text:
    Carl A. DeVITO, Appellant, v. Patsy Marion DeVITO, Appellee.
    No. 79-2191.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.

      Aronson, Ansel and Cohn, Miami, for appellant.
    Erstling and Erstling, South Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

This appeal and cross-appeal seek review of those portions of a final judgment of dissolution of marriage pertaining to alimony, property settlement, and attorney’s fees.

In the final judgment, the trial court awarded the wife permanent periodic alimony of $500.00 biweekly for 30 months beginning August 1, 1979, $400.00 biweekly for the subsequent 30 months, and $325.00 biweekly until remarriage of the wife or death of either of the parties. The judgment ordered a lot owned by the parties and the marital home be sold, with the proceeds divided equally. The trial court also ordered the husband to pay sixty percent of the wife’s attorney fees, for a total payment of $5,100.00.

This marriage was of thirty years’ duration and, at the time of the dissolution, the wife was 51 years old. She had not been gainfully employed since the early years of the marriage and was not employed at the time of the dissolution of the marriage. The husband is employed as a purchasing manager for Dow Chemical Company, earning a gross salary in excess of $46,000.00. He contends his net income is just over $27,000.00.

On appeal, the husband alleges the award of alimony is excessive and that the trial court erred in ordering him to pay sixty percent of the wife’s attorney fees. The wife cross-appealed, alleging the trial court erred in failing to award her the marital home as lump sum alimony, in failing to recognize the wife’s special equity in the marital home, and in ordering automatic future reductions of permanent alimony.

It would appear that all points raised by the parties, with the exception of the automatic reduction in alimony, should be affirmed. See: Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). As to the automatic reduction in the award of permanent alimony, it would appear that portion of the award should be reversed, setting the award of permanent alimony at $500.00 biweekly. See: McNaughton v. McNaughton, 332 So.2d 673 (Fla. 3d DCA 1976); Stoler v. Stoler, 376 So.2d 253 (Fla. 3d DCA 1979); Garrison v. Garrison, 380 So.2d 473 (Fla. 4th DCA 1980).

Therefore, we modify so much of the final judgment that reduces her permanent alimony after thirty and sixty months, so that she continue to receive $500.00 biweekly until remarriage of the wife or death of either of the parties.

Affirmed as modified.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Miguel PITA, Appellee.
    No. 80-210.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Janet Reno, State Atty. and Eric William Hendon, Asst. State Atty., for appellant.
    Bennett H. Brummer, Public Defender and Joseph C. Segor, Asst. Public Defender, for appellee.
    Before HUBBART, C. J., and PEARSON, DANIEL and FERGUSON, JJ.
   PER CURIAM.

Affirmed. State ex rel. Smith v. Nesbitt, 355 So.2d 202 (Fla.3d DCA 1978).


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Irving ZISOOK and Jean Zisook, Appellees.
    No. 80-306.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse, Murray P. Yanks, Miami, for appel-lees.
    Before HUBBART, C. J., and SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

The defendant below, State Farm Mutual Automobile Insurance Company, appeals from a summary judgment entered in favor of plaintiffs Irving and Jean Zisook. Because the affidavits and depositions presented by State Farm in opposition to the motion raise questions as to whether Zisook effectively rejected higher levels of uninsured motorist coverage, we find that there is not an absence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Perez, II v. City of Miami, 358 So.2d 1132 (Fla. 3d DCA 1978); Villa v. Nationwide Mutual Insurance Co., 354 So.2d 122 (Fla. 3d DCA 1978); Reflex, N. V. v. UMET Trust, 336 So.2d 473 (Fla. 3d DCA 1976).

Reversed and the cause remanded for trial.


author: FERGUSON, Judge.

text:
    Timothy OLIVER, Appellant, v. The STATE of Florida, Appellee.
    No. 80-518.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.

      Bennett H. Brummer, Public Defender and Robert A. Glassman, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BASKIN and DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant, Timothy Oliver, was charged by information with carrying a concealed firearm in violation of Section 790.01, Florida Statutes (1979) and resisting arrest without violence in violation (;> Section 843.02, Florida Statutes (1979). After a jury trial appellant was found guilty on both counts.

The trial court denied appellant’s motion for acquittal, which motion was made at the end of the State’s case, renewed at the conclusion of all the evidence, and presented again by post-trial motion. This appeal is from the rulings denying the motion. We affirm.

The question on appeal is whether the evidence introduced by the State was sufficient to establish that appellant had carried a pistol concealed from the ordinary sight of another person as required for conviction under the concealed firearm statute. § 790.001(2), Fla.Stat. (1979).

The State called only the arresting officer as an eyewitness. The officer testified that he encountered the appellant at a Miami Dolphin football game in the evening of November 29,1979 while walking up one of the stadium aisles. The appellant was a few feet in front of the officer in a very crowded area. The officer had never seen the appellant before and nothing had drawn his attention to the appellant. The balance of the crucial testimony is taken from the transcript beginning at page 27.

“Q. And what, if anything, occurred as you stood there behind the Defendant? A. At which time, like I stated, I just had to wait; at which time I saw an opening to go around; at which time I started to go around to the right of Mr. Oliver at the time.
Q. Which way was Mr. Oliver facing at the time?
A. His back to me. Okay.
At which time I started to step around him and Mr. Oliver stepped back, almost onto the top of me.
Q. Did he look around at the time? A. No, at which time I touched him on the side and said, ‘Excuse me.’ And I started to go around.
As soon as I touched on the right hand side, underneath here [indicating], I could feel what appeared to be the butt of a gun, the hard surface. I ran my finger on the outside of the pants and I could feel the gun.
Q. For what purpose did you run the finger along the outside of the pants?
A. Because of my experience with weapons, the feel of what a gun butt feels like. I carry a gun every day of my life and I know what a gun feels like.
I felt the handle underneath his shirt, at which time I put my hand underneath the shirt and Mr. Oliver started to turn away from me; at which time I turned the gun out from in his waistband on the right hand side; at which time I told him that he was under arrest. And he started to pull away from me. And I had to grab him up.”

Continuing on page 30:

“Q. Now would you describe, for the ladies and gentlemen of the jury, the type of clothing that was being worn by the Defendant on this particular occasion, when you felt the weapon?
A. He had a pair of black pants and gray shirt.
Q. And what, if anything, did he have on top of the particular shirt?
A. Nothing.
Q. Was it a long sleeve shirt?
A. Yes.
Q. What type of material was it, if you recall?
A. Silky.
Q. And was it tucked in?
A. Yes.
Q. Now, did you notice anything bulging in the area prior to feeling it?
A. No. Like I said, his back was to me.”

Appellant testified in his own behalf at trial and denied having a gun in his possession. The jury rejected appellant’s defense. By this appeal appellant contends only that the State’s evidence is circumstantial and not conclusive as to guilt.

As this court stated in Knight v. State, 392 So.2d 337 (Fla.3d DCA 1981):

“The proper test on appeal of a denial of a motion for judgment of acquittal is whether the jury as a trier of fact might reasonably conclude that the evidence excluded every hypothesis but that of guilt. Rodriguez v. State, 379 So.2d 657 (Fla.3d DCA 1980); Zuberi v. State, 343 So.2d 664 (Fla.3d DCA 1977), All facts introduced into evidence are admitted by the defendant, and the court must draw every conclusion favorable to the state. Codie v. State, 313 So.2d 754 (Fla.1975); Rodriguez v. State, supra; Matrascia v. State, 349 So.2d 735 (Fla.3d DCA 1977), cert. denied 360 So.2d 1249 (Fla.1978). The motion should not be granted unless there is no legally sufficient evidence on which to base a verdict of guilt. Downer v. State, 375 So.2d 840 (Fla.1979); Everett v. State, 339 So.2d 704 (Fla.3d DCA 1976).”

Even if the evidence presented by the State were circumstantial in nature, the jury could have found it conclusive and inconsistent with any reasonable hypothesis but that of guilt. We find the evidence legally sufficient to support the trial court’s denial of appellant’s motions for verdict of acquittal, and, accordingly, the conviction for carrying a concealed weapon is affirmed. Because the conviction under Section 790.01, Florida Statutes (1979) is upheld, the conviction for resisting arrest without violence is also proper.

AFFIRMED.

       This case is factually distinguishable from Donald v. State, 344 So.2d 633 (Fla.2d DCA 1977), cert. denied, 353 So.2d 679 (Fla. 1977) relied upon by appellant. In Donald, the arresting officer candidly admitted that he could not say whether defendant’s shirttail would have obscured sight of the pistol if he had viewed defendant from the front.


text:
    Mary V. HOLLOWAY, Appellant, v. Richard Ray HOLLOWAY, Appellee.
    Nos. 80-525, 80-1022.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.

      Joseph A. McGowan, Miami, for appellant.
    No appearance for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

The judgment entered on rehearing is affirmed except insofar as it eliminates the award of permanent periodic alimony contained in the original final judgment. Under the circumstances, it was an abuse of discretion to deny permanent alimony to the appellant-wife. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1980); G’Sell v. G’Sell, 390 So.2d 1196 (Fla. 5th DCA 1980). Since it appears that the $163.00 per month initially granted represents and was considered by the trial court to be a fair and adequate amount, we order that, after remand, this provision be inserted in the amended final judgment under review.

Affirmed in part, reversed in part.

      . The attorney’s fee award on appeal in case no. 80-1022 is affirmed.


author: BASKIN, Judge.

text:
    The STATE of Florida, Appellant, v. Kimberly Susan LANXON, Appellee.
    No. 80-617.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Janet Reno, State Atty. and Theda R. James, Asst. State Atty., for appellant.
    Mandina and Lipsky and Daniel W. Le-vin, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

We affirm the trial court’s suppression of evidence seized from defendant Lanxon at Miami International Airport without a warrant or probable cause to believe a crime had been committed predicated upon our finding that no valid consent to search was obtained.

