author: MARCUS, Justice. LEMMON, Justice, WATSON, Justice,

text:
    STATE of Louisiana v. Valvis V. KIMBLE. (2 cases)
    Nos. 81-K-1902, 81-K[A]-2179.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 5, 1982.

      Robert E. Tillery, Baton Rouge, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Wiley Dial, Asst. Dist. Attys., for plaintiff-respondent.
   MARCUS, Justice.

Valvis V. Kimble was charged by bill of information in the district court with operating a motor vehicle while intoxicated, second offense, in violation of La.R.S. 14:98. Defendant filed a motion to quash the information on the ground, inter alia, that the time limitation for commencement of trial after institution of prosecution against him for the same offense in the city court had expired. After a hearing, the motion was denied. The matter then proceeded to trial. After a bench trial, defendant was found guilty as charged. Prior to sentencing, we granted defendant's application for certio-rari, 406 So.2d 590, to review the correctness of the ruling of the trial judge denying defendant’s motion to quash.

On December 30, 1979, defendant was arrested for operating a motor vehicle while intoxicated in violation of Baton Rouge City Code § 11:140 (ORD. No. 2550, § 1, 9-23-70). In connection with his arrest, defendant was issued a “Uniform Traffic Ticket and Complaint Affidavit” bearing No. 82545. On the same day, defendant posted an appearance bond securing his presence in the Baton Rouge City Court on February 14, 1980. File No. 87873 was assigned to this case. On February 14, 1980, the city prosecutor moved the court to transfer the case to the district court believing it to be a third offense over which the city court had no jurisdiction. The city court judge ordered the matter transferred to the district attorney’s office for the Nineteenth Judicial District Court. On January 8, 1981, the district attorney filed the instant bill of information charging defendant with operating a motor vehicle while intoxicated, second offense, in violation of La.R.S. 14:98.

Defendant contends the time limitation for commencement of trial after institution of prosecution had expired. He argues that prosecution was instituted in the city court on or before February 14,1980. He further argues that trial was not commenced within one year from the date of institution of the prosecution; therefore, there can be no prosecution against him for the same offense in the district court.

La.R.S. 13:1894.1 provides in pertinent part:

Notwithstanding any other provision of law to the contrary, including the provisions of R.S. 13:1871, on and after July 29, 1970, prosecutions in any city, parish or municipal court, the city, municipal and traffic courts of the city of New Orleans excepted, based on or arising out of the operation of a vehicle by a person while intoxicated may be charged and prosecuted under the provisions of R.S. 14:98 or under any applicable city, parish or municipal ordinance which incorporates the standards and elements of the offense of driving while intoxicated contained in R.S. 14:98... .
For purposes of this Section all city, parish and municipal courts shall have concurrent jurisdiction with the district courts over violations otherwise subject to their jurisdiction provided for by R.S. 14:98, except in those cases wherein the person or defendant is charged as a third or subsequent offender under the provisions of R.S. 14:98(D) and (E). If the charge is for a third or subsequent offense, the prosecution shall be had only in the district court and the defendant shall have the right to a trial by jury. . . .
... All such charges filed under the provisions of this Section shall be on affidavit and such charges shall be filed and prosecuted by the city attorney or the city prosecutor when said charges are filed because of violations of any city, parish or municipal ordinance occurring within the territorial limits of the city or municipality and by the district attorney or his representative when said charges are filed because of violations of R.S. 14:98 occurring in or outside of such territorial limits of the city or municipality.

The above statute provides for prosecutions in city courts for operating a motor vehicle while intoxicated under R.S. 14:98 or under a city ordinance which incorporates the standards and elements of R.S. 14:98. For the purposes of this section, city courts have concurrent jurisdiction with the district courts over violations of R.S. 14:98, except in those cases wherein the person is charged as a third or subsequent offender under R.S. 14:98(D) and (E). Hence, the city court had concurrent jurisdiction with the district court in the instant case.

La.Code Crim.P. art. 382 provides:

A prosecution for an offense punishable by death, or for an offense punishable by life imprisonment, shall be instituted by indictment by a grand jury. Other criminal prosecutions in a district court shall be instituted by indictment or by information.
A prosecution for violation of an ordinance shall be instituted by affidavit. Other criminal prosecutions in a city court and prosecutions in a parish court shall be instituted by affidavit or information. Criminal prosecutions in a juvenile court or family court shall be instituted by affidavit, information, or indictment.

La.Code Crim.P. art. 578 provides in pertinent part

Except as otherwise provided in this Chapter, no trial shall be commenced:
(3) In misdemeanor cases after one year from the date of institution of the prosecution.

La.Code Crim.P. art. 581 provides:

Upon the expiration of the limitations established by this Chapter, the court shall, upon motion of the defendant, dismiss the indictment. This right of dismissal is waived unless the motion to quash is made prior to trial.
If the indictment is dismissed under this article, there shall be no further prosecution against the defendant for the same or a lesser offense based on the same facts.

La.R.S. 13:1894.1 requires that “[a]ll ... charges ... shall be on affidavit.” See also La.Code Crim.P. art. 382. La.Code Crim.P. art. 385 provides:

An affidavit is a written accusation of crime made under oath and signed by the affiant. It must be filed in open court in a court having jurisdiction to try the offense, or in the office of the clerk thereof. (Emphasis added.)

In the instant case, defendant was never charged by affidavit. Under R.S. 32:398.4, a traffic ticket may be sufficient to institute prosecution if it is “sworn to” and includes information necessary to charge a person with an offense. The Uniform Traffic Ticket and Complaint Affidavit issued to defendant is in the form of an affidavit. It is a written accusation of crime which adequately informs defendant of the crime for which he is charged. However, the accusations in the ticket, although signed by the arresting officers, were not made under oath or sworn to. Hence, the traffic ticket is not an affidavit and is thus insufficient for the purpose of instituting prosecution. The fact that defendant was arrested and ticketed is of no moment. The purported transfer from the city court to the district attorney’s office was merely a matter of bookkeeping. Since prosecution was never instituted in the city court, the time limitation for commencement of trial after institution of prosecution had never commenced to run. Accordingly, prosecution was timely instituted when the bill of information was filed in the district court on January 8, 1981, less than two years after the offense was committed. La.Code Crim.P. art. 572. Hence, this contention is without merit.

The other contentions urged by defendant are likewise without merit. He first argues that since the city court and district court have concurrent jurisdiction, the city court, being the first to obtain jurisdiction, retained jurisdiction to the exclusion of the district court. In view of our finding that prosecution was never instituted in the city court, we do not reach this issue. Next, defendant contends that the district court lacked jurisdiction over his person because he was never issued a summons nor arrested for violation of La.R.S. 14:98. A court, however, also acquires jurisdiction over the person of the defendant by the filing of a bill of information. State v. Polk, 258 La. 738, 247 So.2d 853 (1971); State v. Grey, 257 La. 1070, 245 So.2d 178 (1971). Defendant was charged by information with operating a motor vehicle while intoxicated in violation of La.R.S. 14:98. Hence, the district court had jurisdiction over his person. Finally, defendant argues that the district court failed to charge him by affidavit as required by La. R.S. 13:1894.1. Criminal prosecutions in a district court other than those for an offense punishable by death or for an offense punishable by life imprisonment, shall be instituted by indictment or by information. La.Code Crim.P. art. 382. Hence, defendant was properly charged in the district court by information.

In sum, the trial judge correctly denied defendant’s motion to quash.

DECREE

For the reasons assigned, the application for a writ of review in No. 81-K[A]-2179 is denied; the writ previously granted in No. 81-K-1902 is recalled and vacated; the case is remanded to the district court for further proceedings in accordance with law.

CALOGERO, J., concurs for reasons assigned by LEMMON, J.

LEMMON, J., concurs and assigns reasons.

WATSON, J., dissents and assigns reasons.

LEMMON, Justice,

concurring.

Even if the prosecution in city court had been properly instituted, the state’s attempted transfer to district court clearly signaled the intent to abandon the prosecution in city court. The state’s motion to transfer, granted by the city judge, constituted a dismissal of the prosecution in city court.

After that dismissal (which was not for the purpose of avoiding C.Cr.P. Art. 578’s time limitation for commencement of trial), prosecution was timely instituted in the district court by the filing of the information within two years of the offense. C.Cr.P. Art. 576.

WATSON, Justice,

dissenting.

The State cannot rely upon the City’s negligent failure to have the “Uniform Traffic Ticket and Complaint Affidavit” notarized or signed by some person authorized to administer oaths to avoid the time limitation within which to timely commence trial.

Therefore, I respectfully dissent.

      . In addition to applying for a writ of review (No. 81-K-1902) under our supervisory jurisdiction, defendant sought review under our appellate jurisdiction (No. 81-K[A]-2179). Since defendant was convicted of a misdemeanor which carries a penalty that does not exceed a fine of $500 or imprisonment of more than 6 months, there is no right of appeal. La.Const. art. 5, § 5(D). Accordingly, defendant’s appeal will be treated as an application for a writ. La.S.Ct.Rule 1, § 11. Since both applications involve identical arguments, they have been consolidated for review.

      . La.Code Crim.P. art. 572 provides in pertinent part:
      No person shall be prosecuted, tried, or punished for an offense not punishable by death unless the prosecution is instituted within the following periods of time after the offense has been committed:

      (3) Two years, for a misdemeanor punishable by a fine or imprisonment or both; ....

      . Under La.Const.Art. V, § 16(A) (1974), the city court lacked jurisdiction over a felony charge of third offense driving while intoxicated, which the city prosecutor believed to be the offense with which defendant would be charged in district court.


source: Caselaw Access Project

author:
SAVOIE, Justice Ad Hoc.
     DENNIS, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Gary L. DAVIS.
    No. 81-KA-1917.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Walter P. Reed, Abbott J. Reeves, Peter J. Garcia, Asst. Dist. At-tys., for plaintiff-appellee.
    George C. Ehmig, Gretna, for defendant-appellant.
   SAVOIE, Justice Ad Hoc.

