text:
    Robert J. WOLFARTH and Kathy Wolfarth, Appellants, v. Maurice REVITZ, Trustee d/b/a Star Apartments, Appellee.
    Nos. 82-518, 82-1092.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Keith, Mack, Lewis & Allison, Miami, for appellants.
    Lapidus & Stettin and Richard Lapidus, Miami, for appellee.
    Before HUBBART, C.J., and BASKIN and FERGUSON, JJ.
   PER CURIAM.

This is an appeal from a final judgment sounding in specific performance and a subsequent interlocutory order awarding attorney’s fees. The final judgment is attacked on appeal on two bases. First, it is asserted that no contract was entered into by the parties and, alternatively, that even if a contract existed, its terms were too indefinite to support a specific performance decree. Second, it is asserted that good and marketable title was not tendered by the seller. We reject both contentions as (a) the terms of the signed agreement between the parties were, as the trial court concluded, sufficiently definite to constitute a binding contract so as to support a specific performance decree, Bluevack, Inc. v. Walter E. Heller & Co. of Fla., 331 So.2d 359 (Fla. 3d DCA 1976); English v. Clark, 289 So.2d 33, 35 (Fla. 1st DCA 1974); 330 Michigan Ave. Inc. v. Cambridge Hotel, Inc., 183 So.2d 725 (Fla. 3d DCA 1966); and (b) the title conveyed to the real property was marketable title unencumbered by any significant deficiencies or encroachments. Sutton v. Cast-Crete Corp. of Fla., 197 So.2d 556 (Fla. 2d DCA 1967).

The attorney’s fée order under review is attacked on appeal on the basis that no evidence was presented below which established that the seller Maurice Revitz as the prevailing party was obligated to pay his attorney a reasonable attorney’s fee; it is therefore urged that the said seller was not entitled under the contract between the parties to attorney’s fees from the buyers Robert and Kathy Wolfarth. We cannot agree. The evidence below established that legal services of considerable value were rendered to the seller by competent counsel; clearly, the seller was obligated to pay for those services on a quantum meruit basis which, in turn, triggered the buyers’ contractual obligation to pay for same as the non-prevailing party below. We are further unconvinced by the remaining attack made herein on the attorney’s fee order.

The final judgment and attorney’s fee order under review are in all respects

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Pedro MARTINEZ, Appellee.
    No. 82-776.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellant.
    Eric B. Feldman and Richard Fineberg, Coral Gables, for appellee.
    Before HENDRY, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Pedro Martinez was charged with carrying a concealed firearm in violation of Section 790.01, Florida Statutes (1979). Martinez filed a motion to dismiss pursuant to Rule 3.190(c)(4), Florida Rules of Criminal Procedure, which the trial court granted. The State appeals and we reverse.

The “(c)(4) motion” in question was grounded upon an arrest form which stated that the officer observed the weapon in open view. Elsewhere in the arrest form the officer states that the weapon was observed between the center console and driver’s seat of the vehicle. It is apparent upon the face of the motion which incorporates the arrest form that an issue is presented which requires resolution by a trier of fact. The motion is not sufficient as a matter of law. Ensor v. State, 403 So.2d 349 (Fla.1981); State v. Bethea, 409 So.2d 1139 (Fla. 2d DCA 1982); McGraw v. State, 404 So.2d 817 (Fla. 1st DCA 1981).

Reversed and remanded for further proceedings.


text:
    Jackie M. JANTZEN, Petitioner, v. The STATE of Florida, Respondent.
    No. 82-1372.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.

      Zuckerman, Spaeder, Taylor & Evans and Michael Smith, Miami, for petitioner.
    Jim Smith, Atty. Gen. and Diane Zimmer Leeds, Asst. Atty. Gen., for respondent.
    Before HUBBART, C.J. and BASKIN and FERGUSON, JJ.
   PER CURIAM.

The petitioner Jackie M. Jantzen seeks certiorari review of an order of the circuit court affirming, in its appellate capacity, a county court conviction for remaining in a building or structure for the purpose of prostitution, lewdness or assignation [§ 796.07(3)(c), Fla.Stat. (1981)]. We have jurisdiction to entertain this petition. Art. Y, § 4(b)(3), Fla. Const.

A petition for a writ of certiorari plainly lies in this case as the two essential requirements for certiorari relief are present herein. First, the petitioner has no adequate remedy by appeal from the order under review because no appeal of any kind lies from said order. Second, the said order constitutes a departure from essential requirements of law. There is utterly no evidence in this record — and the state makes no contention to the contrary — which remotely establishes an essential element of the crime charged, namely, that the petitioner Jantzen, while remaining in a certain health spa as a masseuse, did so, “for the purpose of prostitution, lewdness, or assignation.” § 796.07(3)(c), Fla.Stat. (1981). This admitted, complete failure of proof as to the above essential element of the crime charged, required the circuit court to reverse the petitioner’s conviction on appeal and its failure to do so constitutes a departure from essential requirements of law. Cohen v. State, 99 So.2d 563, 565 (Fla.1957); Newman v. State, 174 So.2d 479, 484 (Fla. 2d DCA 1965).

The order under review is quashed and the cause is remanded to the circuit court with directions to reverse the subject county court conviction and direct the discharge of the petitioner from the cause.


text:
    Ana Maria GALARZA, Appellant, v. Jose Ramon ARREGUI, Appellee.
    No. 82-1831.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.

      Sugarman and Arnold and David Arnold, Coral Gables, for appellant.
    Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

We reverse the order of the trial court denying Ana Maria Galarza’s motion to dismiss for lack of jurisdiction since it is apparent from this record that no service of process was ever obtained upon this defendant nor did she voluntarily make an appearance before the trial court. Hervis v. Valdez, 381 So.2d 733 (Fla. 3d DCA 1980); Woods v. Luby Chevrolet, Inc., 402 So.2d 1316 (Fla. 4th DCA 1981), petition for review denied, 412 So.2d 467 (Fla.1982).

Reversed and remanded.


author: SCHWARTZ, Judge.

text:
    Linda Joyce EARNEST, n/k/a Linda Castillo, Appellant, v. SOUTHEASTERN FIDELITY INSURANCE COMPANY, Appellee.
    No. 82-1864.
    District Court of Appeal of Florida, Third District.
    Dec. 7, 1982.
    Sidney L. Syna, Miami, for appellant.
    Haddad, Josephs & Jack and Michael Seth Cohen, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   SCHWARTZ, Judge.

This case makes its fourth appearance before us. The last time, Earnest v. Southeastern Fidelity Ins. Co., 407 So.2d 995 (Fla. 3d DCA 1981), it was remanded for the assessment of fees to be granted the insured’s attorney. After a hearing at which the only expert testimony was that an appropriate award was between $10,000 and $12,000, the trial judge set the fee at $4,000. Ms. Earnest complains that the amount is inadequate. We agree and again reverse on the ground that the order is unsupported by the record and therefore constitutes a clear abuse of discretion. Biscayne Roofing Co. v. Palmetto Fairway Condominium Ass’n, Inc., 418 So.2d 1109 (Fla. 3d DCA 1982); March v. March, 395 So.2d 200 (Fla. 3d DCA 1981); Machion Terrazzo, Inc. v. Altman, 372 So.2d 512 (Fla. 3d DCA 1979). After remand, the trial court may set the fee on the basis of the previous hearing or, in its discretion, take additional testimony.

      . Southeastern Fidelity Ins. Co. v. Earnest, 378 So.2d 787 (Fla. 3d DCA 1979); Southeastern Fidelity Ins. Co. v. Earnest, 395 So.2d 230 (Fla. 3d DCA 1981); Earnest v. Southeastern Fidelity Ins. Co., 407 So.2d 995 (Fla. 3d DCA 1981).


text:
    STATE of Florida, Appellant, v. William Robert RALSTON, Appellee. STATE of Florida, Appellant, v. Roth Ross WOOD and Ray Jackson Stroebel, Appellees.
    Nos. 81-259, 81-260.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Marc S. Nurik of Nurik, O’Donnell & Lazarus, Fort Lauderdale, for appellees Wood and Stroebel.
   PER CURIAM.

REVERSED. See State v. Benitez, 395 So.2d 514 (Fla.1981). We also reject the claim by appellees that Section 893.135, Florida Statutes (1979) violates their right to privacy embodied in Article I, Section 23 of the Florida Constitution. Cf., State v. Benitez, 395 So.2d, at 519-520 (discussion of defendant’s right not to be compelled to incriminate himself).

Accordingly, this cause is reversed with directions that the charges against appel-lees be reinstated.

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


author: OWEN, WILLIAM C., Jr., Associate Judge.

text:
    Patrice A. DALY, Appellant, v. INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 81-780.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.

      J. Patrick Floyd, Fort Lauderdale, for appellant.
    Robert P. Kelly of Fazio, Dawson & Di-Salvo, Fort Lauderdale, for appellee.
   OWEN, WILLIAM C., Jr., Associate Judge.

Appellant applied for automobile liability insurance through an insurance broker, whose standard underwriting practice required that there be prepared for the applicant’s signature, prior to any discussion of coverages, an application form on which uninsured motorist coverage was shown as “rejected.” The practical effect of such a practice was to force the applicant to “reject the rejection” if uninsured motorist coverage was desired, a result which violated the spirit, if not the letter, of Section 627.727(1), Florida Statutes (1979). We do not condone such underwriting practice, and suggest that it is a matter which merits the attention of both the Department of Insurance and the Legislature.

Nonetheless, this case was tried by the court on the factual issue of whether appellant’s written rejection of uninsured motorist coverage was knowingly made. The court determined that issue adversely to appellant’s contention. Such factual determination is supported in the record by competent substantial evidence. On well established principles governing appellate review, our clear duty is to affirm. See, e.g., Strawgate v. Higier, 339 So.2d 1112 (Fla.1976).

