text:
    Kenneth Wayne DURRANCE, Petitioner, v. John A. RUDD, Sr., Circuit Court Judge, Second Judicial Circuit, Respondent.
    No. YY-22.
    District Court of Appeal of Florida, First District.
    May 21, 1981.

      Gene S. Taylor, Asst. Public Defender, for petitioner.
    David P. Gauldin, Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner requests this Court to issue a writ of prohibition preventing petitioner’s further prosecution based on the expiration of the speedy trial time limit imposed by Rule 3.191, Fla.R.Crim.P. Upon consideration of the petition, the State’s response to our order to show cause issued pursuant to Rule 9.100(f), Florida Rules of Appellate Procedure, and petitioner’s reply, we find that petitioner is entitled to the relief sought.

Petitioner was arrested January 15, 1980. An information charging him with armed robbery and aggravated battery was filed January 17. One month later, February 26, a jury trial commenced on the charges. The following day, after several hours deliberation, the jury announced it was hopelessly deadlocked and a mistrial was declared. The case was set for retrial for April 22, 1980. The day before the second trial was to be held, the State Attorney’s office requested the trial judge to delay the trial two days, to April 24, 1980, due to the illness of the prosecutor handling the case. On April 24, the State announced it still was not prepared to proceed and requested a continuance. Over defense counsel’s objection, a continuance was granted and the trial was reset for June 24, 1980. There had been no written motion to continue nor did the court issue a written order directed specifically at the issue of continuance. However, on April 25, 1980, the trial judge signed an order setting a bond for petitioner based on the fact that the state had been granted a continuance stating in part:

This court having granted the State’s motion for continuance, and the court finding that continuance should not be charged to the defendant, and the court further finding that no bond had previously been set in this case, it is hereby ordered and adjudged that bond in the above-styled case is hereby set in the amount of five thousand and no/100 dollars ($5,000.00). (Emphasis supplied)

On May 30, 1980, petitioner filed a motion for discharge because more than 90 days had passed since the date of the declaration of the mistrial on February 27, 1980. Petitioner asserted that to try petitioner more than 90 days following a mistrial was contrary to Rule 3.191(g), Florida Rules of Criminal Procedure, and would be a violation of petitioner’s right to a speedy trial.

Following a hearing at which no testimony was presented (the State stipulated to the correctness of the facts contained in the motion to discharge), the trial judge entered an order denying petitioner’s motion. This order stated in relevant part:

2. The 90 day period from the date of a declaration of a mistrial is intended to prevent a lengthy incarceration of the defendant and does not negate the 180 day rule. Further, the defendant has not shown any prejudicial effect upon the preparation of his defense.
3. On further consideration, this court having found the prosecutor’s illness was an “exceptional circumstance” under the rule, the applicable time period becomes one of a “reasonable time” rather than a “tolling” of the speedy time period, and the June 24, 1980, trial date is within a “reasonable time.”

It is based on the above facts that petitioner asserts he is entitled to discharge as a matter of law.

I. Mistrial

The first issue we examine concerns whether the 90-day speedy trial limit applicable in the event of a mistrial as set forth in Rule 3.191(g), Fla.R.Crim.P., acts independently of the general 180-day speedy trial limit provided by Rule 3.191(a), Fla.R. Crim.P.

Rule 3.191(g) reads as follows:

Effect of Mistrial: Appeal: Order of New Trial. A person who is to be tried again or whose trial has been delayed by an appeal by the state or the defendant shall be brought to trial within 90 days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court granting a new trial, the date of an order by the trial court granting a motion in arrest of judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other ruling court which makes possible a new trial for the defendant, whichever is last in time. (Emphasis supplied).

Read alone, this clearly implies that a defendant must be brought to trial within 90 days following a mistrial. This implication is reinforced by the introductory phrase contained in Rule 3.191(a)(1), Fla.R.App.P.:

Speedy Trial Without Demand. Except as otherwise provided by this Rule . .. every person charged with a crime by indictment or information shall without demand be brought to trial . . . within 180 days if the crime charged be a felony, and if not brought to trial within such time shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime .... (Emphasis supplied)

The emphasized language explicitly indicates that subsequent subsections of the speedy trial rule act to impose independent periods for various circumstances under which a defendant may be tried.

In State v. Jenkins, 389 So.2d 971 (Fla. 1980), the Florida Supreme Court refers to Rule 3.191(g) in the course of its opinion:

First and foremost, it should be understood that any appeal by a defendant terminates the mandatory speedy-trial period set forth in Rule of Criminal Procedure 3.191(a)(1) without the necessity of any action by the state to terminate or extend the speedy-trial period.
When a defendant takes an interlocutory appeal, a remand trial requires only that the state try the defendant within a reasonable time in accordance with constitutional standards.
The situation changes, however, when a defendant is to be retried as a result of a mistrial or the granting of a new trial by either trial court or appellate court action. In these instances, the provisions of the existing Rule of Criminal Procedure 3.191(g) are applicable and require the state to try the defendant within 90 days from the date of the appropriate court order. This is consistent with the new rule 3.191 effective January 1, 1981. (Emphasis supplied)

Id. at 975. Finally, we note Judge R. Smith’s language concerning this rule in his dissent (on other grounds) in State v. Weed, 373 So.2d 42 (Fla. 1st DCA 1979), wherein he stated:

Rule 3.191(g) prescribes a 90-day period for retrial, rather than a full 180 days, in part because it is assumed that preparation will be less taxing when the accused is “tried again” on the same charges than when he is initially confronted with a charge yet untried.

In view of the foregoing, we must conclude that, absent exceptional circumstances, a defendant must be brought to trial within 90 days of a mistrial, and that after a mistrial the 180-day limit of Rule 3.191(a) no longer applies.

The defendant was not brought to trial within the 90-day time period following his mistrial; therefore he should have been subjected to no further prosecution unless the state or trial court had properly acted to extend the speedy-trial period.

II. Continuance

The record reveals and the State does not contest that the only written order entered by the trial court prior to petitioner’s motion for discharge granted petitioner’s request for bond, stating in part: “This court having granted the State’s motion for continuance, and the court finding that said continuance should not be charged to the defendant .. . [bond is granted] . . .. ” The question we now must answer is whether the defendant is entitled to be free from further prosecution because the trial judge failed to enter an order extending the speedy-trial time for exceptional circumstances prior to defendant’s motion for discharge. Petitioner relies upon this court’s decision in State v. Rudd, 347 So.2d 813, 815 (Fla. 1st DCA 1977), wherein we stated:

Fla.R.Crim.P. 3.191(d)(3) makes it clear that any order extending the speedy-trial period due to exceptional circumstances must be issued before the speedy-trial period has run and motion for discharge filed.

The State counters with this court’s ruling in State ex rel. Lee v. Harper, 372 So.2d 1012 (Fla. 1st DCA 1979), indicating that a prosecutor’s illness constitutes an exceptional circumstance contemplated by the rule, and contends that though the trial court did not render a written order finding such a circumstance, there is no requirement in Florida that a written order be entered.

Having considered the recent decisions of this and other Florida courts, we conclude that a court cannot retroactively hold its earlier continuance was for “exceptional circumstances” after the speedy trial time has run to avoid the speedy trial limits.