The record discloses that Officer Titus asked defendant Lanxon, who was standing in line waiting to check in, if he could speak to her. She agreed but said she had to make her plane. After she produced identification, the officer asked her about a suitcase she said belonged to her and inquired whether she objected to his going through her luggage. She replied: “Yes. I want to check my luggage.” The officer testified that he stated:

‘Okay, that’s fine. I cannot look into your luggage without your permission and in your presence. However, I believe that either your suitcase or the other suitcase’ — and I pointed to the one that was next to Mr. Ralph Gettis — ‘and/or both contain narcotics and I want to inform you that I cannot prevent you from checking your luggage. However, I will contact a Narcotics Unit at your destination and request that a narcotics detection dog sniff your luggage.’

At that time, defendant replied: “Jesus Christ, go ahead and search it, then.” A subsequent search of defendant’s suitcase revealed no drugs. The officer then inquired if he could search her briefcase, saying: “You don’t have to allow me to if you don’t wish to.” She replied: “If you have to search it.” Inside a package described by defendant Lanxon as containing bearings, the officer found cocaine.

Consideration of the totality of the circumstances, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Bailey v. State, 319 So.2d 22 (Fla.1975); Nelson v. State, 376 So.2d 459 (Fla. 1st DCA 1979); Taylor v. State, 355 So.2d 180 (Fla. 3d DCA 1978); Ferrara v. State, 319 So.2d 629 (Fla. 1st DCA 1975), compels the conclusion that defendant’s consent was not voluntary. Statements accusing a defendant of having committed a crime have been held to be coercive. Norman v. State, 379 So.2d 643 (Fla.1980); Ferrara v. State, supra. Under the circumstances of this case, the officer’s statements that he believed her suitcase contained narcotics and that he would contact a narcotics unit at her destination were intended to coerce defendant into giving her consent. The officer accomplished his purpose, but under these circumstances defendant’s consent cannot be said to meet the standards for voluntary relinquishment of rights. The state failed to satisfy its burden of establishing free and voluntary consent, Norman v. State, supra; Bailey v. State, supra. We therefore affirm the trial court’s decision.


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Ralph DiPADOVA, Appellee.
    Nos. 80-719, 80-802.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Talburt, Kubieki & Bradley and Betsy E. Hartley, Miami, for appellant.
    Daniel Mones, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Berkshire Mutual Ins. Co. v. Moffett, 378 F.2d 1007 (5th Cir. 1967); New York Cent. Mutual Fire Ins. Co. v. Diaks, 69 So.2d 786, 788-89 (Fla.1954); Worcester Mutual Fire Ins. Co. v. Eisenberg, 147 So.2d 575 (Fla.3d DCA 1962).


text:
    The STATE of Florida, Appellant, v. Robert N. BROWN, Appellee.
    No. 80-792.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.

      Janet Reno, State’s Atty. and Diane Kuker and Milton Robbins, Asst. State’s Attys., and Bruce H. Lehr, Legal Intern, for appellant.
    Vogler & Postman and Alan L. Postman, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

By this appeal, we are asked to review a trial court order dismissing an information in a criminal case based on a discovery violation committed by the state. § 924.-07(1), Fla.Stat. (1979). Although we share the trial court’s frustration in attempting to get this case to trial in the face of innumerable delays seemingly occasioned by the state, we are nonetheless compelled to reverse because, in our view, the circumstances of this case did not call for the drastic remedy of dismissal. See Fla.R.Crim.P. 3.220(j). We discern on this record no willful, but only a negligent discovery violation by the state and no actual prejudice suffered by the defendant as a result of the violation. Although there were many trial delays in this case, all agree that these delays did not violate the defendant’s speedy trial rights. Based on the established law of this state, we must reverse the order under review and remand for further proceedings. State v. King, 372 So.2d 1126 (Fla. 2d DCA 1979), cert. denied, 385 So.2d 758 (Fla.1980).

Reversed and remanded.


text:
    Julian Vincente ORTEGA and Mulida G. Rivera and Cotton Belt Insurance Company, a Tennessee Corporation, Appellants, v. The STATE of Florida, for the Use and Benefit of DADE COUNTY, Appellee.
    No. 80-1100.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Carl H. Lida, Miami, for appellants.
    Janet Reno, State Atty. and Stephen V. Rosin and Russell R. Killinger, Asst. State Attys., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Norris v. State, 386 So.2d 602 (Fla. 5th DCA 1980); Ryan v. State, 380 So.2d 539 (Fla. 5th DCA 1980); Weaver v. State, 370 So.2d 1236 (Fla. 2d DCA 1979).


text:
    Margarita Colon VALERO, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1478.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Gino P. Negretti, Miami, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellant’s request for oral argument, made not in accordance with Florida Rule of Appellate Procedure 9.320, is denied. Cf. Quince v. State, 91 So.2d 632 (Fla.1957); Haines v. State, 113 So.2d 601 (Fla. 2d DCA 1959) (denying requests for oral argument not made in a separate document, but incorporated in the brief, under former Florida Supreme Court Rule 40 and Florida Appellate Rule 3.10(a), respectively). After independently examining the briefs and record herein, we have determined that oral argument would serve no useful purpose, see, e. g., Williams v. State, 177 So.2d 736 (Fla. 1st DCA 1965), and, in the exercise of our discretion, decline to require it. See Fla.R.App.P. 9.320.

The judgments of convictions are affirmed. The evidence is more than sufficient to support the convictions. The constitutionality of Section 775.082, Florida Statutes (1979), in the face of the exact contention made by Valero here, namely, that it imposes cruel and unusual punishment, is well settled. McArthur v. State, 351 So.2d 972 (Fla.1977); Banks v. State, 342 So.2d 469 (Fla.1976); O’Donnell v. State, 326 So.2d 4 (Fla.1975). Valero’s claim that her trial counsel was ineffective cannot properly be raised for the first time on direct appeal and is a matter to be presented to the trial court under Florida Rule of Criminal Procedure 3.850. State v. Barber, 301 So.2d 7 (Fla.1974); Jones v. State, 384 So.2d 736 (Fla. 4th DCA 1980); Randall v. State, 346 So.2d 1233 (Fla. 3d DCA 1977).

Affirmed.


author: SCHWARTZ, Judge.

text:
    SAVE BRICKELL AVENUE, INC., a Corporation Not for Profit under the Laws of the State of Florida, etc., et al., Petitioners, v. The CITY OF MIAMI, Florida, a Municipal Corporation, etc., et al., Respondents.
    No. 80-2046.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.

      Williams, Salomon, Kanner, Damian, Weissler & Brooks and Gary S. Brooks, Miami, for petitioners.
    Robert Clark, Acting City Atty. and Terry V. Percy, Asst. City Atty., Dubbin, Schiff, Berkman & Dubbin and Andrew H. Moriber, Miami, for respondents.
    Before HUBBART, C. J„ and SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

The appellate division of the circuit court dismissed, for lack of standing, an appeal taken by the Save Brickell Avenue, Inc. from a city of Miami zoning resolution affecting property at 1581-1597 Brickell Avenue. We disagree with that ruling. As a corporation purportedly devoted to safeguarding the zoning of the area, Save Bric-kell Avenue is an “affected . .. citizen” which has standing to attack the enactment in question on the ground, which was asserted below, that it is void or invalid because the “required notice was not given.” Renard v. Dade County, 261 So.2d 832, 838 (Fla.1972); see, Florida Wildlife Federation v. State Department of Environmental Regulation, 390 So.2d 64, 68 (Fla.1980) (nonprofit corporation is “citizen” for standing purposes.) Upper Keys Citizens Association, Inc. v. Wedel, 341 So.2d 1062 (Fla. 3d DCA 1977) is precisely on point and requires this conclusion. See also, United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So.2d 1348 (Fla. 3d DCA 1980); City of Miami v. Save Brickell Avenue, Inc., 359 So.2d 1228 (Fla. 3d DCA 1978) (table; per curiam opinion). For these reasons, the order under review is quashed and the cause remanded for further proceedings consistent herewith.

Certiorari granted.

      . We have treated the appeal filed in this court as a petition for certiorari because the proceeding in the circuit court was itself an appeal. Fla.R.App.P. 9.030(b)(2)(B). Compare, Allapattah Community Ass’n., Inc. v. City of Miami, 379 So.2d 387 (Fla. 3d DCA 1980), cert. denied, 386 So.2d 635 (Fla. 1980); United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So.2d 296 (Fla. 3d DCA 1979), holding that an appeal lies from a circuit court zoning decision disposing of a certiorari petition below.

      . This holding is confined to the petitioner’s standing to raise this contention. It plainly has no ability to make any other claim to the effect that the resolution is an “unreasonable exercise of legislative power.” Renard v. Dade County, supra, 261 So.2d at 838; Hemisphere Equity Realty Co., Inc. v. Key Biscayne Property Taxpayers Ass’n., 369 So.2d 996, 1001 (Fla. 3d DCA 1979).

      . Chabau v. Dade County, 385 So.2d 129 (Fla. 3d DCA 1980) and F & R Builders, Inc. v. Durant, 390 So.2d 784 (Fla. 3d DCA 1980), cited by the respondents, deal only with the ability to appeal zoning decisions to the County Commission, as provided by the Dade County code. They do not concern the present issue of the right of access to the courts — a question which is governed by decisional law — and thus do not control here. Moreover, neither case, unlike this one, involves a contention that the zoning enactment in issue is entirely void. See note 2, supra.