AFFIRMED.

LETTS, C.J., and GLICKSTEIN, J., concur.

      . The insurance broker (not a party to this action) was not an agent of appellee. See Auto Owners Insurance Company v. Yates, 368 So.2d 634 (Fla. 2d DCA 1979), on that point.

      . See Sabina v. General Accident Fire and Life Assurance Corporation, Ltd., 390 So.2d 1215 (Fla. 2d DCA 1980).


text:
    CITY OF FORT PIERCE, a municipal corporation, Lawnwood Medical Center, Inc., and Hutchinson Island Limited, Inc., a foreign corporation, Appellant, v. Michael S. McCARTY, Individually, and as representative of the class of all Taxpayers of the City of Fort Pierce, Florida and Alexander L. Johnson, Jr., Appellees.
    No. 81-1810.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.

      John T. Brennan, City Atty., of Brennan, McAliley, Hayskar, MeAliley & Jefferson, P.A., and James T. Walker, Asst. City Atty., Fort Pierce, for appellant.
    Eric B. Meyers and Susan E. Cook of Shutts & Bowen, Miami, and Ben L. Bryan, Jr., Fort Pierce for appellant Hutchinson Island, Ltd., Inc.
    Charles R. Brown of Brown & Williams, Fort Pierce for appellant Lawnwood Medical Center, Inc.
    Vincent A. Lloyd of Lloyd, Brown, Hos-kins & Becht, Fort Pierce, for appellee Michael S. McCarty.
   PER CURIAM.

The City of Fort Pierce sought a declaratory judgment concerning a proposed charter amendment limiting the height and density of future construction. The trial court declined to rule upon the constitutionality of the amendment until after'the proposed referendum election. We deem this to be error and hold that the trial court should and must rule upon the constitutionality questions prior to the election upon the authority of and for the reasons stated in Rivergate Restaurant Corporation v. Metropolitan Dade County, 369 So.2d 679 (Fla. 3d DCA 1979); City of Miami v. Smith, 251 So.2d 290 (Fla. 3d DCA 1971); Dade County v. Dade County League of Municipalities, 104 So.2d 512 (Fla.1958); and Duval County v. Jennings, 121 Fla. 584, 164 So. 356 (1935).

Reversed and remanded.

LETTS, C.J., and DOWNEY and WALDEN, JJ., concur.


text:
    David FITZGERALD, Appellant, v. STATE of Florida, Appellee.
    No. 81-1926.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Richard L. Jorandby, Public Defender, and Craig S. Barnard, Chief Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mas Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from an order denying defendant’s motion to discharge based on speedy trial grounds. We conclude that error occurred and the defendant is hereby discharged. See Ex rel Butler v. Cullen, 253 So.2d 861 (Fla.1971).

REVERSED AND DISCHARGED.

DOWNEY, BERANEK and WALDEN, JJ., concur.


text:
    Leonard CAMPAGNO, Appellant, v. STATE of Florida, Appellee.
    No. 81-2177.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Richard L. Jorandby, Public Defender, and Marcy K. Allen, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. We agree with the trial court that the appellant’s allegations of ineffective assistance of counsel at sentencing failed to meet the criteria set down in Knight v. State, 394 So.2d 997 (Fla.1981). In particular the appellant failed to allege that the information received by the sentencing court regarding appellant’s prior arrests and convictions was not substantially accurate.

ANSTEAD and HURLEY, JJ., and SHA-HOOD, GEORGE, Associate Judge, concur.


author: GLICKSTEIN, Judge.

text:
    Clement J. PROULX, Appellant, v. STATE of Florida, Appellee.
    No. 81-2215.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Vincent J. Patrucco of Fla. Institutional Legal Services, Inc., Gainesville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

Appellant seeks reversal of the trial court’s denial of his motion for postconviction relief. We affirm because there were legitimate bases upon which the trial court could conclude that appellant failed to establish his claim of ineffective assistance of counsel; namely, the absence of any allegation in the motion that the public defender knew appellant to be an alien subject to deportation and the flimsy evidence of such knowledge.

The motion filed by appellant merely alleged that appellant was a Canadian citizen but had resided in this country since 1963; and that his counsel never informed him prior to pleading guilty that he could be deported following conviction of a crime. Nevertheless, the trial court conducted an evidentiary hearing in reliance upon Edwards v. State, 393 So.2d 597 (Fla. 3d DCA), pet. for rev. den. 402 So.2d 613 (Fla.1981). At the hearing in 1981 the assistant public defender who represented appellant in 1978 when he pled guilty to two counts of robbery testified that he did not recall if he did or did not inform appellant of the possibility of deportation. He stated that he knew appellant was from Canada but that he could not recall if there was any indication that appellant was not an American citizen. On direct examination, appellant solely testified that he was not informed prior to entry of his plea that deportation was a consequence of conviction. On cross-examination by the assistant state attorney, the following took place:

Q. At the time you were discussing the plea with your attorney, did you — you knew that you were an alien, you were not a citizen of this country; is that correct?
A. I have known that since 1963, sir.
Q. Did you say anything to your lawyer about that?
A. He more or less phrased it the same way that he knew that I was an alien and I knew I was not an American citizen and I did not know it would have any bearing on the case, at the time.

Such speck of recollection upon the subject, going back over three years, was not convincing evidence to the trial judge that appellant had met his burden of meeting the criteria set forth in Knight v. State, 394 So.2d 997, 1001 (Fla.1981); and we see no legally compelling reason to overrule the exercise of his judgment.

LETTS, C.J., and DOWNEY, J., concur.

      . Appellant was sentenced to concurrent fifteen year sentences with a mandatory three year minimum because of possession of a firearm.


text:
    Nancy CARRUTHERS, Appellant, v. William H. CARRUTHERS, Appellee.
    No. 81-2307.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.

      Stephen F. Radford, Jr., of Law Office of Frank G. Cibula, Jr., West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

The trial court mistakenly concluded it was without jurisdiction to consider the wife’s motion filed after judgment of dissolution, seeking to compel the return from the husband of $10,000 taken by him from the parties’ joint checking account. We reverse and remand.

Diejuste v. Diejuste, 400 So.2d 981 (Fla. 4th DGA 1981), upon which the trial court relied, is not applicable to the facts of this case. Here, a non-final order had been entered which directed the husband to hold the questioned sum until further order of the court. The wife’s petition for dissolution had specifically sought the return of the $10,000 together with alimony, child custody and support and other relief. After the entry of the non-final order, the court bifurcated the proceedings, entering a final judgment of dissolution and reserving jurisdiction “on all other issues including, but not limited to, child support, alimony, child custody and any other matter between the parties.” Jurisdiction was accordingly reserved to consider the return of the $10,000. See Eberly v. Eberly, 344 So.2d 886 (Fla. 4th DCA 1977).

LETTS, C.J., and DOWNEY and GLICK-STEIN, JJ., concur.


author: DOWNEY, Judge.

text:
    Thomas W. MURPHY, Appellant, v. Kathleen Marie TALLARDY, Appellee.
    No. 82-68.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    See also, 412 So.2d 62.
    Stanley J. Narkier of Bernstein, Narkier, Sharff, Monchick & Karp, West Palm Beach, for appellant.
    Lawrence C. Griffin of Cromwell & Rem-sen, Riviera Beach, for appellee.
   DOWNEY, Judge.

Appellant, Thomas W. Murphy, seeks review of an order awarding attorney’s fees and costs incurred in a post dissolution proceeding involving custody.

Appellant and appellee were divorced in 1975 in Pennsylvania. Since the custody of their children was not resolved in the divorce case, the matter of custody was litigated in Palm Beach in 1981. An order was entered April 8, 1981, awarding custody to appellee and adjudicating her entitlement to attorney’s fees and suit money; the amount of the fees and suit money was to be determined at a later date. In due course, the trial court determined the amount of appellee’s attorney’s fees and as part of the suit money it awarded appellee an expert witness fee for a lawyer who testified as to the value of said attorney’s fees. The only point that warrants discussion is the allowance of an expert witness fee for the lawyer who testified concerning the value of attorney’s fees for appellee’s counsel.

The authority for allowing expert witness fees is contained in Section 92.231, Florida Statutes (1981), which provides:

92.231 Expert witnesses; fee.—

(1) The term “expert witness” as used herein shall apply to any witness who offers himself in the trial of any civil action as an expert witness or who is subpoenaed to testify in such capacity before a state attorney in the investigation of a criminal matter, or before a grand jury, and who is permitted by the court to qualify and testify as such, upon any matter pending before any court.
(2) Any expert or skilled witness who shall have testified in any cause shall be allowed a witness fee including the cost of any exhibits used by such witness in the amount of $10 per hour or such amount as the trial judge may deem reasonable, and the same shall be taxed as costs.

It thus appears that when a person is called to testify in “any cause,” if he is presented and accepted by the court as an expert, the party calling the witness is entitled to have an expert witness fee taxed if costs are awarded to that party.

However, courts have modified the statute by judicial fiat in some cases to allow expert witness fees only when the expert testifies to the main as opposed to collateral issues in the case. An example of this dichotomy is well illustrated in the recent decision of the Third District Court of Appeal in Mills v. Aronovitz, 404 So.2d 138 (Fla. 3rd DCA 1981). In that case, Aronovitz and Weksler sued Mills for attorneys’ fees for services which they rendered for him. Several lawyers were called by plaintiffs to prove up the value of their services. It was held therein that the lawyer-witnesses were entitled to be paid expert witness fees because the witnesses testified to the value of the services that were the main issue in the case. Another case allowing expert witness fees for lawyers is Tiedtke v. Fidelity & Casualty Company of New York, 222 So.2d 206 (Fla.1969). There, the lawyers testified regarding the main issues involved, i.e., whether the insurance company was prejudiced by the failure of the insured to give it prompt notice of the accident.