When examining the speedy trial limits in the context of a contract of immunity, this court stated in Mellman v. Rudd, 389 So.2d 706 (Fla. 1st DCA 1980):

Florida Rule of Criminal Procedure 3.191(d)(2) enumerates the exceptions to the rule permitting an extension of trial time. Those exceptions are narrowly confined to the grounds provided under (d)(2) since it provides “any other delay shall be unexcused.” Additionally, subsection (d) provides two means by which an extension is accomplished — by waiver and by order. If the delay is attributable to an exceptional circumstance, as provided by (d)(2)(ii), the time for trial may be extended only by order entered before the expiration of such time. State ex rel. Smith v. Rudd, 347 So.2d 813 (Fla. 1st DCA 1977). A contract of immunity would not appear to fall within any category of exceptional circumstances delineated in 3.191(f) — although on at least two occasions, the courts have found exceptional circumstances other than those provided in subsection (f). [citations omitted] Even if we were to hold the execution of such a contract is an exceptional circumstance, subsection (d)(2)(h) may not be relied upon to justify an extension of trial time because the state failed to move for an order extending the time before it had expired. (Emphasis supplied)

Id. at 708. Similarly, the Third District Court, in Muller v. State, 387 So.2d 1037 (Fla. 3rd DCA 1980), stated:

In the absence of an order of extension entered by the trial court during the speedy trial period, we will not find that the time was extended, no matter how compelling or exceptional the circumstances may appear. State v. Barnett, 366 So.2d 411 (Fla.1978); Stuart v. State, 360 So.2d 406 (Fla.1978); State ex rel. Lee v. Harper, 372 So.2d 1012 (Fla. 1st DCA 1979); Mullin v. State, 307 So.2d 829 (Fla. 3rd DCA 1974); Pouncy v. State, 296 So.2d 625 (Fla. 3rd DCA 1974). (Emphasis supplied)

Id. at 1039.

Simply stated, we conclude that a continuance alone does not toll the speedy-trial time. What is required is an order entered before the time limit expires, specifically extending or tolling the speedy-trial requirements. Accordingly, the petition for writ of prohibition is granted, and it is ordered that petitioner be discharged in Case No. 80-63.

MILLS, C. J., and LARRY G. SMITH, J., concur.

BOOTH, J., dissents.

      . Not entirely relevant to the instant appeal, subsequent events in the trial court prior to petitioner’s seeking the instant writ were as follows: On June 24, 1980, the state announced it was not prepared to proceed to trial because of the unexplained absence of the alleged victim in the case. A continuance was granted over defense counsel’s objections, said continuance again never reduced to a written order. The trial was reset for August 19, 1980. A second motion to discharge was filed by petitioner alleging not only that the 90 days had passed but now more than 180 days had passed since the date of his arrest. It was denied. On August 21, 1980, the matter proceeded to trial again and again the jury after hours of deliberation announced that it was hopelessly deadlocked. A second mistrial was declared. In September, 1980, petitioner filed a motion for continuance with the trial court in order for him to pursue the petition for writ of prohibition. This motion was granted and a trial was reset for October 30, 1980. We stayed the trial pending our resolution of this cause.

      . Our conclusion is further supported by the Florida Supreme Court’s language in Stuart v. State, 360 So.2d 406 (Fla.1978):
      Subsection (d)(2) of the rule provides for the period to be extended by order and sets out the method by which this can be done. It can be either on the court’s motion or on motion of either party, in exceptional circumstances.
      * * * * * *
      Even if an exceptional circumstance as defined by the rule were shown however, an extension might not be justified. The delay in this proceeding and the numerous continuances were not the fault of petitioner. It has been held that where an exceptional circumstance or complexities involved in the preparation of a case for trial were occasioned by delay on the part of the State, they will not be deemed to justify a delay of the trial and an extension of the rule, [citations omitted] Because such an extension for exceptional circumstances must be by order of the court, Florida Rule of Criminal Procedure 3.191(d)(2) and will not be automatic or presumed from the circumstances, State v. Cannon, 332 So.2d 127 (Fla. 4th DCA 1976); Mullin v. State, 307 So.2d 829 (Fla. 3rd DCA 1974), cert. denied, 317 So.2d 761 (Fla.1975); Pouncy v. State, 296 So.2d 625 (Fla. 3rd DCA 1974); Esperti v. State, 276 So.2d 58 (Fla. 2nd DCA 1973), cert. denied, 285 So.2d 614 (Fla. 1973), the question of whether the circumstances were such as would justify an extension of the rule time is a moot point. As there was no order of the court, there cannot have been an extension of the speedy trial rule time period. (Emphasis supplied).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ethel WORK, Appellant, v. The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a corporation, and Ideal Mutual Insurance Company, Appellees.
    No. YY-462.
    District Court of Appeal of Florida, First District.
    May 21, 1981.
    Charles J. Kahn, Jr., and R. P. Warfield, Pensacola, for appellant.
    Robert P. Gaines, and David T. Johnson, Jr., Pensacola, for appellees.
   PER CURIAM.

Our examination of the record shows that the nonexistence of genuine issues of material fact has not been established, and the entry of the summary judgment for. Appel-lees was in error. See Holl v. Talcott, 191 So.2d 40 (Fla.1966).

REVERSED AND REMANDED.

ERVIN, J., and LILES, WOODIE A. (Retired), and PEARSON, TILLMAN (Retired), Associate Judges, concur.


author: DAUKSCH, Chief Judge.

text:
    Walter Franklin SAULSBERRY, Appellant, v. STATE of Florida, Appellee.
    No. 80-457.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew and Evelyn D. Golden, Asst. Attys. Gen., Daytona Beach, for ap-pellee.
   DAUKSCH, Chief Judge.

The principal question for us to resolve in this appeal is whether the appellant sufficiently reserved for appeal the error of the trial judge in refusing to give the penalties instruction as required by Rule 3.390(a), Florida Rules of Criminal Procedure and Tascano v. State, 393 So.2d 540 (Fla.1980).

The sequence of events is that appellant requested the instruction at an unrecorded instructions conference, the appellant put his objection on the record after the conference but before the charge to the jury but did not object to the failure of the court to give the instruction after the jury charge and before deliberations began. We deem the objection to have preserved the question for appeal.

Because our Supreme Court has required all cases which fall within the Tascano decision to be retried, we must reverse the conviction and remand this matter for a new trial.

While we deem the evidence in this case to be quite sufficient to convict the appellant thereby rendering the Tascano error to be really harmless, as in Gee v. State, 400 So.2d 466 (Fla.5th DCA 1981), another error would cause us to reverse for a new trial, anyway.

The prosecutor during voir dire of the jury set forth for the jurors a hypothetical question which essentially embodied the facts of the case against the accused, thus attempting to, and probably succeeding in, obtaining at least a tacit commitment from the jurors to convict. This is wrong and the trial judge should have granted the timely motion for mistrial. Dicks v. State, 83 Fla. 717, 93 So. 137 (1922).

REVERSED AND REMANDED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


text:
    Willie George EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 80-473.
    District Court of Appeal of Florida, Fifth District.
    May 27, 1981.
    Andrew A. Graham of Reinman, Harrell, Silberhorn, Moule & Boyd, P. A., Melbourne, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a sentence. The appellant meets all of the requirements of section 958.04, Florida Statutes (1979), and is thus entitled to be sentenced as a youthful offender under that statute. The provisions of that sentencing act are mandatory in their terms in that subsection (2) says “A person shall be classified a youthful offender if such person meets the criteria of subsection (1) and such person . . .. ” meets additional criteria. The appellee urges the statute is discretionary in its terms because subsection (1) starts out by saying “The court may classify as a youthful offender any person ...” meeting certain criteria. The appellee neglects to read on to where it says in (2), as we pointed out, that if the person meets the first criteria and the second, then the person shall be classified as a youthful offender.

We think shall means mandatory, in this instance, at least. See Murray v. State, 378 So.2d 111, 112 (Fla. 5th DCA 1980) (Orfinger, J., concurring).

The sentence is reversed and this cause remanded for resentencing.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: PER CURIAM. MARCUS, Justice LEMMON, Justice. MARCUS, Justice BLANCHE, Justice

text:
    STATE of Louisiana v. Roger Daniel BRYAN.
    No. 64603.
    Supreme Court of Louisiana.
    Sept. 3, 1980.
    On Rehearing May 18, 1981.
    Dissenting Opinion on Rehearing May 19, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Tommy Adkins, Dist. Atty., Dan Grady, III, Asst. Dist. Atty., for plaintiff-appellee.
    Bobby Culpepper, Jonesboro, C. Wayne Smith, Ruston, Paul Henry Kidd, Monroe, for defendant-appellant.
   PER CURIAM.

