author: LEMMON, Justice.

text:
    STATE of Louisiana v. Kenneth OGDEN and Benjamin Geraghty.
    No. 67608.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Leon A. Cannizzaro, Asst. Dist. Atty., for plaintiff-relator.
    Paul A. Tabary, III, Sapir & Belknap, New Orleans, for defendant-respondent Kenneth Ogden.
    Edward Baldwin, New Orleans, for defendant-respondent Benjamin Geraghty.
   LEMMON, Justice.

Charged with possession of controlled dangerous substances and possession with intent to distribute, defendants successfully moved to suppress evidence seized pursuant to execution of a search warrant. Because the seized items were the principal evidence to be offered against defendants, the prosecution sought review, and this court granted certiorari. 385 So.2d 288.

The search, conducted on November 23, 1979 at Benjamin Geraghty’s apartment at 710 Weiblen Place in New Orleans pursuant to a warrant issued the same day, yielded three “lids” of marijuana, a small amount of cocaine, and various “drug paraphernalia”.

On its face the affidavit (annexed as an appendix) establishes probable cause to search the apartment. In the affidavit Officers McNeil and Elder of the New Orleans Police Department, Drug Abuse Unit, stated that they were contacted by a confidential informant on November 21, 1979; that the informant was well known to McNeil and had previously supplied McNeil with information which proved instrumental in securing the arrest and conviction of other drug violators in the New Orleans area; and that the informant admitted to Elder he had purchased cocaine from Kenneth Ogden three days earlier in an apartment at 710 Weiblen and had previously purchased cocaine from Ogden in a parking lot at the Lake Forest Plaza Shopping Center, near Ogden’s place of employment with Sears, where Ogden secured the cocaine from a dark grey 1971 Mercedes-Benz bearing Louisiana license No. 146B364.

Thus, the affidavit describes drug transactions in significant detail revealed as first hand observation by an informant shown to be reliable on the basis of past accurate information. And the informant’s credibility was strengthened by his declaration against penal interest.

The affidavit further recited that Officer Elder, who worked at Sears as a security officer and knew that Ogden drove a 1971 Mercedes, had been previously apprised by a “concerned” person that Ogden was “trafficking” in cocaine from that car in the same manner described by the confidential informant-that is, Ogden would meet the purchaser during working hours and proceed to his Mercedes, where the transaction would take place. Although the “concerned” person’s identity was not revealed, and although the information did not purport to be based on firsthand observation, the additional report nevertheless corroborated that of the informant and lent some support to the conclusion that Ogden was involved in a continuing illegal enterprise.

A further statement in the affidavit established that Ogden’s criminal record included two prior convictions for drug violations. This information further supported the officers’ belief that Ogden was involved in illegal drug transactions. United States v. Harris, above.

We conclude that the affidavit in this case plainly recited detailed facts which would establish to the satisfaction of a neutral and detached magistrate probable cause to search the named premises. La. Const, art. 1, § 5 (1974); C.Cr.P. art. 162; State v. Nelson, 381 So.2d 477 (La.1980); State v. Paciera, 290 So.2d 681 (La.1974). A showing of probable cause requires much less evidence than proof beyond a reasonable doubt. As the term “probable cause” implies, the magistrate, and the officers securing his approval for the search, are dealing in probabilities. “These are not technical; they are factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). Furthermore, a magistrate’s determination of probable cause should be accorded great deference by a reviewing court. State v. Nix, 327 So.2d 301 (La.1975). The reviewing court must avoid the temptation to substitute its judgment for that of the magistrate and should merely determine whether there was a substantial basis for the magistrate’s determination. United States v. Middleton, 599 F.2d 1349 (5th Cir. 1979); State v. Sierra, 338 So.2d 609 (La.1976). In this case the revelations of the credible informant (based on firsthand observation) and of the “concerned” person, as well as the fact of Ogden’s prior drug convictions, provided a substantial basis for the magistrate’s determination of probable cause.

As to the issue of whether the passage of time rendered the facts supporting probable cause so attenuated as to defeat the inference that the objects sought may still be found on the premises, that determination depends on the facts and circumstances of each case. State v. Gilbert, 354 So.2d 508 (La.1978); State v. Thompson, 354 So.2d 513 (La.1978). Whether an object from its nature can be expected to be retained on the premises and whether the evidence indicates that the course of conduct is continuing are important factors to consider. See State v. Gilbert, above; State v. Loehr, 355 So.2d 925 (La.1978); State v. Armstead, 385 So.2d 241 (La.1980).