      . We express no opinion on the merits of Save Brickell’s position concerning the notice issue nor on the respondent’s contention that Save Brickell has waived the right to assert it.


text:
    James WESTLEY, Appellant, v. Melody WESTLEY, Appellee.
    No. 80-2182.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1981.
    Lawrence B. Friedman and Robert F. Tacher, North Miami Beach, for appellant.
    Leonard Frishman and Henry M. Cain, Coral Gables, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Affirmed. See §§ 61.1306(5), 61.1308(1), 61.1318(1), Fla.Stat. (1979).


author: COWART, Judge.

text:
    STATE of Florida, Appellant, v. Pat Thomas LEONETTI, Appellee.
    No. 79-495.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    No appearance for appellee.
   COWART, Judge.

Appellant, the accused in a criminal case, moved for a continuance specifically waiving his rights under Florida Rule of Criminal Procedure 3.191. Thereafter the State twice amended the information causing trial delay. More than 180 days after appellant was taken into custody and more than 90 days after the original trial date appellant moved for a discharge. The trial court granted the discharge citing State ex rel. Meredith v. Glickstein, 377 So.2d 27 (Fla. 4th DCA 1979); Johnson v. State, 366 So.2d 525 (Fla. 3d DCA 1978), cert. denied, 376 So.2d 76 (Fla.1979); and State v. Reese, 359 So.2d 33 (Fla. 4th DCA), cert. denied, 365 So.2d 715 (Fla.1978), and was correct in doing so at that time. However, those cases have now been disapproved and effectively overruled. Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); State v. Johnson, 386 So.2d 1316 (Fla. 4th DCA 1980). See also State v. Pernell, 388 So.2d 1105 (Fla. 4th DCA 1980). The order granting the appellee’s discharge is reversed, his motion for discharge is denied, and this cause is remanded for further proceedings.

REVERSED and REMANDED.

COBB and SHARP, JJ., concur.

      . Fla.R.Crim.P. 3.191(a)(1).

      . Fla.R.Crim.P. 3.191(d)(3).

      . It should be noted that this opinion, when final, will itself be a denial of appellee’s motion for discharge and, under Butterworth, will commence the running of a new 90 day period within which appellee must be brought to trial under Florida Rule of Criminal Procedure 3.191(d)(3).


text:
    Arthur R. WELLS, Appellant, v. STATE of Florida, Appellee.
    No. 80-421.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 1981.
    James B. Gibson, Public Defender, and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from judgments and sentences for burglary of a structure, grand theft and molesting a vending machine. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On June 25, 1980 this court gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. The motion of the Public Defender to withdraw is hereby granted and the judgment and sentence is hereby AFFIRMED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    CENTRAL FLORIDA SKATES, INC., d/b/a Sun State Roller Rink, and Empire Fire and Marine Insurance Company, Petitioners, v. Valerie A. THOMAS, Respondent.
    No. 80-1294.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 1981.
    James E. Glatt, Jr., of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P. A., Orlando, for petitioners.
    John R. Overchuck, of Maher, Overchuck, Langa & Cate, Orlando, for respondent.
   COWART, Judge.

Central Florida Skates, Inc., and its insurer, Empire Fire and Marine Insurance Co., seek review by certiorari of an interlocutory order, dated October 19,1980, compelling production of the insurer’s entire underwriting file. The file contains information which is either irrelevant to the respondent’s action or privileged and which is therefore not discoverable. Production of the discoverable information within the insurer’s file is directed by Paragraph 3(a) of the order. Therefore, the writ is granted and Paragraph (3)(c) of the order compelling production is quashed. Nothing in this opinion shall prohibit the trial judge from viewing, in camera, the underwriting file pertaining to the roller rink and requiring the disclosure of the properly discoverable portions of that file, should respondent make proper application therefor.

DAUKSCH, C. J., and SHARP, J., concur.

      . Florida Rules of Appellate Procedure 9.030(b)(2)(A). See also Haddad, Certiorari in Florida, 29 U.Fla.L.Rev. 207, 224 n. 133, et seq. (1977).


text:
    The HAWAIIAN INN OF DAYTONA BEACH INC., a Florida Corporation, Petitioner, v. SNEAD CONSTRUCTION CORPORATION, a Florida Corporation et al., Respondents.
    No. 80-1319.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 1981.
    Bedell, Bedell, Dittmar & Zehmer, Jacksonville, for petitioner.
    Kinsey, Vincent, Pyle, Williams & Tum-bleson, Daytona Beach, for respondent Snead Construction Corporation.
    Horton, Perse & Ginsberg and Welbaum, Zook & Jones, P. A., Miami, for respondent American Employers’ Insurance Company.
   COWART, Judge.

This is a petition for a writ of common law certiorari to “reverse” an interlocutory order of the trial court denying petitioner’s motion for leave to file a second amended complaint. The petitioner argues extensively that the trial court should permit the desired leave to amend under Florida Rule of Civil Procedure 1.190(a) and case law. Petitioner may be correct in its arguments but that is not the point here.

Common law certiorari is a remedy when the lower court is acting without jurisdiction or its order will itself constitute or permit irreparable injury or such order constitutes a departure from the essential requirements of law. Even in those cases, the reviewing court, traditionally and correctly, can only quash the offending order and cannot direct action in the trial court. The existence of some other present and adequate remedy, such as appeal, may prevent injury from being legally irreparable and thereby preclude common law certiorari but this does not mean that certiorari is available merely because no immediate remedy by appeal from a non-final order is available. An appeal after judgment is an adequate remedy for an ordinary reversible error for which no appeal is provided in Florida Rule of Appellate Procedure 9.130(a)(3), which lists several types of non-final orders reviewable by appeal. Orders denying leave to amend are not included.

In this case the circuit court has jurisdiction of the parties and the subject matter; its hearing, decision and order denying leave to amend comport with procedural due process and, therefore, do not depart from those essential requirements of law. If the order is erroneous, it can be corrected on plenary appeal. The possibility that the trial court is committing reversible error by denying leave to amend and that this case might ultimately be reversed for a new trial for that reason, with the resulting waste of time and money, exists in all cases and does not mean that an appeal after final judgment is “inadequate.” Appellate courts should interfere with the trial judge’s conduct of a case before judgment to a minimum extent to prevent harassment and delay in the orderly administration of justice. Certiorari is an extra-ordinary remedy and is not a writ of expediency and should not be used to circumvent the rule authorizing appeal from only a few non-final orders. The petition for certiorari is

DENIED.

COBB and SHARP, JJ., concur.

      . See Dairyland Insurance Company v. McKenzie, 251 So.2d 887 (Fla. 1st DCA 1971).

      . See Bowl America Florida, Inc. v. Schmidt, 386 So.2d 1203 (Fla. 5th DCA 1980); Professional Medical Specialties, Inc. v. Renfroe, 362 So.2d 397 (Fla. 4th DCA 1978); Ford Motor Company v. Nelson, 355 So.2d 158 (Fla. 4th DCA 1978); Whiteside v. Johnson, 351 So.2d 759 (Fla. 2d DCA 1977); and Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla. 2d DCA 1973); Haddad, Certiorari in Florida, 29 U.Fla.L.Rev. 207, 223 n. 126 (1977).

        .Scheuer v. Wille, 370 So.2d 1166 (Fla. 4th DCA 1979).


text:
    Eugene WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 81-28.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 1981.
    Eugene Wilson, pro se.
    No appearance for appellee.
   PER CURIAM.

The order denying appellant’s motion under Florida Rules of Criminal Procedure 3.850 is affirmed without prejudice to the filing of another motion by appellant which conforms with the requirements of that Rule.

AFFIRMED.

ORFINGER, SHARP and COWART, JJ., concur.


author: OTT, Judge.

text:
    Richard M. WATERS, Appellant/Cross-Appellee, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a corporation, Appellee/Cross-Appellant.
    No. 80-164.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 1981.
    Craig M. Spanjers, of Stanley, Wines & Smith, P. A., Auburndale, for appellant/cross-appellee.
    J. Michael McCarthy, of McCarthy & Sawyer, P. A., Lakeland, for appellee/cross-appellant.
   OTT, Judge.

Appellant carried $15,000 in uninsured motorist coverage (UMC) with appellee under a policy specifically providing that any sums payable as UMC benefits shall be reduced by any benefits paid or payable to the insured by virtue of workmen’s compensation insurance. In 1976 appellant was injured on the job in a vehicular accident with an uninsured motorist. He drew workmen’s compensation benefits in the amount of $12,900. Appellee then offered him $2,100 in satisfaction of his UMC, but he refused it and brought this declaratory relief action.

The trial court assessed appellant’s damages at $30,000 and entered judgment declaring that he was entitled to $2,100 in UMC benefits after setting off the $12,900 workmen’s compensation benefits. Appellant’s attorney was awarded a fee for his services. Appellant challenges the judgment and appellee challenges the allowance of an attorney’s fee. We affirm the judgment on the case in chief, but reverse the fee.

1. UMC Setoff. Section 627.727(1) (1975) provides that UMC benefits “shall be excess over but shall not duplicate benefits available to an insured under any workmen’s compensation law,” and from various other sources (including the tortfeasor’s liability carrier) not relevant here. There are two views of the meaning of that language. The Florida Supreme Court carefully considered the matter and rejected the argument that UMC coverage is available in toto over and above the tortfeasor’s liability insurance so long as there is no duplication of the damages being compensated. Instead, the court held that UMC is subject to actual setoff by the amount of liability, insurance available to the injured claimant. Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077, 1080-81 (Fla.1978).