On September 21, 1978, the Union Parish Grand Jury indicted defendant Roger Daniel Bryan for the first degree murder of Robert Taylor. La.R.S. 14:30. After a lengthy trial the jury found him guilty as charged, then, in the sentencing phase of the bifurcated proceeding, La.C.Cr.P. Art. 905, recommended a sentence of life imprisonment without benefit of parole, probation or suspension of sentence, which was binding on the trial court. He now appeals on the basis of forty-two assignments of error; of these, we find that only one merits written treatment.

I.

On the evening of September 16, 1978, defendant was to have met with Deputy Sheriff Robert Taylor to post bond on an offense for which he had been indicted. Defendant missed the appointment and Deputy Taylor sought him out at home later that night, in an encounter that ended with the shooting of Taylor. Fatally wounded, the deputy drove a mile down the road and radioed for assistance; before he died, he reported that defendant had shot him, and no more.

What had led up to the shooting was the subject of active controversy at trial. By circumstantial evidence the state attempted to show that defendant had known of his impending arrest and took purposeful measures to resist it, which included barricading himself into his home, and ultimately, killing Deputy Taylor. Defendant and his wife, on the other hand, testified that Taylor had come to the house near midnight while they were asleep, kicked in the back door, dragged defendant from the bedroom by his hair, and beaten him without provocation. The fatal shots, they claimed, had been fired in self-defense.

II.

By assignment of error no. 38, defendant contends that the trial court erred in refusing to hear testimony on alleged newly discovered evidence, relative to the victim’s past misconduct, presented in the motion for a new trial.

At trial, defendant indirectly placed Taylor’s character at issue by attributing brutality to him in the attempted arrest. On rebuttal the state countered the evidence of abuse by testimony of the Sheriff that Deputy Taylor was a just and temperate man who had never, to the witness’ knowledge, mistreated arrestees. In its motion for a new trial, the defense alleged prior threats against defendant, along with several specific instances of police brutality on the part of Taylor or complaints to the Sheriff concerning this deputy. The trial court refused to entertain evidence on these allegations, because it considered them insufficiently material and further concluded that the evidence could have been discovered in advance of trial by the exercise of due diligence. See, La.C.Cr.P. Art. 851(3).

We find that those determinations cannot be made without a close inspection of the evidence offered. Because of the circumstantial nature of the state’s case, the verdict must have rested in part upon the jury’s incredulity that Taylor would have conducted himself in the manner alleged by the defense. If so, the impact of evidence of Taylor’s dangerous character and threats against defendant, see, La.R.S. 15:482, cannot be underestimated. Additionally, if appointed counsel had inadequate resources to conduct a thorough investigation, his failure to uncover the new evidence before trial may be excusable. See, State v. Gilmore, 332 So.2d 789 (La. 1976).

III.

Accordingly, we remand the case for a hearing on the allegations of the motion for a new trial relative to threats and misconduct by Deputy Taylor. We conclude that the remaining allegations of the various motions for a new trial were correctly dismissed and need not be further examined.

Should the court find the allegations material and their late presentation excusable, it shall order a new trial. The right to appeal from an adverse ruling is reserved to defendant; barring such appeal, the conviction and sentence are affirmed. See, State v. Franklin, 353 So.2d 1315 (La. 1978).

REMANDED.

MARCUS, J., dissents from remand and assigns reasons.

BLANCHE and WATSON, JJ., dissent from remand.

MARCUS, Justice

(dissenting).

I consider that the ruling of the trial judge was correct. I dissent from the remand. I would affirm the conviction and sentence.

ON REHEARING

LEMMON, Justice.

We granted a rehearing to reconsider our previous action, in which we summarily ordered this matter remanded to the trial court for an evidentiary hearing on the defendant’s motion for a new trial. We now reinstate that order.

Defendant was convicted of first degree murder of a deputy sheriff, Robert Taylor, who was seeking to arrest defendant at the time of the shooting. During the trial the state offered evidence that defendant shot the deputy while defendant was forcibly resisting the deputy’s efforts to effect a lawful arrest. The defense evidence, consisting primarily of the testimony of the defendant and his wife, attempted to portray Deputy Taylor’s conduct as the unreasonable use of force against the defendant’s person, thereby justifying, or at least mitigating, defendant’s use of deadly force to repel Taylor’s unprovoked and unprivileged assault. See State v. Brown, 313 So.2d 581 (La.1975); State v. Thompson, 366 So.2d 1291 (La.1978).

To rebut this evidence the state presented the testimony of the sheriff for who Taylor had worked as a deputy. The sheriff testified that during Taylor’s five years with the department he had never received any complaints about abuse or mistreatment by Taylor or about Taylor’s excessive use of force in making an arrest.

After the trial which resulted in defendant’s conviction he allegedly discovered that the sheriff’s testimony was false. Since the sheriff’s testimony probably had a devastating effect on the credibility of defendant’s assertions of violent and aggressive behavior by Taylor, defendant moved for a new trial, seeking to present several witnesses who would testify that they had complained to the sheriff about Taylor’s brutality in the course of arrests on prior occasions. He also sought to present another witness who allegedly overheard Taylor say that “he would get the defendant, Roger Bryan, one way or another”.

The trial court should have conducted a hearing on the motion for new trial. The motion seeks to present arguably admissible evidence of Taylor’s general reputation and/or proclivity for violence. The state had initially placed at issue the question of Taylor’s general reputation in this regard, and the evidence sought to be presented at the hearing on the motion for a new trial could have impeached the sheriff’s testimony. Fundamental fairness dictates that the trial court hear the evidence and determine whether the newly discovered evidence (1) is admissible, (2) should have been discovered prior to trial by the exercise of reasonable diligence, and (3) probably would have changed the verdict.

We need not decide at this point whether evidence of assaults by Taylor against other persons being arrested would be admissible at a trial on the question of guilt or innocence as a proper method of proving his “dangerous character” or of proving that defendant’s apprehension was reasonable. See State v. Green, 335 So.2d 430 (La.1976); State v. Lee, 331 So.2d 455 (La.1976). However, during the hearing on the motion for a new trial the trial court should permit defendant to develop a full record concerning Taylor’s unjustified as-saultive behavior toward other persons being arrested, the defendant’s awareness (if any) of these prior assaults, Taylor’s general reputation for violence, and the defendant’s awareness of the deputy’s general reputation. Whether evidence of Taylor’s specific unprovoked acts toward others (if such evidence is in fact available) is admissible to prove that he acted with unprovoked violence on the occasion in question is obviously a difficult question which must be resolved based upon the particular facts of the case being tried, as is always the case when the probative value of evidence must be balanced against its tendency to mislead, confuse and create undue prejudice.

When the record has been completed, the trial court must determine the admissibility of the evidence, the diligence of counsel or lack thereof, and the probable impact of such evidence on the jury (that is, whether the evidence “would probably have changed the verdict”). See C.Cr.P. arts. 851 and 854. That determination, of course, will be subject to review by this court.

Accordingly, the order of this court on original hearing is reinstated, and the matter is remanded in accordance with that order.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents with reasons.

WATSON, J., dissents.

MARCUS, Justice

(dissenting).

As noted in my dissent on original hearing, I consider that the ruling of the trial judge was correct. Accordingly, I dissent from the remand. I would affirm the conviction and sentence.

BLANCHE, Justice

(dissenting).

In my view, this case should not have been remanded for a hearing on defendant’s motion for a new trial and I therefore respectfully dissent from the majority opinion for the following reasons.

