilty plea or any other action taken except upon motion of the district attorney.

The constitutional provision and the ruling of this Court in the Short case cited by the majority should not be circumvented by-restricting prosecution to mean only the trial of a criminal case.

This holding is also completely unnecessary since the issue need not be determined in this case and is therefore obiter dictum.

For these reasons, I respectfully dissent from such a holding.

ON REHEARING

MARCUS, Justice.

Michael F. Malik was charged by separate affidavits with operating a motor vehicle on a public highway during a period of revocation of his license in violation of La. R.S. 32:415 and with operating a vehicle while intoxicated in violation of Title 11, Sec. 140 (Ord. No. 2550 § 1) of the Baton Rouge City Code. The affidavits were filed in the office of the clerk of the city court. After a bench trial, defendant was found guilty of both charges and was sentenced to serve sixty days in jail and to pay a fine of $200 plus court costs or in default thereof thirty days in jail on each conviction. The judge expressly directed that the sentences be served concurrently. Defendant appealed to the district court which affirmed. Upon defendant’s application, we granted a writ of certiorari.

On original hearing, we first addressed defendant’s complaint that he was improperly prosecuted in the city court by a city prosecutor for a violation of a state statute (La.R.S. 32:415). We held that, although prosecution for a state offense not punishable by imprisonment at hard labor is proper in the municipal court, it must be done by the district attorney or his designated assistant and not by the city prosecutor. However, since defendant had not objected and had in fact entered a guilty plea, he waived any objection to being prosecuted in the city court by a city prosecutor for the state offense. We also found no merit to defendant’s contention that the sentence he received for the DWI conviction was illegal. Therefore, we affirmed his convictions and sentences. We granted a rehearing after discovering that defendant did not pled guilty to these charges, as erroneously shown in a minute entry in the record, but rather was found guilty following a trial in the city court.

Accordingly, we are faced with the issue which was originally presented, that is, whether the state constitution permits a defendant to be prosecuted in city court by a city prosecutor for violation of a state statute not punishable at hard labor. Although defendant did not object to this error at the time of occurrence as required by La.Code Crim.P. art. 841, article 920 provides that an error “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence” shall be considered on appeal. The pleadings and proceedings include, inter alia, the caption, a statement of time and place of holding the court, the indictment or information with the endorsement, the arraignment, the plea, mention of the impan-elling of the jury, the bill of particulars filed in connection with a short form indictment or information, verdict and judgment of the court. State v. Craddock, 307 So.2d 342 (La.1975). Hence, since the error complained of by defendant is discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence, it is before us for review.

In City of Baton Rouge v. Short, 345 So.2d 37 (La.1977), we held that, although city courts have jurisdiction over cases prosecuted under state law which are not punishable by imprisonment at hard labor, since La.Const. art. 5, § 26(B) vests the district attorney or his designated assistant with the exclusive charge of every criminal prosecution by the state in his district, subject only to certain limited powers of the attorney general provided in La.Const. art. 4, § 8, prosecutions in city courts for state offenses not punishable at hard labor must be by the district attorney or his designated assistant and not by a city prosecutor. Since Short was prosecuted in the city court for a state offense not punishable at hard labor by a city prosecutor, we reversed his conviction and sentence.

In the instant case, defendant, like Short, was prosecuted in the city court for a state offense not punishable by hard labor (La.R.S. 32:415) by a city prosecutor. Hence, we must reverse his conviction and sentence for this offense.

While rehearing was granted to consider the above assignment of error, defendant .again raises the legality of the sentence imposed in connection with his DWI conviction. He argues that his indigency makes it impermissible to impose a prison term in default of payment of a fine or court costs that would result in his serving a longer term than the statutory maximum for the offense. The fallacy in his argument is that there is nothing in the record to suggest that he is indigent. Defendant has been represented by retained counsel throughout these proceedings and has never moved for a hearing to determine indigen-cy. Hence, as found on original hearing, we conclude that the sentence imposed was permissible. La.Code Crim.P. art. 884. However, if defendant is an indigent, upon appropriate post-conviction application and hearing, the additional jail term may be avoided. State v. Lukefahr, 363 So.2d 661 (La.1978).

DECREE

For the reasons assigned, defendant’s conviction and sentence for violation of the Baton Rouge City Ordinance are affirmed. However, his conviction and sentence for operating a motor vehicle while his license was revoked in violation of La.R.S. 32:415 are reversed and the case is remanded to the city court for further proceedings consistent with the views expressed herein.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting in part.

I am disinclined to reverse the driving under revocation conviction, after defendant had a completely fair trial, on technical grounds which are totally unrelated to guilt or innocence. Instead, I would hold that defendant waived the non-jurisdictional technical error by failing to object timely.

Although La.Const. Art. V, § 26(B) (1974) vests the district attorney or his designated assistant with exclusive charge of state criminal prosecutions, C.Cr.P. Art. 63 permits the district attorney to “accept the assistance of other counsel in the conduct of a criminal case”. Defendant does not in this case challenge the constitutionality of that codal article, nor has he made any showing that the prosecutor who signed the charging document (in all other respects valid) was not authorized to do so. Thus, this court should treat the failure of defendant to challenge the authority of the charging official to institute prosecution as waived if not properly raised by motion to quash.

C.Cr.P. Art. 531 requires defendant to assert “all pleas or defenses raised before trial” (other than certain enumerated issues not involved here) by motion to quash. C.Cr.P. Art. 535 provides that the failure to raise most defenses assertible by motion to quash are waived if not raised. The exceptions to that rule do not include the issue presented herein. See C.Cr.P. Art. 535 A and B.

Waiver of the right to complain of the alleged defect is the sanction for failure to contest timely the validity on the grounds raised here; that is, the failure of the district attorney (or one designated by him) to sign the charging document (the affidavit charging a violation of R.S. 32:415).

This construction is logical in view of the nature of defendant’s complaint. Defendant was in no way prejudiced by the alleged defect. He was fully and fairly apprised of the nature and cause of the charges against him. Society’s interest in limiting the authority to institute prosecutions under state statutes to the district attorney can adequately be protected by giving defendant the right to challenge the validity of the affidavit by proper motion prior to trial. However, once a fair trial has been held and the facts underlying the accusation have been accurately determined by a court exercising jurisdiction over the offense, this court should not assume that the charging instrument was not properly filed. The right to raise the issue presented here should be treated as waived if not raised by timely motion to quash.

Defendant’s conviction for driving under revocation should be affirmed.

       Judges Grover L. Covington, Remy Chiasson, and Elmo E. Lear of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L.' Dennis, and Fred A. Blanche, Jr.

      . Defendant did not object in the trial court to the imposition of his sentence. However, it is sufficient that he raise this issue by assignment of error in this Court. State v. Bourgeois, 388 So.2d 359 (La. 1980); State v. Gist, 369 So.2d 1339 (La.1979).

      . Article 884 provides:
      “If a sentence imposed includes a fine or costs, the sentence shall provide that in default of payment thereof the defendant shall be imprisoned for a specified period not to exceed one year; provided that where the maximum prison sentence which may be imposed as a penalty for a misdemeanor is six months or less, the total period of imprisonment upon conviction of the offense, including imprisonment for default in payment of a fine or costs, shall not exceed six months for that offense.”