Notwithstanding that holding, which seems quite clear and unambiguous to us, the rejected view has attracted recent adherents. See State Farm Mutual v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980), Laekore v. Hartford, 390 So.2d 486 (Fla. 4th DCA 1980) and Florida Insurance Guaranty Association v. Johnson, 392 So.2d 1348 (Fla. 5th DCA 1980), all of which disallow any setoff where UMC compensates for damages which are over and above or separate from those damages which have been compensated by benefits from one of the collateral sources specified in the statute.

Frankly, we see considerable merit to the Bergman and Laekore approach to the problem, but we have no jurisdiction to ignore an opinion of our supreme court and apply some other rule simply because it may be more to our liking. That is for the supreme court, and until such time as it might recede from Dewberry we have no choice but to follow it.

We also are of the opinion that it is not possible to ignore Dewberry’s impact by “interpreting” it to apply only to the tort-feasor’s liability insurance, but not to any of the other collateral sources enumerated in the statute, such as PIP coverage. We do not find the opinion or its reasoning susceptible to such construction. When the court construed the statute to mean that a UMC insurer is entitled to an offset for benefits available to the insured from the tortfeasor’s liability insurance, which was but one of several sources enumerated in the statute, it indisputably set a clear, unqualified precedent governing the treatment of benefits available from the other specified sources.

With specific regard to workmen’s compensation benefits, two of our sister courts have ruled, in reliance on Dewberry, that a setoff is to be allowed. Carter v. Government Employees Insurance Co., 377 So.2d 242 (Fla. 1st DCA 1979), cert. denied, 389 So.2d 1108 (Fla.1980); Florida Farm Bureau Casualty Co. v. Andrews, 369 So.2d 346 (Fla. 4th DCA 1979), cert. denied, 381 So.2d 764 and 766 (Fla.1980).

We therefore hold that workmen’s compensation benefits are to be offset against the UMC benefits which accrued under the policy applicable to this 1976 accident. For the reasons expressed in Carter, supra, we reject appellant’s argument that construction of the statute should be governed by certain “clarifying” amendments added to it in 1979.

2. Attorneys’ Fees. We are of the opinion that when a claimant is freely offered, before litigation is ever instituted, an amount at least equal to the sum to which the court eventually finds him entitled, he is not entitled to an attorney’s fee under section 627.428, Florida Statutes (1969). In speaking of section 625.08, the forerunner of the present statute, the opinion in Equitable Life Assurance Society v. Nichols, 84 So.2d 500, 502 (Fla.1956) noted:

This statute has consistently been interpreted by this court as authorizing the recovery of attorney’s fees from the insurer only when the insurer has wrongfully withheld payment of the proceeds of the policy. Bohlinger v. Higginbotham, 70 So.2d 911 (Fla.1954), and cases there cited.

In the case at bench it is clear that payment of the $2,100 due appellant was not “wrongfully withheld.” Payment was offered at all times, but appellant refused to accept it.

The award of a fee to appellant’s attorney is reversed. In all other respects the judgment is affirmed.

HOBSON, Acting C. J., and CAMPBELL, J., concur.


author: CAMPBELL, Judge.

text:
    Robert L. STRAUSS, Appellant, v. Paul C. SILLIN, as Personal Representative of the Estate of Annie Grace R. Sillin, Deceased, Appellee.
    No. 80-308.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 1981.
    Michael A. Linsky of Linsky & Reiber, P. A., Tampa, for appellant.
    Roland F. Cribbs, Tampa, for appellee.
   CAMPBELL, Judge.

Robert Strauss, the defendant below, appeals from an adverse final summary judgment which awarded the appellee $71,500 plus interest from May of 1959 at a rate of three percent per year. Strauss submits that the trial court should have followed Brown v. Case, 80 Fla. 703, 86 So. 684 (1920). We agree.

In 1959 Annie Sillin sold Strauss all of the issued and outstanding shares of common stock in Atlanta Development Company, a Georgia corporation, for part cash and a series of ten negotiable promissory notes having a face amount of $8,000 each. The notes were executed, delivered, due and defaulted in Georgia.

Strauss timely satisfied the first note and made a payment of $500 on the second. He defaulted on the partial note and the other notes and remained in default.

Appellee sought to collect the money owed by bringing suit against Strauss in Florida where Strauss had been residing in excess of five years. Strauss’ residence in Florida is Florida’s only connection with this case.

The Florida statute of limitations for bringing an action on a contract founded on a written instrument provides that the action must be brought within five years. § 95.11(2)(b), Fla.Stat. (1978). The applicable Georgia statute of limitations provides that the action must be brought within twenty years. Ga.Code § 3-703, (Supp. 1855). More than five but less than twenty years have passed since Strauss defaulted on these notes, accelerating the balance due, and the parties dispute which state’s statute of limitations applies to this action.

The trial court determined that Georgia’s twenty-year statute of limitations applies and entered summary judgment for the ap-pellee.

We agree with Strauss that Brown v. Case controls and requires reversal. In Brown the defendant executed in New York certain promissory notes which were also payable in New York. The defendant defaulted in payment and was later located in Florida where he was then residing. Accordingly, the plaintiff filed suit in Florida. The action was barred by Florida’s statute of limitations, but not New York’s. The court found that:

It seems well settled, in the absence of a statute to the contrary, that suits on contracts must be brought within the period prescribed by the law of the state where the suit is instituted, otherwise they will be barred, and that in considering the effect of a statute of limitations the lex fori and not the lex loci contrac-tus governs.

86 So. at 684. There were no statutes to the contrary in Florida then, nor are there any now.

The appellee argues that Brown no longer presents a valid rule because of the passage of time. We disagree, the rule presented in Brown has been relied on as recently as 1966 in Aviation Credit Corp. v. Batchelor, 190 So.2d 8 (Fla. 3d DCA 1966). It is currently followed by the majority of the courts in this country as is evidenced by Annot., 78 A.L.R.3d 639 (1977).

A statute of limitations is generally regarded as being procedural in character because it affects the remedy. In conflict of laws situations, matters of procedure are generally resolved by the law of the state in which the action has been instituted.

Accordingly, the final summary judgment is vacated, and the case is remanded for treatment consistent with this opinion.

HOBSON, Acting C. J., and GRIMES, J., concur.


text:
    Edward BELIN, Appellant, v. Carolyn BELIN, Appellee.
    No. 80-910.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1981.
    Sandler & Sandler, Miami, for appellant.
    Canner & Chait, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   ON PETITION FOR REHEARING

PER CURIAM.

Upon consideration of the motion for rehearing, rehearing is granted and the per curiam opinion filed January 27, 1981, is withdrawn.

Upon review on rehearing of the record on appeal, as supplemented, we find no reversible error and affirm the trial court’s order.

Affirmed.


author: LILES, WOODIE A., Associate Judge (Retired). WENTWORTH, Judge, LILES, WOODIE A. (Retired), Associate Judge.

text:
    BATAVIA, LTD., Appellant, v. UNITED STATES of America, By and Through its agency, the DEPARTMENT OF the TREASURY, INTERNAL REVENUE SERVICE, Appellee.
    No. UU-468.
    District Court of Appeal, of Florida, First District.
    Dec. 31, 1980.
    On Motion for Clarification Feb. 13, 1981.
    George Ralph Miller, DeFuniak Springs, for appellant.
    Marika Lancaster, Tax Division, Dept, of Justice, M. Carr Ferguson and Russell Mather, Washington, D. C., for appellee.
   LILES, WOODIE A., Associate Judge (Retired).

Appellant, Batavia, Ltd., a foreign corporation apparently registered in the Cayman Islands, seeks review by interlocutory appeal of an order staying further prosecution of its mortgage foreclosure action pending its compliance with Section 607.354(1), Florida Statutes. Such an order staying the proceedings is not a specified appealable order under Rule 9.130, Florida Rules of Appellate Procedure. However, because appeal from an eventual final order would not necessarily provide Appellant with a complete and adequate remedy, we treat this appeal as a petition for writ of certiorari pursuant to Rule 9.040(c), Florida Rules of Appellate Procedure.

Appellant seeks to foreclose on a mortgage note and mortgage deed for certain real property executed by one Danny L. Wright, who has defaulted and has filed no response to Appellant’s complaint nor otherwise appeared in the action. Because it has a federal tax lien against Wright which is inferior and subordinate to the mortgage being foreclosed upon, Appellee was joined as a party defendant. Appellant requested in its complaint that an accounting of the funds due from Wright be made and, if the amount due was not paid within time limits established by the court, that the property be sold to satisfy Appellant’s claim; and, if the proceeds of the sale are insufficient to pay this claim, that a deficiency judgment be entered against Wright for the sum remaining unpaid, and that the estate of Wright and persons claiming under or against him since the filing of the notice of lis pendens be foreclosed.

In response to the complaint, Appellee filed a motion to dismiss it as a party defendant upon the ground that Appellant has not obtained the authority to transact business in this state. The trial judge did not dismiss Appellee as a party defendant but did stay the proceeding until Appellant has obtained authority to transact business in Florida.

Section 607.354(1), Florida Statutes, prohibits a foreign corporation from maintaining any action, suit, or proceeding in any court of this state until the corporation has obtained authority to transact business in this state. However, creating, as borrower or lender, or acquiring indebtedness, mortgages, or other security interests in real or personal property [Section 607.-304(2)(g)] or securing or collecting debts or enforcing any rights in property securing the same [Section 607.304(2)(h)] are not considered to be transacting business in this state. We are therefore required for the first time to construe Section 607.304(2)(g) and (h), Florida Statutes. The express wording of the statute, obviously enacted for the purpose of attracting foreign corporate investments, specifically excludes from registration Batavia, Ltd., which is seeking to foreclose on a mortgage note and mortgage deed. An examination of Corporate Air Fleet of Tennessee, Inc. v. Ellis, 324 So.2d 719 (Fla. 2nd DCA 1975) and Al Wilson’s Power-Fill Displays, Inc. v. Morgan Adhesive, Inc., 259 So.2d 166 (Fla. 3rd DCA 1972) reveals that the enactment of Section 607.304(2)(g) and (h) does what these cases already permitted, i. e., that foreign corporations may sue on notes executed and delivered in Florida without qualifying to do business in Florida. However, this complaint makes no allegation that this is the only type of business transacted by Batavia, Ltd., in Florida, thus entitling it to the benefits, if any, afforded under this statute. This shall be rectified upon remand.