Although dictum in the case, Mills opines that expert witness fees for lawyers who testify in a case are confined to those experts who testify to the main issues in the case (as in Mills and Tiedtke); that experts called to testify to the value of attorneys’ services in suits for divorce or suits on insurance contracts are experts on collateral issues ■ and not entitled to expert witness fees taxable as costs pursuant to Section 92.231. We do not mean to denégrate that opinion by referring to a portion thereof as dictum because there is precedential support for such a holding. However, we believe close scrutiny will demonstrate that both the precedents and the Mills dictum should not be followed.

The seminal case in Florida, which is cited in most of the cases dealing with this question, is Robert & Company Associates v. Zabawczuk, 200 So.2d 802 (Fla.1967), a workers’ compensation case that held that Section 440.31, Florida Statutes (1967) was not intended to allow expert witness fees for lawyers who testify in compensation cases relative to a claimant’s attorney’s fees. It should be noted that the essential provisions of Sections 440.31 and 92.231 are quite similar. Nevertheless, the Supreme Court was interpreting a workers compensation statute when it said:

It is our view, in accord with that of the commission, that the statutory provision, F.S.A. § 440.31, for the award of expert fees authorizes only the payment of fees to experts testifying in the case with reference to direct benefits of the claimant, and that the statute was never intended to cover the award of fees to witnesses appearing in behalf of attorneys who claim counsel fees payable under our act. While the point is novel, the provision for payment to witnesses testifying “in any proceeding under this chapter” is most reasonably construed, in view of the history of the statute, to proceedings for compensation to claimant rather than proceedings, essentially collateral, for determination of the amount of attorney’s fees. (Emphasis added.) 200 So.2d 802 at 803-804.

It is thus apparent that the foregoing construction was arrived at “in view of the history of the statute.” That history is graphically described in the later case of Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968), wherein the Supreme Court said:

The Workmen’s Compensation Act was originally passed as administrative legislation to be simple, expeditious, and inexpensive so that the injured employee, his family, or society generally, would be relieved of the economic stress resulting from work-connected injuries, and place the burden on the industry which caused the injury. J.J. Murphy & Son, Inc. v. Gibbs (1962), Fla., 137 So.2d 553; Port Everglades Terminal Co. v, Canty (1960), Fla., 120 So.2d 596. It was contemplated that relief would be immediately forthcoming as a substitute for the wages of the working man and that little, if any, delay or long deliberation would ensue. The Act “was pitched on the theory that the claimant could litigate his own cause” .... 209 So.2d 454 at 456.

In view of that history, we suggest the narrow construction placed upon thé Compensation Statute to effectuate the purpose of that Act does not logically nor reasonably require such a construction of Section 92.231.

Several years later in Allstate Insurance Company v. Chastain, 251 So.2d 354 (Fla. 3rd DCA 1971), the Third District Court of Appeal affirmed the denial of an expert witness fee for the successful plaintiff’s lawyer-witness who testified regarding the value of plaintiff’s lawyer’s services. The cited authority for that holding was Robert & Company Associates v. Zabazwczuk, supra, the workers compensation case.

Following Chastain, the Third District Court of Appeal decided Plever v. Bray, 266 So.2d 54 (Fla. 3rd DCA 1972), a bastardy case in which the District Court held the trial court erred in taxing expert witness fees for two lawyers who testified to the value of plaintiff’s attorney’s fees. Once again as authority the court relied upon Zabazwczuk.

The latest word on the subject is Mills, supra, which relies directly upon Plever and Chastain as authority for the narrow construction of the expert witness statute involved in those cases and indirectly upon Robert & Company and Lee Engineering.

We believe the cases following Robert & Company, which rely thereon for such a narrow construction of the expert witness statute, should not be followed. The ratio decidendi in Robert & Company and Lee Engineering does not exist in the later cases. We concede that an argument is made in Mills for not allowing expert witness fees to lawyers who testify to the value of a litigant’s attorney’s fees for the reason that it will increase the cost of litigation when the courts should be striving to minimize such costs. While we agree with those sentiments, we would suggest that eliminating expert witness fees entirely would most certainly accomplish that end to an even greater degree. But, of course, that is not a practical solution. However, neither is it practical nor justified to single out lawyers as experts who should not be paid for their expert testimony. It does not suffice, we believe, to say that the issues that they testify in support of are collateral or minor and not the real heart of the case. The statutory authority for taxation of such fees says nothing about allowing expert witness fees if the expert is called to support main issues as opposed to collateral issues; it simply provides for compensation for experts called to prove up the various aspects of the case. To suggest that expert testimony on attorney’s fees in a divorce case is some minor insignificant aspect of the case is hardly in tune with reality. Often the attorney’s fees allowable are a substantial feature in the overall equitable distribution of the marital estate.

Accordingly, we affirm the trial judge’s taxation of an expert witness fee for the lawyer who testified as to the reasonable value of appellee’s attorney’s fees.

In view of our high regard for the opinions of our brethren on the Third District Court of Appeal and the obvious concern with which they treated the subject in Mills, and because we perceive the question to be one of great public importance, we certify the following question to the Supreme Court of Florida:

Is a trial court authorized under Section 92.231, Florida Statutes (1981) to tax costs or allow as suit money an expert witness fee for a lawyer who testifies as an expert regarding the value of a reasonable attorney’s fee for counsel for one of the parties?

LETTS, C.J., and GLICKSTEIN, J., concur.


text:
    BROWARD EMPLOYMENT AND TRAINING ADMINISTRATION, Appellant, v. COMMUNITY PARTNERSHIP PROGRAM, INC., a Florida Not-for Profit-corporation, Appellee.
    No. 82-79.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Harry A. Stewart, Gen. Counsel, and Rochelle J. Daniels, Asst. Gen. Counsel, Ft. Lauderdale, for appellant.
    Zebedee W. Wright, Fort Lauderdale, for appellee.
   PER CURIAM.

This appeal seeks review of an order by the trial court which granted appellee’s motion to set aside a default which the trial judge had previously entered pursuant to Florida Rule of Civil Procedure 1.500(b). No final judgment had ever been entered.

Under such circumstances, this court, as well as our sister courts, have held that the order setting aside such default was not appealable pursuant to Florida Rule of Appellate Procedure 9.130. McKinzie v. Hollywood, Inc., 397 So.2d 1195 (Fla. 4th DCA 1981); Praet v. Martinez, 367 So.2d 657 (Fla. 3d DCA 1979); Yates v. Roller Skating Rinks, Incorporated, 379 So.2d 1333 (Fla. 5th DCA 1980). It is similarly not reviewable by certiorari. Leibman v. Sportatorium, Inc., 374 So.2d 1124 (Fla. 4th DCA 1979). Accordingly, the appeal is dismissed.

LETTS, C.J., and DOWNEY and GLICK-STEIN, JJ., concur.


text:
    Martial Ronald LEMAY, Appellant, v. Eileen Alzmann LEMAY, Appellee.
    No. 82-307.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Donald J. Vestal, Hollywood, for appellant.
    Deborah 0. Rubin of Atkinson, Golden, Diner & Henry, P.A., Hollywood, for appel-lee.
   PER CURIAM.

Although we agree with appellant that the trial court improperly labeled its award to appellee of a portion of appellant’s interest in the marital home as a special equity therein, we believe such error was harmless in view of the trial court’s authority to award the appellee lump sum alimony based upon the same equitable considerations upon which the special equity award was made. McCall v. McCall, 386 So.2d 275 (Fla. 2d DCA 1980). We have also reviewed the other awards made by the trial court and find no abuse of discretion. Accordingly, we affirm the judgment of the trial court in all respects.

ANSTEAD, BERANEK and HERSEY, JJ., concur.


author: BERANEK, Judge.

text:
    David E. CHAPPER, Appellant/Cross Appellee, v. NATIONAL BANK OF DETROIT, Appellee/Cross Appellant.
    No. 82-391.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.

      Robert L. Beals of Di Giulian, Spellacy & DiChiara, Fort Lauderdale, for appellant/cross appellee.
    Don A. Lynn and Angel Castillo, Jr., of Shutts & Bowen, Miami, for appellee/cross appellant.
   BERANEK, Judge.

The main appeal herein arises from a suit on a note which resulted in a final summary judgment in favor of the appellee/Bank. An order denying the Bank’s motion for attorneys fees is the subject of a cross appeal. The parties agree the loan transaction was governed by Michigan law. Appellant signed a series of notes which were eventually consolidated into a single note. Upon default, the Bank brought suit and appellant, an attorney, asserted the Michigan usury law, Mich.Comp.Laws § 438.31, as a defense. This statute limits interest to seven per cent per annum. There is presently no contest as to the principal amount due and the usury statute, if applicable, constitutes a defense to the payment of interest only. The Bank urges the applicability of Mich.Comp.Laws § 438.61 which allows parties to agree in writing to any rate of interest if the loan recipient is a “business entity” and the loan is made for a business purpose. In an obvious attempt at compliance with this statute, the appellant/loan recipient signed affidavits as to each transaction averring that the loan was for a specifically stated business purpose. Appellant attempted to circumvent the effect of his own prior loan affidavits by swearing they were untrue. In an affidavit in opposition to the Bank’s Motion for Summary Judgment, he stated that the loans were actually of a personal rather than business nature and that the Bank was aware that the loan affidavits were false.