On January 22, 1981, a Grand Jury Indictment was filed against Gary L. Davis, the defendant herein, thereby charging four separate violations of La.R.S. 40:967 by the unlawful distribution of cocaine on June 2, 1980, and June 25, 1980, and the unlawful distribution of marijuana on July 22, 1980, and July 28, 1980. The defendant pled not guilty to all four counts of the indictment and filed a Motion to Compel Disclosure of the Identity of the Confidential Informant. On May 12, 1981, the trial court heard and denied defendant’s Motion to Compel Disclosure of the Identity of the Confidential Informant and the defendant thereupon exercised his right to a trial by jury. The jury returned unanimous guilty verdicts against the defendant on Counts one, two, and three, and found the defendant guilty by a vote of eleven to one on Count four. On June 18, 1981, the trial court sentenced the defendant to serve a period of seven and one-half years at hard labor on each of the four counts on which he was found guilty, and ordered the sentence imposed to run concurrently. The defendant appeals his conviction arguing each of his three assignments of error.

Sergeant George Walker of the Louisiana State Police testified that as an undercover agent, he made four separate purchases of illegal drugs from the defendant while they were in the presence of an unidentified confidential informer. On June 2, 1980, at approximately 5:00 P. M., Walker was in the presence of this confidential informant when the informant pointed out the defendant as he was cleaning out his vehicle on Monroe Street in Covington. The informant indicated that the defendant was a person from whom Walker could purchase drugs. The informant introduced the defendant to Walker, and Walker asked the defendant if he could buy something. The defendant replied that he had some cocaine but only enough for himself. Walker asked if he could “score” a little of it anyway and the defendant pulled out a black pouch with a vial inside it. He then poured some white powder from the vial into the silver wrapping of an old cigarette package which he retrieved from the ground beside defendant’s vehicle. Walker paid the defendant $10.00 and told him he would like to score some more if this stuff was any good. Walker subsequently placed this powder in a special envelope and turned it over to the Louisiana State Police Crime Unit. On July 22, 1980, at approximately 2:20 P. M. Walker purchased a bag of marijuana from the defendant for $20.00. On June 25,1980, at approximately 3:20 P. M. Walker purchased cocaine from the defendant at his residence for $20.00. On July 28, 1980, at approximately 2:40 P. M. Walker purchased some hashish from the defendant for $20.00. The confidential informant was present during these three transactions. Each time Walker placed the substance in a marked envelope and submitted it to the Louisiana State Police Crime Unit for analysis. Results of the analyses revealed that the substances were cocaine, marijuana and hashish.

The defendant testified on his own behalf. He denied ever seeing Sergeant Walker before he met him in court for trial. He denied selling marijuana or cocaine to Walker or anyone else although he admitted smoking marijuana. He claimed that the police have been continually harassing him in an effort to obtain information on other dealers in narcotics and that they were trying to frame him.

ASSIGNMENT OF ERROR NO. 1

“The court committed reversible error in failing to order the state, prior to trial, to disclose the identity of the confidential informant ...” The Louisiana Supreme Court has recognized the informer privilege. On the question of whether the defendant can overcome the informer privilege and learn the name of the confidential informant, the leading case of State v. Dotson, 260 La. 471, 256 So.2d 594, 1971, Cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173, 1972, shows that the Louisiana Supreme Court has adopted a strict Roviaro balancing test.

In State v. Rhodes, 308 So.2d 770, 1975, the Louisiana Supreme Court reiterated its holding in Dotson, emphasizing that the burden is on the defendant to show exceptional circumstances warranting disclosure.

In State v. Santos, 309 So.2d 129, 1975, the Supreme Court held that a defendant must show that disclosure of the informant’s identity is essential for his defense on the merits or for his grounds for motion to suppress.

In the case of State v. Williams, 347 So.2d 184, 1977, an informant and his wife accompanied a New Orleans narcotics agent to a local bar, where the informant introduced the defendant to the agent. Pretending to use their combined resources, which was really marked money, the informant and the agent purchased heroin from the defendant. At the trial, the defense counsel repeatedly tried to learn the name of the informant, but the trial judge sustained the state’s objection to this inquiry. Relying on Dotson, the court noted that defense counsel had failed to make known to the trial judge the reason for his request for disclosure of the identity of the informant, or how it would affect his defense. Since the burden is on the defendant to show exceptional circumstances which would justify disclosure, the trial judge did not abuse his discretion in denying this discovery to the defendant.

One can conclude from the foregoing that there is a strong public policy in favor of protecting the identity of confidential informants in the State of Louisiana. (For an excellent analysis of this matter, see “DEFENDANT’S RIGHT TO CONFIDENTIAL INFORMANT’S IDENTITY” by Michael D. Browers, Vol. 40, La. Law Review, P. 147, et seq.)

The state has thus followed the Roviaro case (supra) which is grounded on the “fundamental requirements of fairness”. The key language in the Roviaro case is, as follows:

“The problem is one that calls for balancing the public interest in protecting the flow of information against an individual’s right to prepare his defense. Whether a proper balance renders non-disclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony and other relevant factors”.

Further, the courts have placed a heavy burden on the accused to specify concrete reasons why he needs to know the identity of the informant. It must also be noted that should the defendant show sufficient grounds for his requested disclosure, it will be reversible error for the trial court to fail to order such disclosure.

Roviaro and the eases which follow it have given us certain outlines in which to operate. At one end of the spectrum is the “mere tipster” cases. It is well settled that the Roviaro principle does not require disclosure and production of such an informant. At the other end of the spectrum are other cases such as Roviaro, itself, in which the informant has played a crucial role in the alleged criminal transaction, and disclosure and production of the informant are required to insure a fair trial. Additionally, the burden of proving why he needs to know the identity of the confidential informant is placed on the defendant. In other words, the defendant must convince the court that the informant may be able to give testimony which is necessary to a fair determination of the issue of guilt or innocence. Thus, the present case must be examined in the light of the outlines laid down in the Roviaro case and subsequently followed by this State Supreme Court in the cases of State v. Dotson, State v. Santos, and State v. Williams, (supra)

In the present case, the issue presented appears to be whether it was an abuse of discretion for the trial court to determine that the defendant did not meet his burden of demonstrating exceptional circumstances which would warrant disclosure of the confidential informant. The defendant argues in his brief:

“Finally, we call the court’s attention to the fact that the unidentified, confidential informant, was present and participating in each transaction for which the defendant is charged and the defendant should have been given an opportunity to interrogate this informant with a view to the possible defense advantage of the informant’s testimony. It is conceivable that the confidential informant, the only witness to the transaction, would have testified contrary to the state’s interest. The defendant should have been given an opportunity to determine this.”

With this statement, we must disagree. The record does indicate that the confidential informant was present in at least three of the four transactions. There is, however, nothing to indicate in the record that the confidential informant was a participant therein. The participants in this transaction were Sergeant Walker and the defendant. The case at hand is not a “mere tipster” case, neither is it a case in which the informant has played a crucial role in the alleged criminal transaction. We agree with the trial judge that the defendant failed to bear the burden of demonstrating exceptional circumstances pertaining to his defense which would gain the disclosure of the identity of the confidential informant. In the case of State v. James, 396 So.2d 1281 (La.1981) this court stated that the trial court is accorded great discretion in making the determination of whether or not to disclose the identity of a confidential informant. Under the facts of this case, we do not believe that the trial judge abused this discretion.

ASSIGNMENT OF ERROR NO. 2

“The court committed reversible error in allowing the physical evidence to be introduced into evidence in view of the many missing links in the chain of evidence”.

In the case at hand, Sergeant Walker recognized and identified the four envelopes containing the alleged contraband. As to count 1 of the indictment, Mary Sue Brown, of the Louisiana State Police Crime Laboratory, identified S-l and S-l-A and testified that it was submitted by Sergeant Walker after which it was placed in the evidence room and signed out only by herself after which it was returned to the evidence room in the condition in which she viewed it in the courtroom. Sergeant Walker identified S-l — A as the substance which the defendant, Gary Davis, had sold to him and which he submitted to the crime lab in the envelope in which it was still placed.

As to count 2 of the indictment, Mr. Jerry Harrison testified that the evidence marked S-2-A and B for identification was submitted on July 24, 1980, at 10:05 A. M. and that the crime lab records indicated that Mr. Harrison was the only person who signed out for the evidence after it was locked in the evidence room. He further testified that the repacking envelope which he filled and sealed with the special tape had not been disturbed. Sergeant Walker identified S-2-A as the envelope in which he put the marijuana and submitted to the crime lab.

As to count 3 of the indictment, Mrs. Mary Sue Brown, of the Louisiana State Police Crime Laboratory, identified S-3, S-3-A and S-3-B and testified that she checked out this evidence, examined it and resealed it. Sergeant Walker identified S-3-B as the substance that the defendant, Gary Davis, sold to him and which he submitted to the crime lab.

As to count 4 of the indictment, Mr. Jerry Harrison of the Louisiana State Police Crime Laboratory, testified that the evidence, marked S — 4^A and B for identification was submitted by Sergeant Walker on July 29,1980, at 11:45 A. M. and kept in the evidence room and that no other persons signed it out. Sergeant Walker identified S-4-B as the object that the defendant sold to him and which he submitted to the crime lab.

The law relative to the defendant’s contention is, as follows:

“To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered into evidence. State v. Paster, 373 So.2d 170 (La.1979); State v. Drew, 360 So.2d 500 (La.1978). A continuous chain of custody is not essential to enable the state to introduce physical evidence as long as the evidence as a whole establishes that it is more probable than not that the object introduced was the same as the object originally seized by the officer. State v. Guzman, 362 So.2d 744 (La.1978)”. State v. Godeaux, 378 So.2d 941 (La.1980).

The evidence was positively identified by Sergeant Walker. Additionally, the testimony of Sergeant Walker, Mr. Harrison and Mrs. Brown make it more probable than not that the evidence introduced relative to all four counts was the same as that sold to Sergeant Walker and submitted by him to the State Police Crime Laboratory. This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

“The court committed reversible error in denying defendant’s motion for a mistrial after the district attorney had proceeded to question the defendant relative to other arrests and confrontations with the police on matters unrelated to the crimes for which he was being tried, particularly, since no Prieur notice had been given.”

The reading of the record reveals that the mentioning of other crimes and other arrests was initiated on direct examination by defense counsel of defendant. The question of previous arrests was raised by defendant himself in response to a question by defense counsel. Defense counsel’s question was:

“Alright, how many times have the police authorities asked you to become an informant for them?”