      . The record in the State charge does not reflect who was the prosecuting attorney when this guilty plea was entered.

      . La.R.S. 32:415 provides in pertinent part:
      It shall be unlawful for any person to operate a motor vehicle upon any public highway of this state during the period of suspension, revocation or cancellation of any license which may have been issued to him by this state or by any other state.
      The penalty provision for the violation of the above statute is set forth in La.R.S. 32:427 which provides:
      Whoever violates a provision of this Chapter shall be fined not less than ten dollars, nor more than five hundred dollars or imprisoned not more than six months, or both.

      . Title 11, Sec. 140 (Ord. No, 2550 § 1) of the Baton Rouge City Code provides in pertinent part:
      Operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, vessel or other means of conveyance while under the influence of alcoholic beverages, narcotic drugs, central nervous system stimulants, hallucinogenic drugs or barbiturates.
      Whoever operates a vehicle while intoxicated is guilty of a violation of the section, and upon conviction shall be fined not less than one hundred twenty-five dollars ($125.00) and not more than two hundred dollars ($200.00), or imprisoned in the parish jail for not less than thirty (30) days nor more than sixty (60) days, or both.


author:
KLIEBERT, Justice Ad Hoc.
     REDMANN, Justice Pro Tern.,

text:
    STATE of Louisiana v. Florence Yvonne McDONALD.
    No. 80-KA-2684.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Rehearing Denied Oct. 16, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Dale G. Cox, Asst. Dist. Atty., for plaintiff-appellee.
    Richard V. Burns, Alexandria, for defendant-appellant.
   KLIEBERT, Justice Ad Hoc.

Defendant Florence McDonald was indicted by a Caddo Parish Grand Jury on November 15, 1978 for being a principal to possession of a firearm by a convicted felon in violation of La. R.S. 14:95.1 (14.24).

Facts adduced at the trial were: Wayne Robert Felde, defendant’s brother, was convicted in Maryland in 1972. His conviction was reversed on appeal and in 1975 he plead guilty to manslaughter and four counts of assault. He was sentenced to twelve years’ imprisonment. The following year he escaped while participating in a work release program and returned to Louisiana. On October 10, 1978, Florence McDonald and Felde went to Lorant’s Sporting Goods Store in Shreveport where Felde purchased a .357 magnum pistol and shells. McDonald wrote a check for fifty dollars. The state sought to prove that McDonald knew her brother was purchasing a gun and wrote the check in partial payment of the purchase price. The defense contended that McDonald knew nothing of the purchase and was simply repaying a debt she owed her brother.

The defendant was found guilty as charged and sentenced to five years at hard labor. She appealed, urging seventeen assignments of error.

The more strenuously urged assignments of error are those relative to the trial judge’s denying motions for a change of venue and a continuance based upon pretrial publicity. On the same day the gun was purchased, the defendant’s brother, Wayne Robert Felde, was arrested and while in custody shot and killed a Shreveport police officer with the gun.

Defense counsel urged that as a result of the pretrial publicity, such a prejudice existed in the public mind that defendant McDonald could not receive a fair and impartial trial in Caddo Parish. In support of this contention, defendant pointed to the gravity of the offense of the slaying of a police officer, the crime her brother is accused of, the impact the offense had on the community, the publicity given to the case of Wayne Robert Felde and the link provided by the press between Wayne Robert Felde and his sister and contends this resulted in the prejudice existing in the community against Wayne Robert Felde being accrued against the defendant denying her a fair trial

Grounds for a motion for a change of venue are provided by La. C.Cr.P. Art. 622. To be entitled to a change of venue under this article, defendant must prove more than a mere knowledge by the public of facts surrounding the offense. Defendant’s burden is to show there is such a prejudice in the collective mind of the community that a fair trial is impossible. State v. Matthews, 354 So.2d 552 (La.1978); State v. Baldwin, 388 So.2d 679 (La.1980); State v. Adams, 394 So.2d 1204 (La.1981). A number of factors must be considered in determining whether to change venue. This Court stated in State v. Bell, 315 So.2d 307, 311 (La.):

“Some relevant factors in determining whether to change venue are (1) the nature of the pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of the publicity, (3) the length of the time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which either affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any factors likely to affect the candor and veracity of the prospective jurors on voir dire.”

On the original hearing of the motion for a change of venue the trial court took evidence in the form of facts agreed to by the defense and the prosecution which included newspaper articles appearing in newspapers published in Shreveport and listened to television and radio newscast tapes broadcast in the Shreveport area. In a written opinion the trial judge concluded all accounts of the incidents in question were factual in their content and were presented in an objective, non-inflammatory manner and denied the original motion for change of venue.

Immediately prior to the trial, the defense supplemented its motion for a change of venue. At this hearing the trial court admitted additional newspaper articles and in a supplemental opinion stated these articles were “pretty much self-induced or self-generated by the defense” by the type of motions the defense had filed. At the conclusion of this hearing the court informed the defense it would allow the defense to re-urge the motion for a change of venue. Prior to impaneling the jury the trial court went through a “dry run” voir dire examination of 12 prospective jurors.

During the dry run voir dire, some jurors stated they were aware of defendant McDonald’s case and her brother’s from the media coverage as well as other sources. Most jurors indicated that despite this awareness they would accept the trial court’s instructions and decide the case on the evidence presented at trial. Others had no knowledge of the case, or only a vague knowledge. One juror indicated a strong opinion against defendant McDonald based on what he had seen and heard. Most prospective jurors had at least some knowledge of the case.

After the “dry run”, the judge again denied the motion for change of venue as well as a motion for continuance. After hearing the prospective jurors respond to questions, the judge noted that despite widespread publicity and the fact that the jury venire had some knowledge of both the Felde and McDonald cases, the court felt the challenges for cause and the peremptory challenges could be properly exercised to insure the proper selection of a jury which could give McDonald a fair trial.

Applying the factors enumerated in Bell, supra, quoted above, we find the trial judge did not make an error or abuse his discretion in denying the motion for a change of venue in this case. Considering each element specified in the Bell case, supra, in the light of the entire record here, we believe the defendant’s right to a fair and impartial trial was not violated.

As to the first factor (i.e., the nature of pretrial publicity and the degree to which it was circulated in the community), enumerated in Bell, the trial court concluded and we agree that the media produced only factual accounts of the incidents and were not inflammatory.

The second factor listed in Bell, supra, is the connection of government officials with the release of publicity. There is no indication that the state contributed to the dissemination of publicity, other than police reports apparently released to the press which the trial judge ascertained were both accurate and factual. Additionally, the District Attorney’s office took precautions in insulating the defendant’s trial from the publicity, i.e., 1) the state moved jointly with the defendant to sequester each juror as they were sworn, even though this is not a capital case and such measures are not required by law; 2) the state did not oppose the defendant’s motion to close the pretrial proceedings to the press or public; 3) the state participated in a “dry run” voir dire examination of jurors to determine the impact of the publicity on the community. Thus, the state did not contribute in any significant way to the publicity connected with this case.