On appeal appellant asserts that issues of fact existed as to whether his business purpose affidavits were false and whether the Bank was aware of their falsity. We agree and reverse in part. In conjunction with its motion for summary judgment, the Bank filed the affidavit of a second vice-president who stated that the loan was not usurious under Michigan law because appellant was a business entity and borrowed the money for a business purpose. However, the Bank did not rebut the averments made in appellant’s affidavit. The falsity of the business purpose affidavits and the Bank’s knowledge of such present issues of fact which were inappropriately disposed of on motion for summary judgment. We therefore affirm the judgment as to $77,275.00 principal and reverse and remand for further proceedings regarding interest in accordance with the established principle that factual issues preclude the entry of summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966). This remand is limited strictly to the question of interest on the loan. The cross appeal relating to the denial of attorneys fees is without merit.

AFFIRMED IN PART AND REVERSED IN PART.

DOWNEY and WALDEN, JJ., concur.

      . Mich.Comp.Laws § 438.61. “Business entity defined. Sec. 1(1). As used in this act ‘business entity’ means: (a) A corporation, trust, estate, partnership, cooperative, or association; or (b) A natural person who furnishes to the extender of the credit a sworn statement in writing specifying the type of business and business purpose for which the proceeds of the loan will be used, but the exemption provided by this act does not apply if the extender of credit has notice that the person signing the sworn statement was not engaged in the business indicated. “Written agreement as to rate of interest. (2) Notwithstanding the provisions of Act No. 326 of the Public Acts of 1966, as amended, being sections 438.31 to 438.33 of Michigan Compiled Laws, but subject to any other applicable law of this state or of the United States which regulates the rate of interest, it is lawful in connection with an extension of credit to a business entity by a state or national chartered bank, insurance carrier, or finance subsidiary of a manufacturing corporation for the parties to agree in writing to any rate of interest.”


text:
    FIRST FEDERAL SAVINGS AND LOAN OF BROWARD COUNTY, A DIVISION OF GLENDALE FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant, v. Grace N. BLINN and First Bank of Hollywood Beach, Appellees.
    No. 82-515.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Robert A. Ware and Linda A. Conahan of English, McCaughan & O’Bryan, Fort Lauderdale, for appellant.
    William Robert Leonard of Coleman, Leonard & Morrison, Fort Lauderdale, for appellee Grace N. Blinn.
    Jesse S. Faerber of Fenster & Faerber, Plantation, for appellee First Bank of Hollywood Beach.
   PER CURIAM.

This is an appeal from a final judgment of the trial court holding the appellant savings institution liable to one of its customers, appellee Grace N. Blinn, for allowing someone other than Blinn to withdraw her funds; and denying the appellant’s action for indemnity against a bank which subsequently paid out funds on a forged endorsement to the check issued by the savings institution upon the wrongful withdrawal of Blinn’s funds.

We affirm the judgment in favor of Blinn because of the existence in the record of competent substantial evidence to support the trial court’s ruling. We are powerless in the face of such evidence to second-guess the trial court’s decision. Elmore v. Enterprise Developers, Inc., 418 So.2d 1078 (Fla. 4th DCA 1982). As to the appellant’s right to indemnity we affirm on the authority of Jett v. Lewis State Bank, 277 So.2d 37 (Fla. 1st DCA 1973). Also see White and Summers, Uniform Commercial Code (2d Ed. 1980), at 587-8, 602-3.

Accordingly, the judgment of the trial court is affirmed.

ANSTEAD and HURLEY, JJ., and SHA-HOOD, GEORGE, Associate Judge, concur.


text:
    A. Alfred TAUBMAN, Appellant, v. FLACK & KURTZ, CONSULTING ENGINEERS, et al., Appellees.
    No. 82-870.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Ronald L. Gaffney and Charles D. Barnett of Barnett & Alagia, Palm Beach, for appellant.
    Edna L. Caruso and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellee.
   PER CURIAM.

The trial court vacated a default judgment on the basis of excusable neglect so as to allow a disposition upon the merits. Upon review we affirm upon the authority of North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962).

Affirmed.

DOWNEY, DELL and WALDEN, JJ., concur.


text:
    ROSS STEBBINS, INC., Appellant, v. Susan M. NYSTRUM, Appellee.
    No. 82-1678.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 1982.
    Dennis F. O’Shea of Gustafson, Stephens, Ferris, Forman & Hall, P.A., Fort Lauder-dale, for appellant.
    Edward G. Stephany of Marko, Stephany & Lyons, Fort Lauderdale, for appellee.
   BERANEK, Judge.

This is an interlocutory appeal from a Circuit Court order enjoining arbitration. Defendant, Ross Stebbins, Inc., is a brokerage firm and a member of the New York Stock Exchange. Plaintiff/appellee was employed as a stock broker and registered representative of that firm in its Fort Lauderdale office. The brokerage house and Nystrum were parties to a written employment agreement. A controversy arose between them as to compensation and certain refundable advances paid to Nystrum. Pursuant to the express terms of the employment agreement, Ross Stebbins, Inc., sought to arbitrate the matter before the New York Stock Exchange in the State of New York. A formal application for arbitration was made to the Director of Arbitration of the New York Stock Exchange on May 26, 1982. Subsequently, in June of 1982, Nystrum filed suit in Broward County, Florida, against Ross Stebbins, Inc., for damages and other relief including an injunction of the pending arbitration proceeding. The Circuit Court granted the prayer for an injunction and the present interlocutory appeal results. We reverse.

The only basis asserted by appellee in support of the ruling is that the transaction did not involve interstate commerce. Although the trial court made no such express factual ruling, appellee asserts this was the basis for the court’s injunction. Having reviewed the appellant’s brief and the appendix as submitted, we are unable to locate any substantial, competent evidence in support of the conclusion that this contract was not one involving interstate commerce. Therefore, pursuant to Merrill, Lynch, Pierce, etc. v. Melamed, 405 So.2d 790 (Fla. 4th DCA 1981), we conclude the trial court erred in enjoining arbitration and the order below is reversed. The matter is remanded for further proceedings consistent with the Florida Arbitration Act, Chapter 682, Florida Statutes (1981), and the Federal Arbitration Act, 9 U.S.C. §§ 1 to 14, as amended (1970).

REVERSED AND REMANDED.

DELL and WALDEN, JJ., concur.


text:
    Joe COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1658.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1982.
    James B. Gibson, Public Defender, Ronald K. Zimmet, Asst. Public Defender, and Brian R. Hanson, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Hughey v. State, 411 So.2d 1021 (Fla. 5th DCA 1982).

ORFINGER, C.J., and DAUKSCH and COWART, JJ., concur.


author: COBB, Judge.

text:
    Bessie Lee HARDEN, Appellant, v. STATE of Florida, Appellee.
    No. 82-13.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1982.

      James B. Gibson, Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

The appellant contends, inter alia, that the trial court erred in this case by:

1. Overruling objection to the prosecutor’s references in opening statement and closing argument concerning the extent of the victim’s surgery, when the charge of aggravated battery in this case was based on sub-section (b) rather than subsection (a) of section 784.045 [ (1) ], Florida Statutes.
2. Denying the appellant’s request for a Williams Rule instruction, assuming the admissibility of evidence at trial of a collateral crime.

While we recognize these errors, we also find that they were harmless in the context

of the “jury-pardon” verdicts rendered in this case, and the overwhelming evidence of guilt, even from the appellant’s own testimony, in regard to the convictions of discharging a firearm in public and carrying a concealed firearm. See Palmes v. State, 397 So.2d 648 (Fla.), cert. denied, 454 U.S. 882, 102 S.Ct. 369, 70 L.Ed.2d 195 (1981); Williams v. State, 386 So.2d 538 (Fla.1980).

Accordingly, we affirm.

AFFIRMED.

DAUKSCH and SHARP, JJ., concur.


author: PER CURIAM. DAUKSCH, Judge,

text:
    Willie C. GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 82-39.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1982.
    James B. Gibson, Public Defender, and Theresa K. Edwards, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED.

ORFINGER, C.J., and COWART, J., concur.

DAUKSCH, J., concurring specially with opinion.

DAUKSCH, Judge,

eoncdrring specially:

I concur this appeal is an affirmance but I write to note that appellant should have first presented the issue to the trial court. Had he done so then we could consider his point on appeal. Perhaps he may find the law would permit the issue still to be raised in the trial court by way of a petition for collateral relief.


author: COWART, Judge.

text:
    Ann C. PALLADAY, Appellant, v. Gary J. PALLADAY, Appellee.
    No. 82-635.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 1982.
    Edgar Dunn and Horace Smith, Jr., of Dunn, Smith & Withers, Daytona Beach, for appellant.
    Sylvan A. Wells of Sylvan A. Wells, P.A., Daytona Beach, for appellee.
   COWART, Judge.

This is an appeal from an order dismissing an action to domesticate, enforce and modify a foreign divorce judgment containing provisions for alimony and child support.

The trial court dismissed the action because the foreign decree was subject to modification in the foreign state and because alleged arrearages had not been reduced to judgment in the foreign state. The complaint alleged arrearages of alimony and child support and that under the laws of the foreign state such arrearages were vested and not subject to modification. Not only is Florida bound, under the federal full faith and credit clause, to recognize and enforce arrearages that have been reduced to judgment in a sister state but, under principles of comity, arrearages under a foreign judgment that have not been reduced to judgment there may be enforced here where, as in this case, they are not subject to modification by the sister state after they have accrued. Furthermore, a foreign support judgment may be first domesticated here and then, as a Florida decree, modified here. See Lopez v. Avery, 66 So.2d 689 (Fla.1953); Sackler v. Sackler, 47 So.2d 292 (Fla.1950); Berger v. Hollander, 391 So.2d 716 (Fla. 2d DCA 1980); Fugassi v. Fugassi, 332 So.2d 695 (Fla. 4th DCA 1976); Courtney v. Warner, 290 So.2d 101 (Fla. 4th DCA 1974).