In response to this question, the defendant brought out two different instances in which he was arrested relative to the possession of drugs. (R., Tr., Vol. II, Pp. 254-255) Defendant’s responses were in the nature of claiming constant harassment by the police. He also alleged that the police were attempting to frame him, that police had burst into his home without a search warrant, and other allegations of that nature. Cross-examination by the state was limited to rebuttal of the allegations made by the defendant either on direct examination by his defense counsel or on matters brought up by the defendant himself. The testimony, which defendant argues in his brief is prejudicial, was not elicited by cross-examination by the state. The defendant himself gave unresponsive answers to the state’s questions, volunteering in lieu of responsive testimony, the irrelevant and prejudicial answers on which he now asks reversal.

The state has the right to rebut evidence of these by the defendant. Rebutting evidence is that which is offered to explain, repel, counteract or disprove facts given in evidence by the adverse party. (State v. Constantine, 364 So.2d 1011, La. 1978).

Since the testimony relied on was initiated by the defendant himself and since the defendant waived this argument on appeal by failing to contemporaneously object to the line of questioning and further, since the state, in its cross-examination, sought only to rebut the evidence which was offered by the defendant and, therefore, did not exceed the permissible scope of cross-examination or rebuttal evidence, this assignment is without merit.

For the above and foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.

DENNIS, J., dissents with reasons.

DENNIS, Justice,

dissenting.

I respectfully dissent. Defendant carried his burden of demonstrating exceptional circumstances warranting disclosure of the informant’s identity in the absence of specific countervailing factors shown by the state.

       Judges Shortess, Carter and Savoie of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon, joined by Associate Justices Calogero, Marcus and Dennis.


author: CALOGERO, Justice .

text:
    STATE of Louisiana v. Alvin JOHNSON.
    No. 81-KA-1981.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 5, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Victor Ortiz, Louise Korns, J. Kevin McNary, Asst. Dist. Attys., for plaintiff-appellee.
    J. Donice Alverson, New Orleans, for defendant-appellant.
   CALOGERO, Justice .

In this appeal from a conviction of the crime of simple robbery, we entertain defendant’s protest that his taking the dropped purse of a woman who fought him as he beat and attempted to rob the woman’s female companion was not “theft . . . by use of force or intimidation ” as required by La.R.S. 14:65.

Defendant Alvin Johnson was tried before a six person jury and found guilty as charged of simple robbery. He was sentenced to serve three years’ imprisonment in parish prison. On appeal, defendant urges two assignments of error.

On June 26, 1979, at approximately 9:10 p. m., two young women were standing at a bus stop on Basin Street in the City of New Orleans. One of the women, Ms. Flieger, testified that a black male approached them from Iberville Street, stopped behind them, and leaned against the building. About thirty seconds later, he started to walk away, then turned around and started beating on the other woman and trying to get the purse that was under her arm. Ms. Flieger went to assist her friend and commenced hitting and kicking the assailant. The friend got away and ran across the street. Ms. Flieger then kicked the assailant and he fell down.

She stated that she “thought he was going to beat me,” so she began to run towards Canal Street, thinking he was going to come after her. After taking ten to fifteen steps, she realized that he was not chasing her so she stopped and turned around. At that moment, she realized that she had dropped her purse during the scuffle, and she saw the assailant picking it up. She ran towards the man, and chased him until he entered the courtyard of the Iber-ville Housing Project. At that point, a cab driver picked her up and drove her around the corner to a police officer’s car. She described to the officers the man who stole her purse. They radioed the description to other officers in the area. About ten or fifteen minutes later, a second police car drove up with a man in the back seat. Ms. Flieger identified that man, the defendant herein, as the person who had committed the crime.

Thereafter defendant was charged with the offense of simple robbery.

Assignment of Error No. 1

By this assignment of error, defendant contends that the prosecution failed to prove an essential element of the crime of simple robbery, that is, “use of force or intimidation.”

At the time the offense was committed, La.R.S. 14:65, with which defendant was charged, defined simple robbery as follows:

Simple robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.
Whoever commits the crime of simple robbery shall be imprisoned, with or without hard labor, for not more than seven years.

Defendant argues that he should not have been found guilty of simple robbery because he only stole Ms. Flieger’s purse, which was not on her person or within her immediate control at the time he took it; the only force or intimidation employed, as between him and Ms. Flieger, was that used upon him by her.

Addressing a similar argument in State v. Mason, 403 So.2d 701 (La.1981), this Court affirmed the defendant’s conviction for simple robbery where the defendant stole the victim’s purse from her home on his way out of the house after a rape attempt of the victim had been interrupted by the victim’s son. The Court found that but for the prior acts of violence and aggression towards the victim, the theft would not have been accomplished. The Court therein held:

By providing a more severe grade of theft for those instances in which a thief uses force or intimidation to accomplish his goals, the legislature apparently sought to emphasize the increased risk of danger to human life posed when a theft is carried out in face of the victim’s opposition. Because the possibility of such a violent confrontation may exist in situations other than those where property is taken directly from the person of another, it has been recognized that it is sufficient for robbery that the property taken be sufficiently under the victim’s control, such that, had the victim not been subjected to violence or intimidation by the robber, he could have prevented the taking. In addition, most jurisdictions have not required that the defendant’s acts of violence or intimidation be done for the very purpose of taking the victim’s property; rather, it is enough that he takes advantage of a situation which resulted from the prior use of force or intimidation. (Citations omitted.)

Likewise, in the present case, if it were not for the defendant’s violent attack on Ms. Flieger’s friend, Ms. Flieger would not have had cause to assist her friend in an attempt to ward off the attacker and protect their belongings. Furthermore, Ms. Flieger testified that she dropped her purse during the scuffle with the assailant, and it was only because she thought he was going to chase her that she ran from the scene leaving her purse behind. Thus, as stated in Mason, “had the victim not been subjected to violence or intimidation by the robber, [she might have] prevented the taking.” It is the increased risk of danger to human life caused when a theft is attempted in the face of the victim’s opposition that caused the legislature to differentiate between robbery and mere theft. That increased danger was obviously present here.

This assignment lacks merit.

Assignment of Error No. 2

By this assignment of error defendant contends that his sentence to three years’ imprisonment is excessive and that the trial court failed to comply with the provisions of La.C.Cr.P. art. 894.1.

La.C.Cr.P. art. 894.1 sets out the general guidelines which must be followed by the trial judge in determining what sentence is appropriate in each case. It has consistently been held that the trial court need not articulate every aggravating and mitigating circumstance recited in Article 894.1, provided the record reflects that the court adequately considered these guidelines in particularizing the sentence to the defendant and to his conduct. State v. Vaughn, 378 So.2d 905 (La.1979); State v. Franks, 373 So.2d 1307 (La.1979).

In imposing a three year prison sentence, the trial judge stated:

I’m in receipt of the pre-sentence investigation in this case. Frankly, the department has recommended against any type of probation, and I agree. It’s just added up to be too many offenses, Mr. Johnson, including in the past, the conviction for theft, aggravated assault, and then this offense which the jury found you guilty of.

Although the trial judge’s brief statement standing alone would not fulfill the requirements of La.C.Cr.P. art. 894.1, we conclude that the record in this case clearly supports the sentencing choice. The sentencing judge presided over the defendant’s trial and was quite familiar with the defendant’s criminal conduct in the perpetration of this offense, which caused and threatened serious harm to these two women. Additionally, the record reflects that the trial judge was aware of the fact that defendant had been previously convicted of two prior offenses, theft and aggravated assault.

The trial judge had the discretion to sentence the defendant up to seven years at hard labor under La.R.S. 14:65. Defendant’s three year sentence to parish prison was closer to the minimum end of the statutory range than to the maximum end. The factual bases for the sentence can be derived from the record and the judge’s articulated reasons. We therefore conclude that the sentence imposed was supported by the record and was not arbitrary or excessive.

Decree

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

AFFIRMED.

       Judges Burrell J. Carter, Felix H. Savoie, Jr. and Melvin A. Shortess of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr. and James L. Dennis.


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

text:
    John Kent CHAUVIN v. C. Robert BOHN.
    No. 81-C-2139.
    Supreme Court of Louisiana.
    March 1, 1982.
    Rehearing Denied April 5, 1982.
    Edward F. Wegmann and Geoffrey H. Longenecker, of Wegmann & Longenecker, New Orleans, for defendant-applicant.
    Dudley D. Flanders, of Flanders & Flanders, New Orleans, for plaintiff-respondent.
   DIXON, Chief Justice.

The central issue presented in this case is whether a notation on the back of a personal check given to the vendor of a residence as a down payment suffices as a written contract to buy an immovable.

The facts are as follows:

Plaintiff-vendor, John Kent Chauvin, placed his residence in the Willowdale Subdivision in Luling, Louisiana, up for sale in the summer of 1976. On Sunday, August 15,1976, defendant-vendee, C. Robert Bohn, and his wife heard that the house was on the market. They were interested in moving to the area so they telephoned the Chauvins and arranged a tour of the home. After looking at the house, Mr. Bohn inquired about the purchase price. Mr. Chau-vin stated that he was asking $85,000.00. Mr. Bohn offered to pay $80,000.00 and Mr. Chauvin responded that he would accept that amount. The parties walked back inside the house where Mr. Bohn wrote a personal check to Mr. Chauvin for $4,000.00. Mr. Chauvin objected to the figure because he believed the deposit should be 10% of the purchase price, or $8,000.00. Mr. Bohn replied that he had already written the number $4,000.00 on the check, that he did not have another check with him, and that this would be a cash sale requiring no financing. Mr. Chauvin testified that he then agreed to accept the $4,000.00 as a down payment. Since Mr. Bohn’s attorney was out of town for the week, the parties agreed to wait until the attorney returned to draw up the act of sale.

As the Bohns were leaving, Mr. Bohn jokingly requested that the “For Sale” sign staked up in the front yard be removed. Mr. Chauvin complied and put the sign in the garage. There was some discussion about how soon the Bohns would want to move into the residence. Mrs. Chauvin expressed concern about having to move into an apartment with their three small children because it would be some time before a new home could be built. Mr. Bohn kissed her, said they were not in a hurry to move, and assured her that the Chauvins could stay in the house as long as necessary and just pay rent. Mr. Chauvin volunteered to find out the current rental values in the vicinity.