The third Bell factor to be considered is the length of time between the dissemination of publicity and the trial. McDonald was arrested on October 24, 1978 and her trial took place September 11-18 of 1979. Fifty-one articles appeared in the papers from the date of the slaying of the police officer (October 20, 1978) until and including the change of venue hearing on September 9,1979. Most of the publicity, however, concerned Wayne Robert Felde, the defendant’s brother.

The defense asserted that all the publicity in the Felde case automatically affected defendant McDonald’s case because of their brother-sister relationship and the defendant’s connection with the purchase of the murder weapon. The trial judge disagreed and noted that the existence of publicity alone is insufficient to mandate a change of venue. The burden of proof is on the defendant to show there existed such prejudice in the collective mind of the community that a fair trial was impossible. In the “dry run” voir dire examinations more prospective jurors had knowledge of Wayne Robert Felde than of Florence McDonald and only one had definite feelings against the defendant, Florence McDonald. The trial judge concluded the defense could use and the record reveals it did use its challenges for cause and its peremptory challenges to insure a proper jury selection in Caddo Parish.

The fourth consideration is the severity and notoriety of the offense. The offense of which McDonald was charged, i. e., being a principal to a convicted felon in possession of a firearm was serious in that it carried the possibility of a 10 year prison sentence. The notoriety of the offense resulted from the connection with her brother’s slaying of a rookie police officer and his arrest for first degree murder, the bulk of which had occurred ten months prior to this trial. The vast majority of the publicity occurring immediately prior to the trial was defense generated publicity growing out of the motions filed by the defendant. The trial court held that although the publicity was created it did not prevent her from obtaining a fair and impartial trial.

With regard to the fifth factor enumerated in Bell, supra, the facts stipulated to by the state and the defense reveal that the jury would be drawn from the registered voters of Caddo Parish. Of 98,000 registered voters, 83,000 lived in Shreveport, the city where the crime occurred. Thus, there was a large base from which to select a jury.

Regarding the sixth factor (other events occurring in the community which either affected or reflected the attitude of the community) it appears that prior to October, 1978, a police officer had not been slain in Caddo Parish in ten years. Two more officers were slain soon thereafter, totalling three slain officers within a span of a year.

In the earlier articles, references were made to these slayings and no doubt contributed to some extent to the publicity involving the defendant’s brother. There was little connexity between the defendant and this publicity.

The fifth factor of Bell dealt with the candor and veracity of the prospective jurors on the voir dire. Following the “dry run” voir dire, the trial judge concluded the prospective jurors’ examination during the “dry run” were candid in expressing their views and would yield to the evidence and law as presented during the trial. After reviewing the record on the dry run voir dire and the examination of the prospective jurors during the empanelling of the jury, we believe the prospective jurors were candid in expressing their views and those selected for the jury did yield to the evidence and the law presented to them with fairness and impartiality.

Subsequent to conviction of the defendant in the trial court, this Court in State v. Felde, 382 So.2d 1384 (La.), on a writ application, vacated a trial court order denying a change of venue for the defendant’s brother, Wayne Robert Felde. In summarizing the basis of this decision, this Court said:

“. . . we determine the necessity for the change of venue to be predicated upon the following particular and unique facts of this case: the voluminous pre-trial publicity surrounding the defendant’s trial; the cumulative effects of publicity surrounding the trials of subsequent defendants involving the shooting of police officers and the trial of the defendant’s sister who was implicated in the present case which may have caused a connexity in the public’s mind on the innocence of defendant; and in the interest of judicial economy. We therefore find that under the particular facts of this case, the defendant has made a sufficient showing of a strong likelihood that prejudice may exist in the public mind. In the interest of judicial economy, we direct the district court to order a change of venue for defendant’s trial.” (Emphasis in original.)

In the Felde case the early publicity was relative to Felde’s alleged shooting of the police officer with little or no connexity in the publicity between Felde and the defendant in this case. Subsequent to the conviction of the defendant here, there occurred extreme publicity relative to this conviction and its connexity with the innocence of defendant Felde. This coupled with the fact the bulk of the publicity we are concerned with in this case concerned the defendant Felde and not the defendant McDonald distinguishes this case from the Felde. *

Whether the defendant in this case made the requisite showing that a fair and impartial trial could not be obtained in Shreveport is a question addressed to the trial court’s sound discretion and in the absence of an affirmative showing of error or abuse of discretion should not be disturbed on review. State v. Sonnier, 379 So.2d 1336 (La.1979); State v. Matthews, 354 So.2d 552 (La.1978) and State v. Sheppard, 350 So.2d 615 (La.1977). We find no affirmative showing of error or abuse of discretion in the trial court’s denial of the motion for change of venue. Further, considering the entire record here (including the dry run voir dire and the voir dire during the empanelling of the jury and the newspaper articles, television clips and radio clips submitted in evidence), we believe the prospective jurors were candid in their voir dire examinations and did apply the evidence and the law in a fair and impartial manner.

The defendant also assigns as error the trial judge’s denial of closed hearing of the pretrial hearings on the motion to quash, discovery motions and motions for change of venue. The defense urged necessity of closed hearings to insulate the defendant from additional publicity. The state made no opposition to the defense motions.

In the trial court and here the defense cites Gannett Company, Inc. v. Despasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1978) in support of its contentions. The trial court denied the motion, reasoning that this factual situation was distinguishable from Gannett where the motions dealt with the suppression of a statement or the exclusion of evidence, the underlying basis for the decision being to avoid tainting the prospective jury venire with knowledge of potentially inadmissible or illegally obtained evidence. The court then ruled that “the 6th and 14th amendments rights are (sic) at this particular juncture would override that of the defendant to waive her right to a closed hearing.”

In State v. Kent, 391 So.2d 429 at 433 (La.1980), the Court noted: “Although the U. S. Supreme Court recognized in Gannett (citation omitted) that the trial court may permit a defendant to waive his Sixth Amendment right to a public proceeding, there is no indication that there is a concomitant right to a closed proceeding.” In the case of Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), the Supreme Court found the right to attend criminal trials to be implicit in the guarantees of the First Amendment. The Court’s reasoning left open the possibility that a criminal proceeding might be closed to the public, but only where the trial court’s findings supported a determination that the accused rights to a fair trial would be prejudiced and where alternative solutions were not adequate to ensure protection of the defendant’s rights.

The defendant, however, has made no showing of how she was prejudicially affected by the denial of the request for closed hearings, other than asserting the hearings may have generated additional publicity. As noted by the state, it was actually unclear whether opposition to or support of the motion would generate more publicity, as simply filing the motion was newsworthy enough for the papers. Absent some more specific showing of how denial of the closed hearings prejudiced defendant, i.e., what if any information or publicity was produced which proved damaging to defendant, we find no abuse of the trial court’s discretion in denying the closed hearings.

As further error the defendant urged that the trial court erred in failing to comply with the sentencing guidelines set forth in La.C.Cr.P. Art. 894.1 and by imposing an excessive sentence. La.R.S. 14:95 and R.S. 14:24 provide that the punishment for the crime in question is imprisonment at hard labor for not less than three and not more than ten years. Defendant McDonald was sentenced to five years at hard labor with credit given for time served.