The informant’s statement, although not indicating the exact quantity of cocaine Ogden possessed at a given time, did provide a reasonable basis for the inference that Ogden generally had an amount of cocaine sufficient for commercial distribution and not merely for personal consumption. Compare State v. Lewis, 385 So.2d 226 (La.1980). The statement indicating a continuous activity in drug transactions, in which Ogden readily supplied those who called upon him at his residence or place of work, also supports the inference that a continuing supply of cocaine would be available. While the warrant was issued two days after the informant’s tip (which revealed that a sale had occurred at the apartment three days earlier), the last purchase by the informant was not so far re-, moved in time as to defeat the inference' that a supply of the illegal substances would still be on hand. Moreover, at the time of the last purchase Odgen invited the informant to return for future purchases, and nothing indicated that Ogden was going out of business. Quite the contrary inference could be drawn from his continued series of drug sales.

On the basis of these facts and circumstances the magistrate was reasonable in concluding that probable cause existed to believe controlled substances would be found on the premises five days after the last buy reported by the informant. See State v. Armstead, above. The magistrate’s finding of probable cause was thus supportable without consideration of Paragraph 3 of the affidavit, relating to police surveillance following the informant’s tip. Nevertheless, the conclusion that probable cause was established by the facts in the affidavit outside of Paragraph 3 does not dispose of defendants’ alternative contention that the warrant should be quashed because of inaccurate information about the surveillance stated in Paragraph 3.

During the hearing on the motion to suppress, defendants’ examination of Officers McNeil and Elder focused on their reported observations during the brief surveillance of 710 Weiblen. The surveillance began at about 4:00 p. m. on November 21, 1979. Both officers testified that they observed two male visitors arrive at the apartment at different times, one on foot and the other by automobile, and leave after a brief visit; that Ogden’s Mercedes was parked in front of the apartment during the surveillance; and that Ogden placed some clothes in the car and drove away at about 4:40 p. m.

To challenge the accuracy of the officers’ observations the defense called Ogden’s estranged wife. Diane Ogden testified that on November 21, 1979, at 2:00 p. m., her husband picked her up at her place of employment in his 1971 Mercedes; that she and her husband went to 710 Weiblen between 2:30 p. m. and 3:00 p. m. where he picked up some clothes; and that they immediately left and went to her apartment at 935 Conti Street, where they were at 4:00 p. m. She did not explain how she recalled so clearly the times and events that occurred six months earlier, and the record does not shed light on the possibility that Ogden may have returned to 710 Weiblen later in the afternoon of the surveillance for some other reason. Nevertheless, her testimony calls into question the accuracy of the officers’ statement relating to the surveillance.

The trial judge, in oral reasons for granting the motion to suppress, stated that the amount of surveillance was inadequate and that the activity described by the policemen was not sufficient cause for going forward with the search. He also observed that the testimony of Ogden’s wife was “believable because she and her husband were separated, I believe” and that “I believe she told the truth to the best of her knowledge”.

If the trial judge maintained the motion to suppress because he found the surveillance was inadequate (necessarily implying that the affidavit on its face did not support a finding of probable cause), he was clearly wrong. Furthermore, the trial judge erred if he suppressed the evidence merely because the officers inaccurately described the events of their surveillance or were confused as to the time sequence, because a good faith error by affiants through inclusion of inaccurate information in their affidavits requires only the deletion of that information and not the quashing of the entire warrant. State v. Rey, 351 So.2d 489 (La.1977); State v. Paster, 373 So.2d 170 (La.1979). Only if the trial judge found that the officers intentionally misrepresented facts concerning their surveillance would he have been justified in ordering the warrant quashed and the evidence suppressed in this case. State v. Rey, above; State v. Paster, above; State v. Lamartiniere, 362 So.2d 526 (La.1978).

The trial judge in this case, however, did not make an explicit finding that the officers intentionally misrepresented facts in executing the affidavits. His offhand reference to the wife’s credibility cannot reasonably be interpreted as an explicit finding of intentional misrepresentation by the officers. The harsh result of quashing a search warrant, when the affidavit supports a finding of probable cause, should obtain only when the trial judge expressly finds an intentional misrepresentation to the issuing magistrate. The trial judge’s oral reasons, viewed n the light of the evidence at the hearing on the motion to suppress, at best establish that the information obtained by surveillance was of questionable accuracy and should have been deleted from the affidavit. Since the affidavit, with this information deleted, clearly established probable cause, the motion to suppress was improvidently granted.

Accordingly, the judgment granting the motion to suppress is reversed, and the motion is denied. The matter is remanded for further proceedings.

DIXON, C. J., concurs.

DENNIS, J., concurs with reasons.