A few hours later, Mr. Chauvin examined the check and realized that Mr. Bohn had made the check payable to “John Kent,” omitting Mr. Chauvin’s last name. Mr. Chauvin telephoned the Roussel residence where Mr. and Mrs. Bohn had been visiting. The Bohns were still at the Roussels; Mr. Bohn instructed Mr. Chauvin to simply write in his last name on the instrument. At this point it is clear that one intended to buy, and gave a check to evidence his intention; the other intended to sell. The thing and the price were fairly certain. Each, however, contemplated consulting his lawyer, and assumed there would be a simple cash transaction. It is fair to assume that each would probably follow his attorney’s advice.

Mr. Bohn testified that he tried several times during the next few days to reach Mr. Chauvin because Bohn’s wife decided she did not want the house. On Thursday, August 19, Mr. Bohn contacted someone at the Chauvin residence. Mr. Bohn testified that he spoke with Mrs. Chauvin in the morning; on the other hand, Mrs. Chauvin testified that she always goes shopping on Thursdays and that Mr. Bohn talked to the baby sitter. In any event, when Mr. Chauvin arrived home his wife told him Mr. Bohn had telephoned earlier in the day. Mr. Chauvin returned the call only to learn that Mr. Bohn no longer wished to go through with the sale.

It is impossible to discern from the testimony exactly when Mr. Chauvin deposited the check given to him by Mr. Bohn on the previous Sunday. Mr. Chauvin admitted that he did not deposit the check immediately after receiving it; he testified that his lawyer advised him on Monday to “hold onto the check.” He asserts that the check was deposited, along with his paycheck, on the afternoon of Thursday, August 19, before his conversation with Mr. Bohn; the check was posted to Mr. Chauvin’s bank on Friday, August 20. Mr. Bohn argues that Mr. Chauvin deposited the check some time after having been informed that the sale was off. Although Mr. Bohn testified that he went to his bank in New Orleans at 9:00 a. m. on Friday, August 20 to stop payment on the check, the stop payment order is dated August 20 at 2:00 p. m. The $4,000.00 deposit was initially credited to Mr. Chauvin’s account on August 20. However, payment was stopped on August 23 and the account later debited on August 26.

Mr. Chauvin filed suit to recover $4,000.00 liquidated damages alleging that the deposit constitutes earnest money pursuant to a valid and enforceable contract to sell. The trial court found in favor of Mr. Chauvin, awarding him $4,000.00 as a forfeit of the deposit. The court held:

“The Parties confected an oral agreement which was reduced to writing as evidenced by the Defendant’s check and deposit, which was deposited prior to the Plaintiff, Chauvin, being advised by the Defendant, Bohn, that the agreement for the purchase and sale of Plaintiff’s home (No. 13 Weinning Drive, Willowdale Subdivision, St. Charles Parish, Louisiana, for and in consideration of the purchase price of $80,000.00) was being cancelled and awarding to John Kent Chauvin, the Plaintiff herein, the sum of $4,000.00 representing forfeiture of the deposit by C. Robert Bohn for breach of contract.”

The judgment was affirmed on appeal. La.App., 400 So.2d 1205. Certiorari was granted to review the disposition of this matter by the lower courts.

A notation on the back of the check, put there by Mr. Bohn, the maker of the check and the prospective purchaser, lies at the center of this controversy:

C.C. 1798 provides:
“As there must be two parties at least to every contract, so there must be something proposed by one and accepted and agreed to by another to form the matter of such contract; the will of both parties must unite on the same point.”

Once a contract is confected, each party confers on the other the right of judicial enforcement (see C.C. 1799); however, the Code permits the offeror to withdraw the offer so long as the other party has not previously accepted. C.C. 1800 states:

“The contract, consisting of a proposition and the consent to it, the agreement is incomplete until the acceptance of the person to whom it is proposed. If he, who proposes, should before that consent is given, change his intention on the subject, the concurrence of the two wills is wanting, and there is no contract.”

A preliminary question raised by the facts is, if Mr. Bohn’s execution and delivery of the check to Mr. Chauvin amounted to an offer to purchase the property, did Mr. Chauvin’s endorsement and deposit of the instrument constitute a timely acceptance of the offer. Both lower courts made a factual determination that Mr. Chauvin deposited the check before Mr. Bohn withdrew, his proposal by stopping payment on the instrument. (The check was probably deposited before Bohn’s withdrawal from the transaction was communicated to Chau-vin). The facts support this finding. Mr. Chauvin testified that he deposited the check on Thursday afternoon, August 19. Since the stop payment order was not issued until some time on Friday, August 20, as late as 2:00 p. m. according to the order itself, it is reasonable to conclude that the deposit preceded issuance of the stop payment order. Thus, if the means employed by Mr. Chauvin to accept the offer to buy satisfy the codal requirements, Mr. Bohn is bound; his attempted revocation came too late.

The court of appeal held that Mr. Chau-vin reduced his oral acceptance to writing when he endorsed the check and deposited it. If the contract did not involve immovable property, the form of the acceptance would be less important. However, all contracts regarding transfers of immovables must be in writing. C.C. 2275.

In Louisiana State Board of Education v. Lindsay, 227 La. 553, 569, 79 So.2d 879, 885 (1955), this court held that an oral acceptance by telephone was insufficient under the mandate of C.C. 2275. The court stated:

“It is manifest, therefore, that not only must an option to buy immovable property ‘be evidenced by a written instrument’ but the unqualified acceptance thereof be evidenced in writing, giving full rcognition (sic) to and in accordance with the terms and conditions of the proposal, and formally exercised and tendered to the proposer prior to the expiration of the stipulated time.”

Perhaps if the prospective seller could produce a separate writing to evidence the contract between the parties, the insufficiency of the form of acceptance would not be determinative. Here, the mere endorsement and deposit of the check falls short of an “acceptance” of the offer to buy. Nothing in the words on the instrument denotes consent to a sale of the tract on certain terms. Both the offer and the acceptance, if the contract takes that form alone, must be in writing and must declare the parties’ intent to be bound.

C.C. 2462 reads, in part, as follows:

“A promise to sell, when there exists a reciprocal consent of both parties as to the thing, the price and terms, and which, if it relates to immovables, is in writing, so far amounts to a sale, as to give either party the right to enforce specific performance of same.”

(The first paragraph of C.C. 2462 treats a promise of sale, more commonly termed a contract to sell. It may be defined as an agreement to buy and sell where the parties anticipate a sale, but which is not yet a sale as it does not transfer ownership. Litvi-noff, Of the Promise of Sale and Contract to Sell, 34 La.L.Rev. 1017, 1068 (1974)).

In Klotz v. Gertrude Gardner, Inc., 293 So.2d 601 (La.App.1974), writ refused, 296 So.2d 831 (1974), a telegram was wired to the vendor which said: “Reference my offer to purchase 1019 Constantinople. Confirm my verbal agreement of 6 December, counteroffer of $35,000 accepted.” The vendor had not signed an agreement to sell at this price. The court correctly held that no binding written contract to sell existed. See also, Roy O. Martin Lumber Co. v. Saint Denis Securities Co., 225 La. 51, 72 So.2d 257 (1954); Fleming v. Romero, 342 So.2d 881 (La.App.1977), writ refused, 345 So.2d 50 (1977); Manuel v. Moity, 313 So.2d 278 (La.App.1975), writ refused, 318 So.2d 48 (1975).

Mr. Chauvin relies, as did the court of appeal, on the early decision in Guice v. Mason, 156 La. 201, 100 So. 397 (1924), to support the position that the check is adequate. In Guice, an oral agreement to sell an 80 acre tract for $400.00 was confected. As part payment, the vendee made a $100.00 payment to the vendor who gave the following receipt:

“ ‘Received of T. J. Guice, of DeSoto Parish, La., the sum of one hundred dollars ($100) in part payment of a certain 80-acre tract of land laying broadside with the 160-acre tract that he now lives on. This the 7th day of March, A.D., 1889. W. H. Mason.’ ” 156 La. at 204, 100 So. at 398.

The court noted that the vendor admitted (either in his answer or in testimony) that he sold the property to the vendee and that the vendee took possession of the property. Although the case was not decided on this point, the vendor was bound by virtue of his admission of the sale and delivery to the vendee, regardless of the language in the receipt. See C.C. 2275.

The notation on the back of the cheek is insufficient to satisfy the codal requirements. It represented the prospective purchaser’s conception of the transaction, and showed that the sum of $4,000.00 was subtracted from the total price, jotted down by the buyer. There is no dispute that the parties intended to wait until the attorneys could draft the necessary documents and take care of the details connected with the transaction. There is, however, nowhere on the document the words “I agree to sell” and “I agree to buy” or the equivalent. Language to this effect manifests the reciprocal consent of each party to be bound; it instills solemnity in the transaction and completes the proof. In essence, Mr. Chau-vin asks the court to look at extrinsic evidence surrounding the giving of the cheek to establish the missing elements of a contract to sell. It is the writing and the words that are important in the sale of immovables, not extrinsic evidence.

“Neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since.” C.C. 2276.

In light of the prohibition in this article, the court is constrained to an examination of the instrument itself; the words found there do not constitute a valid contract to sell.

For these reasons, the judgment appealed from is reversed and the suit dismissed at plaintiff’s cost.

MARCUS and LEMMON, JJ., dissent and assign reasons.

MARCUS, Justice

(dissenting).

I agree with the courts below that the writing on the back of the cheek was sufficient to satisfy the requirement that all offers to buy and sell real estate must be in writing and that Chauvin reduced his oral acceptance of Bohn’s written offer to writing when he endorsed and deposited the check before Bohn communicated his desire to withdraw from the agreement. Hence, the $4,000 deposit on the purchase price of the home given by check by Bohn was earnest money and was forfeited by him when he receded from the promise to buy Chau-vin’s home. The courts below properly rendered judgment in Chauvin’s favor for this amount. Accordingly, I respectfully dissent.

LEMMON, Justice,

dissenting.

A valid contract to sell requires the thing, the price and the consent. C.C. Art. 2456, 2462. The thing to be sold and the selling price are clearly set forth in the contract itself (the check), and the buyer’s consent is also evidenced on the instrument that he drew.