REVERSED AND REMANDED for further proceedings.

ORFINGER, C.J., and DAUKSCH, J., concur.


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

text:
    Jerry Wayne JENKINS v. ST. PAUL FIRE & MARINE INSURANCE CO., et al.
    No. 81-C-0776.
    Supreme Court of Louisiana.
    Oct. 1, 1982.
    Rehearing Denied Nov. 19, 1982.
    John A. Richie, C. Vernon Richie, Richie & Richie, Edward 0. Kernaghan, Shreveport, for applicant.
    Charles E. Tooke, Alex F. Smith, George T. Allen, Mayer, Smith & Roberts, Shreveport, for respondents.
   LEMMON, Justice.

This is a legal malpractice action brought against plaintiff’s two former attorneys, who allegedly allowed prescription to run before filing suit on plaintiff’s claim for damages for personal injuries sustained in a truck-train collision. The trial court, after a jury trial and verdict in favor of plaintiff, rendered judgment against both attorneys in the sum of $87,000. The court of appeal reversed, holding that plaintiff’s negligence was a contributing cause of the collision and would have barred his recovery against the railroad company. 393 So.2d 851. We granted certiorari to review that judgment. 399 So.2d 607. The grant was prompted to some extent by the concern over the “case within a case” approach used by the court of appeal in this case and by other courts in earlier decisions. Under that approach a plaintiff in legal malpractice litigation must prove not only that the attorney was negligent in handling the client’s claim or litigation, but also that the claim or litigation would have been successful but for the attorney’s negligence. See King v. Fourchy, 16 So. 814 (La.1895); Dyer & Stevenson v. Drew, 14 La.Ann. 657 (La.1859); Spiller v. Davidson, 4 La.Ann. 171 (La.1849); Toomer v. Breaux, 146 So.2d 723 (La.App. 3rd Cir. 1962); Lewis v. Collins, 260 So.2d 357 (La. App. 4th Cir.1972).

I.

In the present case, the attorneys concede that they were negligent in not filing suit until two days after prescription had run. The remaining question is whether the client, after proving the attorneys’ negligence, must also establish the validity of the underlying claim by proving that the attorneys’ negligence caused him damages and by further proving the amount of the damages.

Plaintiff contends that, once the client has established negligence on the part of the attorney, the burden should be placed on the negligent attorney to prove that the mishandled claim or litigation would have been unsuccessful.

Causation, of course, is an essential element of any tort claim. However, once the client has proved that his former attorney accepted employment and failed to assert the claim timely, then the client has established a prima facie case that the attorney’s negligence caused him some loss, since it is unlikely the attorney would have agreed to handle a claim completely devoid of merit. In such a situation, a rule which requires the client to prove the amount of damages by trying the “case within a case” simply imposes too great a standard of certainty of proof. Rather, the more logical approach is to impose on the negligent attorney, at this point in the trial, the burden of going forward with evidence to overcome the client’s prima facie case by proving that the client could not have succeeded on the original claim, and the causation and damage questions are then up to the jury to decide. Otherwise, there is an undue burden on an aggrieved client, who can prove negligence and causation of some damages, when he has been relegated to seeking relief by the only remedy available after his attorney’s negligence precluded relief by means of the original claim.

Accordingly, when the plaintiff (as in this case) proves that negligence on the part of his former attorney has caused the loss of the opportunity to assert a claim and thus establishes the inference of causation of damages resulting from the lost opportunity for recovery, an appellate court (viewing the evidence on the merits of the original claim in the light most favorable to the prevailing party in the trial court) must determine whether the negligent attorney met his burden of producing sufficient proof to overcome ■ plaintiff’s prima facie case.

II.

The accident occurred in Plain Dealing at the point where Palmetto Street crosses the track of the St. Louis Southwestern Railway Company. The configuration of the intersection (including three tracks, storage tanks, and other structures) is shown on the following exhibit (not drawn to scale), which was filed in evidence by plaintiff:

The railroad crossing at Palmetto Street was controlled by electric signals, which were designed so that the red lights flashed and a bell rang when a train approached. There was also another railroad crossing at Highway 2, about 340 feet north of the Palmetto Street crossing. (This crossing is shown on the above sketch.)

On the day of the mid-morning accident, the weather was cold and foggy, with drizzling rain. As plaintiff drove from his home into town, the signal lights at the Palmetto Street crossing were flashing, and the bell was ringing. Plaintiff stopped his pickup truck and looked in both directions, determining that no train was coming. He then proceeded across the tracks and parked at a store approximately a block beyond the crossing, where he shopped for clothing for about 20 minutes.

Plaintiff testified: When he left the store, he proceeded west on Palmetto Street toward the railroad crossing, traveling in first gear at five to six miles per hour. Although the signal device was operating, he did not stop completely at the signal, but looked in both directions and continued forward at the same rate of speed. After looking to his right when he passed the signal, he glanced again to his right as he crossed the storage tracks (15 feet beyond the signal), and the next thing he remembered was waking up in the hospital.

Other evidence established that plaintiff was struck broadside by a train traveling south on the main track at 40 to 49 miles per hour. Plaintiff never saw the train before it hit him. His windows were up, and his windshield wipers and heater blower were operating at the time, and he did not hear the train sound a whistle. Other evidence conflicted on whether the train blew its whistle.

Plaintiff contends that his failure to stop at the signal was inconsequential, because his view of the main track to the north was partially obstructed by the tanks and buildings and by a boxcar parked on the storage track next to the building. However, he conceded that once he passed the signal and reached the storage track, he thereafter had an unobstructed northward view of the main track to a point a little beyond the Highway 2 crossing (340 feet away). He also admitted that he could have stopped his pickup truck “on a dime” at the slow speed at which he was traveling.

The following photograph illustrates the unobstructed northward view of a westbound motorist on Palmetto Street who had just crossed the storage, tracks:

When plaintiff approached the flashing signal, he may reasonably have disregarded the malfunctioning signal as meaningless, but he was not misled into believing that he did not have to look for oncoming trains or to control his vehicle in crossing the tracks. Since there was a distance of more than 55 feet between the storage tracks and the main tracks, and since a vehicle moving at six miles per hour travels nine feet per second, it took plaintiff approximately six seconds to travel the distance between the two sets of tracks. During that six-second period of travel, he had an unobstructed view of the main track to the north. During that same six-second period, the train traveled approximately 400 feet in full view of anyone situated in plaintiff’s position.

Plaintiff could have stopped his vehicle almost instantly at his rate of speed in low gear, if he had seen the approaching train at any time during the six-second period of travel between the two tracks. His failure to see the train prior to the collision indicates that he did not look to his right again after crossing the storage tracks (a fact he virtually admitted in his testimony) or that, if he did look, he negligently failed to see the plainly visible hazard.

The court of appeal held that plaintiff’s undisputed conduct in failing to see what he should have seen and in driving his truck into the path of the oncoming train in plain view constituted contributory negligence. Plaintiff points out, however, that the duties breached by the railroad were duties imposed because of the expectation that some motorists will be inattentive in crossing railroad tracks. Citing Outlaw v. Bituminous Ins. Co., 357 So.2d 1350 (La.App. 4th Cir.1978), plaintiff argues that foreseeable inattention should not be both the basis for imposing the duty and the reason for excusing a breach of the duty.

The Outlaw decision (and others such as Baumgartner v. State Farm Mutual Auto Ins. Co., 356 So.2d 400 [La.1978] and Boyer v. Johnson, 360 So.2d 1164 [La.1978]) represented an effort, during the time that contributory negligence prevailed as an absolute bar to recovery, to reach a just result when a comparison of the respective duties of two negligent parties (and of the risks created by breaches of those duties) revealed an extreme imbalance favoring the plaintiff. The circumstances of those particular cases (in each of which the plaintiff was hampered by some type of curtailed capacity) dictated that the defendant should have protected the particular plaintiff from the consequences of his own negligence. In the present case, however, the comparison of the duties imposed on and breached by the two negligent parties does not reveal such an extreme imbalance. While a passenger in the plaintiff’s vehicle could perhaps have recovered from defendant (and from plaintiff), plaintiff cannot, since his claim arose before the legislative adoption of comparative negligence.

We conclude that, even viewing the evidence of the collision with the burden of proceeding shifted to the defendant, the court of appeal correctly concluded that plaintiffs substantial blameworthy conduct bars his recovery.

Accordingly, the judgment of the court of appeal is affirmed.

MARCUS, J., concurs and assigns reasons.

BLANCHE, J., concurs for reasons assigned by MARCUS, J.

DENNIS and WATSON, JJ., dissent and assign reasons.

MARCUS, Justice

(concurring).

I agree with the result reached in this case but adhere to the rule that in a legal malpractice case plaintiff must prove not only that the attorney was negligent in handling his client’s claim or litigation but also that the claim or litigation would have been successful but for the attorney’s negligence. Accordingly, I respectfully concur.

WATSON, Justice,

dissenting.

This is a troublesome case, both on the facts and the law.

On a cold, foggy, misty morning the plaintiff-motorist crossed railroad tracks where the bell and light were operating, despite the absence of any train, conducted his emergency shopping (his house had been completely burned to the ground two days prior), and returned to the same crossing. Unfortunately, a lengthy freight train, traveling at an excessive rate of speed and failing to sound its whistle for about two-thirds of the legally required distance, came along and hit plaintiff’s pickup truck. Plaintiff did not see the train at all and the engineer and the brakeman did not see plaintiff’s truck until about one second before impact. Needless to say, in the train-pickup collision, the party occupying the truck was severely injured, although there was no damage, as far as the record indicates, to the train.