This Court has held that imposition of a sentence even within statutory limits may violate defendant’s right under the Louisiana Constitution against excessive punishment. Thus, it has been determined that excessiveness of sentence poses a question of law reviewable under the appellate jurisdiction of this Court. State v. Sepulvado, 367 So.2d 762 (La.1979). Sepulvado further states that adequate review mandates that the trial judge state specific reasons for an apparently severe sentence in relation to the particular offender and the actual offense. While the trial judge need not articulate every aggravating and mitigating circumstance presented in Art. 894.1, the record must reflect that it actually considered these guidelines in particularizing the sentence to the defendant. State v. Vaughn, 378 So.2d 905 (La.1979); State v. Franks, 373 So.2d 1307 (La.1979).

As a general rule, a sentence is excessive “. . . if it is grossly out of proportion to the severity of the crime, or if it is nothing more than the purposes and needless imposition of pain and suffering.” State v. Bonanno, 384 So.2d 355, 357 (La.1980).

In sentencing defendant McDonald to five years, the trial judge referred to information contained in the presentence investigation report. The defense acknowledged receipt of the PSI and sought to clarify two issues contained therein.

First, the PSI alleged that Ms. McDonald had in some way assisted her brother in escaping from prison in Maryland. Counsel for the defendant called to the stand the detective who allegedly made the assertion to the probation officer compiling the pre-sentence investigation. Detective Owens testified that he had not positively stated that the defendant played any part in Wayne Robert Felde’s escape and that in fact he had nothing to substantiate that claim other than the fact that during the time of Felde’s escape, McDonald took some time off of work and shortly thereafter Wayne Robert Felde appeared in Louisiana. It was asserted by the defense that McDonald and her husband had travelled to Tennessee during that period of time.

Secondly, counsel for the defendant also addressed information in the PSI which suggested an incident of embezzlement by the defendant during past employment. The attorney for the company in question testified that his client had not accused the defendant of embezzlement. Though there had been a problem with a check written and endorsed by McDonald over five years ago, the witness stated that McDonald had been a trusted employee of the company for several years prior to that incident and the circumstances surrounding the check were unclear.

After clarifying these issues, defense counsel urged the imposition of the minimum sentence and reminded the court that the defendant had two small children at home.

In articulating his reasons for sentencing in compliance with Art. 894.1, the trial judge noted that McDonald had no prior history of delinquency or criminal activity and that her imprisonment would create a hardship for her family. He felt, however, that McDonald would not respond affirmatively to probation. In support of this, he noted statements made by McDonald that she had no regrets and that her brother had gotten a “bum rap” in Maryland. It was also noted that she exhibited no remorse for the fact that her brother had taken a human life. The judge stressed that McDonald knew her brother was an escapee from Maryland and that he was being sought by authorities. The judge felt it was reasonable for the defendant to know that if she assisted Wayne Robert Felde in purchasing a weapon he would use it to avoid apprehension. The court concluded that defendant McDonald was provoked by a strong love for her brother and under similar circumstances her conduct was likely to be repeated.

In conclusion, the judge conceded that imprisonment would impose a severe hardship upon the defendant personally and especially upon her young children. Nevertheless, he felt a lesser sentence would deprecate the severity of the offense and imposed a sentence of five years at hard labor.

A review of the record reveals a careful consideration of the guidelines of Art. 894.1. Therefore, if there is any problem with defendant’s sentence it is one of excessiveness and not failure to state specific reasons for the sentence.

A trial court is afforded wide discretion in the imposition of sentences within the statutory limits and such sentence will not be set aside as excessive in the absence of manifest abuse of discretion. State v. Forshee, 395 So.2d 742 (La.1981). The fact that this is defendant’s first offense and that she has two small children at home can be considered important mitigating factors here. However, the sentence is well within the statutorily provided range and it cannot be said to be an abuse of the trial court’s discretion.

For the foregoing reasons, therefore, the conviction and sentence of the defendant are affirmed.

REDMANN, J. Pro Tern., dissents with reasons.

REDMANN, Justice Pro Tern.,

dissenting.

This Court is unconstitutionally constituted and an accused is denied due process of law by his or her case’s being referred to it instead of the Louisiana Supreme Court as constituted by La.Const. Art. 5 §§ 1, 3 and 4, to which this Court should order this case referred.

See the writer’s dissent, State v. Petterway, La.1981, 403 So.2d 1157, 1161.

      . Judges Redmann and Kliebert of the Court of Appeal, Fourth Circuit and Judge Cutrer of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Justices Calogero, Dennis, Blanche and Lemmon.

      . Seventeen assignments of error were briefed by defendant and combined into eight different arguments. Those arguments/assignments of error not covered in the main opinion are covered in an appendix to this opinion which, though unpublished, are to be included in the public records of this Court.

      . In its opinion denying the original motion for a change of venue, the trial judge gave the following summary of the items submitted for review:
      “This court was presented with various newspaper articles covering the period of October 21, 1978 through the morning of September 7, 1979, being the date of the alleged shooting of police officer Thompkins through and until the date for hearing on the motion for change of venue. This court examined all newspaper articles, heard and observed television film clips from KTBS, Channel 3, Shreveport, Louisiana for the days October 21, 22, 23, 24 and 27, 1978. The October 21, 1978 film clip consists of a factual description by the Chief of Police of Shreveport, Chief Lanigan, of a shooting incident in which a person identified as Harold W. Hersey shot and killed a Shreveport police officer. He cited a viewing of neighborhood scenes, in the area where the alleged shooting occurred, nothing of an unusual nature occurred with exception of Chief Lanigan’s statement, ‘a man has killed a police officer, shot him in cold blood’, and will be charged with a felony offense. The second film clip, dated October 22, 1978 is of the Commissioner of Public Safety of Shreveport, Louisiana, Terry Hayes recapping the factual incident surrounding the shooting of Officer Thomp-kins. An unrelated film clip involved a Ya-zoo, Mississippi police chief who disappeared while in the Shreveport, Louisiana area.
      On October 23, 1978 the film clip shows a funeral service of Officer Thompkins, a narration that approximately 500 uniformed police officers attended from this immediate area, portions of the eulogy by various officials, mention of passing close to the hospital where the defendant, who was injured in a gun battle, was hospitalized. Second film clip of this date, October 23, depicts Felde’s sister, the defendant, Florence Yvonne McDonald’s arrest. The film clip contains an interview with Detective Nichols of the Shreveport Police Department concerning the facts of the case and a notation that Felde did not make a statement. The October 24 film clip again relates to the sister as having been arrested and being placed under $25,000 bond.
      The last film clip, October 27, 1978, is basically an interview with the Chief of Police, Lanigan, wherein he mentioned charges against the defendant and her arrest.
      The defense introduced radio newscasts from KEEL Radio, Shreveport, Louisiana. The facts outlined are essentially the same facts contained in the television reports. The officers related that they received a call of a drunk, that defendant, Felde, was apprehended and was about to be allowed to go home on his own in a cab when Officer Thompkins finally arrested him and was taking him to jail. The news report outlined the fact situation surrounding the shooting incident, of Felde’s escape from the police officers, a description of the weapon used by officers, a shotgun, and the fact that Felde was apprehended with a revolver in his possession with a reloaded clip and the fact the gun was cocked. The second news story of the incident and an interview with the Commissioner of Public Safety, Terry Hayes who called this one of the greatest tragedies that ever happened.
      The October 23 news tape of KEEL is a story of the funeral by a newswoman which outlined this being the first time since 1965 that an officer had lost his life in the line of duty. The tape contained background music of the funeral with the newsperson describing the proceeding as persons passed the coffin, the motorcade to the cemetery and the interment service.”