It is only the seller’s consent which is truly at issue. The seller’s taking possession of the instrument and his subsequently depositing it clearly evidenced his consent to sell No. 13 Weinning Drive to Bohn for a selling price of $80,000. No other reasonable explanation can be given for his action.

The lower courts correctly found the seller consented to the buyer’s written offer prior to the withdrawal of that offer. The judgments of the lower courts should be affirmed.

      . Plaintiff sought to introduce a letter from a bank representative to show that he deposited the check on August 19 after 2:00 p. m., but, due to banking procedure, the check was not posted until the following morning. However, the trial court refused to allow the letter into evidence because the author was not present to testify. The letter was apparently written in response to plaintiff’s statement to the bank official that he deposited the check on the 19th, over three years after these events took place. The court of appeal held that it could only consider the proffer of the letter for the “limited purpose of establishing there is a 2 p. m. close out of that bank’s teller windows.” 400 So.2d 1205 at 1207.

      . The concept of earnest money is found in C.C. 2463:
      “But if the promise to sell has been made with the giving of earnest, each of the contracting parties is at liberty to recede from the promise; to wit: he who has given the earnest, by forfeiting it; and he who has received it, by returning the double.”
      It is not necessary to give earnest in order to suspend the transfer of ownership. Rather, earnest money acts as a substitute for performance, allowing either party to withdraw from the contract upon forfeiting the earnest. Earnest money is most often seen in conjunction with a promise of sale, or contract to sell, where the buyer gives a deposit to the seller. The jurisprudence has adopted a rule that any payment made in connection with a contract to sell will be considered earnest money, unless the parties expressly provide otherwise. Smith, An Analytical Discussion of the Promise of Sale and Related Subjects, Including Earnest Money, 20 La.L.Rev. 522 (1960); Comment, Deposits in Contracts to Sell Immovable Property in Louisiana, 26 Tul.L.Rev. 498 (1952); See also, Hebert, The Function of Earnest Money in the Civil Law of Sales, 11 Loyola L.J. 121 (1930).

      . In his petition, plaintiff prayed in the alternative for $6,810.00 which is alleged to be the difference between the contract price agreed on by the parties and the price actually received by plaintiff ($74,690.00) plus $1,000.00 attorney fees and $500.00 for aggravation and annoyance.

      . Although C.C. 2275 literally demands only that transfers of immovable property be in writing, the jurisprudence has construed the article to encompass all contracts concerning immovable property. Torrey v. Simon-Torrey, Inc., 307 So.2d 569 (La.1974); Little v. Haik, 246 La. 121, 163 So.2d 558 (1964); Louisiana State Board of Education v. Lindsay, infra; Hoth v. Schmidt, 220 La. 249, 56 So.2d 412 (1951); Fox v. Succession of Broussard, 161 La. 949, 109 So. 773 (1926); see generally, Comment, Writing Requirements and the Authentic Act in Louisiana Law: Civil Code Articles 2236, 2275 & 2278, 35 La.L.Rev. 764 (1975).

      . In Joseph v. Moreno, 2 La. 460 (1831), the court held that a written promise to sell signed only by the vendor was valid and that acceptance by the vendee could be established by evidence extraneous to the written instrument. The same conclusion was reached in Miller v. Miller, 335 So.2d 767 (La.App.1976), writ refused, 338 So.2d 927 (1976).

        Saunders v. Bolden, 155 La. 136, 98 So. 867 (1923) and Succession of Jenkins, 91 So.2d 416 (La.App.1956) have been misinterpreted. See 35 La.L.Rev. 764, 769. Both involved acts of sale, signed by the vendor and not by the vendee; in Saunders, the vendee went into possession and the deed was held effective; in Jenkins, the deed included an act of assumption of a mortgage, was not signed by the vendee and was held not translative of title.

      . The wording on the check, particularly the words “Deposit for 13 Weinning Dr.” and “Selling price”, clearly indicates the purchaser’s consent to buy 13 Weinning Drive for a selling price of $80,000. Although the words “I agree to buy” do not appear anywhere on the instrument, that intent is made evident on the instrument itself.

      . The buyer also contends that the contract was incomplete because no date was stated for the passing of the act of sale and no terms were given for payment of the amount of the selling price in excess of the deposit. However, the absence of these conditions of the sale does not detract from a conclusion that there was a consensual agreement to the thing and the price. When the parties consent to buy and to sell a certain thing for a certain price, the law presumes that the sale will take place within a reasonable time, and in the absence of a stipulation for terms of credit, the law presumes that the sale will be for cash.

      .The record supports the trial court’s factual finding that the seller deposited the check prior to the buyer’s withdrawal of the offer. Since it is not the function of this court to substitute its judgment for that of the trier of fact on factual findings which are supported by the record, I accept the fact that the seller’s acceptance was made timely before the withdrawal.


author: PER CURIAM.

text:
    STATE of Louisiana v. Dennis W. DORSEY.
    No. 81-KA-1305.
    Supreme Court of Louisiana.
    March 10, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joseph Meyer, Louise Korns, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Howard McCurdy, Dwight Doskey, Orleans Indigent Defender Office, New Orleans, for defendant-appellant.
   PER CURIAM.

Defendant was charged by bill of information with ten counts of felony theft in violation of La.R.S. 14:67. The charges arose out of a flurry of bad-check writing in New Orleans in November and December of 1977, and early January of 1978. The state dismissed one of the counts prior to trial and then brought defendant before a jury on July 20, 1978. He was found guilty as charged on all nine counts. On January 7, 1981, after a delay occasioned by defendant’s inadvertent release from the parish prison in New Orleans and his subsequent conviction in Georgia on another bad-check charge, the trial court sentenced defendant to five years’ imprisonment at hard labor on each count, the sentences to run consecutively. Defendant has now appealed his convictions and sentences to this Court, arguing that the penalties imposed on five of the counts are illegal, and that his total sentencing liability of 45 years at hard labor is excessive. We agree with defendant that the majority of his sentences are illegal, and therefore remand for resentencing. Accordingly, we do not reach the merits of his excessiveness claim at this time.

Counts two, seven, eight, nine and ten in the bill of information charged defendant with theft of amounts which varied from $245.80 to $461.84, but never exceeded $500.00. La.R.S. 14:67 provides in this regard that “[w]hen the misappropriation or taking amounts to a value of one hundred dollars, or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years.... ” Defendant’s sentences on these five counts are therefore clearly illegal, an error that can be corrected at any time, including on appeal. State v. Cain, 382 So.2d 936 (La.1980); State v. Wymore, 377 So.2d 283 (La.1979).

The trial court’s lawful sentences on the four remaining counts, and its decision to run all penalties consecutively with each other, may have been influenced by its incorrect view of the seriousness of defendant’s criminal transaction as a whole. Cf., State v. Spruell, 403 So.2d 64 (La.1981). Therefore, we affirm defendant’s convictions but vacate all of defendant’s sentences and remand this case to the trial court for resentencing in accord with the views expressed herein.

CONVICTIONS AFFIRMED: SENTENCES VACATED AND CASE REMANDED FOR RESENTENCING.


text:
    STATE of Louisiana v. Sterling A. CONLEY.
    No. 81-KA-1767.
    Supreme Court of Louisiana.
    March 10, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Richard Pe-tre, Asst. Dist. Attys., for plaintiff-appellee.
    Roy Raspanti, New Orleans, for defendant-appellant.
   PER CURIAM.

Sterling Conley was charged by bill of information with simple burglary of an inhabited dwelling, in violation of La.R.S. 14:62.2. Following the denial of a motion to suppress evidence seized incident to his arrest, defendant entered a plea of guilty, reserving his right to appellate review of the trial court’s ruling. State v. Crosby, 338 So.2d 584 (La.1976). The trial court accepted the plea and sentenced defendant to three years at hard labor, without benefit of probation, parole, or suspension of sentence. Defendant now appeals his conviction and sentence to this Court, urging two assignments of error.

We have reviewed defendant’s challenge to the trial court’s denial of his suppression motion and find it to lack merit. For this reason, the defendant’s conviction is affirmed. We agree, however, with his contention that the trial court erred in denying the accused eligibility for probation, parole, or suspension of sentence for the entire term of his sentence. In pertinent part, La.R.S. 14:62.2 provides:

Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of probation, parole, or suspension of sentence, nor more than twelve years.

Construing this provision in State v. Boowell, 406 So.2d 213 (La.1981), this Court accepted the defendant’s cóntention that the ineligibility provision should attach only to the statute’s minimum one-year term, Thus, the sentence imposed herein was clearly illegal and must be vacated,

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED.


text:
    STATE of Louisiana v. Thomas E. PARKER, Jr.
    No. 81-KA-0671.
    Supreme Court of Louisiana.
    March 12, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Tommy Adkins, Dist. Atty., Dan J. Grady, III, Asst. Dist. Atty., for plaintiff-appellee.
    Robert W. Raley, Bossier City, for defendant-appellant.
   PER CURIAM.

Thomas E. Parker, Jr. was charged by bill of information with driving while intoxicated, fourth offense, La.R.S. 14:98(E). He filed a motion to quash the bill based upon the lack of proper Boykinization at his three previous DWI guilty pleas. The motion was denied by the trial court and defendant was subsequently convicted of third offense DWI by a twelve-member jury. Defendant was fined $500 and sentenced to three years’ imprisonment at hard labor, execution of said sentence being suspended on the condition that defendant complete two years supervised probation.

Whenever a misdemeanor guilty plea will be used as a basis for actual imprisonment, enhancement of actual imprisonment or conversion of a subsequent misdemeanor into a felony, it is incumbent upon the trial judge to inform the defendant that by pleading guilty he waives (a) his privilege against compulsory self-incrimination, (b) his right to trial and jury trial where it is applicable and (c) his right to confront his accusers, and to make sure that the accused understands the consequences of the plea. State v. John L. Jones, 404 So.2d 1192 (La.1981).

In the present case, the prosecution proved the three predicate DWI offenses by introducing copies of the previous bills of information and the minute entries corresponding thereto. These exhibits failed to demonstrate that defendant was advised of his privilege against self-incrimination, or of his right to confront his accusers at the time he entered his guilty plea in connection with the prior DWI convictions used to convert his subsequent misdemeanor into a felony. For this reason, the defendant’s conviction of driving while intoxicated, third offense, La.R.S. 14:98(D) is reversed and the sentence vacated.