APPENDIX

1.) On Wednesday, November 21, 1979 Narcotics and Drug Abuse Officers Greg Elder and Robert McNeil were telephonically contacted in their office by a reliable and confidential informant whose information in the past has proven instrumental in leading to the arrest and subsequent conviction of those persons engaged in the illicit drug trafficking maintained within the city of New Orleans. At this time the informant apprised the Officers that within a period of three (3) days prior to the instant investigation he had the occasion to go to the address of 710 Weiblen Place, the residence of Kenneth Ogden WM/32, for the express purpose of purchasing a retail quantity of cocaine for self-consumption. The informant related to the Officers that he did indeed procure the cocaine from Ogden from within the premises and as in previous instances was invited back to purchase additional quantities of the contraband. The informant also advised the Officers that within the same time interval he had the opportunity to purchase a quantity of cocaine from Ogden from within the parking area of the Lake Forrest Plaza shopping center. The informant stated that Ogden was employed by the Sears Roebuck Corporation as an automotive mechanic and worked at the Plaza branch located at 5700 Read Blvd. The informant stated that he met with Ogden at his place of employment to initiate the transaction. The informant stated that Ogden then directed him to his vehicle, 1971 Mercedes Benz (dark grey) bearing Louisiana license plate 146B364, to complete the transaction. The informant stated that Ogden removed the cocaine from within the passenger area of the vehicle thereby completing the sale. The informant advised the Officers that the location of the purchases of cocaine from Ogden were dictated by Ogden’s working schedule and the time of the purchase. The informant advised the Officers that in most instances if Ogden was working the purchase was done from his vehicle at the Plaza. If Ogden was not at work, the purchase took place at his residence, 710 Weiblen Place.

2.) At the conclusion of the conversation Officer Elder apprised Officer McNeil of the fact that he was employed by Sears in the capacity of security personnel at the Plaza shopping center. Officer Elder is familiar with Ogden as an employee at Sears by means of the Officer’s job description. The Officer is also aware of the fact that Ogden owned a dark grey 1971 Mercedes Benz. During the month of November, 1979 Officer Elder had the occasion to speak with a concerned yet anonymous source of information concerning the drug trafficking activities of Kenneth Ogden during the spectrum of his employment at Sears. This source of informant indicated that Ogden was dealing quantities of cocaine from his vehicle, 1971 Mercedes Benz, during the working hours of the day. The cooperating individual stated that Ogden would meet with subjects during the day and then follow them to the Mercedes to complete the deal.

3.) Acting upon the information depicted above, Officers McNeil and Elder initiated a surveillance of 710 Weiblen Place on the afternoon of Wednesday, November 21, 1979. At about 4:00 PM, as the Officers positioned themselves in their vantage point they observed and recognized the dark gray 1971 Mercedes Benz bearing Louisiana license plate 146B364 parked next to the address. A check through NCIC indicated the vehicle to be registered to Kenneth Ogden. At about 4:10 PM the Officers observed a WM/25 wearing dark clothing approach the address from a river direction on Canal Blvd. The subject walked to the front door and knocked on the door. A few minutes later the subject was allowed entry into the premises. At about 4:15 PM the WM exited the address. The subject began to walk very slowly towards Canal Blvd. At the intersection the subject momentarily stopped and began to very cautiously look about the area as if to detect anyone noting his actions. The subject then walked quickly away from the area in a river direction. At about 4:20 PM the Officers observed a late model Ford Mustang stop in front of the address. A WM/25 exited the vehicle and walked directly to the front door and knocked. A few moments later the subject was allowed entry into the address. At about 4:25 PM the subject exited the address and walked quickly to his vehicle. The subject walked to the front driver’s side wheel well and stoop over placing his hands under the car as if to secret the contents of his hands beneath the vehicle. The subject then entered the vehicle and quickly left the area. At about 4:40 PM the Officers observed and recognized Kenneth Ogden WM/32 exit the front door of 710 Weiblen Place and prepare to enter the 1971 Mercedes. The subject began to place some clothing into the vehicle. The subject then left the vehicle and spoke with someone on the second story balcony of the address. At the conclusion of this conversation the subject walked to the intersection of Weiblen and Canal and began to nervously look up and down the street as if to detect anyone noting his actions. The subject then entered the vehicle and left the area. At this point in the investigation the Officers decided to terminate the watch of the address in order to protect the integrity of the investigation due to the heavy pedestrian traffic in the area.

4.) It should be noted that Kenneth Ogden is known by members of the Narcotics Division as a documented cocaine and marijuana trafficker. A more detailed check into the criminal background of Ogden revealed the following information:

KENNETH C. OGDEN WM/5-21-47

FELONY ARRESTS: FIVE WITH TWO(2) CONVICTIONS

Subject is presently on probation for drug violations within schedule I and schedule II of the Louisiana Controlled Dangerous Substance Act.