      . The trial court, however, refused to close these proceedings and the defendant complains that this proved highly prejudicial.

      . It appears there is no constitutional right to a closed hearing. As stated in Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965):
      “The ability to waive a constitutional right does not ordinarily carry with it the right to insist upon the opposite of that right. For example, although a defendant can, under some circumstances, waive his constitutional right to a public trial, he had no absolute right to compel a private trial...”


author: DENNIS, Justice. LEMMON, Justice,

text:
    J. WEINGARTEN, INC. v. NORTHGATE MALL, INC. and Pickens Bond Construction Company.
    No. 80-C-2991.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Concurring Opinion Oct. 16, 1981.
    Rehearing Denied Oct. 21, 1981.

      Randall C. Songy and John G. Torian, III, of Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, for defendant-applicant.
    L. Lane Roy and M. Candice Hattan, Lafayette, for plaintiff-respondent.
   DENNIS, Justice.

We are called upon to decide whether, under the circumstances of this case, a court should specifically enforce a lease by ordering the destruction of the major part of a $4 million building which a shopping center developer erected in an area reserved to its tenant for customer parking. The trial court refused to order the building razed, but the court of appeal reversed, requiring that approximately 60% of the building be torn down and removed within six months of the effective date of its judgment. We reserve the judgment of the court of appeal. Although specific performance is the preferred remedy for breach of a contract it may be withheld by the court when specific relief is impossible, when the inconvenience or cost of performing is greatly disproportionate to the damages caused, when the obligee has no real interest in receiving performance, or when the latter would have a substantial negative effect on the interests of third parties. In view of the great disparity between the cost of specific relief and the damages caused by the contractual breach, the magnitude of the economic and energy waste that would result from the building’s destruction, the substantial hardship which would be imposed on individuals who are not parties to the contract or to this litigation, and the potential negative effect upon the community, the circumstances and nature of this case do not permit specific performance. Accordingly, the case will be remanded to the trial court for proceedings necessary to the assessment and award of any damages to which the plaintiff may be entitled.

The defendant, Northgate Mall, Inc., in 1967 and subsequently, developed an enclosed shopping mall on approximately 35 acres of land in Lafayette, Louisiana. In 1968, the defendant subleased space in the mall to the plaintiff, J. Weingarten, Inc., for the operation of a grocery store.

In early 1978, the defendant began planning to renovate and expand the mall to counter expected competition from a new mall to be built in Lafayette. The plaintiff, upon learning of the expansion plans, informed the defendant that it wished to remodel or enlarge its own store in conjunction with the defendant’s activities. Later the plaintiff sent rough plans of its enlargement to the defendant for approval. The plans would have allowed the plaintiff to extend its store front fifty feet into the parking lot adding roughly 7400 additional square feet of building area. Under the lease, the plaintiff had no contractual right to expand. The defendant’s right to expand was limited to roughly 40,000 square feet, but it proposed to add slightly over 100,000 square feet. Therefore, consent of both parties was necessary under the lease to permit either party’s proposed expansion. However, no written modification ever resulted from their preliminary negotiations.

In February, 1979, the defendant erected a construction fence and began moving construction equipment and material onto the job site. The plaintiff alerted the defendant that it considered the defendant’s activities a breach of contract and that injunc-tive relief would be sought if such activities did not cease. Last minute negotiations between the parties were unsuccessful, and the plaintiff filed suit on March 1, 1979 seeking preliminary and permanent injunc-tive relief.

Pursuant to plaintiff’s petition, the trial court issued a temporary restraining order prohibiting further construction activities and continued the order until March 19, 1979 when a hearing was held on plaintiff’s motion to dissolve the restraining order. The trial court denied the preliminary injunction and dissolved the temporary restraining order based on its finding that Weingarten failed to show that it would sustain irreparable damage without injunc-tive relief. Realizing the great costs attendant to the delay of a multi-million dollar construction project, the trial court pledged itself to speedy action in the case and encouraged the plaintiff to appeal the correctness of its ruling. The plaintiff did not take an appeal as a matter of right, see La. C.C.P. art. 3612, or apply for supervisory writs. See La. C.C.P. art. 2201. The trial on the merits of the petition for a permanent injunction was not held until October 25 and 26, 1979. By this time the $4 million expansion project was virtually complete and the new stores therein were open for business.

After the trial on the permanent injunction, the trial court reaffirmed its earlier finding that the plaintiff had not demonstrated that it would be irreparably harmed and could be adequately compensated monetarily. The court refused to enforce specifically a provision in the lease stipulating that an injunction to enforce Weingarten’s rights to egress and passage over the parking area occupied by the new building could be obtained without the necessity of showing irreparable harm or the inadequacy of damages. The trial court concluded the agreed remedy provision was against public policy relying on Termplan Arabi, Inc. v. CaroIIo, 299 So.2d 831 (La.App. 4th Cir.), writ denied 302 So.2d 29 (La. 1974).

The court of appeal reversed the trial court, holding that the plaintiff was entitled to permanent injunctive relief because the agreed remedy provision was valid and because the plaintiff was irreparably harmed. J. Weingarten, Inc. v. Northgate Mall, Inc., 390 So.2d 527 (La.App.3d Cir. 1980). We granted defendant’s application to consider the appropriateness of specific performance in this case. 396 So.2d 1326 (La. 1981).

Northgate agreed not to erect any additional buildings in the parking area of the shopping center except within the space shown on a plat attached to the lease designated as sites for future department store and a proposed theater. The defendant also promised to maintain a ratio of six car parking spaces for each 1,000 feet of floor space in the shopping center. It further agreed that its tenant, Weingartenv would have the right to an “irrevocable non-exclusive easement” over all parking areas shown on the plat attached to the lease. In connection with the “easement,” the lease provided that Weingarten “shall have the right to obtain an injunction specifically enforcing such rights and interests without the necessity of proving inadequacy of legal remedies or irreparable harm.”

We concur in the court of appeal’s findings that Northgate breached each of the contractual provisions. Whereas the lease reserved a 39,375 square foot area for future expansion, Northgate’s new building consumed over 100,000 square feet, covering part of the area reserved for customer parking and reducing the parking ratio from 5.7 spaces per 1000 square feet, in which Weingarten had acquiesced, to 5.0 spaces per 1000 square feet. However, we disagree with the court of appeal finding that the plaintiff had shown that it would be irreparably injured by the breaches of contract. The evidence fully supports the trial judge’s determination that plaintiff failed to demonstrate that its injury would be irreparable or insusceptible to adequate compensation.

The decisive issue presented by the breaches of contract is whether Weingarten is entitled to the substantive right of specific performance under the circumstances of this case. Specific performance may be enforced by the extraordinary remedy of injunction, among other procedural methods. It is self-evident, however, that unless Weingarten has a substantive right to specifically enforce the obligation, neither an injunction nor any other procedural remedy may be used.