In order to reach its verdict of guilty of fourth offense, DWI, the jury necessarily found defendant guilty of DWI for the most recent episode. In that conclusion, there is no infirmity. The conviction will therefore be reduced to guilty of first offense DWI and remanded to the district court for resentencing. State v. Byrd, 385 So.2d 248 (La.1980).

MARCUS, BLANCHE and WATSON, JJ., dissent.

LEMMON, J., concurs.


text:
    Allen BEYER, et al. v. F & R OILFIELD CONTRACTORS, INC., et al.
    No. 82-C-0299.
    Supreme Court of Louisiana.
    March 12, 1982.
   In Re: Allen Beyer, et al., applying for Certiorari, or Writ of Review, to the Court of Appeal, Third Circuit, No. 8415, Parish of Iberia.

Writ denied, 407 So.2d 15.

DIXON, C. J., and DENNIS, J., believing that all the necessary parties are before the court, would treat this suit as a shareholder’s secondary action, reverse the rulings on the exception of no right of action, and remand the case for trial; see CCP 591(2) and 611.


author: PER CURIAM. MARCUS, Justice BLANCHE, Justice

text:
    STATE of Louisiana v. Booker T. WASHINGTON. STATE of Louisiana v. David GLASS.
    No. 82-K-0572.
    Supreme Court of Louisiana.
    March 26, 1982.
   PER CURIAM.

Reversed and remanded for further proceedings.

At the hearing on the discovery motions urged in each of these cases, the trial judge granted the defendant’s motion to discover the names, addresses and telephone numbers of state witnesses, with the precautionary order that the information be used solely for the purpose of preparing a defense. The trial judge relied upon this Court’s decision in State v. Walters, 408 So.2d 1337 (La.1982).

In the cases before us there was no determination that there exist peculiar and distinctive reasons why fundamental fairness dictates discovery. Nor does the record reflect any such showing by the defendant. Therefore we reverse the ruling of the trial judge and return the cases to the district court for re-trial of the discovery motions.

MARCUS, J., concurs and assigns reasons.

BLANCHE, J., concurs and assigns reasons.

WATSON, J., concurs, and notes that Walters should be very narrowly construed being a unique situation.

MARCUS, Justice

(concurring).

I dissented in State v. Walters, 408 So.2d 1337 (La.1982), because neither the discovery articles of the Code of Criminal Procedure nor the jurisprudence permits discovery by a defendant of the names and addresses of state witnesses. Hence, the trial judge erred in the instant cases in ordering the state to provide defendants with the names, addresses and telephone numbers of its witnesses. Accordingly, I concur only in the reversal of the rulings of the trial judge.

BLANCHE, Justice

(concurring in the reversal of the trial judge’s ruling).

State v. Walters, 408 So.2d 1337 (La.1982) permitted discovery of the names and addresses of the state’s witnesses because C.Cr.P. art. 723 does not prohibit the same. This writer is of the opinion that it is wrong to permit discovery of this information because the defense is not entitled to such information for any reason. See my dissent in State v. Walters, supra. If the defendant was not entitled to the protection of the Fifth Amendment, this writer would be for unlimited discovery by either the accused or the state. However, defendant is entitled to such protection and fundamental fairness would seem to prohibit the state from having to divulge the names and addresses of its witnesses under such circumstances.


text:
    STATE of Louisiana ex rel.. William COX, Jr. v. STATE of Louisiana.
    No. 82-KH-0690.
    Supreme Court of Louisiana.
    March 26, 1982.
   Re: William Cox, Jr., applying for Remedial Writs, Parish of Orleans.

On the showing made, Denied.

LEMMON, J. concurs. Information furnished to this court indicates the trial judge declined to rule on the motion for additional reduction of bail because an appeal is pending. If so, defendant may file another application, and the trial court has jurisdiction to rule on the merits of such a motion.


text:
    STATE of Louisiana ex rel. Andrew SAM v. Hayden J. DEES, Warden Dixon Correctional Institute.
    No. 81-KH-1961.
    Supreme Court of Louisiana.
    Nov. 16, 1981.
   In re Andrew Sam, applying for writ of certiorari. Parish of St. Landry. No. 34539.

Denied.

CALOGERO, J., would grant the writ.


text:
    Harold J. BOURQUE, et al. v. David W. TYLER.
    No. 81-C-2451.
    Supreme Court of Louisiana.
    Jan. 8, 1982.
   In re David W. Tyler, applying for reconsideration, La., 410 So.2d 760 of granted writ, with order, of Nov. 16,1981. Court of Appeal, Third Circuit. No. 8305. Lafayette Parish.

Denied.


text:
    Joseph PASTERNACK, Jr. v. Mrs. Betty Clair Pasternack SAMUELS, et al.
    No. 81-C-3032.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Joseph Pasternack, Jr., applying for writ of review, to the Court of Appeal, Third Circuit. Parish of Concordia, 406 So.2d 290.

Granted.


text:
    RAPIDES MERCHANTS ASSOCIATION, et al. v. RAPIDES PARISH POLICE JURY and Marshall T. Cappel, Sheriff of Rapides Parish.
    No. 82-C-0160.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Rapides Merchants Association, et al., applying for supervisory writs. Rapides Parish. No. 121219.

Denied.


text:
    STATE of Louisiana ex rel. Aristle ALBERT v. The COURT REPORTER/SECTION “A” CRIMINAL DISTRICT COURT PARISH OF ORLEANS.
    No. 81-KH-1975.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Aristle Albert, applying for writ of mandamus. Parish of Orleans. No. 273-229.

Granted. Relator is to be furnished a copy of his Boykin Transcript.


text:
    Byron KINAMORE v. COMMERCIAL UNION INSURANCE COMPANY and Aetna Casualty & Surety Company.
    No. 82-C-0158.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re General Motors Corporation, applying for supervisory writs and stay order. 19th Judicial District Court. Parish of East Baton Rouge. No. 235-816.

Denied.


text:
    STATE of Louisiana v. Michael G. SHELLEY.
    No. 82-K-0041.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re State of Louisiana, through the district attorney, Harry F. Connick, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 284-653.

Writ denied.


text:
    Lorain F. WINGERTER v. The TIMES PICAYUNE PUBLISHING CORPORATION and Iris Kelso.
    No. 82-C-0040.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re The Times Picayune Publishing Corporation and Iris Kelso, applying for remedial and supervisory writ. Civil District Court. Parish of Orleans. No. 80-4782, Div. L, C.

Denied.


text:
    STATE of Louisiana v. Toney HICKS.
    No. 82-K-0021.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Toney Hicks, applying for writs of certiorari, prohibition and mandamus. Parish of Madison. No. JM — 2039.

Denied.

DENNIS and CALOGERO, JJ., would grant.


text:
    STATE of Louisiana v. Michael Christopher McDANIEL.
    No. 82-K-0020.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Michael Christophoer McDaniel, applying for writs of certiorari, prohibition and mandamus. Parish of Evangeline. No. 26244.

Denied.


text:
    STATE of Louisiana v. Melvin MAJOR.
    No. 82-K-0007.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Melvin Major, applying for writ of certiorari on writ of habeas corpus. Parish of West Feliciana. No. 7162-A.

Denied.


text:
    STATE of Louisiana v. Kenneth HUGHES.
    No. 81-K-3302.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Kenneth Hughes, applying for writ of certiorari. Parish of Orleans. No. 285-310, Section I.

Writ denied.


text:
    STATE of Louisiana v. Marese TOOMER.
    No. 81-K-3288.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Marese Toomer, applying for writ of habeas corpus. Parish of Washington. No. 34935.

Denied. Relator must first file in district court.


text:
    STATE of Louisiana ex rel. Gerald Dean BARNES v. Wilna MABRY, Clerk, 26th Judicial District Court, Parish of Bossier.
    No. 81-KH-3279.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Gerald Dean Barnes, applying for writ of mandamus. Parish of Bossier. No. 56013.

Denied.


text:
    STATE of Louisiana, ex rel. Gerald E. WARING v. Don HATHAWAY, Sheriff, Parish of Caddo, Caddo Correctional Institution, Keithville, Louisiana.
    No. 81-KH-3274.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Gerald E. Waring, applying for writ of habeas corpus. Parish of Caddo. No. 116573.

Denied; relator must first apply to district court.


text:
    Eileen Reed ROY v. Joseph F. ROY, Jr.
    No. 81-C-3269.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Joseph F. Roy, Jr., applying for writ of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 77-1188.

Denied.


text:
    STATE of Louisiana ex rel. Lionel FIELDS v. Ross MAGGIO, Warden Louisiana State Penitentiary.
    No. 81-KH-3172.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Lionel Fields, applying for writ of habeas corpus. Parish of Orleans. No. 254588.

Writ denied.


text:
    STATE of Louisiana ex rel. Carol RICHARDSON v. Johnnie JONES, Warden Louisiana Correctional Institute For Women.
    No. 81-KH-3171.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Carol Richardson, applying for supervisory writ of mandamus and habeas corpus. Parish of Orleans. Number unknown.

Denied. Moot.


text:
    STATE of Louisiana v. Michael D. HOLLOWAY and Dirk Wohlau.
    No. 81-K-3000.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Michael D. Holloway, applying for supervisory writs and a stay order. Parish of East Baton Rouge. No. 6-81-579.

Denied.


text:
    STATE of Louisiana ex rel. Richard CLAY v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 81-KH-2955.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Richard Clay, applying for writ of habeas corpus. Parish of St. John the Baptist. No. 57-79.

Denied.


text:
    STATE of Louisiana ex rel. Earl SAVAGE v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 81-KH-2847.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Earl Savage, applying for writs of certiorari and habeas corpus. Parish of St. Charles. Nos. 76-288 and 76-306.

Denied.


text:
    STATE of Louisiana ex rel. Michael Edward KING v. R. R. TIBBIT, Clerk of Court, Bale Cox, Assistant District Attorney, First District Court, Donald R. Minor, Public Defender, Michael W. Beam, Attorney at-law, and Eugene W. Bryson, Jr., Judge, Parish of Caddo.
    No. 81-KH-2819.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Michael Edward King, applying for writ of certiorari. Parish of Caddo. No. 109890.