5.) Due to the information received and the surveillance conducted, it is the affiants belief that contraband controlled dangerous substances, more particularly cocaine, are being secreted within and distributed out of the address of 710 Weiblen as well as a 1971 Mercedes Benz (dark Gray) bearing Louisiana license plate 146B364, owned and operated by Kenneth Ogden WM/32, and respectfully that a search warrant be issued for both the address and vehicle.

      . A warrant was also issued for the search of a 1971 Mercedes-Benz vehicle owned by Kenneth Ogden. Although the contraband was apparently seized in the apartment, the warrant contained allegations sufficient to support a finding of probable cause to search the vehicle as well.
      The evidence shows that the apartment was Geraghty’s. Ogden and his wife had been separated since August, 1979, and at the time of the search Ogden had been staying in Ger-aghty’s apartment and had clothes there, although he and his wife had resumed living together to some extent at her apartment in a trial reconciliation.

      . As the Court said in United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971):
      “Admission of ¡crime, like admissions against proprietary interests, carry their own indicia of credibility-sufficient at least to support a finding of probable cause to search.”
      See also State v. Gilbert, 354 So.2d 508 (La.1978).

      . The factors for consideration are stated in State v. Paciera, above, as follows:
      “Factors which support the credibility of an unidentified informant include prior accurate reports or any specific independent corroboration of the accuracy of the instant report. Factors which support the reliability of the informant’s information include (1) direct personal observation by the informant, or (2) if the information came indirectly to the informant, the reasons in sufficient detail for the magistrate to evaluate and credit the reliability both of the indirect source and of the indirectly -obtained information. ”

      . The information contained in Paragraph 3 was only of marginal utility, even if accepted as accurately observed. See the affidavit included in the appendix.

      . At the time of the hearing on the motion to suppress in May, 1980, Mrs. Ogden was legally separated from her husband, but was still living with him in an attempt at reconciliation.

      . As this court said in Rey, an intentional misrepresentation to the magistrate by a police officer constitutes a “fraud upon the courts and represent(s) impermissible overreaching by the government”. 351 So.2d at 492. This court in Rey held that the proper sanction in such a case is to quash the warrant and not merely to excise the intentionally misrepresented facts and examine the remainder of the affidavit to determine whether probable cause is still shown. Compare Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
      Under the Supreme Court’s approach in Franks, even deliberate falsehoods by a police affiant or statements by a police affiant evincing a reckless disregard for truth need only be excised from the affidavit. The remaining facts are then examined to determine whether they warrant a finding of probable cause absent the misrepresentations. The Rev decision provided a more realistic approach to reprehensible police conduct, which the exclusionary rule is designed to prevent.

      . The burden of proof falls upon the defendant to prove by a preponderance of the evidence that the affiants intentionally included falsehoods in their affidavit. Franks v. Delaware, supra; State v. Bouffanie, 364 So.2d 971 (La.1978); State v. Paster, above.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    In re Clyde D. MERRITT.
    No. 80-K-1836.
    Supreme Court of Louisiana.
    Nov. 21, 1980.

      Dwight M. Doskey, New Orleans, for relator, Clyde D. Merritt.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Donald Giglio, Louise Korns, Asst. Dist. Attys., for State, respondent.
   CALOGERO, Justice.

We review here the trial court’s finding an attorney in direct contempt of court for his failure to appear for that court’s ruling on a writ of habeas corpus which he had filed on behalf of a client. Finding this case to be controlled by Kidd v. Caldwell, 371 So.2d 247 (La.1979), we reverse and remand for a constructive contempt hearing on a rule to show cause before another judge.

On August 5, 1980, petitioner Clyde Merritt, an attorney with the Orleans Indigent Defender Program, entered Section “B” of the Orleans Criminal District Court for the purpose of filing two petitions for habeas corpus on behalf of a client. After some discussion with the court, petitioner eventually filed only one of the petitions and asked the court to set a date and time for its decision. Judge Braniff set the habeas claim for decision the following morning prior to 10:00 a. m. Petitioner informed the judge that he had a trial scheduled in another section of Criminal District Court but that he would be in Section “B” for the court’s decision.

When petitioner failed to appear by 10:15 a. m. on the following day, Judge Braniff issued an attachment for his arrest. Approximately' five minutes later, Deputy Sheriff Jeff Ray, Captain, found petitioner leaving a concession stand on another floor of the building. Petitioner refused to go with the officer to Judge Braniff’s court. The deputy handcuffed and led petitioner to Section “B”. Before Judge Braniff, petitioner explained that his subpoena for Section “F” had been for 9:30 instead of 10:00 a. m. and that he thus was in Section “F” rather than Section “B” that morning. The court refused to accept this explanation, found petitioner guilty of contempt and sentenced him to pay a fine of $100.00, in default of which petitioner was to serve twenty-four hours in the parish prison.