The trial judge in this case was not required to hold a hearing on defendant’s motion for a new trial prior to ruling on that motion. As this Court recently noted in an unpublished portion of the opinion, “The method of hearing motions for a new trial is left to the discretion of the judge, and he need not delay his ruling for the purpose of further hearing or argument if the reading of the motion imparts to him sufficient knowledge to intelligently dispose of the matter.” State v. Carpenter, No. 67,558, 390 So.2d 1296, siting State v. Varnado, 154 La. 575, 97 So. 865 (1923). I would reverse our original order remanding defendant’s motion for a hearing because the trial judge could, on the face of the pleadings, intelligently rule on that motion. I would further find that the trial judge did not abuse his discretion in his denial of defendant’s motion.

This Court remanded the case for a hearing on the particular allegations in defendant’s motion for a new trial relative to threats and misconduct by the victim, Deputy Taylor. The pertinent allegations are all found in defendant’s First Supplemental Motion for a New Trial. In the first of these allegations, defendant alleges that newly discovered evidence will show that Taylor previously threatened defendant and threatened to get defendant. Assuming this allegation means that Taylor personally made threats to the defendant himself, I find that such evidence was necessarily available to the defendant at trial and is not, therefore, newly discovered evidence. State v. Lowe, 258 La. 1020, 249 So.2d 116 (1971). I would hold that the trial judge did not abuse his discretion in denying defendant’s motion for a new trial based on this allegation.

If I consider defendant’s allegation to be that the victim did not threaten defendant personally, but conveyed these threats to other individuals, even assuming evidence of these threats is newly discovered, I find that this allegation likewise does not establish a basis for granting a new trial. For the same reasons, and as discussed below, defendant’s remaining allegations at issue here do not entitle him to a new trial. Defendant’s remaining allegations all concern alleged complaints by particular individuals to the Sheriff of Union Parish or to the F.B.I. about Deputy Taylor’s conduct toward defendant or other individuals the victim’s alleged misconduct toward certain individuals and evidence that an individual heard Deputy Taylor say that he would “get” the defendant one way or another. Absent a showing that defendant was aware of the above threats or misconduct, this evidence would not have been admissible at trial.

It is settled law that evidence of the victim’s dangerous character or of his threats against the accused can be admitted to support a plea of self defense if the defendant first produces evidence of a hostile act or demonstration by the victim against the defendant at the time of the incident. La.R.S. 15:482; State v. Gomez, 365 So.2d 1313 (La.1978), reh. den. 1979. Defendant and his wife did testify at trial to overt acts or hostile demonstrations on the part of the victim against the defendant the night of the shooting. Once this overt act is established, evidence of the victim’s dangerous character or threats against the accused can be admitted either to show defendant’s reasonable apprehension of danger in order to justify his conduct, or to show who was the aggressor in the conflict. Gomez, supra.

If defendant seeks to introduce evidence in order to show defendant’s reasonable apprehension of danger, he must show that he knew of the victim’s prior acts of violence or reputation for violence at the time of the incident. State v. Bernard, 358 So.2d 1268 (La.1978). Defendant makes no allegation in his motion for a new trial that he was aware of Deputy Taylor’s alleged prior acts of violence or his reputation for violence. Absent a showing that defendant had such knowledge, the evidence at issue would be inadmissible at trial and could not serve as a basis for granting a new trial. State v. Lovett, 359 So.2d 163 (La.1978). However, even had defendant alleged that he was aware of the alleged prior acts of violence or threats, again, as noted above, this evidence would have been available to the defendant at trial and is necessarily not “newly discovered” by him and would not justify granting a new trial.

If the evidence of Deputy Taylor’s conduct would be introduced for the purpose of showing who was the aggressor in the conflict, only evidence of general reputation, not evidence of specific, acts or personal opinion, would be admissible. State v. Bernard, supra. The alleged “newly discovered” evidence in this case dealt with complaints by third persons of specific acts of Deputy Taylor consisting of threats by him toward defendant or of specific acts of his misconduct toward other individuals. This is not the type of general reputation evidence that would be admissible at trial to show who was the aggressor in the conflict. According to State v. Boss, 353 So.2d 241 (La.1977), general reputation evidence must be of the type described in La.R.S. 15:479: “Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him.” In State v. Frentz, 354 So.2d 1007 (La.1978), the Court noted that R.S. 15:479 character evidence is “the opinion (formed on hearsay it is true) by a member of the community exposed over an extended period of time to hearing the discussion (or lack of it) by other members of the community shared by himself and the person whose reputation is at issue.” Before such testimony can be elicited, defendant must first lay a foundation to show that the character witness is knowl-edgable of the victim’s reputation for character among his neighbors. State v. George, 346 So.2d 694 (La.1977). Defendant’s alleged newly discovered evidence would not have been admissible at trial as general reputation evidence under these principles and, therefore, should not serve as the basis for granting of a new trial.

In oral argument on rehearing before this Court, the state admitted that Sheriff Patterson, who testified at trial, was erroneous in his testimony that he had never received any complaint about Deputy Taylor’s conduct. In one of defendant’s allegations in his motion for a new trial, defendant stated that the Sheriff had given incorrect testimony to the effect that he had never received complaints about Deputy Taylor. Despite the state’s indication that defendant was correct on this issue, this evidence would not justify granting defendant a new trial, even assuming such evidence was newly discovered and could not have been previously discovered with the exercise of due diligence. The sole value of this evidence would be to show either that a complaint was made to the Sheriff about Deputy Taylor’s conduct, or to impeach the Sheriff’s testimony on this point. As discussed above, evidence of a complaint about the deputy’s conduct would not have been admissible at trial and would not justify a new trial. Although this evidence might have been used to impeach the testimony of the Sheriff, the impeachment would be as to a collateral, irrelevant matter (whether particular complaints were made to the Sheriff about the deputy’s conduct toward other individuals). This potentially impeaching evidence, even if “new discovered” and not susceptible of earlier discovery with the exercise of due diligence, is not of the sort that is “so material that it ought to produce a different result” from that of the original trial. State v. Bagley, 378 So.2d 1356 (La.1979). Therefore, in my opinion, the trial judge did not abuse his discretion in denying defendant’s motion based on this allegation.

For the above reasons, I would rule that the trial judge did not abuse his discretion in denying defendant’s motion for a new trial and could so rule on the allegations at issue without a hearing on that motion. I would reverse our original order remanding defendant’s motion for a hearing and affirm the trial judge’s ruling.

      . Defendant had previously been arrested for breaking into a cigarette machine and released on bail. After he was indicted, the amount of the bond was raised by $1000, and defendant was notified that he must post additional bail or be taken back into custody. The deputy was killed as he was attempting to take defendant into custody until defendant provided additional security for his release.

      . According to defendant’s version of the events leading to the shooting, Taylor broke into defendant’s home around midnight, kicking in the back door and dragging defendant from the bedroom by his hair. Defendant testified that when Taylor began to beat him without provocation, he armed himself with a nearby .22 pistol and shot only to prevent Taylor from continuing the beating.
      Although an officer may use reasonable force to effect a lawful arrest, C.Cr.P. art. 220 and R.S. 14:18(2), the officer may not employ unnecessary and unreasonable brutality in arresting. If the officer uses unreasonable force against a person who has submitted peaceably to an arrest, the person being arrested may defend himself. State v. Brown, above. The person may even kill, if necessary to prevent death or great bodily harm. See R.S. 14:20.
      Moreover, even if the evidence of the allegedly unprovoked and unprivileged assaultive behavior was not sufficient to establish justification, it was relevant for the purpose of presenting to the jury the theory that defendant was guilty only of manslaughter, by showing that the killing was committed in a “heat of passion” provoked by Taylor’s misconduct. See R.S. 14:31(1). See also State v. McAllister, 366 So.2d 1340 (La.1978) and State v. Peterson, 290 So.2d 307 (La.1974), discussing “heat of passion” and “provocation” as mitigating elements in the “nature of a defense”.