The jury found the railroad negligent, the plaintiff not negligent, and damages of $87,000.

On the law, laying aside for the moment the questions concerning legal malpractice, the Court of Appeal determined that the railroad company was obviously negligent, but plaintiff was contributorily negligent. The verdict for plaintiff was reversed. Counsel for plaintiff presents an interesting argument: under a duty-risk analysis the Court of Appeal excuses the breach of the railroad’s duty by the conduct which requires the duty. The argument is that an attentive motorist has no need for protection from locomotives which fail to sound the whistle for the prescribed distance, from an improperly operating warning light and bell, and from a train operated at an unsafe speed; the attentive motorist sees the train and avoids the collision. It is only the inattentive (contributorily negligent) motorist who needs the protection afforded by the railroad’s duty and if his lack of attention places the fault on him and excuses the railroad, then the railroad really has no duty in the first place. Thus, says counsel, the duty-risk analysis will not support the Court of Appeal’s decision.

However, counsel suggests a better legal analysis to solve the problem. It should be noted parenthetically that if comparative negligence were in effect as to this accident, there is no question that the negligence of the railroad far exceeds that of plaintiff and he would recover a substantial judgment. The proper solution, and the one which I would apply under the difficult facts, is fundamentally that of Baumgard-ner v. State Farm Mutual Automobile Insurance Co., 356 So.2d 400 (La.1978). I would parallel Baumgardner by saying that the operator of a dangerous instrumentality, such as a freight train, creates a great risk of injury to the motoring public while an automobile or pickup truck poses almost no risk to a train. Then following the Baumgardner reasoning, due to the great disparity of risk, contributory negligence is not a defense in a case such as presented.

The reversal of burden of proof espoused by the majority opinion has no significance. If this is a contributory negligence case, as held by the Court of Appeal, then the burden of proof, at least to the resolutory issue of contributory negligence, was already on the defendant lawyers.

I would hold plaintiff could have recovered from the railroad, if his case had not prescribed. Therefore, I respectfully dissent.

DENNIS, Justice,

dissenting.

I commend the plurality for its improvement in the law by modifying the “case within a case” requirement by placing the burden of going forward with the evidence upon the defendant attorney once his malpractice has been established. This is certainly more just than the former rule of law. However, I think our civil code and justice require that a person whose legal rights have been permanently prejudiced by the wrongful acts of his attorney be afforded a more complete remedy. La.Civ.Code art. 2315 (“Every act whatever of man that caused damage to another obliges him by whose fault it happened to repair it.”) La. Civ.Code art. 2316 (“Every person is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.”).

Although the plaintiff’s rights were litigious, they surely had some value before they were allowed to prescribe by his attorney. The plaintiff should be allowed to recover for the loss of this value regardless of whether he would have triumphed in a full-scale hypothetical trial. Furthermore, as suggested by Mr. Justice Watson’s able dissent, it is not outside the realm of all possibility that Mr. Jenkins could have recovered at some point in the judicial process after a real trial on the merits. See Baumgardner v. State Farm Mutual Automobile Insurance Co., 356 So.2d 400 (La.1978). Had Mr. Baumgardner’s attorney allowed his cause of action to prescribe, under the case within a case requirement, he would have recovered “zero” for his loss of a cause of action which ultimately was worth $31,-288.17 after litigation terminating in this court.

Accordingly, in the interest of justice and the faithful application of our civil code, I would jettison the case within a case requirement. I would require that the party guilty of malpractice repair the wrong he has done to his client by paying him an amount equal to the value of the right destroyed.

With this approach, we would reach a result under our code similar to that adopted by jurisdictions which have abandoned the case within a case requirement in favor of more modern rules. See Smith v. Lewis, 13 Cal.3d 349, 118 Cal.Rptr. 621, 530 P.2d 589, overruled on the grounds Re Marriage of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 663, 544 P.2d 561 (Calif.1975) (replacing the “but for” approach of “case within a case” with a lesser standard of “lost opportunity”) and Fuschetti v. Bierman, 128 N.J.Super. 290, 319 A.2d 781 (New Jersey 1974) (adopting a bifurcated procedure for the resolution of the issue of “cause”). Additional proposed approaches include the “lost substantial possibility” test suggested by cases in the medical malpractice arena, Hicks v. United States, 368 F.2d 626 (4th Cir.Ct.App.1966) noted at Jensen, The Standard of Proof of Causation in Legal Malpractice Cases, 63 Cornell L.Rev. 666, 679 (1978), or the award of damages based upon “reasonable settlement value.” This last approach has considerable logical appeal, since as many as 92.9% of personal injury suits are settled prior to trial. Bridgman, Legal Malpractice — A Consideration of the Elements of a Strong Plaintiff’s Case, 30 S.C.L.R. 213, 234 (1979).

Because the plurality fails to resolve the major legal issue which is presented by this case in a manner which I find faithful to the precepts of our civil code and to a sense of justice, I respectfully dissent.

      . In the lower courts, each attorney claimed that the client had established an attorney-client relationship with the other, who was solely responsible to file the suit timely. The jury found, however, that they were solidarily liable and that one could not recover over against the other. No such claims have been urged in this court.

      . The client’s problem is frequently compounded when the attorney’s negligence and the lapse of time has left a new attorney to search for stale evidence and has prevented or severely hampered thorough and effective preparation of the claim for trial.

      . Other evidence established that the signal frequently malfunctioned and operated continuously for several hours (or even days).

      . Several witnesses testified that they heard the train’s whistle just before the train reached the Highway 2 crossing, about 340 feet north of the Palmetto Street crossing. R.S. 45:561 requires trains to sound a whistle continuously for 900 feet before a crossing.

      . The court of appeal held that the railroad was negligent in failing to maintain the signal device, in operating the train through the town at a rate of speed which was excessive in view of the fact that the signal was not functioning properly, and in failing to commence sounding the whistle at least 900 feet before the Palmetto Street crossing.

      . In the Outlaw case, defendant drove a golf ball in the general direction of a nine-year old golfer who was crouched behind a golf bag 172 feet away. The child lost an eye when he raised his head above the bag as defendant hit the ball. The court held that the mature golfer’s duty under such circumstances was not to drive the ball at all in that general direction. Addressing the issue of the child’s negligence, the court added:
      “Rather than excuse contributory negligence on a last-clear-chance theory, however, we hold that the child’s negligence (if any) was not contributorily (sic) negligence barring his recovery. A nine-year-old may be capable of contributory negligence, but like a 12-year-old, Plauche v. Consolidated Companies, 1958, 235 La. 692, 105 So.2d 269, he is not held to adult standards of comprehension of danger and duty of self-care. We may assume that the jury properly evaluated this child’s awareness of danger and properly concluded that he was negligent. But his negligence cannot be both the foreseen risk which imposes the duty on the mature golfer not to hit the ball and at the same time a defense to an action for damages for breach of the mature golfer’s duty. The youngster’s leaving a place of safety cannot both impose a duty and excuse its breach.”

      . The legislative adoption of comparative negligence should largely resolve such problems.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Allen MICHEL a/k/a Allan Michael.
    No. 81-KA-3194.
    Supreme Court of Louisiana.
    Oct. 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Abbott J. Reeves, William R. Alford, Asst. Dist. Atty., for plaintiff-appellee.
    Ralph L. Barnett, Gretna, for defendant-appellant.
   MARCUS, Justice.

Allen Michel a/k/a Allan Michael was indicted by the grand jury for the first degree murder of Ernest Perry in violation of La.R.S. 14:30. After trial by jury, he was found guilty of second degree murder and was sentenced to life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. On appeal, defendant relies on eleven assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends the trial judge erred in denying his motion for a mistrial on the ground that the prosecutor made a reference to an inculpatory statement made by him in the prosecutor’s opening statement to the jury (Assignment of Error bio. 1) and in failing to properly admonish the jury to disregard the remark (Assignment of Error No. 2).

During his opening statement to the jury, the prosecutor made a reference to the fact that defendant went to the home of a friend (Darryl Treadway) on October 23, 1978 and requested that he (Treadway) give him a gun in order to “jack Little [victim].” Defendant moved for a mistrial. The trial judge denied the motion and admonished the jury “to disregard entirely as if not said any remarks by the Assistant District Attorney concerning any kind of inculpatory statement made by the defendant in his opening remarks.”

La.Code Crim.P. art. 767 prohibits the state in the opening statement to advert in any way to a confession or inculpatory statement made by the defendant. We have held that as used in art. 767 the term “inculpatory statement” refers to out-of-court admission of incriminating facts made by a defendant after the crime has been committed. It relates to past events. State v. Labostrie, 358 So.2d 1243 (La.1978); State v. Miles, 339 So.2d 735 (La.1976).

In the instant ease, the alleged crime was committed on October-25, 1978. The statement objected to was made two days prior thereto (October 23). Since the statement was made by defendant prior to the time the crime was committed, it was not an inculpatory statement and, hence, not subject to the restriction set forth in art. 767. No admonition was necessary.

Assignments of Error Nos. 1 and 2 are without merit.

ASSIGNMENT OF ERROR NO. 3

Defendant contends the trial judge erred in denying his motion to suppress a “.25 caliber slug” seized pursuant to a search warrant. He argues that the evidence was seized from an area beyond the scope of the warrant.