Pursuant to an order, petitioner, accompanied by counsel, appeared in Judge Bran-iff’s court on August 7, 1980. The court informed counsel that his client had already been held in contempt of court, but that a note of evidence would be taken to establish for the record the basis of the contempt of the previous day. Defense counsel filed a motion to recuse the trial judge, which motion was denied. Defense counsel further objected to the taking of evidence on a matter as to which the verdict had already been returned. When this objection was overruled, counsel and petitioner elected, under protest, to remain at the proceedings but to limit their participation to cross-examination of the court’s witnesses. Judge Braniff called two witnesses to testify and then concluded the hearing by making a short statement.

While petitioner assigns four errors as grounds for reversal of his conviction, the main issue presented by this writ application is whether an attorney’s failure to appear in court constitutes a direct or constructive contempt and correspondingly whether or not the trial judge is permitted to find the attorney in contempt without the provoking of a rule to show cause.

We recently answered this very question in Kidd v. Caldwell, surpa. Reasoning essentially along the lines of the discussion which follows, we held that an attorney’s failure to appear in court is at most constructive contempt.

The authority to punish for contempt of court falls within the inherent power of a court to aid in the exercise of its jurisdiction and to enforce its lawful orders. Both the Code of Civil Procedure and the Code of Criminal Procedure classify contempt as one of two types: direct or constructive. Article 21 of the Code of Criminal Procedure defines direct contempt as that committed in the immediate view and presence of the court and of which it has personal knowledge. Also defined as direct contempt are the contumacious failure to comply with a subpoena, summons or order to appear in court, proof of service of which appears of record, and contumacious failure to comply with an order sequestering a witness. The article contains an illustrative, but not exclusive, list of examples of direct contempt. Constructive contempt of court is any contempt other than direct contempt, according to C.Cr.P. art. 23. That article also contains an illustrative list of examples.

Concerning Kidd’s failure to reappear in court following a recess, we noted that the act was not one of those mentioned in the list of direct contempts. Although the list is illustrative, in our opinion, the explicit inclusions in the listing tended to exclude certain other acts by implication. We reasoned that the listed examples seemed intended to apply to witnesses and defendants, not attorneys. In support of this conclusion, we observe that the Code, in Article 25, contains a special penalty provision for contempt by attorneys.

The list of constructive contempts in article 23 includes “willful neglect or violation of duty by a clerk, sheriff, or other person elected, appointed, or employed to assist the court in the administration of justice;” and

“willful disobedience of any lawful judgment, or mandate,- writ, or process of court.” In our view, the inclusion of these items as constructive contempt gave added weight to their implied exclusion as direct contempt in the illustrative listing of the latter. The general rule that criminal statutes are to be strictly construed was the final consideration in our determination that “the absence of an attorney, where the intention might be other than contumacious and where a wide range of defenses involving out-of-court circumstances might be presented, is much more susceptible of the article 24 constructive-contempt procedure than of the summary direct-contempt procedure.” 371 So.2d at 255.

In holding petitioner in the instant case guilty of contempt of court, Judge Braniff told Mr. Merritt that he should have been in Judge Braniff’s section of court rather than in another section at the appointed time. This indicates that the behavior prompting the contempt holding was Mr. Merritt’s failure to appear in Section “B”. In brief, the state suggests an alternative description of the behavior as a “violation of a rule of court adopted to maintain order and decorum in the courtroom.” C.Cr.P. art. 21(8).

Accepting arguendo the state’s alternative rationale for the contempt, we then find another overlap between the direct and constructive contempt articles. (See Kidd, supra.) The quoted section of article 21 is analogous to the “willful disobedience of any lawful judgment, order, mandate, writ, or process of court” portion of article 23. As in Kidd, we hold that the inclusion of behavior as constructive contempt implies the exclusion of this same behavior as direct contempt. In so holding, we follow the mandate of R.S. 14:3 that criminal statutes are to be strictly construed.

Our finding that the present conduct falls within the scope of constructive contempt entitles petitioner to be tried on a rule to show cause that expressly alleges the facts constituting the contempt. The petitioner must be served with a certified copy of the motion and of the rule to show cause. He must also be allowed forty-eight hours to secure counsel and prepare his defense. C.Cr.P. art. 24. These procedural safeguards do not attach to direct contempt because all the facts constituting a direct contempt are within the knowledge of the court.