Denied.


text:
    STATE of Louisiana ex rel. Charles STEVENSON v. The CLERKS OFFICE (SECTION “F”) CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, State of Louisiana.
    No. 81-KH-2741.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Charles Stevenson, applying for writ of mandamus. Parish of Orleans. No. 250-508.

Writ denied.


text:
    STATE of Louisiana, ex rel. Charles Ray SPEARS v. C. Paul PHELPS, Secretary, Louisiana Department of Corrections.
    No. 81-KH-2732.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Charles Ray Spears, applying for writ of habeas corpus. Parish of Tangipa-hoa.

Writ denied.


text:
    STATE of Louisiana, ex rel. Melvin L. BAZILE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2618.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Melvin L. Bazile, applying for writ of habeas corpus. Parish of Orleans. No. 261-833.

Denied.


text:
    STATE of Louisiana, ex rel. Earl DUPREE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-2334.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Earl Dupree, applying for writ of habeas corpus. Parish of West Feliciana. No. W-75-&-338.

Denied.


text:
    Khadir CHERIET v. The Honorable John A. DIXON, et al.
    No. 82-O-0129.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Khadir Cheriet, applying for permission to take the Louisiana Bar Examination and contingent on passing the examination to be certified for admission to practice law. Parish of Jefferson.

Granted. The committee on Bar Admissions is ordered to permit Khadir Cheriet to take the February 1982 Louisiana State Bar Examination.


text:
    STATE of Louisiana ex rel. Roger C. GORDY v. COURT REPORTER, 30TH JUDICIAL DISTRICT COURT, PARISH OF VERNON, State of Louisiana, et al.
    No. 81-KH-2765.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Roger C. Gordy, applying for writs of mandamus, prohibition and certiorari. Parish of Vernon. No. 31335.

Granted in part. The trial court is ordered to furnish relator a copy of his Boy-kin Transcript; otherwise denied.


text:
    STATE of Louisiana v. Willie JACKSON.
    No. 82-K-0043.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Willie Jackson, applying for writ of review. Parish of St. John the Baptist. No. 133-81.

Granted.


text:
    STATE of Louisiana v. David CROWDEN.
    No. 82-K-0027.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re David Crowden, applying for writ of certiorari. Parish of Orleans. No. 281-775.

Granted. Expungement ordered.


text:
    STATE of Louisiana v. Carlton COOLEY and Charles D. Hope.
    No. 81-K-3069.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Charles D. Hope and Carlton K. Cooley, applying for writ of review. Parish of East Baton Rouge. Nos. 6-81-1044 (Cooley) and 6-81-1045 (Hope).

Writ granted.


text:
    STATE of Louisiana ex rel. Marcus CLANTON, Jr. v. The COURT REPORTER/SECTION “G” CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 81-KH-3025.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Marcus Clanton, Jr., applying for writ of mandamus. Parish of Orleans. No. 280-105.

Granted. Trial judge ordered to furnish relator with copy of Boykin transcript in No. 280-105G.


text:
    STATE of Louisiana ex rel. Feltus STEWART v. C. Paul PHELPS.
    No. 81-KH-2565.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Feltus Stewart, applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans. No. 251-454.

Granted. Transferred to the district court for such action as is legally appropriate.


text:
    STATE of Louisiana, ex rel. Ronnie JOHNSON v. Donald B. GUILLORY, Warden.
    No. 81-KH-2370.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
   In re Ronnie Johnson, applying for remedial writs. Parish of Natchitoches.

Granted. Appellate counsel is to be appointed by the district judge to represent relator on the out-of-time appeal which has been granted.


text:
    STATE of Louisiana ex rel. John M. SMITH v. STATE of Louisiana.
    No. 81-KH-3119.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re John M. Smith, applying for remedial writs. Parish of Orleans. No. 275-376.

Writ denied. Relator must first seek relief in the District Court.


text:
    Richard J. KELLER, et al. v. FIREMEN’S PENSION & RELIEF FUND FOR the CITY OF LAKE CHARLES. Kenneth BROWN v. FIREMEN’S PENSION & RELIEF FUND FOR the CITY OF LAKE CHARLES.
    No. 82-C-0111.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Richard J. Keller, et al., and Kenneth Brown, applying for writ of certiorari, or review. Court of Appeal, Third Circuit. Parish of Calcasieu. Nos. 8525 and 8526.

Denied.

CALOGERO, DENNIS and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana, ex rel. Patrick SIMON v. STATE of Louisiana.
    No. 82-KH-0099.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Patrick Simon, applying for remedial writs. Parish of Orleans. No. 280-222.

Writ denied.


text:
    Donna Marie Jones BREEN v. EISWORTH-TALBERT, INCORPORATED, Charlie J. Talbert, Jr. and Liberty Mutual Insurance Company.
    No. 82-C-0093.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Eisworth-Talbert, Incorporated, Charlie J. Talbert, Jr., and Liberty Mutual Insurance Company, applying for certiorari or writ of review. Court of Appeal, Fourth Circuit. Parish of Orleans. No. 11750.

Denied.


text:
    Percy SCOTT v. SEARS, ROEBUCK & COMPANY.
    No. 82-C-0092.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Sears, Roebuck & Company, applying for certiorari, or writ of review. Court of Appeal, Second Circuit. Parish of Cad-do. No. 14700.

Denied.

LEMMON, J., would grant the writ.


text:
    Willie FRANKLIN v. Kennon HARVILL, et al. M. Kennon HARVILL, et al. v. Willie FRANKLIN.
    No. 82-C-0070.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Willie Franklin, applying for certio-rari, or writ of review. Court of Appeal, Second Circuit. Parish of Bossier. Nos. 14699 and 14698.

Denied.

CALOGERO and LEMMON, JJ., would grant the writ.


text:
    Elnoria ZONE v. TOWN OF BUNKIE, et al.
    No. 82-C-0068.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Elnoria Zone, applying for writ of certiorari, or review. Court of Appeal, Third Circuit. Parish of Avoyelles. No. 8495.

Denied. Result is correct.

CALOGERO, J., to grant.


text:
    Mary Zeagler BARTLEY v. INSURANCE COMPANY OF NORTH AMERICA, et al.
    No. 82-C-0065.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Mary Zeagler Bartley, applying for certiorari, or writ of review. Court of Appeal, Second Circuit. Parish of Winn. No. 14707.

Denied.

DIXON, C. J., and DENNIS, J., would grant.


text:
    STATE of Louisiana ex rel. Sergio SANTOS v. N. Burl CAIN/Warden Dixon Correctional Institute.
    No. 82-KH-0050.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Sergio Santos, applying for writs of mandamus. Parish of Orleans. No. 268-423.

Denied. Moot.


text:
    STATE of Louisiana v. Eddie PHILLIPS.
    No. 82-K-0046.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Eddie Phillips, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Grant. No. 39556.

Denied.


text:
    STATE of Louisiana ex rel. Joseph A. BRADBERRY v. Honorable BRYSON, Chief Judge 1st Judicial District, Caddo Parish.
    No. 82-KH-0019.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Joseph A. Bradberry, applying for writ of mandamus. Parish of Caddo.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Riley TAYLOR v. W. Orie HUNTER, Jr., In His Official Capacity as Clerk of First Judicial District Court.
    No. 82-KH-0015.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Riley Taylor, applying for writ of mandamus. Parish of Caddo. No. 105973.

Denied. No Boykin transcript: relator tried by jury.


text:
    Gustave KAPLAN, Individually, and For the Estate of the Minor Linda Kaplan v. MISSOURI PACIFIC RAILROAD COMPANY, et al.
    No. 81-C-3309.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Gustave Kaplan, et al., applying for writ of certiorari and review. Third Circuit, Court of Appeal. Parish of Rapides. No. 8392.

Denied.

LEMMON and WATSON, JJ., would grant.


text:
    Charles Christopher CATON v. CIVIC CENTER SITE DEVELOPMENT COMPANY, INC., d/b/a Downtown Howard Johnson’s, et al.
    No. 81-C-3308.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Charles Christopher Catón, applying for motion for an extension of time. Fourth Circuit, Court of Appeal. Parish of Orleans. No. 12954.

Writ denied.

LEMMON, J., to grant.


text:
    STATE of Louisiana ex rel. Warren SCHMITT v. Ross MAGGIO, Warden.
    No. 81-K-3298.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Warren Schmitt, applying for writ of habeas corpus. Criminal District Court. Parish of Orleans. No. 246-994.

Denied.

DENNIS and CALOGERO, JJ., would grant an evidentiary hearing. The trial judge apparently based the ten year sentence on the erroneous assumption that the maximum allowable sentence was 20 years when in fact it was 10 years.


text:
    EDWARD N. FRAICHE, INC. v. Lawrence L. LAGARDE, Sr. d/b/a Plantation Golf and Country Club.
    No. 81-C-3254.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Lawrence L. Lagarde, Sr. d/b/a Plantation Golf and Country Club, applying for writ of certiorari. Parish of Jefferson. No. 206792.

Denied.

CALOGERO, J., would grant.


text:
    STATE of Louisiana City of Shreveport v. Kenneth Wayne RHYNS.
    No. 81-K-3203.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Kenneth Wayne Rhyns, applying for writ of certiorari. Parish of Caddo. No. Y10171.

Writ denied.

DIXON, C. J., and LEMMON, J., would grant.


text:
    STATE of Louisiana v. Lester WATSON.
    No. 81-K-3199.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re State of Louisiana, through the District Attorney Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 283328.

Denied.

LEMMON, J., would grant the writ.


text:
    In re David SHAVOR Applying For the Adoption of Desi Ray Pierre Zeringue, Jr.
    No.82-C-0194.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re David Shavor, applying for certiora-ri, or writ of review. Court of Appeal, First Circuit. Parish of Lafourche. No. 14446.

Denied.


text:
    Dr. Lawrence J. KERN, Jr., Individually and on Behalf of His Minor Daughter, Kevin Kern v. TRAVELERS INSURANCE COMPANY, et al.
    No. 82-C-0127.
    Supreme Court of Louisiana.
    Feb. 5, 1982.
   In re Glen Carimi, applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit. Parish of Orleans. No. 12053.