'After selection and swearing of the jury but prior to the opening statements by the state and defendant, a suppression hearing was held outside the presence of the jury. The warrant in question had been issued for the search of the premises, person or vehicle located at “Rt. 1 Box 239-A Folsome La. a blue/white house trailer on the property of Frank Michael” for the purpose of seizing the following described property: .25 caliber pistol, .25 caliber live ammunition, .25 caliber empty casings, and various items of clothing. In the course of executing the search warrant, the officers noticed that a tree three feet from the northwest corner of the house trailer appeared to have been “shot up” by some type of weapon. During the process of checking the marks on the tree, the officers observed a slug. The slug was dug out of the tree and tests later revealed that it was a .25 caliber slug matching the one taken from the victim’s body. After the hearing, the trial judge denied the motion to suppress.

In State v. Roach, 322 So.2d 222 (La.1975), we stated that

a search warrant authorizing the search of the “premises” at a stated address must reasonably be interpreted to permit a search of the dwelling house proper, the garage, and any other outbuildings within close proximity of the house proper that one normally associates with and includes within the word “house” or “premises.”

In Roach, we held that the search of a motorcycle parked in a carport or garage in the rear of a house was included in the “premises.” Likewise, we conclude that a tree located within three feet of the corner of the house trailer is included within the “premises.” Hence, we do not consider that the officers exceeded the scope of the search warrant. The motion to suppress was properly denied.

Assignment of Error No. 3 is without merit.

ASSIGNMENTS OF ERROR NOS. 6 AND 7

Defendant contends the trial judge erred in denying his motion for a mistrial on the ground that a witness for the state gave an improper and prejudicial answer (Assignment of Error No. 6) and in failing to properly admonish the jury to disregard the comment (Assignment of Error No. 7).

Darryl Treadway testified that defendant had come to his house prior to the crime and borrowed his .25 caliber automatic gun. On the day of the crime (October 25, 1979), defendant returned to his house and told him (Treadway) that “he had reason to believe they was looking for him for a shooting.” Upon stating that defendant was in possession of dilaudids at that time, the state asked the witness if defendant had told him where he got the drugs. Treadway responded in the negative. The prosecutor then reminded the witness of his statement to the police on March 17, 1981, and asked him about his conversation with defendant on October 25 (date of crime). He responded: “I was under the impression that he shot the guy.” Defendant objected and moved for a mistrial. The trial judge ordered the answer stricken and admonished the jury to disregard it as unresponsive. Defendant further objected that the admonition did not cure the prejudicial effect of the answer.

La.Code Crim.P. art. 771 provides that upon request of defendant, the court shall promptly admonish the jury to disregard a remark or comment made by a witness during the trial when the remark might create prejudice against the defendant in the mind of the jury. In such a case, on motion of defendant, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant a fair trial.

Unsolicited and unresponsive testimony is not chargeable against the state to provide a ground for reversal of a conviction. State v. Jones, 332 So.2d 466 (La.1976). Under art. 771, it is within the trial judge’s discretion to grant a mistrial if he believes that an admonition is not sufficient to assure defendant a fair trial. State v. Davis, 339 So.2d 825 (La.1976). In the instant case, the answer of the witness was completely unsolicited and unresponsive. The trial judge properly admonished the jury to disregard the remark. We do not consider that the trial judge abused his discretion in refusing to grant the mistrial as any prejudice created by the statement was cured by the admonition.

Assignments of Error Nos. 6 and 7 are without merit.

ASSIGNMENT OF ERROR NO. 8

Defendant contends the trial judge erred in refusing to grant a mistrial on the ground that the prosecutor made a prejudicial remark while questioning a witness.

During redirect examination of Darryl Treadway, a key state witness who was then in jail, the following colloquy occurred between the prosecution and the witness:

Q. Generally speaking, sir, for a person like yourself who is facing going to the penitentiary, is it generally healthy that you come in and testify against another person that might go to the penitentiary? A. No, sir.
Q. Did I tell you Thursday night that if you had to go to the penitentiary, I would try to see to it that you were incarcerated at another place other than where Alan Michel would be incarcerated?
A. Yes, sir.

Defendant objected and moved for a mistrial on the ground that the question represented a comment by the prosecutor on defendant’s guilt. The trial judge sustained the objection, denied the motion, and admonished the jury to disregard the question and answer. We consider that the prosecutor was simply attempting to disclose to the jury the promise he had made to the witness for testifying in this case. We do not consider that it constituted a prejudicial comment by him on defendant’s guilt. In brief to this court, defendant argues for the first time that the comment “implied” that defendant was guilty of another crime,' i.e., intimidating a witness (La. R.S. 14:129.1). A new basis for an objection cannot be raised for the first time on appeal. State v. Drew, 360 So.2d 500 (La.1978); State v. Fowlkes, 352 So.2d 208 (La.1977). In any event, there is no substance to this contention. We do not believe that the jury could have reasonably made such an inference. Nonetheless, the trial judge admonished the jury to disregard the question and answer. The trial judge did not abuse his discretion in refusing to grant a mistrial.

Assignment of Error No. 8 is without merit.

ASSIGNMENT OF ERROR NO. 9

Defendant contends the trial judge erred in accepting Otto B. Stubbs, Jr. as an expert in firearms examining.

The record reveals that Otto B. Stubbs, Jr. had been employed by the New Orleans Police Department Crime Lab since 1968. At the time of trial, he had been assigned to the firearms examining section of the crime lab for over three years. He received his basic training from the FBI Academy in Quantico, Virginia in 1973, but this course involved limited exposure to firearms examining. He had no further formal training but received additional on-the-job training while working for two individuals with the State Police Crime Lab. At the time of trial, he was working under the supervision and direction of a sergeant of the New Orleans Police Department. He had been accepted in the courts of this state as an expert in firearms examining approximately fifteen times.

La.R.S. 15:466 provides:

The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert this competency so to testify must have been established to the satisfaction of the court.

Competency of an expert witness is a question of fact within the sound discretion of the trial judge, and his rulings on qualifications of experts will not be disturbed unless clearly wrong. State v. Coleman, 406 So.2d 563 (La.1981).

In the instant case, Officer Stubbs was thoroughly questioned to the extent of his knowledge by the state, defendant and the court. We do not find that the trial judge abused his discretion in accepting the witness as an expert in firearms examining.

Assignment of Error No. 9 is without merit.

ASSIGNMENT OF ERROR NO. 10

Defendant contends the trial judge erred in allowing certain photographs in evidence. He argues that the photographs did not accurately depict the scene of the crime and were objectionable as gruesome and unnecessary as the victim’s wife had already identified the victim.

The state introduced several photographs of the scene of the crime in evidence. One of the photographs depicted the victim lying on the grass at the scene of the crime with blood on his face and clothing. This photograph was viewed by the victim’s wife for the purpose of identifying the victim. The other photographs depicted the victim in full lying face down in the grass and/or part of his body from various angles. These photographs were viewed by the investigating officer who took the photographs to prove the location of the injuries and the place where the crime occurred.

Generally, photographs of the body of the victim depicting the fatal wounds are relevant to prove the corpus delicti; to corroborate other evidence of the manner in which the death occurred; to establish the location, severity, and number of wounds; and to establish the identity of the victim. The test of admissibility is whether the probative value of the photographs outweighs the prejudice that may result from the display to the jury. State v. Lewis, 353 So.2d 703 (La.1977); State v. Cooper, 334 So.2d 211 (La.1976).

After examining the photographs in question, we are of the view that, while one of the photographs was unpleasant, it was not especially gruesome; the other photographs were clearly not gruesome. Moreover, the photographs were properly identified as depicting the scene of the crime by the investigating officer who had taken the pictures. Finally, the photographs were relevant to identify the victim, establish the location of the crime, and the manner in which the victim died. Since the probative value of the photographs outweighs any possible prejudicial effect, the trial judge did not err in admitting them in evidence.

Assignment of Error No. 10 is without merit.

ASSIGNMENT OF ERROR NO. 11

Defendant contends the trial judge erred in denying his motion for a mistrial grounded on the claim that the prosecutor made prejudicial remarks in his closing rebuttal argument.

Much of defendant’s closing argument was directed at the weakness of eyewitness testimony. In rebuttal, the prosecutor countered by saying that if “human beings aren’t able to see something and recount it, he’s lying to you.” On two other occasions during rebuttal, the prosecutor, while referring to certain statements made by defense counsel which he considered not supported by the evidence, made remarks reflecting on the integrity of defense counsel. On one occasion, he stated: “Is that a fair statement? Is that the statement of someone who’s trying to level with you?” On another occasion, he stated: “Is that fair comment? Is that from the witness stand? Is that evidence in this case? Or is that an effort to confuse you?” To each of these remarks defense counsel objected. The record is not clear as to whether the trial court ultimately sustained or overruled the objection, however, at no time did the defense counsel request either an admonition or a mistrial. Also during rebuttal, the prosecutor, after referring to defense counsel’s statement indicating that he (defense counsel) knew that defendant was not guilty, stated: “If he knows ... he should have taken the witness stand.” Defendant objected and moved for a mistrial. The objection was overruled and the motion denied.

If an objection is sustained, defendant cannot on appeal complain of the alleged error unless at trial he requested and was denied either an admonition to disregard or a mistrial. State v. Miles, 402 So.2d 644 (La.1981). In the instant case, since the record is not sufficiently clear on the trial judge’s rulings to several of defendant’s objections, we do not base our holding on defense counsel’s failure to request a mistrial. However, before a verdict is set aside on the ground of improper argument, this court must be thoroughly convinced that the jury was influenced by the remarks and that they contributed to the verdict. State v. Williams, 346 So.2d 181 (La.1977). While the prosecutor’s remarks referring to the integrity of defense counsel were inappropriate and bordered on reversible error, we do not consider that the jury was influenced by them or that they contributed to the verdict. Moreover, the remark that “[i]f he knows ... he should have taken the witness stand” clearly referred to defense counsel and not defendant. Hence, while an improper remark, it was not a prohibitive reference to the failure of defendant to testify in his own defense (La.Code Crim.P. art. 770(3)) nor was defendant prejudiced as a result thereof. Under the circumstances, we are unable to say that the trial judge erred in denying the motion for a mistrial.