In Kidd, we also addressed the question of who should conduct the constructive contempt rule to show cause in that case on remand. We held that the hearing should be before a judge other than the one toward whom the behavior was directed, noting:

“In Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974), the United States Supreme Court held that where contemptuous conduct is of the sort likely to provoke a trial judge and embroil him in personal controversy with the defendant, and where summary punishment procedures are not used, the contempt trial should preferably be heard by another judge. Not only the possibility of actual bias on the part of the trial judge, but also the possibility of the appearance of bias, should be taken into account.” 371 So.2d at 256 (emphasis in the original).

Considering not only the possibility of actual bias on the part of the trial judge, but also the possibility of the appearance of bias, it would be better for the appearance of justice for another judge to try the instant charge of contempt. In this regard, we note that the attorney and the trial judge have indeed apparently been engaged in some sort of personal controversy. This is not an isolated instance of conflict between petitioner and this trial judge. See 385 So.2d 257 (La.1980); 385 So.2d 271 (La.1980); 394 So.2d 267 (La.1980). In fact in the record the trial judge stated that petitioner had disregarded orders of the court for the “twelfth time”. On remand, therefore, the rule to show cause is to be held before another judge of the Criminal District Court.

Decree

Petitioner’s conviction and sentence for contempt are therefore set aside and the case is remanded for a hearing on a rule to show cause for constructive contempt in accordance with the provisions of C.Cr.P. art. 24. The new hearing is to be held before a judge other than the one whose ruling we here reverse.

REVERSED AND REMANDED.

      . The transcript from August 5, 1980, contains the following:
      “BY MR. MERRITT: When do I report for the court to decide?
      “BY THE COURT: Tomorrow morning at 10:00 o’clock.
      “BY MR. MERRITT: I’ll be here. Thank you.
      “BY THE COURT: Be on time.
      “BY MR. MERRITT: I have a trial incidently in Section “F”, but I’ll be here.
      “BY THE COURT: You better be here before you go to trial down there.
      “BY MR. MERRITT: I have a trial in Section “F”. I’ll honor that subpoena, but I will be here.
      “BY THE COURT: Before 10:00 o’clock.
      “BY MR. MERRITT: I’ll step in before 10:00. May I be excused, Your Honor.
      “BY THE COURT: Yes, you may.
      “BY MR. MERRITT: Thank you.”

      . In pertinent part Article 21 reads:
      “A direct contempt includes, but is not limited to, any of the following acts:
      (1) Contumacious failure, after notice, to appear for arraignment or trial on the day fixed therefor;
      (2) Contumacious failure to comply with a subpoena or summons to appear in court, proof of service of which appears of record;
      (3) Contumacious violation of an order excluding, separating, or sequestering a witness;
      (4) Refusal to take the oath or affirmation as a witness, or refusal of a witness to answer a nonincriminating question when ordered to do so by the court;
      (5) Contumacious, insolent, or disorderly behavior toward the judge or an attorney or other officer of the court, tending to interrupt or interfere with the business of the court or to impair its dignity or respect for its authority:
      (6) Breach of the peace, boisterous conduct, or violent disturbance tending to interrupt or interfere with the business of the court or to impair its dignity or respect for its authority;
      (7) Use of insulting, abusive, or discourteous language by an attorney or other person in open court, or in a motion, plea, brief, or other document, filed with the court, in irrelevant criticism of another attorney or of a judge or officer of the court;
      (8) Violation of a rule of the court adopted to maintain order and decorum in the court room; or
      (9) Contumacious failure to attend court as a member of a jury venire or to serve as a juror after being accepted as such when proof of service of the subpoena appears of record.”

      . The pertinent portion of Article 23 reads:
      “A constructive contempt includes, but is not limited to any of the following acts:
      (1) Willful neglect or violation of duty by a clerk, sheriff, or other person elected, appointed, or employed to assist the court in the administration of justice;
      (2) Willful disobedience of any lawful judgment, order, mandate, writ, or process of court;
      (3) Removal or attempted removal of any person or of property in the custody of an officer acting under the authority of a judgment, order, mandate, writ, or process of the court;
      (4) Unlawful detention of a witness, the defendant or his attorney, or the district attorney, while going to, remaining at, or returning from the court;
      (5) Improper conversation by a juror or venireman with any person relative to the merits of a case which is being, or may be, tried by a jury of which the juror is a member, or of which the venireman may become a member; or receipt by a juror or venireman of a communication from any person with reference to such a case without making an immediate disclosure to the court of the substance thereof;
      (6) Assuming to act as a juror, or as an attorney or other officer of the court, without lawful authority;
      (7) Willful disobedience by an inferior court, judge, or other official thereof, of the lawful judgment, order, mandate, writ or process of an appellate court, rendered in connection with an appeal from a judgment or order of the inferior court, or in connection with a review of such judgment or order under a supervisory writ.”