      . If the district attorney knew of evidence directly inconsistent with the sheriff’s testimony, and if the evidence creates a reasonable doubt not otherwise existing, a new trial will be required. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Sylvester, 388 So.2d 1155 (La.1980); State v. Toledano, 391 So.2d 817 (La.1980). Even if the existence of evidence were not know to the prosecution, the traditional new trial test of C.Cr.P. arts. 851 and 854 must be applied in light of a developed factual record.

      . In Louisiana character is not proved by showing specific acts, but rather by showing the person’s general reputation for the pertinent character trait. See R.S. 15:479. Compare F.R.Ev. 405(b); State v. Stevenson, 390 So.2d 1292 (La.1980) (Lemmon, J., dissenting).

      . Evidence of specific threats by a victim of a homicide against the defendant are admissible if “evidence” of a hostile demonstration by the victim has been offered. R.S. 15:482; State v. Green, above; State v. Lee, above. As this court said in State v. Green, above, at 433:
      “Evidence of the victim’s dangerous character or threats against the accused supports a plea of self-defense because it is relevant to show that the victim was the aggressor and because it is relevant to show that defendant’s apprehension of danger was reasonable.”

      . For an excellent discussion of the dimensions and complexity of the problem, see the majority and dissenting opinions of members of this court on original hearing and on rehearing in State v. Lee, above.

      . Defendant may appeal from an adverse ruling on his motion for a new trial. La.Const. Art. V, § 5 (1974); State v. Simmons, 328 So.2d 149 (La.1976). The state may also seek review of an adverse judgment. See La.Const. Art. V, § 5 (1974); State v. James, 329 So.2d 713 (La. 1976); C.Cr.P. art. 858.


text:
    STATE of Louisiana v. Larry DOKES.
    No. 80-KA-2404.
    Supreme Court of Louisiana.
    April 15, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan Kemp, Dist. Atty., Gordon Matheny, Abbott Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Thomas E. McDowell, Babovich, McDowell & Bukaty, New Orleans, for defendant-appellant.
   PER CURIAM.

On September 6, 1978, defendant Larry Dokes was charged by bill of information with distribution of marijuana, a violation of La.R.S. 40:966 A(l). The defendant was found guilty as charged by the unanimous vote of a jury of twelve, and was sentenced to five years at hard labor. On appeal, defendant urged seven assignments of error.

We have reviewed the defendant’s arguments relating to alleged trial errors and found them to lack merit. However, the remaining assignments, concerning the trial judge’s failure to comply with La.C. Cr.P. Art. 894.1, warrant a remand for re-sentencing.

In imposing sentence, the trial court in the instant case failed to comply with the sentencing guidelines and provisions of La.C.Cr.P. Art. 894.1. The trial judge’s reasons for imposing sentence as required by La.C.Cr.P. Art. 894.1 are an essential aid to this Court when reviewing a sentence for excessiveness and abuse of discretion. State v. Spencer, 374 So.2d 1195 (La.1979). Article 894.1 sets forth three factors which justify a sentence of incarceration and eleven factors which, although not excusing the defendant’s conduct, tend to lessen his culpability. The trial judge is required to state for the record both the considerations he had taken into account and the factual basis for the imposition of sentence, particularizing the sentence to the offender and to the offense. State v. Jackson, 360 So.2d 842 (La.1978).

We have repeatedly stated that, even without a formal contemporaneous objection, where the trial court has imposed a sentence without adequate compliance with the mandatory requirement of La.C.Cr.P. Art. 894.1 and the basis for the sentence does not appear from the record itself, the sentence must be set aside. State v. Scarborough, 359 So.2d 982 (La.1978); State v. Sepulvado, 359 So.2d 137 (La.1978). See also, State v. Gist, 369 So.2d 1339 (La.1979); State v. Gibson, 362 So.2d 769 (La.1978).

Accordingly, we affirm defendant’s conviction but vacate the sentence imposed and remand the case for re-sentencing in accordance with the law.


author: LEMMON, Justice. DIXON, Chief Justice DENNIS, Justice,

text:
    Louis MEYERS v. Norman BASSO.
    No. 80-C-1514.
    Supreme Court of Louisiana.
    May 18, 1981.
    Dissenting Opinion July 21,1981.

      Joseph P. Keogh & Stephen R. Wilson, of Keogh & Keogh, Ltd., Baton Rouge, for defendant-applicant.
    Rodney C. Cashe, Hammond, for plaintiff-respondent.
   LEMMON, Justice.

In this dispute between the clerk of the district court and the defendant in a tort action who had been cast in a trial court judgment for damages and costs of court in the district court, the following issues are presented: (1) whether the clerk of the district court can require the payment of accrued and unpaid costs by a defendant, after a final judgment of the district court has cast the defendant for court costs, but before the judgment has become definitive, and (2) whether the clerk can collect attorney’s fees incurred in a rule to determine defendant’s responsibility for the costs, when the defendant paid the court costs under protest and then filed the rule seeking reimbursement of the costs paid under protest.

I.

In the original tort action defendant Basso was sued for property damage caused by a boat operated by his son. Basso filed a request for trial by jury, which was granted. Following the jury verdict the trial court rendered judgment against Basso, and he appealed suspensively.

While the suspensive appeal was pending, the clerk of the district court demanded from Basso the sum of $804.85 in court costs in the trial court, threatening to institute proceedings under R.S. 13:843 if the costs were not paid. Basso paid the costs under protest and filed a “Motion for Reimbursement of Court Costs Paid Under Protest”. After a hearing the trial court denied the motion and awarded the clerk $500 for attorney’s fees in connection with the motion. The court of appeal affirmed, 388 So.2d 78, and we granted Basso’s application for certiorari. 390 So.2d 1344.

II.

The procedural scheme relative to the time of and the responsibility for payment of the costs of the trial court is not clearly defined. Generally, the clerk of the trial court may demand from the plaintiff a certain amount for advanced costs, which the clerk may distribute as expenses or fees become due. When the advanced costs are exhausted, the clerk may demand additional costs as necessary and may refuse to perform further functions in the proceeding until the costs for the function have been paid. R.S. 13:842. If accrued costs remain unpaid at the time the original cost advance has been exhausted, these accrued costs shall be paid by “the party primarily responsible therefor”. R.S. 13:843. Within 120 days after the final termination of the suit, the clerk shall either issue a refund to the plaintiff of any unused amount remaining in the cost advance or issue a demand for payment to the “party primarily liable” for any amount in excess of the-' cost advance.

Thus, the procedural scheme basically provides for the usual costs of the trial court to be paid in advance or as they accrue. The clerk may collect these usual costs either by demand (upon the plaintiff) for an advance deposit or by demand (upon the party primarily responsible) for accrued amounts in excess of the amount of the advance or advances.

This court has interpreted the term “party primarily responsible therefor” as meaning the plaintiff. In Crespo v. Viola, 152 La. 1088, 95 So. 256 (1922) the court held that the defendant owes no costs until he is cast, reasoning that the plaintiff brought the defendant into court involuntarily by provoking the litigation and that plaintiff should furnish the costs until it is otherwise decreed.

The plaintiff, therefore, is the party primarily responsible for paying the costs of the trial court, in advance or as the costs accrue, until a final judgment is rendered. However, if a suspensive appeal is taken from the final judgment, the plaintiff remains responsible for the accrued costs, at least as between the parties. Houssiere-Latreille Oil Co. v. Jennings-Heywood Oil Syndicate, 116 La. 347, 40 So. 727 (1906). Therefore, if the defendant has suspensively appealed from a final judgment, the clerk may require the plaintiff to pay accrued costs in excess of the amount deposited, even though the judgment has cast defendant for costs.

This case presents the issue of whether the clerk, after the defendant has been cast for court costs by a final judgment which has been suspensively appealed, may require the defendant (rather than the plaintiff) to pay the accrued costs of the trial court in excess of the amount deposited by the plaintiff. The court of appeal held that the question was moot, because the judgment in the original tort suit had become definitive while the appeal in this matter was pending. We disagree that the question is moot, because the award of attorney’s fees was based upon the trial court’s determination that the clerk had the right to demand these costs from the defendant.