Assignment of Error No. 11 is without merit.

DECREE

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

      . Defendant has neither briefed nor argued Assignments of Error Nos. 4 and 5; therefore, we consider them to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).


author: CALOGERO, Justice.

text:
    STATE ex rel. Rudolph WILSON v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 82-KH-0415.
    Supreme Court of Louisiana.
    Nov. 29, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, Mary C. McMullan, Asst. Dist. Attys., for respondent.
    Calvin Johnson, New Orleans, Supervising Atty., Loyola Law School Clinic.
   CALOGERO, Justice.

Relator contends that his adjudication in 1975 as a third offender was erroneous and his fifteen year sentence illegal. Pertinent to resolution of this question, relator claims that the trial judge mistakenly took into account a 1974 Federal conviction. Had he not done so, the statutory five year cleansing period of La.R.S. 15:529.1 would have precluded the use of a 1967 conviction and his being found a multiple offender for the 1975 crime for which he was sentenced.

We find merit in his contention, upset the multiple offender adjudication, vacate his fifteen year sentence and remand the case to the trial court for resentencing.

On March 6, 1975, defendant committed an aggravated battery upon one Geneva Poche, a violation of R.S. 14:34. By amended bill of information he was so charged on April 3, 1975. He was tried before a six person jury on May 2, 1975, and found guilty. Thereafter, billed as a multiple offender under La. 15:529.1, defendant admitted being the same person named in each of three cited prior offenses. He was then found by the trial judge to be a third felony offender and sentenced to fifteen years at hard labor. Sentenced other than as a multiple offender, defendant’s maximum exposure would have been ten years at hard labor under La.R.S. 14:34. On appeal to this Court, defendant merely requested a review for patent errors. We affirmed his conviction and sentence summarily. 356 So.2d 422 (La.1978).

We granted this writ upon relator’s pro se application.

The multiple offender bill coupled with other pertinent information of record establishes the following:

October 10, 1950 — 20 year sentence for attempted murder. Following commutation to 10 years, defendant earned a good time release on April 24, 1957.
September 22, 1967 — 3 year sentence for negligent homicide. Defendant earned a good time release on August 28, 1969. July 31, 1974 — 4 years, suspended, with 4 years active probation, for violation of 26 U.S.C. § 5861(d), a provision of the Federal Gun Control Act which prohibits receipt or possession of an unregistered firearm.

On March 6, 1975, defendant committed the aggravated battery which prompted the third felony offender adjudication and fifteen year sentence we are now reviewing.

There are two relevant legal propositions which dictate our result here. First, La. R.S. 15:529.1, the multiple offender statute, specifically provides that for an out of state or federal conviction to be used to support a multiple offender adjudication, the crime upon which the conviction is based must be a felony under the laws of Louisiana.

The second proposition is that in order to use a prior felony offense to support a multiple offender adjudication there must not have intervened, before commission of another felony, a five year “cleansing” period, that is, five years between the end of the previous sentence and the commission of another felony. In determining the expiration of a given sentence, it is not the imposed sentence which governs, but the date of the person’s actual discharge from supervision by the department of corrections. Discharge from supervision can take place earlier than the theoretical date on which the initial sentence would have terminated, because of a pardon, commutation or good time credit. Or it can take place later because of parole revocation. State v. Anderson, 349 So.2d 311 (La.1977).

In Anderson, we held:

Construing the act as a whole, the expiration of the sentence intended to fix the commencement of the five-year “cleansing” period is the date of the individual’s actual “discharge” from being subject to penitentiary confinement under the earlier conviction relied upon.
******
The statutory intent, thus, is that a sentence expires when the prisoner is discharged from state custody and supervision, not when the theoretical date arrives on which the initial sentence would have terminated. Thus, when the convicted person is discharged earlier (as well as later) than the expiration date of the sentence initially sentenced, then the actual maximum sentence is that determined by his date of legal discharge, whether extended through revocation of parole or shortened by law due to ‘good time’ diminution of the initial sentence. It is not until the date of actual discharge that the individual has fully paid his debt to society, insofar as owed because of an offense for which he has been convicted.

Applying these principles to the present case, we find that relator was erroneously adjudicated a multiple offender because the July 31, 1974, federal conviction does not qualify under La.R.S. 15:529.1(A); and, in its absence, more than five years have elapsed between the expiration of the 1967 sentence and the commission of the instant offense.

United States Code, Title 26, § 5861(d), the federal statute under which defendant was convicted on July 31, 1974, provides:

It shall be unlawful for any person— (d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.

The penalty for violation of that offense, as set forth in 26 U.S.C. § 5871, is a fine of not more than $10,000.00, a prison sentence of not more than ten years, or both. Under federal law, this crime would be classified as a felony. 18 U.S.C. § 1.

However, under La.R.S. 15:529.1, a federal or out of state conviction can only be used to support a multiple offender adjudication where the crime upon which it was based, at the time of the commission, was a felony under the analogous Louisiana statute.

The Louisiana statute, analogous to the federal statute which defendant violated, is La.R.S. 40:1785, which provides:

No person shall receive, possess, carry, conceal, buy, sell, or transport any firearm which has not been registered or transferred in accordance with this Part.

The penalty provided for violation of this statute, in 1974, at the time relator committed the offense, was a fine of “not less than one hundred dollars nor more than one thousand dollars and imprison[ment] for not less than three months nor more than twelve months.” Since Louisiana defines a felony as a “crime for which an offender may be sentenced to death or imprisonment at hard labor” [La.R.S. 14:2(4)], this offense was not a felony in 1974. Consequently, the federal crime for which relator was convicted was not “a crime which, if committed in this state would be a felony” and it therefore could not be used to enhance relator’s sentence under La.R.S. 15:529.1. State v. Singleton, 352 So.2d 191 (La.1977).

Once we exclude consideration of the July 31, 1974, federal offense, we find that the September 22,1967, conviction cannot be used to support a habitual offender adjudication because more than five years elapsed between August 28, 1969, the date of relator’s release upon completion of the 1967 sentence (with credit for good time), and the commission of the March 6, 1975 offense. Accordingly, relator should not have been adjudicated a multiple offender and the resulting fifteen year sentence was illegal. He must be resentenced in accordance with law. Resentencing is to take place as soon as is practically possible inasmuch as relator may be entitled to be released with consideration of good time credits. He was sentenced on January 5, 1976, with credit for time served from March 15, 1975, a full 7 and xk years ago, and the maximum sentence he can receive upon resentencing is 10 years.

It has been suggested that relator should be denied the relief he seeks because he may have pled guilty at the multiple offender adjudication. The minutes do not indicate that relator pled guilty to the multiple offender charge. The minutes merely state that the relator “admitted to being the same person charged in the Bill of Information R.S. 15:529.1,” and that in this case the “court found the defendant a third offender.” Therefore we need not determine whether a “guilty plea” in a multiple offender proceeding bars review of a sentence illegal because of underlying error, whether of a legal or factual nature.

Finally, this Court earlier denied a writ application by this relator presenting these same contentions, State ex rel Wilson v. Blackburn, 399 So.2d 595 (La.1981), with the notation “Writ Denied.” This is of no moment, however, for an illegal sentence may be corrected at any time. La.C.Cr.P. art. 882.

Decree

For the foregoing reasons we vacate relator’s illegal fifteen year sentence, imposed following his erroneous adjudication as a third felony offender, and remand the case to the trial court for resentencing in conformity with law.

SENTENCE VACATED; REMANDED FOR RESENTENCING.

      . La.R.S. 15:529.1(A) provides:
      A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
      ******
      (emphasis provided)

      . La.R.S. 15:529.1(C) provides:
      C. This Section shall not be applicable in cases where more than five years have elapsed since the expiration of the maximum sentence, or sentences, of the previous conviction, or convictions, and the time of the commission of the last felony for which he has been convicted. In computing the period of time as provided herein, any period of servitude by a person in a penal institution, within or without the state, shall not be included in the computation of any of said five year periods, (emphasis provided)

      . La.R.S. 40:1791 provides the penalty for the violation of La.R.S. 40:1785. At the time relator committed the federal offense, violation of La.R.S. 40:1791 constituted only a misdemean- or. However, La.R.S. 40:1791 was amended by Act No. 491 of 1975 to make it a felony. The penalty for the first violation of La.R.S. 40:1785 is now “a fine of not less than five hundred dollars nor more than two thousand dollars and imprisonment with or without hard labor for not less than one or nor more than five years.”

      . It may well be that a defendant’s guilty plea at a multiple offender adjudication is not the equivalent of a guilty plea to a charged crime, such that later review is precluded, absent a Crosby reservation.
      La.R.S. 15:529.1(D) provides:
      D. If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state, or has been convicted under the laws of any other state or of the United States; or any foreign government or country of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction. Whereupon the court in which the subsequent conviction was had shall cause the person, whether confined in prison or otherwise, to be brought before it and shall inform him of the allegation contained in the information and of his right to be tried as to the truth thereof according to law and shall require the offender to say whether the allegations are true. If he denies the allegation of the information or refuses to answer or remains silent, his plea or the fact of his silence shall be entered on the record and the judge shall fix a day to inquire whether the offender has been convicted of a prior felony or felonies, as set forth in the information. If the judge finds that he has been convicted of a prior felony or felonies, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted, the court shall sentence him to the punishment prescribed in this Section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated, (emphasis provided)