      . Article 25 provides:
      “A person may not be adjudged guilty of a contempt of court except for misconduct defined as such, or made punishable as such, expressly by law.
      “Except as otherwise provided in this article, a court may punish a person adjudged guilty of contempt of court in connection with a criminal proceeding by a fine of not more than five hundred dollars, or by imprisonment for not more than six months, or both.
      “When an attorney is adjudged guilty of a direct contempt of court the punishment shall be limited to a fine of not more than one hundred dollars, or imprisonment for not more than twenty-four hours, or both; and, for any subsequent direct contempt of the same court by the same offender, a fine of not more than two hundred dollars, or imprisonment for not more than ten days, or both.
      “A justice of the peace may punish a person adjudged guilty of a direct contempt of court by a fine of not more than ten dollars, but not by imprisonment.
      “When a contempt of court consists of the omission to perform an act which is yet in the power of the person charged with contempt to perform, he may be imprisoned until he performs it, and in such a case this shall be specified in the court’s order.”

      . The state then submits “that C.Cr.P. art. 21(8) must be considered in pari materia with Rules VII and IX of the Rules of the Criminal District Court for the Parish of Orleans.
      Rule VII, entitled ‘Attorney’s Presence in Court’, provides, in pertinent part as follows:
      Section 1. Attorneys having business in Court shall report to the appropriate Section of Court prior to the opening of Court, and inform the Minute Clerk of their presence. (Emphasis supplied).
      Rule IX, entitled ‘Security’, provides as follows:
      To minimize interference with and disruption of the conduct of the Court’s business and affairs, to promote the decorum and the dignity with which the Court’s business and affairs should be conducted and to provide more effective security in the building in which the Court in housed, all persons entering the Criminal District Court, building may be requested to submit to a reasonable inspection of their personal belongings by duly authorized personnel. Any person who refuses to submit to a reasonable inspection will not be permitted to remain in the building. Attorneys, defendants, and witnesses are subject to being in contempt of Court for their failure to timely appear, although excluded. Any attorney who refuses to present his briefcase or other object and any person who refuses to present for inspection any personal belongings may be permitted entry upon surrender of these belongings to authorized personnel to be retrieved upon departure from the building. (Emphasis supplied)”

      . An attorney found guilty of constructive contempt can be sentenced to a maximum of six months imprisonment and a fine of five hundred dollars because the special lower penalties for attorneys apply only to direct contempt. C.Cr.P. art. 25. However, petitioner may not be penalized for exercising his right of review and therefore, on remand, may be sentenced to no more than his original sentence: a fine of one hundred dollars, in default of which to serve twenty-four hours in the parish prison. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).


author: DIXON, Chief Justice. BLANCHE, Justice

text:
    STATE of Louisiana v. Darrell Wayne LaFLEUR.
    No. 67509.
    Supreme Court of Louisiana.
    Nov. 21, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. Gregory Ar-nette, Jr., Dist. Atty., William Riley, III, Sp. Prosecutor, for plaintiff-appellee.
    Stewart Thomas, Jennings, for defendant-appellant.
   DIXON, Chief Justice.

On April 8, 1980 the defendant was charged by bill of information with perjury (R.S. 14:123). In rapid succession he was arraigned, waived counsel, pleaded guilty and testified. He was then sentenced to three years’ imprisonment at hard labor. The defendant applied for a writ of habeas corpus, which he was denied, and he now appeals his conviction, alleging that the trial judge committed several errors in the course of the proceedings.

The defendant’s perjury charge arose out of a previous proceeding involving a charge of petty theft (R.S. 14:67). The defendant and three other men were accused of stealing about $60.00 from a service station in Lacassine, Louisiana. At his first court appearance for arraignment on the petty theft charge (March 25), the defendant asked the court to appoint counsel to represent him. The judge refused, remarking that the defendant had been employed until his arrest and had been able to raise $150.00 for bail. The judge then revoked the defendant’s bail bond and remanded him to jail. On April 1, after a week spent in the parish jail, the defendant was again brought to court on the theft charge. This time he said he did not want counsel and signed a waiver form. He then pleaded guilty to the charge, and was placed on the stand by the judge to testify. In the course of this testimony he made the statements that led to the perjury charge. He admitted that he was involved in the theft, but he contended that he did not participate in its planing. The judge warned the defendant that his story differed from that of other defendants and offered him a chance to change his testimony. He refused. After the three other men testified, the defendant was recalled to the stand and warned that he could incur a perjury charge. He did not respond. At the April 8 hearing on the perjury charge he admitted that he had lied and that he had taken part in planning the crime. He stated that he had not changed his testimony because he was nervous and scared.