Appellant takes the position that the trial judge could require nothing more than the filing of a law suit. Appellee relies on Kar Products, Inc. v. Acker, 217 So.2d 595 (Fla. 1st DCA 1969) to support the trial court’s order requiring Appellant to register under Section 607.354(1), Florida Statutes. We disagree on both counts. Kar Products, a case decided prior to the enactment of Section 607.304(2)(g) and (h), stands for the proposition that, if the activity carried on by a foreign corporation is to be categorized as interstate commerce, it is excluded from registration. That court held that the activity there involved did not constitute interstate commerce and, thus, that foreign corporation’s right to institute and maintain the action was not exempt from the registration requirements of Chapter 613, Florida Statutes. We have no such factual situation here. Interstate commerce is not a factor, nor is this suit being maintained under the provision excluding interstate commerce, which is also excluded from registration. Section 607.304(2)(i), Florida Statutes.

Therefore, we hold that the trial judge cannot force Batavia, Ltd., to register as a foreign corporation in order to maintain this suit. However, we do not hold that the trial judge can make no further inquiry into Batavia, Ltd.’s activities as a foreign corporation. A trial judge has the inherent power to prevent abuse of its process and procedures, and we note that the trial judge here was concerned over the unusual nature of the corporation, an apparent Grand Cayman Island corporation. Nothing in Section 607.304, Florida Statutes, prohibits the trial judge from inquiring into the nature of Appellant’s activities. Accordingly, the trial judge may require Batavia, Ltd., to provide such limited information as would alleviate his concerns short of registration.

REVERSED and REMANDED for proceedings not inconsistent with this opinion.

THOMPSON, J., concurs.

WENTWORTH, J., concurs and dissents with opinion.

WENTWORTH, Judge,

concurring and dissenting.

I concur in the majority opinion except insofar as it requires Batavia, a foreign corporate plaintiff, to initially allege that it is not transacting business in Florida. Sections 607.304(2)(g) and (h), Florida Statutes, provide that Batavia’s activities involved in the present action as stated by the complaint do not constitute “transacting business” in this state, and neither the record nor the pleadings suggest that this case involves more than an isolated transaction within the state. In these circumstances it is incumbent upon the defendant to put in issue the point that Batavia is otherwise transacting business in the state; absent such an initial defensive showing Batavia is not required by Chapter 607, Florida Statutes, to allege or prove a negative. See Al Wilson’s Power-Ful Displays, Inc. v. Morgan Adhesive Inc., 259 So.2d 166 (Fla. 3d DCA 1972); see also McMullen v. Inland Realty Corp., 113 Fla. 476, 152 So. 740 (1933); Corporate Air Fleet of Tennessee v. Ellis, 324 So.2d 719 (Fla. 2d DCA 1975).

I agree with the majority that the trial court may prevent abuse of its process or procedures by requiring Batavia to provide information sufficient to alleviate the court’s concern regarding the nature of the corporate entity.

ON MOTION FOR CLARIFICATION

LILES, WOODIE A. (Retired), Associate Judge.

On December 31,1980, this Court entered its decision in the above-captioned case, reversing the decision of the Circuit Court of Walton County and remanding the cause for further proceedings. Paragraph two of the opinion states, in part, that:

Because it has a federal tax lien against Wright which is inferior and subordinate to the mortgage being foreclosed upon,

Appellee was joined as a party defendant. Appellee points out that this may be read to indicate an opinion on the merits of the case, which has yet to be tried. Accordingly, to eliminate any potential for confusion, we modify the above statement to read:

Because it has a federal tax lien against Wright, which was alleged to be inferior and subordinate to the mortgage being foreclosed upon, Appellee was joined as a party defendant.

WENTWORTH and THOMPSON, JJ., concur.

      . No foreign corporation transacting business in this state without authority to do so shall be permitted to maintain any action, suit, or proceeding in any court of this state until such corporation shall have obtained authority to transact business in this state. Nor shall any action, suit, or proceeding be maintained in any court of this state by any successor or assignee of such corporation on any right, claim, or demand arising out of the transaction of business by such corporation in this state until authority to transact business in this state shall have been obtained by such corporation or by a corporation which has acquired all or substantially all of its assets.

      . The predecessor statute to Chapter 607, Florida Statutes.


author: ORFINGER, Judge.

text:
    Sidney HONEA, Appellant, v. WALKER CHEMICAL & EXTERMINATING CO., INC., Appellee.
    No. 79-188.
    Court of Appeal of Florida, Fifth District.
    Jan. 14, 1981.
    Rehearing Denied Feb. 17, 1981.
    Fred S. Disselkoen, Jr. of Duffett, Seps & Akers, Ormond Beach, for appellant.
    William A. Greenberg of Fowler, Williams & Airth, Orlando, for appellee.
   ORFINGER, Judge.

The employment agreement sued on here contained a provision that venue for any suit brought thereunder would be in the Circuit Court of Orange County, Florida.

In the action for breach of the employment agreement filed by the employer in Orange County, the employee moved to abate and transfer the cause to Volusia County, where he resides and where he alleges the cause of action accrued, contending that the contractual provision was unenforceable. The trial court denied the motion and this appeal follows. We affirm.

It has long been the law of Florida that parties to a contract may agree on venue for actions to enforce the contract. Producers Supply, Inc. v. Harz, 149 Fla. 594, 6 So.2d 375 (1942); Felkel v. Abernethy, 112 Fla. 358, 150 So. 631 (1933). See also, Tropicana Pools, Inc. v. Brown, 270 So.2d 751 (Fla.2d DCA 1972).

Appellant’s reliance on Gates v. Stucco Corp., 112 So.2d 36 (Fla.3d DCA 1959) and on Huntley v. Alejandre, 139 So.2d 911 (Fla.3d DCA 1962) is misplaced, because in Gates, there was no contractual provision to support the claim of venue, only an alleged oral agreement which was in violation of the rule requiring stipulations to be in writing, with an attorney who did not appear in the suit, and in Huntley, the contract provided that suits thereon would be brought only in the courts of Havana, Cuba, which was an ineffectual attempt to oust the jurisdiction of all courts except the courts of Cuba. Jurisdiction is not involved here, only venue, which is a privilege that can be waived. Inverness Coca-Cola Bottling Company v. McDaniel, 78 So.2d 100 (Fla. 1955); Fixel v. Clevenger, 285 So.2d 687 (Fla.3d DCA 1973).

The order appealed from is

AFFIRMED.

SHARP and COWART, JJ., concur.

      . “VENUE: The Employer and Employee hereby mutually agree that the venue for any suit seeking any relief under the terms of the EMPLOYMENT AGREEMENT, shall be the Circuit Court for Orange County, Florida; the Employee hereby waiving his right to be sued in any other Court in the County where the Employee may reside, if other than Orange County, Florida.”

      . Rule 9.130(3)(A), Fla.R.App.P.


author: DENNIS, Justice. DIXON, Chief Justice

text:
    STATE of Louisiana v. William M. MOODY.
    No. 80-K-1784.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 2, 1981.

    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Richard Chaffin, Asst. Dist. Atty., for plaintiff-appellee.
    Robert L. Kleinpeter, Kleinpeter, Klein-peter & Kleinpeter, Baton Rouge, for defendant-appellant.

       Dixon, C. J., and Watson, J., would both grant a rehearing. Blanche, J., did not participate in rehearing.

   DENNIS, Justice.

The issue presented by this criminal appeal is whether the state must offer expert testimony in its case-in-chief in order to establish that the defendant, a licensed physician, prescribed a controlled dangerous substance for other than a legitimate medical purpose while acting in good faith in the usual course of his professional practice. We hold that expert testimony was unnecessary under the facts in this case and that the record contains ample evidence from which a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Accordingly, we affirm defendant’s convictions and sentences.

The defendant was charged with eight counts of unlawful distribution of phenter-mine in violation of La.R.S. 40:967(A). After the close of the state’s evidence in this bench trial, the defendant moved for a judgment of acquittal on all counts. La.C. Cr.P. art. 778. The trial judge granted his motion on counts one and two, but denied the motion as to the remaining counts. The defendant subsequently rested without presenting any evidence in his behalf. The trial judge found the defendant guilty on all six counts and sentenced him to a five year term of imprisonment at hard labor on each count to run concurrently. The judge suspended execution of the sentence and placed the defendant on active supervised probation with the special conditions that he provide 300 hours of service to a penal institution at no charge and pay a $1000 fine.

FACTS

The defendant’s principal assignment challenges the sufficiency of the evidence, and thus, we will summarize the evidence in the record in some detail as related by the various drug enforcement agents who testified for the state.

The counts are based upon the defendant’s prescribing phentermine, a controlled dangerous substance, La.R.S. 40:964 Schedule 11(C)(6), to four undercover law enforcement agents posing as patients on separate occasions between September 6, 1977 and June 14, 1978. In each instance, an agent appeared at the doctor’s office without an appointment and secured a prescription for phentermine with no physical examination or medical history being taken. The defendant charged twelve dollars cash for each prescription.