We hold that the plaintiff is solely responsible for the usual costs of the trial court until the judgment casting the defendant for the costs becomes definitive. If the clerk fails to demand from the plaintiff payment of the usual court costs in advance or as they accrue and is allowed to collect these costs from the defendant after a final but not yet definitive judgment, then the defendant would be relegated to recover that payment from a perhaps insolvent plaintiff, if the defendant is successful on appeal. The clerk is adequately protected by the authority to demand from the plaintiff payment of the usual court costs in advance or as they accrue.

III.

If the costs in the present case demanded by the clerk from the defendant were the usual court costs, then the trial court erred in awarding attorney’s fees to the clerk in connection with the rule relative to collection of the costs. However, the trial court’s reasons for judgment indicate his impression that most of the costs demanded by the clerk were the costs of the jury requested by the defendant, but there are no documents or other evidence in the record to show what costs are the subject of the clerk’s demand. We could remand for a clarification of this point (assuming that a clerk can make a demand for jury costs under R.S. 13:843 and be entitled to collect attorney’s fees from the party who requested the jury trial), but we prefer to dispose of the attorney’s fees issue on the basis of burden of proof. Since the clerk demanded attorney’s fees under R.S. 13:843, it was his burden to support his demand by proving that he had furnished the party with an itemized account of the accrued costs, approved by the judge, as required by the statute. It was error to grant attorney’s fees in the absence of this proof.

Accordingly, we affirm that portion of the judgment of the court of appeal which declared moot the trial court’s dismissal of Basso’s motion for reimbursement of court costs paid under protest. We reverse that portion of the judgment of both lower courts which awarded attorney’s fees to the clerk of court. The costs in all courts attributable to Basso’s motion are to be equally divided.

DIXON, C.J., and DENNIS, J., dissent with reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent, believing that the jurisprudence interpreting “the party primarily liable” (R.S. 13:843) should be reexamined, and that the clerk should be able to recover attorney’s fees when he is sued for a return of costs paid, and that R.S. 42:261 E is probably unconstitutional.

DENNIS, Justice,

dissenting.

I respectfully dissent for the reasons assigned by Dixon, C. J.

      . The judgment was ultimately affirmed on appeal, except that the amount of the award was reduced. The court of appeal expressly affirmed that part of the judgment which cast Basso for all court costs in the trial court, but ordered that the costs of the appeal be evenly divided.

      . Basso also paid $625 as costs of the appeal, for which he was clearly responsible as appellant. See C.C.P. art. 2126. After the court of appeal modified the judgment and ordered that the costs of appeal be evenly divided, Basso was entitled to demand half of the costs of appeal from plaintiff or to receive credit in that amount when he satisfied the judgment in favor of plaintiff.

      .The procedure for the payment of the costs of an appeal has been simplified and clarified by 1977 amendments to C.C.P. art. 2126 and related articles. Under the present procedure the clerk of the district court estimates the costs of the appeal and notifies the appellant by registered mail, whereupon the appellant has a specified period of time to pay the estimated cost or to contest the amount of the estimate. See H. Lemmon and F. Maraist, Simplifying Appellate Procedure, 25 La.B.Jour. 193 (Dec. 1977). The sanctions provided when the appellant fails to pay the costs may be invoked by either the clerk or the appellee, and the clerk is thereby insured that costs can be collected by simple proceedings.

      . Of course, responsibility for and collection of special costs, such as jury costs, is the subject of special statutes, such as R.S. 13:3050 and 3105.

      . Of course, at this point (after a final judgment which has been suspensively appealed) the plaintiff may not recover from the defendant the costs advanced, since the final judgment awarding costs of the trial court to plaintiff has not become definitive.

      . R.S. 13:3050 requires the party requesting a jury trial to furnish a bond to cover the cost of the jury. If the jury cost was not paid, then the clerk could have proceeded on the bond.


author: CALOGERO, Justice.

text:
    INTERNATIONAL MATEX TANK TERMINALS v. SYSTEM FUELS, INC.
    No. 80-C-1927.
    Supreme Court of Louisiana.
    May 18, 1981.

      Herschel L. Abbott, Jr. and R. Patrick Vance of Jones, Walker, Waechter & Poi-tevent, Carrere & Denegre, Nat G. Kiefer of Kiefer, Glorioso & Fleming, New Orleans, for defendant-relator.
    Leon C. Vial, Hahnville, Charles Johnson of Coleman, Dutrey, Thomson, Meyer & Jerisich, New Orleans, for plaintiff-respondent.
   CALOGERO, Justice.

In this summary eviction proceeding we must determine whether defendant’s having filed a peremptory exception of no right of action simultaneously with the declinato-ry exceptions of lack of venue and lis pen-dens caused a waiver of the declinatory exceptions.

On July 8, 1980, plaintiff, International Matex Tank Terminals, filed a petition to evict the lessee, defendant System Fuels, Inc. On July 29, 1980, the day scheduled for the hearing of this summary proceeding, System Fuels filed the declinatory exceptions of lis pendens and improper venue and the peremptory exception of no right of action. The trial court sustained the declin-atory exceptions and International Matex filed an application for writs with the Court of Appeal to review the judgment. The Court of Appeal granted the writ and made it peremptory, stating:

“Respondent’s peremptory exception of no right of action constituted an appearance which resulted in a waiver of its declinatory exceptions of lis pendens and venue.”

We granted System Fuels’ writ application to review the action of the Court of Appeal. International Matex Tank Terminals v. System Fuels, Inc., 393 So.2d 104 (La.1981).

It is well settled that ordinarily all objections which may be raised through the declinatory exception are waived “when a defendant makes an appearance.” C.Civ.P. art. 925. However, C.Civ.P. art. 7 provides that “the pleading of other objections ..., the filing of the peremptory exception or an answer therewith when required by law, does not constitute a general appearance.” Foster v. Breaux, 260 La. 1112, 270 So.2d 526 (1972). Therefore, the question presented for our determination is whether the filing of the peremptory exception of no right of action with the declinatory exceptions of lis pendens and venue in this eviction proceeding was required by law. If so, defendant’s filing of the peremptory exception with the declinatory exceptions does not constitute a general appearance and effect a waiver of the declinatory exceptions. If not, then the filing of the peremptory exception with the declinatory exceptions did constitute a general appearance and did effect a waiver of the declinatory exceptions.

System Fuels points out that eviction proceedings are summary in nature (C.Civ.P. art. 2592(7); C.Civ.P. art. 4731) and that C.Civ.P. art. 2593, relating to summary proceedings, requires that peremptory exceptions be filed with the declinatory exceptions. Thus, relator argues, the filing of the peremptory exception with the declina-tory exceptions, as required by law, did not constitute an appearance by defendant so as to waive his declinatory exceptions.

International Matex does not dispute the fact that these proceedings are summary in nature. Rather, Matex argues that C.Civ.P. art. 2593 does not require the simultaneous filing of all exceptions.

C.Civ.P. art. 2593 provides in pertinent part as follows:

“Exceptions to a contradictory motion, rule to show cause, opposition, or petition in a summary proceeding shall be filed prior to the time assigned for, and shall be disposed of on, the trial. An answer is not required, except as otherwise provided by law.” (emphasis provided)

While it is true, as International Matex suggests, that C.Civ.P. art. 2593 does not expressly require the simultaneous filing of all exceptions, the effect or implication of the provision is that they must be filed together.

C.Civ.P. art. 2593 requires the filing of all exceptions prior to the trial. However, if a party were to file his declinatory exceptions and then later file his peremptory exceptions, the subsequent filing before a ruling on the declinatory exceptions, would constitute a general appearance and waiver of his declinatory exceptions. C.Civ.P. art. 925; C.Civ.P. art 7.