Plaintiff Weingarten has asked specific performance of defendant Northgate’s obligation not to do something — namely, not to infringe on plaintiff’s contractual rights over areas reserved for parking by the lease. Civil Code articles 1926 through 1929 govern the enforcement of obligations to do, or not to do.

Articles 1926 and 1929 provide;

Art. 1926. On the breach of any obligation to do, or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in the following section.
Art. 1927. In ordinary cases, the breach of such a contract entitles the party aggrieved only to damages, but where this would be an inadequate compensation, and the party has the power of performing the contract, he may be constrained to a specific performance by means prescribed in the laws which regulate the practice of the courts.
Art. 1928. The obligee may require that any thing which has been done in violation of a contract, may be undone, if the nature of the cause will permit, and that things be restored to the situation in which they were before the act complained of was done, and the court may order this to be effected by its officers, or authorize the injured party to do it himself at the expense of the other, and may also add damages, if the justice of the case require it.
Art. 1929. If the obligation be not to do, the obligee may also demand that the obligor be restrained from doing any thing in contravention of it, in cases where he proves an attempt to do the act covenanted against.

Since they are not models of clarity, the articles are susceptible to more than one reasonable interpretation.

A literal reading of the codal language may lead one to conclude that the general rule, i.e., the one to be applied in ordinary cases, is that the breach of a contract entitles the party aggrieved only to damages; and specific performance may only be obtained where damages would be an inadequate compensation. Under this view, an obligee could only require a thing done in violation of the contract to be undone if the nature of the cause would permit, viz., in the exceptional case in which damages are an inadequate remedy. Such an interpretation is suspect, however, because of its common law overtones.

Eminent Louisiana civilian commentators have argued persuasively to the contrary that these articles of the code where designed to enhance the rank of specific performance over damages as a remedy for the nonperformance of obligations to do or not to do in a manner not expressed in the comparable French articles. 2 S. Litvinoff, Obligations, § 168 in 7 Louisiana Civil Law Treatise (1975); Comment, Louisiana Law of Specific Performance: Codal Provisions and Methods of Enforcement, 40 Tul.L.Rev. 340 (1966). In their view, several circumstances support such an interpretation of the code: Article 1926 was mistranslated from the French; it should read: “On the breach of any obligation to do, or not to do, the obligee is entitled either to damages, or, if the execution is possible, [rather than in cases which permit it] to specific performance of the contract .. .. ” [emphasis added] S. Litvinoff, Obligations, § 168 in 7 Louisiana Civil Law Treatise 310-315 (1975); Comment, Louisiana Law of Specific Performance: Codal Provisions and Methods of Enforcement, 40 Tul.L.Rev. 340, 343-345 (1966). Article 1927’s restriction of specific performance to cases where damages would be “inadequate compensation” is consistent with the idea that recovery of damages is never an adequate remedy when specific performance is possible. S. Litvi-noff p. 312; Comment, 40 Tul.L.Rev. p. 344. Article 1927’s provision that, in “ordinary cases,” a breach of contract entitles the creditor “only to damages,” only implies a reference to nemo praecise cogit ad factum, that is, only damages should be granted when specific performance would require a violation of the obligor’s freedom. S. Litvi-noff, p. 313. Article 1928, which allows the obligee to require that anything which has been done in violation of a contract, “may be undone, if the nature of the cause will permit,” shows greater care for the procedural aspects of the remedy of specific performance than does its French equivalent. S. Litvinoff, p. 313.

We agree with the distinguished doctrinal writers that Articles 1926 through 1929 were intended to give first rank to the obligee’s right to performance in specific form, consistently with other provisions of the Code. See 2 S. Litvinoff, Obligations, § 168, n. 77. Therefore, we reject the common law view that the obligee must first clear the inadequacy of damage-irreparable injury hurdle before invoking the remedy.

A reading of the articles as a whole, however, implies that courts are empowered to withhold specific performance in some exceptional cases even when specific performance is possible. The phrases, “if the nature of the cause will permit” and “in ordinary cases,” suggest a reference to a traditional civilian concept. The civil law systems, i.e., those descended from Roman law, have by and large proceeded on the premise that specific redress should be ordered whenever possible, unless disadvantages of the remedy outweigh its advantages. Farnsworth, Legal Remedies for Breach of Contract, 70 Columbia L.Rev. 1145 (1970). The main reservations have been for cases where specific relief is impossible, would involve disproportionate cost, would introduce compulsion into close personal relationships or compel the expression of special forms of artistic or intellectual creativity. Dawson, Specific Performance in France and Germany, 57 Mieh.L.Rev. 495, 520 (1959). Professor Litvinoff has described the French jurisprudence as allowing courts to deny specific performance whenever the inconvenience of such forced execution would exceed the advantage, as when the cost of performing in kind is disproportionate to the actual damage caused, or when it is no longer in the creditor’s interest, or when it would have a negative effect upon the interest of third parties. 2 Litvinoff, Obligations, § 166; See also, 2 M. Planiol, Civil Law Treatise pt. 1, no. 171A at 103 (11th ed. La. St. L. Inst, trans. 1959); Szladits, The Concept of Specific Performance in Civil Law, 4 Am.J. Comp.L. 208, 217 (1955).

For the foregoing reasons, we conclude that the legislative aim of the redactors of the code was to institute the right to specific performance as an obligee’s remedy for breach of contract except when it is impossible, greatly disproportionate in cost to the actual damage caused, no longer in the creditor’s interest, or of substantial negative effect upon the interests of third parties. Applying this interpretation to the present case, we conclude that its nature will not permit specific performance.

The evidence clearly reflects that that the cost of tearing down most of the $4 million building and doing incalculable damage to the remainder of the shopping center greatly outweighs any actual damage caused to the plaintiff. It is dubious that the devastation of such a building in a shopping center built with the hope of competing with a neighboring market complex is in Weingarten’s real interest. It is evident that the third persons not party to the contract or to this lawsuit would be negatively affected. Shopping center tenants in the new building would lose their store space and risk losing their investments. H.J. Wilson Company, which occupies over 63,000 square feet of the building, would be particularly disadvantaged. The owners of the land and John Hancock Mutual Life Insurance Company, whose long term loan is secured by a mortgage on the shopping center and pledges of the leases of the five major tenants, would suffer a substantial negative effect. Although perhaps not controlling, additional considerations weighing against specific performance and its consequent destruction of a major commercial building are the potential negative effects upon the community in the form of economic waste, energy dissipation, and possible urban blight.

Although the contractual provisions involved here cannot be specifically enforced under the circumstances of this case, we hold that they could have been under different conditions. Indeed, unless exceptional conditions prevail as in this case anything which has been done in violation of the contract may be undone, including the destruction of a building. Moreover, plaintiff is not without a remedy because it is entitled to be compensated fully in damages for any loss it sustains as a result of the breach of contract. Because the record presently does not provide an adequate basis for the assessment of damages, however, the case will be remanded to the trial court for that purpose.

REVERSED AND REMANDED.

WATSON and MARCUS, JJ., concur.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

When construction began, Weingarten sought to enjoin Northgate’s blatant violation of the contract, and injunctive relief should have been granted. When preliminary injunctive relief was denied, Weingar-ten did not seek review of that ruling.