COUNTS 1 and 2

Counts one and two are based on Dr. Moody’s prescribing phentermine to Tulley Vincent on September 6 and September 20, 1977. On Vincent’s initial visit, the defendant’s receptionist wrote the patient’s name, address and place of employment on an index card. Vincent told the doctor that he was a student, worked at Exxon, partied frequently, and “needed something to keep up with the pace.” The doctor did not conduct a physical examination or attempt in any way to construct a medical history of his patient. He instead wrote a prescription for thirty phentermine capsules and told Vincent that this should help. Vincent was in the examination room for less than two minutes. Before leaving he paid the receptionist the customary twelve dollar cash fee. Two weeks later, Vincent returned and asked the doctor for something stronger. The doctor then wrote another prescription for a different brand of phen-termine capsules. With the exception that Vincent was weighed this time, the second visit was factually similar to the first. Neither of these counts are before us at this time since the trial judge, without written reasons, granted the motion for a judgment of acquittal on counts one and two. The trial judge apparently distinguished the remaining counts on the basis that the prescriptions in the latter counts were written upon the specific requests of the patients for particular controlled drugs.

COUNT 3

This count is based upon the defendant’s prescribing phentermine capsules to Linda Bourgeois on May 2, 1978. Bourgeois had visited a week earlier at which time she told the defendant that she was an L.S.U. student and that she had been referred to the doctor by her employer, Carlos Carson. On May 2, she returned saying that she needed something stronger to keep her going during exams. She specifically requested some blue and clear capsules that she said had worked before. The doctor showed her some capsules fitting that description and wrote a prescription for a month’s supply of phentermine capsules. Again the doctor conducted no physical examination in this perfunctory office visit and the usual flat cash fee was charged.

COUNTS 4-7

Each of these counts represent one office visit and one phentermine prescription issued by the defendant to agent James Benjamin. Benjamin’s first visit was on May 27, 1978 at which time he informed the doctor that he had been staying up late, working a lot, and needed something to keep him going. When the doctor said he would prescribe a milder stimulant, Benjamin objected, saying that “Crazy Carlos told me you would write a prescription for Fastin [a brand name for phentermine].” The doctor then wrote out a prescription for thirty capsules of the drug requested. The agent was perhaps weighed, but nothing further was asked of him.

Four days later, Benjamin returned and the defendant asked him if he needed more Fastin. The agent said that he did, but was unsure on cross-examination whether he offered the doctor any explanation for his rapid return. After being weighed, the agent was given another prescription for thirty Fastin capsules.

On June 9, 1978, Benjamin revisited the defendant’s office and was weighed. Moody cautioned the agent that he was getting these prescriptions “kind of close,” but wrote him another prescription for a month’s supply of the drug.

Benjamin again returned June 14, 1978 and was weighed. The doctor asked him whether he needed more pills. The agent responded affirmatively and was given another prescription for thirty more capsules.

COUNT 8

On June 14,1978 agent Walter Assmusen accompanied Benjamin to the defendant’s office. Benjamin told the defendant that he had a friend who needed a prescription. The doctor greeted Assmusen in the examination room by asking, “So you want some of those pills also?” The doctor asked Ass-musen if he had tried any of Benjamin’s pills. Assmusen answered that he had, and then the doctor replied that “they work good, don’t they.” Moody commented further that “the good thing about these is that they aren’t amphetamines and you don’t get hooked.” Assmusen was weighed and then given a prescription for thirty capsules containing phentermine.

STATUTORY BACKGROUND

A physician’s liability for unlawfully prescribing a controlled substance is apparently res nova in this state; we will therefore examine the statutory basis of this offense at some length.

In 1970, Congress enacted the Controlled Substances Act, 84 Stat. 1242, 21 U.S.C. §§ 801, et seq., seeking to increase the effectiveness of federal enforcement in this area in light of growing drug abuse problems. See 21 U.S.C. § 801; United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975). This act is significant since it provided a model for the Uniform Controlled Substances Act which Louisiana adopted in 1972. La.Acts 1972, No. 634 amending La.R.S. 40:961-995. See State v. Fearing, 30 Md.App. 134, 351 A.2d 896, 898 (1976); People v. Alford, 73 Mich.App. 604, 251 N.W.2d 314, 315-16 (Mich.App.1977). The vast majority of states have now also adopted this act. See table listing adopting jurisdictions in volume 22B L.S.A. at page 373.

The defendant was charged with distribution of phentermine. Distribution of phen-termine is prohibited as a criminal offense. La.R.S. 40:967(A); 40:964, Schedule 11(C)(6). Distribution includes delivery of phentermine by furnishing a prescription. La.R.S. 40:961(13). However, prescription of phentermine issued by a licensed physician for a legitimate medical purpose, for the purpose of correcting a physical, mental or bodily ailment, and acting in good faith in the usual course of his professional practice, is exempt from any criminal penalty. La.R.S. 40:961(30); 40:978(A).

Accordingly, to convict a licensed physician of distribution of phentermine by unlawfully furnishing a prescription, the state must prove that the doctor: (1) knowingly and intentionally furnished a prescription for the drug; and that (2) he did so other than for a legitimate medical purpose, for the purpose of correcting a physical, mental or bodily ailment, while acting in good faith in the usual course of his professional practice.

The defendant does not dispute that the first element was proved by the state beyond a reasonable doubt. He vigorously challenges the sufficiency of the evidence to establish the remaining element however.

REVIEW OF CLAIM OF INSUFFICIENCY OF EVIDENCE

The standard by which the merit of a convicted appellant’s claim that the record contains insufficient evidence to prove his guilt must be judged is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 434 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 660, 573 (1979); State v. Morgan, 389 So.2d 364 (La.1980); State v. Harveston, 389 So.2d 63 (La.1980); State v. Hartman, 388 So.2d 688 (La.1980); State v. Byrd, 385 So.2d 248 (La.1980); State v. Landry, 381 So.2d 462 (La.1980); State v. Mathews, 375 So.2d 1165 (La.1979).

Our review of the record convinces us that, viewing the evidence in the light most favorable to the prosecution, a rational trier of the fact could have found beyond a reasonable doubt that Dr. Moody furnished the prescriptions other than for a legitimate medical purpose, for the purpose of correcting a physical, mental or bodily ailment, while acting in good faith in the course of his professional practice.

The prescriptions forming the basis of the counts before us were all issued in response to specific requests of patients. Even though the patient was sometimes weighed, no other physical examination or medical history was made. And no claim has been made that the prescriptions were issued for weight control purposes; in fact, the record reflects that none of the agents were overweight. The flat cash fee collected in each case appears to be the price of the prescription rather than a charge for professional services rendered.

The four counts arising out of the prescriptions issued to James Benjamin most clearly show that Dr. Moody was merely distributing phentermine on request. In a nineteen day period, Dr. Moody issued four separate prescriptions to Benjamin, each for thirty capsules, or the equivalent of a month’s supply. While Moody warned Benjamin once about getting prescriptions “close together,” he wrote another prescription anyway; in fact, the record does not show a single request for drugs which Moody refused to grant. On Benjamin’s final visit, the defendant even prescribed phentermine for a friend who gave no student alibi and who had admitted sampling Benjamin’s capsules.

ALLEGED NECESSITY OF EXPERT TESTIMONY

The defendant argues that his conduct cannot be found criminally culpable in the absence of expert testimony. Although expert testimony is both permissible and helpful to the trier of fact, we conclude that it is not essential under the facts of this case. We agree with the federal jurisprudence which holds that a jury can find under some circumstances that a doctor prescribed controlled substances not in the usual course of professional medical practice and without a legitimate medical purpose from evidence received from lay witnesses as to facts surrounding the prescriptions. See United States v. Rogers, 609 F.2d 834 (5th Cir. 1980); United States v. Smurth-waite, 590 F.2d 889 (10th Cir. 1979); United States v. Larson, 507 F.2d 385 (9th Cir. 1974). See United States v. Bartee, 479 F.2d 484 (10th Cir. 1973). The testimony of the various government agents, as discussed in detail above, provides a sufficient basis for the trial judge’s finding of defendant’s guilt.

ENTRAPMENT

Lastly, the defendant asserts, without supporting argument, the defense of entrapment. We conclude that the trial judge properly rejected this claim. For entrapment to exist, the defendant must be induced in some way to engage in criminal conduct when he is not otherwise disposed to do so. State v. Batiste, 363 So.2d 639 (La.1978); State v. Lindsey, 351 So.2d 1178 (La.1977). The entrapment defense will not lie if officers or agents merely furnish a defendant predisposed to commit the crime opportunities to do so. State v. Bates, 301 So.2d 619 (La.1974); State v. Kelly, 263 La. 545, 268 So.2d 650 (1972); Bennett, Work of the Appellate Courts for the 1974-1975 Term, 36 La.L.Rev. 502, 512 (1976). Accord, People v. Alford, supra, 251 N.W.2d at 319-20. It was reasonable for the trier of fact to find that the agents seeking prescriptions from the defendant merely afforded him opportunities to commit the offense charged, and that, the doctor’s own predisposition caused the criminal conduct rather than any inducement by the officers. For example, the defendant greeted Officer Assmusen with the question, “So you want some of these pills, too?” Also, the use of agents in this manner in the investigation of medical doctors has been approved in many situations and is often the only means of obtaining necessary evidence of a doctor’s illegal activities. United States v. Rosen, 582 F.2d 1032, at n.2, 1033 (5th Cir. 1978); United States v. Jobe, 487 F.2d 268 (10th Cir. 1973).

For the reasons above, defendant’s convictions and sentences are affirmed.

AFFIRMED.

DIXON, C. J., dissents with reasons.