In Foster v. Breaux, supra, the defendant therein was faced with a similar problem. The defendant wanted to raise the peremptory exception of prescription grounded on the fact that the suit was filed in a court of improper venue and he was not timely served. Thus, defendant had to raise both the peremptory exception of prescription and the declinatory exception of venue. In Foster, this Court pointed out that since defendant had to file both exceptions, but the filing of the peremptory exception after the filing of the declinatory exception where the declinatory exception had not yet been ruled on would constitute a general appearance and waiver of the declinatory exception, defendant was “required by law” to file the exceptions simultaneously. Such a filing, where required by law, did not constitute a general appearance and effect a waiver of the declinatory exception. C.Civ.P. art. 925; C.Civ.P. art. 7.

In the present ease, defendant is required to file all his exceptions prior to the trial. C.Civ.P. art. 2593. However, he is also faced with other provisions that specify that the filing of the peremptory exception after the filing of the declinatory exception where the declinatory exception has not yet been ruled on constitutes a general appearance and effects a waiver of the declinatory exceptions. C.Civ.P. art. 7; C.Civ.P. art. 925. Therefore, we conclude that defendant herein, like the defendant in Foster, is required by law to file the peremptory exceptions and declinatory exceptions simultaneously, and such a filing does not constitute a general appearance or waive the declinatory exceptions. Otherwise, defendant would either waive its right to assert its declinatory exceptions or lose its right to raise its peremptory exceptions (by not filing them prior to the trial as required by C.Civ.P. art. 2593).

Plaintiff argues that the peremptory exceptions can be filed after disposition of the declinatory and dilatory exceptions. However, such a holding would be at cross purposes with the express nature of summary proceedings, that they are to be “conducted with rapidity” (C.Civ.P. art. 2591), and contrary to the express language of the code, that all exceptions “shall be filed prior to the time assigned for, and shall be disposed of on, the trial.” C.Civ.P. art. 2593.

Therefore, the Court of Appeal ruling reversing the trial court was incorrect and the filing of the peremptory exception of no right of action simultaneously with the dec-linatory exceptions of lis pendens and lack of venue, in this summary eviction proceeding, did not constitute a general appearance and waiver of the declinatory exceptions. Because the Court of Appeal ruled in favor of plaintiff on procedural grounds it did not act on the merit of plaintiff’s writ application insofar as that application questioned the correctness of the trial court ruling sustaining defendant’s exceptions of lis pen-dens and lack of venue. Therefore, we will remand the case to the Court of Appeal to enable the court to act anew on the writ application.

Decree

For the foregoing reasons, we reverse the ruling of the Court of Appeal and remand the case to that court for further consideration of defendant’s writ application on the merits.

REVERSED AND REMANDED.

LEMMON, J., does not take part.

       Judge Gerald P. Fedoroff, ad hoc of the Orleans Parish Civil District Court participated in this decision in place of Blanche, J., absent.


author:
MARCUS, Justice.
     LEMMON, Justice, CALOGERO, Justice,

text:
    STATE of Louisiana v. Edward J. SCHAFFNER.
    No. 80-KA-2227.
    Supreme Court of Louisiana.
    May 18, 1981.
    Dissenting Opinion May 19, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Mamoul-ides, Dist. Atty., Harry T. Hardin, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Jack Quarles, Robert Garrity of Indigent Defender Program, New Orleans, for defendant-appellant.
   MARCUS, Justice.

Edward J. Schaffner was charged by bill of information with armed robbery in violation of La. R.S. 14:64. After trial by jury, defendant was found guilty of simple robbery and sentenced to serve seven years at hard labor. Although defendant designated fifteen errors to be urged on appeal, he briefed and argued only Assignment of Error No. 10 in this court. Therefore, the remaining assignments of error are considered to have been abandoned.

In Assignment of Error No. 10, defendant contends the trial judge erred in refusing to give his requested special charge No. 1 relating to accomplice testimony to the jury.

Defendant’s requested special charge No. 1 read as follows:

The State has presented alleged accomplices of the defendant as witnesses. You, the jury, are further charged that an accomplice is defined as one who is associated with another in the commission of a crime and may be used as a witness. Whether the accomplice has been convicted or not, whether he has pleaded guilty or dismissed, or whether he be joined in the same Bill of Information or indictment with the person on trial or not, corroboration is desirable but it is not always indispensible. You may convict upon the uncorroborated testimony of an
accomplice, still you should act upon such testimony with great caution, subject it to careful examination in the light of the other evidence in the case, and you are not to convict upon such testimony alone, unless satisfied after a careful examination, if its truth, and also that you can safely rely on it. What the law means by corroboration of the testimony of an accomplice is not merely the corroboration of the accomplice’s narrative and the mere details of how the crime was committed but some real and independent corroboration intending to implicate the defendant in the commission of the offense charged. It is not sufficient to corroborate an accomplice as to the facts of the case. Generally, he should be corroborated as to some material fact which tends to prove that the accused was connected with the crime that’s charged.

The trial judge refused to give the requested special charge, finding it a “confused statement of the law.” Defendant noted his objection to the ruling of the court.

On the morning of March 8, 1979, a young male entered the Commercial Bank at 4937 Veterans Boulevard in Jefferson Parish, Louisiana, and revealed a gun to one of the bank tellers. He handed a plastic bag to the teller who placed money and a dye bomb in the bag. The lone gunman then took the bag and left the bank.

Officer Ken Meynard, responding to a call regarding the robbery, observed defendant walking through the parking lot of the Burger King located a half block from the bank. The officer exited his vehicle and ordered defendant to stop. He ex7 plained that there had been a bank robbery and asked defendant for identification. Defendant produced his Ohio driver’s license and told the officer he was just walking in the area. An elderly man then came from behind an apartment building and gave the officer a bag of bills stained with red dye that had been thrown over the back fence of the building. After calling for assistance, the officer further questioned defendant and learned that he was staying with a girlfriend at her apartment at 217 Hickory Avenue. Defendant was then turned over to another officer but was subsequently released when the bank teller stated that defendant was not the same man who had robbed her.

Officer Meynard, along with Detective Youngblood resumed the search of the area and noticed a 1974 green Ford Torino with an Ohio license plate and one headlight on backed into an apartment parking space. They radioed headquarters requesting registration information on the vehicle and learned that it was registered to defendant. Detective Beckendorf later arrived on the scene and had the vehicle towed to the auto pound. Other police officers then proceeded to 217 Hickory and were allowed into the apartment by defendant’s girlfriend. Although defendant was not there, the officers waited for his return. The telephone rang and his girlfriend indicated that defendant was on the line. Officer Bond was allowed to listen in on the conversation and heard defendant say that he did not want to turn himself in until he found out that Ben had been apprehended. The officers remained at the apartment until they were notified by radio that defendant had been arrested.

While in custody, defendant told Detective Youngblood that he had recently driven from Ohio to New Orleans with Ben Eicher, who was about eighteen years old, and was staying with a girlfriend at 217 Hickory. He also said, “I heard Ben robbed a bank and parked the car around the corner,” but denied that he had any personal involvement in the robbery.

Later that evening, Detectives Becken-dorf and Gordon went to the police auto pound to check the vehicle prior to obtaining a search warrant. They found the vehicle’s trunk pried open and observed pry marks on the inside lid of the trunk and tools that had apparently been used to force the trunk open from the inside.