After construction was completed, the permanent injunction was tried on the merits. Of course, it was impossible at that point to prevent construction, and Weingar-ten’s only relief was to undo the contractual violation by requiring removal of the building. By this time, however, the rights of third parties had become involved, such as the landowners and the mortgage holders (as well as new lessees, by the time the matter reached this court). Although Northgate’s breach was no less culpable, the court's weighing process in determining the appropriate remedy was complicated by the involvement of the rights of innocent third parties.

At this point in the litigation I agree with the majority’s analysis. Northgate’s trampling on other parties’ rights should have been halted earlier, when all of the equities favored Weingarten. Because of inherent flaws in the judicial process Weingarten must now obtain its relief through an award of damages.

      . A judgment may also be issued directing a party to perform a specific act. When the party so adjudged fails to perform, the judgment may be enforced by various procedural methods including the use of distringas, an assessment for damages, and punishment for contempt — all as authorized by La.C.C.P. art. 2502. In addition, La.C.C.P. art. 2504 authorizes the court to direct performance by the sheriff or another person appointed by the court, at the cost of the disobedient party. See Comment, 40 Tul.L.Rev. 340, 352 (1966).

      . A party seeking an injunction has no standing to sue unless he has a substantive right, which the law will recognize, assertable against a defendant having a substantial adverse interest. Terrebonne Parish Police Jury v. Mathrene, 405 So.2d 314 (La. 1981); La. Hotel-Motel Ass’n Inc. v. Parish of East Baton Rouge, 385 So.2d 1193 (La. 1980); League of Women Voters of N.O. v. City of New Orleans, 381 So.2d 441 (La. 1980); Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1977); Stoddard v. City of New Orleans, 246 La. 417, 165 So.2d 9 (1964). Cf., Moore, Federal Practice, § 65.17. Moreover, the injunction question appears entirely academic. If Weingarten is entitled to specific performance, its right may be enforced by other procedural methods even if an injunction is unavailable. See footnote 1, supra. Nevertheless, it should be noted that the court of appeal’s conclusion that parties contractually may dispense with procedural requisites for an injunction is subject to serious question because of the effects it may have on court dockets and litigants in other cases. If Civil Code article 11 applies to public law with the same force as it does to private law, renunciation of an important rule of court, procedure may in fact be contrary to the public good. See Garro, Codification Technique and the Problem of Imperative and Suppletive Laws, 41 La.L.Rev. 1007, 1012-1015 (1981).

      .We agree with the trial court that the lease does not confer a servitude to plaintiff since defendant-lessor is not the owner of the property. See La. C.C. arts. 697, 710-14; Hawthorne Oil & Gas Corp. v. Continental Oil Co., 368 So.2d 726, 737 (La.App. 3d Cir., rev'd on other grounds, 377 So.2d285 (La. 1979)).

      . For discussions distinguishing the civil and common law approaches to specific performance and critiques of Louisiana jurisprudence see: 2 S. Litvinoff, Obligations, §§ 162-171 in 7 Louisiana Civil Law Treatise (1975); Jackson, Specific Performance in Louisiana, Past and Future, in Essays in the Civil Law of Obligations 195 (J. Dainow ed. 1969); Jackson, Specific Performance of Contracts in Louisiana, 24 Tul.L.Rev. 401 (1950); Krassa, Interaction of Common Law and Latin Law: Enforcement of Specific Performance in Louisiana and Quebec, 21 Can. Bar Rev. 337 (1943); Comment, Louisiana Law of Specific Performance: Codal Provisions and Methods of Enforcement, 40 Tul.L. Rev. 340 (1966).

      . Twentieth century French commentators argue that courts are justified in not granting specific performance only when it is materially or morally impossible. “Moral impossibility refers to a case ‘when satisfaction in nature can by the hardest be procured from the defendant, but at the price of an act of violence which would be scandalous. Colin & Capitant, Cours élémentaire de droit civil frangais II (3 e ed. 1921) p. 17ff.; Planiol & Ripert, Traité Pratique de droit civil franfais VII (1931) 69 f. f.’” Jackson, Specific Performance of Contracts in Louisiana, 24 Tul.L.Rev. 401, 415 (1950).

      . Even when a valid agreed remedy provision such as stipulated damages is included in the parties’ contract, the court retains some discretion to modify that provision when circumstances such as partial performance make the agreed remedy inappropriate or unjust. See, La.C.C. arts. 1934 (5), 2120, 2127; La.C.C.P. art. 2164; Comment, Judicial Modification of Penal Clauses — A Survey of Recent Developments, 53 Tul.L.Rev. 523 (1979).


text:
    Louis PERKINS v. Howard L. COKER, Jr.
    No. 81-C-2045.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      John P. Navarre, Oakdale, for defendant-relator.
    Perrell Fuselier, Oakdale, for plaintiff-respondent.
   PER CURIAM.

This an application to review the dismissal of an appeal by the Court of Appeal. The writ is granted.

Defendant appealed from a judgment decreeing the ownership of immovable property in a petitory action. The Third Circuit dismissed the appeal for failure of defendant to file his brief within sixty days of the lodging of the transcript with the Court of Appeal.

The issue presented is whether the appellate court properly dismissed the appeal as abandoned. An appeal may be dismissed as abandoned only when there is strong evidence of an intent to abandon the appeal. Courts of appeal have the power to dismiss appeals as abandoned under C.C.P. 2162. This power has been limited in its application by C.C.P. 561 that provides, “[a]n appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court, not to be less than one year." (Emphasis added).

In the case at bar the transcript was lodged in the Third Circuit on March 16, 1981, and the brief was filed May 17, 1981. The brief was filed prior to the date set for oral argument, but the court below dismissed the appeal as abandoned. The dismissal was contrary to C.C.P. 561 and Rule VII, § 5(b) of the Uniform Rules, Courts of Appeal, that provides:

“The court may, ex proprio motu: (b) Consider abandoned and dismiss the appeal in any case in which the appellant has neither appeared nor filed a brief prior to the time the case is called for oral argument, or the time the ease is submitted without oral argument on the docket of the court. By ‘appearance’ is meant personal appearance in open court, or the filing of a written instrument negating any intent to abandon the appeal, or the filing of a written pleading; ...”

We find the harsh sanction of the Third Circuit inappropriate in this case. Careful consideration must be made before intent to abandon an appeal is found. The scope of § 5(b) of Rule VII of the Uniform Rules, Court of Appeal, was explained in Walker v. Jones, 253 La. 908, 913, 221 So.2d 44, 46 (1969):

“. .. The rule confers discretionary authority, providing as it does, that the court may consider abandoned and dismiss an appeal in any case in which the appellant has neither appeared nor filed brief prior to the date fixed for submission of the case. The rule being permissive in nature, the action of an appellate court, in dismissing an appeal, as abandoned, must always be reasonably exercised with due consideration being given to the principle that the law favors appeals and they should not be dismissed as abandoned except for substantial causes, even though the appellant or its counsel has failed to comply fully with the letter of the court rule.”

Walker was relied upon to reinstate “abandoned” appeals in Messer v. Department of Corrections, 349 So.2d 1273 (La. 1977); Mills v. Adams, 353 So.2d 1339 (La. 1978) and Wilson v. Schwegmann Brothers,, 373 So.2d 1309 (La. 1979).