WATSON, J., dissents for reasons assigned by DIXON, C. J.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

The record discloses nothing about phen-termine, what its legitimate uses are, or whether it is or may be harmful if not taken in a certain way. Nor does the record show that a request for “something” to help “keep up the pace” or “keep going through exams” is not a legitimate request of a physician. The record makes defendant’s conduct suspect, but not criminal beyond a reasonable doubt.

      . In State v. Valasquez, 376 So.2d 129 (La. 1979), we affirmed the conviction of a licensed pharmacist who sold controlled drugs pursuant to a prescription he knew was forged.


author:
LABORDE, Justice ad hoc.
     LEMMON, Justice,

text:
    STATE of Louisiana ex rel. Herbert WOMACK v. Warden Frank BLACKBURN et al.
    No. 67218.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 2, 1981.

      George M. Strickler, Jr., Tulane Appellate Advocacy Clinic, New Orleans, for plaintiff-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., J. Kevin McNary, Asst. Dist. Atty., New Orleans, for defendants-respondents.

       Blanche, J., did not participate in rehearing.

   LABORDE, Justice ad hoc.

A jury convicted Herbert Womack, Jr. of attempted simple burglary, a violation of La.R.S. 14:27; 14:62. Womack was sentenced to serve four and one-half years at hard labor. Subsequently, Womack was adjudged a multiple offender under La.R.S. 15:529.1, the Habitual Offender Law. His original sentence was then vacated and he was resentenced to serve fifty years at hard labor. In a direct appeal to this Court, Womack assigned as error only the alleged unconstitutionality of the Habitual Offender Law. On appeal, Womack’s conviction was affirmed. State v. Womack, 332 So.2d 273 (La.1976). In February, 1980, Womack petitioned the district court for habeas corpus relief; Womack’s petition was denied without a hearing. He then petitioned this Court for a writ of certiorari alleging two errors in the trial court’s proceedings. This Court granted his petition October 6, 1980. Although review was granted on the basis of two assigned errors, defendant in brief now urges only one error. That one assignment challenges the sufficiency of the evidence to support defendant’s conviction.

FACTS

At approximately 5:30 A.M. on March 7, 1975, the front and side glass doors of the Finale II lounge, located at the corner of North Rampart and St. Peter Streets in New Orleans, were broken. Herbert Wom-ack, Jr. was arrested near the scené and charged with attempted simple burglary.

At defendant’s trial on the merits, the following testimony was adduced. Mary Schlesinger testified that in the early morning hours of March 7, 1975, she was in a French Quarter lounge when she twice heard, in quick succession, the sound of breaking glass. Ms. Schlesinger stated that she was approximately fifteen to twenty feet away when she immediately looked outside and saw defendant standing about two feet from the broken front glass doors of the Finale II. She did not see defendant actually break the glass or try to gain entry into the building. Ms. Schlesinger remained outside for about one-half minute and as she watched, the defendant stood in front of the broken glass door then suddenly fled on foot. Ms. Schlesinger testified that she had known the defendant for two or three years prior to the incident and had seen defendant in the vicinity of the Finale II earlier in the morning of March 7, 1975.

The owner of the Finale II, Carl Morvant, testified that he was also very near the scene that morning. He was in a cafe about a half block away having coffee when Andrew Boudreau rushed in and told him that someone was trying to break into his place. Instantly, Morvant who had stepped outside to receive the news, looked up and saw defendant stand behind a post near the Finale II’s front door. Morvant recognized defendant as an occasional customer. Like Ms. Schlesinger, Morvant saw defendant neither break the glass nor try to gain entry into the building. However, Morvant did testify that besides the broken glass, there was additional evidence that one of the doors of the Finale II had been tampered with:

“Q. Was there anything unusual about the door that night?
A. The glass in the right door was broken out and the door was pulled out. I have a hook at the bottom inside, it is a few inches off the floor, it keeps the door shut and the stop was pulled out, there is a spring there, it must have been pulled out about 4 inches, you can see where it was caught there.
Q. The last time you saw the door, before this time, was it in that condition?
A. Not at all... ”
(Tr. pp. 14-15)

A third state witness, Andrew Boudreau, testified that he had parked his car near the Finale II and was locking it when he heard glass breaking. He looked toward the Finale II and saw someone standing behind a post in front of the shattered doors. Bou-dreau knew Carl Morvant and he also knew Morvant would be having his regular cup of coffee at a nearby cafe. After notifying Morvant of the incident, Boudreau helped him pursue the defendant who, as Morvant and Boudreau approached him, fled on foot. It was during the chase that Boudreau recognized defendant as someone he too had previously known. Boudreau, like the other two witnesses, did not see defendant actually break the glass of or attempt to gain entry into the building.

Morvant and Boudreau chased defendant until they lost him in the Basin Street vicinity. The pair then went to a nearby police station for help.

Officer John Dupre, who was walking in the Basin Street area, spotted a subject emerge from behind some hedges and walk over to a bus stop where he appeared to act as though he was waiting for a bus. Officer Dupre was somewhat suspicious as he knew there were no buses running due to a transit strike. The officer then noticed that the subject fit the description reported about forty-five minutes earlier. Defendant was arrested and advised of his rights. Shortly thereafter, he was identified by Ms. Schlesinger, Morvant and Boudreau.

Defendant took the stand in his own defense. For his part, he claimed that because of a bus strike, he was standing in front of the Finale II waiting to catch a cab. While there, he saw two men running toward him, became frightened and fled. Defendant asserted his innocence and denied breaking the glass or attempting to burglarize the lounge. He further testified that because of ear trouble, he had cotton in both ears and did not hear any glass breaking.

OPINION

In Claim I of his petition, defendant urges that the testimony of the state’s witnesses was insufficient to support a conviction of attempted simple burglary since no witness saw defendant actually break the lounge’s doors. Defendant claims that all of the state’s evidence was circumstantial in nature and was insufficient to exclude every reasonable hypothesis of innocence, as required by R.S. 15:43s. In addition, defendant urges that the state had insufficient evidence to show that defendant had specific intent to enter a structure with the intent to commit a felony or any theft therein, an essential element of the offense under R.S. 14:62; 14:27.

Defendant has not previously raised these contentions by motion for new trial or motion for acquittal. This Court has previously denied review to a defendant who appeals a conviction on the grounds that the state failed to introduce sufficient evidence to support a conviction or an essential element of the crime unless the defendant has preserved the issue by motion for new trial on those grounds or by motion for acquittal. Article 5, § 5, Louisiana Constitution; State v. Williams, 354 So.2d 152 (La.1977); State v. Tennant, 352 So.2d 629 (La.1977).

However, in State v. Peoples, 383 So.2d 1006 (La.1980), this Court recently held that it would be patently unfair and a denial of a defendant’s due process rights to refuse to review a complaint that the state failed to present any evidence of the crime charged or an essential element thereof simply because he failed to file a motion for a new trial or filed such a motion and neglected to assert this contention therein. See also State v. Boutte, 384 So.2d 773 (La.1980).

In State v. Boutte, supra, this Court noted that the traditional test in reviewing a defendant’s contention that the state failed to prove the crime or an essential element of it had seemingly been broadened by the United States Supreme Court’s decision in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In Jackson, supra, the Supreme Court rejected and overruled the previous “no-evidence” criterion for federal habeas review of state convictions (review was precluded where there was “some” evidence of the elements of the crime) and held that federal due process protects an accused against conviction except upon evidence that is sufficient fairly to support a conclusion that every element of the crime has been established beyond a reasonable doubt. 99 S.Ct. at 2786. The Supreme Court in Jackson set forth the following test as to whether the record evidence could reasonably support a finding of guilty beyond a reasonable doubt: “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” 99 S.Ct. at 2789. This Court’s acceptance of the Jackson reasonable doubt standard is now well documented. State v. Morgan, 389 So.2d 364 (La.1980); State v. Harveston, 389 So.2d 63 (La.1980); State v. Hartman, 388 So.2d 688 (La.1980); State v. Byrd, 385 So.2d 248 (La.1980); State v. Landry, 381 So.2d 462 (La.1980); State v. Mathews, 375 So.2d 1165 (La. 1979). This Court has heretofore applied Jackson on its direct review of the sufficiency of the evidence to support a conviction. However, Jackson itself began with a collateral attack on the underlying conviction via the federal equivalent of habeas corpus proceedings. Thus, applying Jackson in the present context presents no problems.

Applying Jackson, we find that even though no witness saw defendant actually break the glass doors of the Finale Lounge, the record, as a whole, convinces us that there is sufficient evidence in the record to support a rational trier of fact's returning a guilty verdict of attempted simple burglary beyond a reasonable doubt.

On review, the record must support the element of RS. 14:62, the simple burglary statute, that defendant committed an unauthorized entry of a structure with the intent to commit a felony or theft therein. Furthermore, R.S. 14:27, the attempt statute, requires that defendant have a specific intent to commit the crime in order to be guilty of attempt.

In summary, the record contains evidence showing that three witnesses who knew each other and who also knew defendant saw defendant standing near a broken glass door — two of them immediately after they heard the glass break, the third one a very short time later. In addition to defendant’s presence at the broken door, two witnesses testified that defendant tried to conceal himself behind a post and then broke out into a run when two people he knew approached him. Defendant was apprehended a short time later in an area nearby. All of these facts could raise the inferences to a reasonable juror that the defendant is the one who broke the window since the evidence shows no one else was around in the area at the time. Also, while an individual’s flight does not in and of itself indicate any guilt, State v. Franklin, 353 So.2d 1315 (La.1977), it can be considered as circumstantial evidence that one has committed an offense and it is admissible into evidence as relevant to show consciousness of guilt. State v. Bolton, 354 So.2d 517 (La.1978). We conclude that a reasonable trier of fact could have found that defendant broke the glass door.