Denied.

MARCUS and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana v. Ronald SUGAR.
    No. 82-K-0331.
    Supreme Court of Louisiana.
    Feb. 8, 1982.
   In re Ronald Sugar, applying for writs of certiorari or review. Parish of Jefferson. No. 79-552.

Writ granted. Bail reduced to $75,000.00.


text:
    STATE of Louisiana ex rel. Johnny Lee SULLIVAN v. Judge Frank SHEA and the State of Louisiana.
    No. 81-KH-3042.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Johnny Lee Sullivan, applying for remedial writ. Parish of Orleans. No. 276-394.

Denied. Relator must 1st file in district court. C.Cr.P.art. 674.


text:
    Lois Delores Austin EDDY v. Robert Allen EDDY.
    No. 82-C-0182.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Robert Allen Eddy, applying for certiorari or writ of review. Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 14440.

Writ denied.


text:
    STATE of Louisiana v. Louis DOHERTY, Jr.
    No. 82-K-0181.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Louis Doherty, Jr., applying for supervisory writs. Parish of East Feliciana. 20th Judicial District.

Writ denied. Adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana ex rel. Alton Joseph BATISTE v. 15TH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE.
    No. 82-KH-0178.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Alton Joseph Batiste, applying for writ of mandamus. Parish of Lafayette. 15th Judicial District Court.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Fulton Glenn EDWARDS v. Gay B. HUFF, Clerk of Court, W. Gregory Arnette, Jr., District Attorney, Sheriff of Jenning, Louisiana, Parish of Jefferson Davis, 31st Judicial District.
    No. 82-KH-0176.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Fulton Glenn Edwards, applying for writ of mandamus. Parish of Jefferson Davis. No. Cr. 1635-78.

Denied.


text:
    STATE of Louisiana, ex rel. Rodney Wayne MACON v. 1st JUDICIAL DISTRICT COURT, PARISH OF CADDO.
    No. 82-KH-0165.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Rodney Wayne Macon, applying for writ of mandamus. Parish of Caddo.

Writ denied.


text:
    W. R. ROGER v. NELSON DODGE, INC. and Chrysler Corporation.
    No. 82-C-0159.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Nelson Dodge, applying for writs of certiorari or review. Court of Appeal, Third Circuit. Parish of Calcasieu. No. 8474.

Denied.

MARCUS, BLANCHE, and LEMMON, JJ., would grant.


text:
    Donald RAY and Mrs. Donald Ray v. SEARS, ROEBUCK AND COMPANY.
    No. 82-C-0155.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Donald Ray, et al., applying for writ of certiorari. Fourth Circuit, Court of Appeal. Parish of St. Charles. No. 12072.

Denied.

DENNIS and LEMMON, JJ., would grant.


text:
    Alfred P. CROCHET, Jr. v. AMERICAN TOBACCO COMPANY.
    No. 82-C-0140.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re Alfred P. Crochet, Jr., applying for writ of certiorari. Court of Appeal, Third Circuit. Parish of Calcasieu. No. 8559.

Writ denied.


text:
    William D. BROWN v. STATE FARM FIRE & CASUALTY COMPANY.
    No. 82-C-0139.
    Supreme Court of Louisiana.
    Feb. 12, 1982.
   In re William D. Brown, applying for writs of certiorari or review. Court of Appeal, Third Circuit. Parish of Calcasieu. No. 8445.

Writ denied.

WATSON, LEMMON and CALOGERO, JJ., would grant.


text:
    STATE of Louisiana v. Dennis PETERS.
    No. 82-O-0316.
    Supreme Court of Louisiana.
    Feb. 19, 1982.
   In re Dennis Peters, applying for motion for appeal not timely filed. Parish of St. Tammany. Number unknown.

Out of time appeal granted.


text:
    Lloyd SHAW d/b/a L&G Concessions and his Associates and others v. The PARISH OF JEFFERSON, The Jefferson Parish Council, The Jefferson Parish Sheriff, Harry Lee.
    No. 82-C-0447.
    Supreme Court of Louisiana.
    Feb. 22, 1982.
   In re Lloyd Shaw d/b/a L&G Concessions and His Associates and Others, applying for writ of certiorari. Parish of Jefferson. No. 263438.

Denied.


text:
    STATE of Louisiana v. Mike RUDOLPH.
    No. 82-K-0380.
    Supreme Court of Louisiana.
    March 12, 1982.
   In re Mike Rudolph, applying for writ of certiorari, or review to the 24th Judicial District Court. Parish of Jefferson. No. 98-1166-B.

Denied.


text:
    Paul R. VALTEAU, Jr. v. ROBERT D’HEMECOURT CAMPAIGN COMMITTEE and Robert D’Hemecourt.
    No. 82-C-0616.
    Supreme Court of Louisiana.
    March 15, 1982.
   In re Robert D’Hemecourt, applying for certiorari or writ of review. Court of Appeal, Fourth Circuit. Parish of Orleans.

Denied.


text:
    CITY OF HOUMA v. Glynn F. VOISIN and Nita Mike.
    No. 82-K-0609.
    Supreme Court of Louisiana.
    March 15, 1982.
   In re Glynn F. Voisin and Nita Mike, applying for writs of certiorari, prohibition, mandamus, and stay order. Parish of Ter-rebonne. Nos. 41450Z, 6336, 6389, 6683 and 7133 for Voisin, and 6839, 41375Z, 6430, 6405 and 6686 for Mike.

Denied.

WATSON, J., would deny at the present time, but note relator’s remedy by application for writ in event of conviction.


text:
    In re The Matter of the SUPERSEDING OF the DISTRICT ATTORNEY OF the TWENTY-FIFTH JUDICIAL DISTRICT.
    No. 82-O-0606.
    Supreme Court of Louisiana.
    March 15, 1982.
   In re Leander H. Perez, Jr., District Attorney, 25th Judicial District, applying for writs of certiorari, prohibition and mandamus and stay order. Parish of Plaque-mines. No. 62463.

Denied.


text:
    FINANCIAL CORPORATION v. George G. WEST.
    No. 82-C-0622.
    Supreme Court of Louisiana.
    March 16, 1982.
   In re George G. West, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of East Baton Rouge. No. 248449.

Writ Granted.

All proceedings stayed pending further orders of this Court.


text:
    STATE of Louisiana v. Larry GABRIEL, Freddie Williams and James Turner.
    No. 82-K-0643.
    Supreme Court of Louisiana.
    March 17, 1982.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for stay order. Parish of Orleans. No. 282-686.

On the showing made, the stay is denied.


author: WATKINS, Judge.

text:
    Dr. Robert L. FORD v. Jessie STONE, President, etc., et al.
    No. 14584.
    Court of Appeal of Louisiana, First Circuit.
    May 13, 1981.
    Wilfret McKee, New Orleans, for plaintiff-appellant Dr. Robert L. Ford.
    Richard Rudolph, Asst. Atty. Gen., Baton Rouge, for defendant-appellee Jessie Stone, President of Southern University, Southern University & A & M College, Lionel Johnson, Sr., Chairman of the Southern University Board of Supervisors and The Southern University Board of Supervisors.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This appeal was fixed on the January 1982 Docket and all attorneys of record were notified. Neither appellant nor appel-lee have filed briefs, nor did they file a request for oral argument. On the date scheduled for hearing, neither the appellant nor the appellee was present or represented nor made any appearance. No request for continuance has been filed by either party.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


text:
    Lester F. FREEMIN v. John A. COGLAITI.
    No. 15103.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 15, 1981.
    Timothy C. Ellender, Houma, for plaintiff & appellee.
    Gerald A. Bosworth, Houma, for defendant & appellant.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

Before us at this time is a rule to show cause why a suspensive appeal should not be dismissed in an eviction proceeding.

On June 5,1981, plaintiff, Lester F. Free-min, filed an eviction rule against defendant, John A. Coglaiti. Hearing on the rule was set for June 12,1981. Defendant never filed an answer to the rule to show cause. On July 10, 1981, after several continuances, a hearing on the rule was held, at the conclusion of which the trial court ordered the eviction of defendant. Also on July 10, 1981, defendant filed a motion for a new trial, and hearing was fixed for July 24, 1981. On July 15, 1981, judgment was signed in accordance with the trial court’s ruling. On July 22, 1981, defendant, after receiving notice of judgment, resubmitted his motion for a new trial. On August 7, 1981, hearing on the motion for a new trial was held, and the matter was taken under advisement. On September 3,1981, the trial court signed judgment denying a new trial. On October 12, 1981, defendant obtained an order for a suspensive appeal, the appeal bond having been set at $5,000.00. On October 16, 1981, defendant filed a suspensive appeal bond.

LSA-C.C.P. art. 4735 sets forth the requirements for a suspensive appeal in an eviction proceeding:

“An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.”

The requirements of this article must have been literally complied with in order for a suspensive appeal to stand. Papa v. Sullivan, 268 So.2d 326 (La.App.2d Cir. 1972). In the present case, defendant failed to meet those requirements. He never answered plaintiff’s rule, and failed to apply for the suspensive appeal or post bond within twenty-four hours of the judgment of eviction. Thus, the appeal cannot be maintained as suspensive.

Although an appeal for an eviction judgment cannot be maintained as suspen-sive, the appeal may be maintained as a devolutive appeal if the requirements of the general law for a devolutive appeal are met. Solomon v. Hickman, 213 So.2d 96 (La.App. 1st Cir. 1968), affirmed 219 So.2d 330 (1969); Alaimo v. Hepinstall, 370 So.2d 1320 (La.App. 4th Cir. 1979); Rourke v. Cloud, 398 So.2d 57 (La.App. 3d Cir. 1981).

LSA-C.C.P.art. 2087 sets forth the requirements for a devolutive appeal.

“Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.”

As the appeal was taken within 60 days of the denial of a new trial, the new trial having been denied September 3, 1981, and the appeal order having been signed October 12, 1981, it is apparent that defendant-appellant perfected a timely devolutive appeal.

Accordingly, the appeal of John A. Cogla-iti in the present matter is dismissed as suspensive and maintained as a devolutive appeal.

APPEAL DISMISSED AS SUSPEN-SIVE; MAINTAINED AS DEVOLUTIVE.