The dismissal of the appeal herein by the Third Circuit Court of Appeal is set aside, and the case is remanded to that court for further proceedings not inconsistent with this opinion.


author: BLANCHE, Justice. WATSON, J.,

text:
    Kathryn Dunaway DEDON v. Clifford DEDON. Jette Ann Stewart NORSWORTHY v. Arval Carmen NORSWORTHY.
    Nos. 81-C-0045, 81-C-0369.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    Donald R. Miller, Shreveport, for plaintiff-applicant in 81-C-0045.
    Glen H. Smith, Shreveport, for defendant-respondent in 81-C-0045.
    James E. Bolin, Jr., of Sockrider & Bolin, Shreveport, for plaintiff-applicant in 81-C-0369.
    James L. Fortson, Shreveport, for defendant-respondent in 81-C-0369.
   BLANCHE, Justice.

This case requires the classification of military retirement benefits as community or as separate property. We find the recent opinion by the United States Supreme Court in McCarty v. McCarty, - U.S. -, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981) controlling in our decision of this matter.

The facts of the instant case are as follows: Kathryn Dunaway and Clifford De-don were married in 1952, obtained a legal separation in 1973, and subsequently were divorced in 1974. A voluntary partition of community property perfected by the parties in 1973 makes no mention of Clifford Dedon’s Air Force retirement benefits. Kathryn Dedon filed this suit in 1979, asserting a community interest in these benefits, as the defendant became fully vested in and entitled to them during the existence of the community regime.

Clifford Dedon filed an exception of no cause of action to his former wife’s suit, arguing that the federal supremacy clause prohibited application of Louisiana’s community property law to military retirement pay. The trial court and court of appeal, 390 So.2d 937, sustained this exception, relying on Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979), which held that retirement benefits under the Railroad Retirement Act of 1974, 45 U.S. C.A. § 231 et seq. were not subject to California community property law. Following the more recent U.S. Supreme Court decision in McCarty, supra, we affirm.

The parties in McCarty were married in 1957 and legally separated in 1976. A judgment dissolving the marriage and dividing the community property of the spouses was rendered on November 23, 1977. Over Richard McCarty’s objection, the trial court held that his military pension and retirement rights were subject to division as quasi-community property and awarded Patricia McCarty an interest in any benefits eventually paid to McCarty on his retirement from the Army.

Richard McCarty sought review of that portion of the judgment granting his former wife an interest in the retired pay. The trial court’s ruling was affirmed by the California Court of Appeal, First Appellate District. The California Supreme Court denied McCarty’s petition for hearing.

The U.S. Supreme Court granted certio-rari and reversed the lower court, finding that the conflict which existed between the California community property law and the federal military retirement statutes threatened grave harm to clear and substantial federal interests. Accordingly the Court held that federal law precludes a state court from dividing military retirement benefits pursuant to state community property laws.

This clear pronouncement in McCarty dictates the result in the instant case. The federal scheme of military retirement benefits pre-empts state community property law. Under that scheme, Kathryn Dedon is not entitled to an interest in military retired pay received by her husband. The judgments of the trial court and the court of appeal are, therefore, affirmed.

This case was consolidated for argument with the case Norsworthy v. Norsworthy, La., 397 So.2d 796. The decision of the U.S. Supreme Court in McCarty is equally controlling in that suit, which is factually indistinguishable from Dedon on all pertinent points. Accordingly, the judgment of the court of appeal denying Mrs. Jette Nor-sworthy a community interest in her husband’s military retired pay is also affirmed.

AFFIRMED.

WATSON, J.,

concurs on the basis of the U.S. Supreme Court opinion but personally adheres to the views expressed in Swope v. Mitchell, 324 So.2d 461 (La.App. 3 Cir. 1975).

      . According to the Court in McCarty, the military retirement scheme confers no entitlement to retired pay upon the retired member’s spouse and does not embody even a limited community property concept. The language, structure and history of the statutes clearly demonstrate that retired pay is the personal entitlement of the retiree.
      The objectives of the military retirement scheme, to provide for the retired service member and to serve as an inducement for enlistment and re-enlistment and an encouragement to orderly promotion and a youthful military, would be potentially frustrated by community property division of retirement benefits.


author: PONDER, Justice Ad Hoc.

text:
    STATE of Louisiana v. Norman SPOONER.
    No. 81-KA-0049.
    Supreme Court of Louisiana.
    Sept. 28, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., William R. Weatherford, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.
    Andrew Jack Bennett, Baton Rouge, for ' defendant-appellant.
   PONDER, Justice Ad Hoc.

Norman Spooner appealed from his conviction of Second Degree Murder (R.S. 14:30.1). He assigns as error the failure to suppress verbal confessions or inculpatory statements.

Defendant’s conviction of the first degree murder of Linda Knippers was reversed by this court, State v. Spooner, 368 So.2d 1086 (La. 1979), because the trial court had excluded defendant’s hospital records. The jury was unable to reach a verdict on retrial and the court declared a mistrial. After the indictment was amended to second degree murder in violation of La. R.S. 14:30.1, the court denied a motion to suppress an inculpatory statement. The third trial resulted in a conviction by a ten to two vote.

The state has the burden of proof that confessions and inculpatory statements have been freely and voluntarily given. State v. Trudell, 350 So.2d 658 (La. 1977). The proof must be beyond a reasonable doubt. State v. Ragsdale, 249 La. 420, 187 So.2d 427 (1966). This includes proof that defendant’s level of mental illness, if that be suggested, does not preclude him from giving a voluntary statement. State v. Trudell, supra; State v. Glover, 343 So.2d 118 (La. 1976).

The state produced the testimony of the investigating officers that defendant had been given the Miranda warning, that he had signed a waiver which he appeared to understand and that he did not appear excited on December 11 but was more excited on the 19th, so much so that the coroner who saw him advised against charging him that day because of his mental attitude. However, on the 20th he became entirely uncooperative and asked to see the coroner again.

Dr. Silva, deputy coroner, wrote a letter stating that defendant had been hospitalized for six weeks, ending only a month before and that defendant was rather paranoid and at least borderline delusional, almost in a state of panic even if he was not psychotic. He advised that Spooner should be placed in a psychiatric hospital for short time treatment and for his own protection. Spooner was placed in the hospital the next day. In reports written the next year he was stated to be quite delusional and suffering from paranoid schizophrenia at the time of admission on December 20, 1974.

The defendant also adduced the testimony of an expert psychologist who examined the results of the tests administered to the defendant within two weeks of the inculpa-tory statements and came to the independent conclusions that defendant ranked in the “borderline retarded range of intelligence” and was a paranoid schizophrenic.

From the above we have concluded that the state has not borne its burden of proof beyond a reasonable doubt that the inculpa-tory statement was a voluntary product of defendant’s free and rational choice. State v. Glover, supra. The inculpatory statements therefore should have been suppressed.

Accordingly, we reverse and set aside defendant’s conviction and sentence. The case is remanded for retrial.

LEMMON, J., concurs and assigns reasons.

WATSON, J., dissents.

       Judges Ellis, Lottinger and Ponder of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Associate Justices Calogero, Dennis, Watson and Lemmon.