Subsequent investigation revealed that in addition to the broken glass, the hook or latch which keeps the door shut was pulled up about four inches. The owner testified that the last time he observed the latch, it was not in this sprung condition. We conclude that a reasonable trier of fact could have found that defendant tampered with the latch and that the sprung latch on the inside door establishes an unauthorized entry of the lounge.

Since there would be no apparent reason for defendant to tamper with the inside door bolt and break the glass, a rational trier of fact could also find that defendant had the requisite intent necessary for attempted simple burglary.

In light of apparent inconsistencies borne out by the evidence, the jury acted as a reasonable trier of fact in rejecting defendant’s exculpating explanation. For example, defendant claimed that because of a bus strike, he was standing in front of the Finale II in order to enhance his chances of catching a cab. Yet, Officer Dupre testified that shortly prior to defendant’s arrest, he saw defendant standing at a bus stop acting as though he was waiting for a bus. Another inconsistency surfaced when defendant claimed that despite his close proximity, he did not hear glass breaking because he had cotton in his ears due to ear trouble. Yet, when defendant was arrested a short time later, there was no cotton in either ear. In addition, a barmaid who had seen and spoken with defendant earlier that night, testified that she did not notice cotton in defendant’s ears.

We conclude that sufficient evidence exists in the record such that a rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of attempted simple burglary beyond a reasonable doubt.

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

AFFIRMED.

MARCUS, J., concurs in the result.

LEMMON, J., concurs and will assign reasons.

LEMMON, Justice,

concurring.

The Peoples decision held that insufficiency of evidence can be raised for the first time on appeal. This decision logically extends Peoples, for if insufficiency can be assigned as error for the first time on appeal, certainly the court can recognize this constitutional defect on its own.

Moreover, substantive due process requires that a defendant’s guilt of every element of the offense be proved beyond a reasonable doubt. The present decision properly accords greater ranking to this constitutional requirement than to C.Cr.P. art. 920’s statutory mandate that only assigned errors and errors patent shall be considered on appeal.

       Judges Guidry, Foret and Laborde of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche, and Lemmon.

      . R.S. 15:438 provides:
      “The rule as to circumstantial evidence is: Assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

      . This is not to imply that insufficiency of evidence is an error patent, which the court should check for in each case. However, if the error comes to the court’s attention, the court should recognize it, because no one should remain in prison if he has been convicted on insufficient evidence.


author: E. L. GUIDRY, Jr., Justice Ad Hoc.

text:
    STATE of Louisiana v. Harry P. FRISCH, Jr.
    No. 80-K-1565.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Rehearing Denied March 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Carft, Asst. Dist. Atty., for plaintiff-relator.
    Clyde Merritt, New Orleans, for defendant-appellant.

       Blanche, J., did not participate in rehearing.

   E. L. GUIDRY, Jr., Justice Ad Hoc.

On May 22, 1980, defendant, Harry P. Frisch, Jr., was charged by bill of information with possession of a controlled dangerous substance, to-wit: Methaqualone, a violation of La.R.S. 40:967. On June 23, 1980 defendant filed a motion to suppress the evidence. After a hearing conducted on June 26, 1980, the trial court granted the motion. On application of the State we granted writs to review this ruling. (La.) 390 So.2d 209 (1980).

The record reflects the following to be the uncontroverted facts surrounding defendant’s arrest and the seizure by the arresting officers of four Methaqualone tablets from his person.

At approximately 10:45 P.M. on May 7, 1980, the defendant entered a Time-Saver convenience store located at 11040 Morrison Road in the City of New Orleans. At the time defendant entered the store the Cashier, Rose Williams, and another female employee were alone. The defendant went about the store for approximately fifteen to twenty minutes picking up merchandise and returning same to the shelves. Finally, defendant selected some oil from the automotive section and after approaching the counter began to question Ms. Williams. Defendant’s questions concerned the store’s security arrangements, the hours of operation and whether a security officer was present at closing time. During the conversation defendant informed Ms. Williams that he was a police officer and would require a receipt for his purchase in order that he might seek reimbursement from the police department. Defendant then left the store but remained outside on the parking lot directly in front of the store. Ms. Williams described the defendant’s actions and her feeling following defendant’s departure from the store as follows:

“... So, I gave him the receipt and he went outside and he was kind of like, you know, leaning and rocking, like, you know, maybe he was intoxicated, and Carolyn and I discussed it when he went outside and said, ‘If he was a police officer, he wouldn't be in this kind of condition.’
And he kept looking in the store, and he must have stayed out there for another fifteen minutes or twenty minutes just fooling around with the car. So we decided that we better call the police just in case, you know, or whatever, but more or less, we was just really afraid that he might be up to something.”

The police were in fact called and arrived at the scene at approximately 11:15 P.M. When the officers arrived they observed the defendant standing next to his car. Upon approaching the defendant the officers observed a police portable blue light on the dashboard of his car. The officers asked the defendant if he was a police officer however, he refused to respond. When the officers looked over to the store they saw the female employees pointing at the defendant. One of the officers then grabbed the defendant and searched him for a weapon. While one of the officers detained the defendant the other officer interviewed the Time-Saver employees. Following this interview the officer returned outside, related the contents of the interview to his partner, whereupon the defendant was placed under arrest for impersonating a police officer. After the defendant was placed under arrest he was thoroughly searched. As a result of this search the officers discovered four Methaqualone tablets in defendant’s left shirt pocket.

Before trial defendant’s motion to suppress this evidence was granted. For the reasons which follow we conclude that under the circumstances the trial court erred in granting defendant’s motion to suppress.

The right of law enforcement officers to temporarily detain and interrogate persons reasonably suspected of criminal activity is well recognized. La.Code Crim.P. Art. 215.1; Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Dixon, 337 So.2d 1165 (La.1976). The question as to whether reasonable cause sufficient to detain exists is determined from the attendant facts and circumstances. In the instant case we find that the officers had sufficient knowledge of particular circumstances, i. e., the report of suspicious activity by the Time-Saver employees, the pointing out of the suspect and the officer’s own observation of the defendant and the blue light on the automobile dashboard, all of which when considered together warranted their action in temporarily detaining the defendant. We conclude further that the officers had probable cause to arrest the defendant for impersonating a police officer, a violation of La.R.S. 14:112 and thus the warrantless search of defendant’s person following his arrest was justified. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

In the recent case of State v. Tomasetti, 381 So.2d 420 (La.1980) we had occasion to discuss the essential requirements for validity of a warrantless search incident to a lawful arrest. In that case we stated:

“It is well settled that a search conducted without a warrant issued upon probable cause is per se unreasonable — subject only to a few specifically established and well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of these exceptions is a search incident to a lawful arrest made of a person and the area in his immediate control. Chimel v. Califor nia, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Such a search is justified in order to discover weapons that may threaten the safety of the arresting officer and to prevent the concealment and destruction of evidence. It has been recently confirmed that an arrest made in a public place without a warrant is valid if founded on probable cause, regardless of the presence or absence of exigent circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). But, in order to justify a search as incident to an arrest, an arrest must have already occurred and the arrest itself must have been lawful. State v. Marks, 337 So.2d 1177 (La.1976). Finally, when the constitutionality of a warrant-less search is at issue at a suppression hearing, the state must bear the burden of affirmatively showing that it was justified under one of the exceptions to the warrant requirement. State v. Adams, 355 So.2d 917 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977).
La.Code Crim.P. art. 201 defines ‘arrest’ as follows:
Arrest is the taking of one person into custody by another. To constitute arrest there must be an actual restraint of the person. The restraint may be imposed by force or may result from the submission of the person arrested to the custody of the one arresting him.
The statutory definition of ‘arrest’ is keyed to the concept of restraint. It is the circumstances indicating an intent to effect an extended restraint on the liberty of an accused, rather than the precise timing of an officer’s statement: ‘You are under arrest,’ that are determinative of when an arrest is actually made. State v. Marks, supra; State v. Warren, 283 So.2d 740 (La.1973)....
A warrantless arrest, no less than an arrest pursuant to a validly-issued warrant, must be based on probable cause. State v. Thomas, 349 So.2d 270 (La.1977). Probable cause exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Marks, supra. Probable cause must be judged by the probabilities and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. State v. Marks, supra. Compliance with these standards is in the first instance a substantive determination to be made by the trial judge from the facts and circumstances of the case. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); State v. Marks, supra.

No good purpose would be served by a reiteration of the previously recited facts in light of the criteria set forth above. Suffice it to say that we find that at the time of defendant’s arrest the officers involved had knowledge of such facts and circumstances sufficient to justify a belief that the defendant had committed the crime of false personation. Thus the warrantless search of his person following his arrest, which search disclosed the evidence sought to be suppressed, was justified.

For the reasons assigned the judgment of the trial court granting defendant’s motion to suppress the evidence is reversed and set aside and it is now ordered that such motion be dismissed. This matter is remanded to the district court for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.

DIXON, C. J., concurs.

       Judges E. L. Guidry, Jr., J. Burton Foret and P. J. Laborde, of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.

      . “False personation is the performance of any of the following acts with the intent to injure or defraud, or to obtain or secure any special privilege or advantage:
      (1) Impersonating any public officer, or private individual having special authority by law to perform an act affecting the rights or interests of another, or the assuming, without authority, of any uniform or badge by which such officer or person is lawfully distinguished; or (2) Performing any act purporting to be official in such assumed character.
      Whoever commits the crime of false personation shall be fined not more than one hundred dollars, or imprisoned for not more than ninety days, or both.”