Based on information from defendant, Ben Eicher was arrested a few weeks later in Ohio. He confessed to the robbery and agreed to testify against defendant. He stated that he drove down from Ohio with defendant and, after staying in New Orleans for a couple of days, they decided to drive to Mexico. They ran out of money in Texas so defendant sold his CB radio for gas money and they headed back to New Orleans. After arriving early in the morning, they went to several stores looking for a toy gun to use in a bank robbery that defendant was planning. Defendant obtained a silver cap gun from the last store they went to. The plan called for Eicher to enter the bank, show a teller the gun and request that money from both drawers be put into a bag. Defendant warned Eicher to instruct the teller not to remove the last bill in each compartment because such action would set off an alarm. Defendant also told Eicher not to hand the bag to the teller because doing so would give the teller the opportunity to place a dye bomb in the bag. After obtaining the money, Eicher was to walk out of the bank and run to defendant’s car which would be located near the bank. The trunk would be left slightly open and Eicher was to lock himself inside the trunk. Defendant would be sitting in a restaurant near the bank during the robbery and would walk to his car after observing Eicher exit the bank. He would then drive to Jackson, Mississippi, where he would stop the car to let Eicher out of the trunk. They would then drive to Memphis.

Eicher testified that he entered the bank as planned and had a teller fill up the bag with money. As he was running to the car, the bag started to smoke. He threw the bag down because he did not want to get the dye on his hands. He then entered the trunk of defendant’s car and shut the lid from the inside. Later that afternoon, he pried the trunk open and discovered he was in the auto pound. He closed the trunk and moving between cars made his way to the fence and then to the highway and went to the French Quarter. After staying in New Orleans for nearly two weeks, he hitchhiked back to Youngstown, Ohio, where he was subsequently arrested. Eicher admitted that the state made a deal to reduce his charge from armed robbery to simple robbery in exchange for testimony against defendant.

La.Code Crim.P. art. 807 provides generally that a requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

Where the state’s case relies upon the uncorroborated testimony of an accomplice, the trial judge should instruct the jury to treat such testimony with caution; however, such a cautionary instruction is not necessary in all cases in which an accomplice testifies on behalf of the state. Where there is material corroboration of the accomplice’s testimony, the cautionary accomplice instruction is not required. State v. Murray, 375 So.2d 80 (La.1979); State v. May, 339 So.2d 764 (La.1976); United States v. Lee, 506 F.2d 111 (D.C.Cir. 1974), cert. denied, 421 U.S. 1002, 95 S.Ct. 2403, 44 L.Ed.2d 670 (1975). The matter is one within the sound discretion of the trial court. As noted in Lee, it is enough if there is evidence that confirms material points in an accomplice’s tale, and confirms the defendant’s identity and some relationship to the situation.

In the instant case, the testimony of the accomplice, Ben Eicher, was materially corroborated. Eicher was identified by the bank teller as the gunman in the robbery. The money bag, which was stained from the dye bomb, was found on the route from the bank to defendant’s car. While at the auto pound, the trunk of defendant’s car was pried open from the inside, corroborating Eicher’s story that the robbery plan called for him to hide in the trunk of defendant’s car after robbing the bank. Defendant was observed by police walking in the parking lot of the Burger King near the bank, corroborating Eicher’s story that defendant planned to observe him leaving the bank while waiting at a restaurant. Furthermore, defendant was clearly identified by police at the scene when he was initially detained and his car was found near the bank backed up in an apartment parking space. In a phone conversation to his girlfriend, defendant was overheard by an officer stating that he did not want to turn himself in until he found out that Ben had been apprehended. Although Ben Eicher was not a suspect at the time defendant was arrested, defendant told police, “I heard Ben robbed a bank and parked the ear around the corner,” and provided information that led to the arrest of Eicher.

The evidence presented at trial materially corroborated the testimony of the accomplice. Thus, the trial judge did not abuse his discretion by refusing to give the special cautionary instruction requested by defendant. The question of the credibility to be attached to the testimony of the accomplice was adequately covered by the trial judge’s general charge on credibility of witnesses.

DECREE

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

LEMMON, J., concurs and assigns reasons.

GARRISON, J. ad hoc, concurs in the affirmation.

CALOGERO, J., dissents and assigns reasons.

LEMMON, Justice,

concurring.

I agree that there was corroboration of the accomplice’s testimony in this case. However, when there is an adequate jury instruction regarding bias, I do not believe that the trial court needs to give a special instruction warning the jury about an accomplice’s uncorroborated testimony.

In some jurisdictions the uncorroborated testimony of an accomplice cannot sustain a conviction. See Pollard v. State, 574 S.W. 2656 (Ark.1978); Jones v. State, 368 So.2d 1265 (Miss.1979). Louisiana, wisely in my opinion, has not adopted this rule. State v. Matassa, 222 La. 363, 62 So.2d 609 (1953); State v. May, 338 So.2d 764 (La.1976). In Louisiana the weight to be accorded to the testimony of an accomplice is determined by the jury (or the judge in a bench trial), which is the sole arbiter of the credibility of witnesses. See C.Cr.P. art. 802(3).

Therefore, a special instruction cautioning the jury to be wary of the testimony of an accomplice is not “an absolute necessity in all cases in which an accomplice testifies on behalf of the state”. See State v. Murray, 375 So.2d 80, 88 (La.1979). The trial judge, of course, must give an adequate instruction regarding the duty of the jurors to assess carefully the credibility of all witnesses and should give (as this trial judge did) some guidance in terms of various factors which may properly be considered, such as “his or her manner on the witness stand, the probability or improbability of his or her statement, the interest or want of interest he or she may have in the case and every fact and circumstance surrounding the giving of the testimony which may aid ... in weighing (his or her) testimony”.

Louisiana judges are statutorily prohibited from commenting to the juries on the credibility of witnesses. See C.Cr.P. arts. 772 and 806. This rule constitutes legislative recognition that it is exclusively the jury’s function to assess credibility'. See C.Cr.P. art. 802(3). Jurors can (and must) call upon the sum total of their experience with other human beings in performing this most difficult and critical task. Jurors do not need to be “warned” about the probability that an accomplice may have misrepresented the facts in an effort to save himself from a more severe penalty. R.S. 15:492 allows liberal cross-examination to expose the bias or interest of witnesses, including accomplices who become prosecution witnesses.

The jury in this case had all the information and guidance it needed to fairly perform its vital credibility assessment function without a special “accomplice instruction”. The question regarding the necessity of an “accomplice instruction” was within the sound discretion of the trial judge, and I find no abuse of that discretion under the circumstances presented here.

CALOGERO, Justice,

dissenting.

I dissent from the majority opinion because I do not believe that there was materially corroborating evidence of the accomplice’s testimony and, therefore, it was error for the trial judge to refuse to give defendant’s requested cautionary accomplice instruction to the jury, or at least a similar one.

While the majority correctly points out that the cautionary accomplice instruction is not required if there is evidence that confirms material points in an accomplice’s tale, and confirms the defendant’s identity and some relationship to the situation, I disagree with the majority that such evidence was presented in this case. Defendant was observed in the parking lot of a Burger King Restaurant near the bank shortly after the robbery, but his presence there was explained by the fact that he was residing at an apartment nearby. Defendant’s presence near the bank can hardly be considered corroborative of the fact that he was involved in the robbery under these circumstances. Since there was no evidence corroborating the accomplice’s testimony that defendant was involved in the bank robbery the requested jury instruction should have been given.

       Judges Jim Garrison, Lawrence A. Chehardy and Denis A. Barry of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Marcus, Blanche and Lem-mon.

      . State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . The trial judge’s general charge contained the following provision regarding the credibility of witnesses:
      You find from the evidence or lack of evidence what facts have been proven, and what facts have not been proven. For this purpose, you are the sole judge of the credibility of the witnesses and the weight to be given their testimony. In determining the credibility of witnesses you may take into account his or her manner on the witness stand, the probability or improbability of his or her statement, the interest or the want of interest he or she may have in the case, and every fact and circumstances surrounding the giving of the testimony which may aid you in weighing their testimony. If you believe that any witness in the case either for the State or defense has willfully and deliberately testified falsely to any material fact for the purpose of deceiving you, then I charge you that you are justified in disregarding the entire testimony of such witness as proving nothing and unworthy of belief.