The defendant now alleges that the trial judge imposed an excessive sentence and failed to comply with the requirements of C.Cr.P. 894.1 in sentencing him.

Article 1, § 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment; the excessiveness of a sentence is a question of law reviewable by this court under its appellate jurisdiction. Article 5, § 5(C) of the Louisiana Constitution of 1974. C.Cr.P. 894.1 provides sentencing guidelines to assist judges in imposing appropriate sentences and in adapting sentences to offenders as well as to offenses. State v. Jackson, 360 So.2d 842 (La.1978). It enumerates three factors which justify imprisonment and eleven factors which suggest probation or suspension of sentence. It also requires the trial judge to state for the record the considerations taken into account and the factual basis therefor in imposing sentence. This required statement is intended to clarify the reason for a given sentence and to aid this court in reviewing a sentence alleged to be excessive. State v. Sepulvado, 367 So.2d 762 (La.1979). We have repeatedly stated that we will vacate a sentence and remand for resentencing where the trial court does not comply with the requirements of article 894.1. State v. Gist, 369 So.2d 1339 (La.1979); State v. Sepulvado, 359 So.2d 137 (La.1978). In this case,, the trial judge made no reference to the factors cited in the article nor is there any indiction that he took them into consideration. In imposing sentence, the judge said only that he hoped the sentence would teach the community to speak the truth in court. While the judge’s objective was a commendable one, it was not an acceptable basis for the relatively harsh penalty imposed on the defendant. The defendant was twenty years old, and no prior criminal conduct is shown in the record. He admitted his involvement in the crime from the start, although he equivocated about the degree to which he was involved in its planning. Normally, where compliance with 894.1 is so inadequate as to render unfeasible an evaluation of the appropriateness of a sentence, we remand for resentencing. However, in the case at bar, there were other significant errors committed in the proceedings which call for reversal of the conviction and a new trial.

The defendant next attacks the validity of his guilty plea. It is now well established that a guilty plea is constitutionally valid only if the record clearly shows that the defendant was informed of his constitutional rights, including the right to jury trial, the right to confront accusers, and the privilege against self-incrimination, and then knowingly and voluntarily waived these rights. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial judge cannot rely on an assertion that the rights were explained to the defendant out of court; he must independently determine, through a direct colloquy with the defendant, whether the defendant fully understands the connotation and consequences of the guilty plea. State v. Williams, 384 So.2d 779 (La.1980); State v. Martin, 382 So.2d 933 (La.1980). In the case before us, there is no indication that the trial judge made any effort to determine whether the uncounseled defendant really understood the proceedings. The defendant signed a printed form waiving his rights, but neither the judge nor an attorney explained the form to him. The judge simply asked the defendant if he had read the questions and understood them. The defendant answered that he did. The form itself was defective, as it made no mention of the privilege against self-incrimination. Because the defendant was unassisted by counsel, the judge’s failure to discuss the meaning of the plea was a particularly serious error justifying reversal of the conviction.

Finally, the defendant contends that the trial judge erred in refusing to appoint counsel to represent him. The right to assistance of counsel is fundamental in our legal system and essential to ensure a fair trial. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Absent a knowing and intelligent waiver of this right, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he is represented by counsel at trial. Argersinger v. Hamlin, supra, 407 U.S. at 37, 92 S.Ct. at 2012, 32 L.Ed.2d at 538. As in the case of a guilty plea, the record must demonstrate that the defendant was informed of the consequences of proceeding without counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). There should be some indication that the trial judge tried to assess the defendant’s literacy, competency, understanding and volition before he accepted the waiver of counsel. State v. Bell, 381 So.2d 393 (La.1980). The record in this case is bereft of such indications. The trial judge made no attempt to impress upon the defendant the importance of having counsel; on the contrary, he implicitly induced the waiver by refusing the defendant’s request and remanding him to jail when he sought court appointed counsel at his first appearance on the theft charge.

In the perjury proceeding at issue here, the defendant never asked for counsel, probably assuming with good cause that the request would be denied. The judge simply had him sign the waiver form with no comment whatsoever. Under the circumstances, the defendant can hardly be said to have waived his right to counsel freely and knowingly. While a waiver of counsel may be implied in a case where the defendant is clearly able to secure retained counsel but persists in demanding court appointed counsel, the defendant’s financial ability to employ counsel was never properly evaluated in this case.

At the arraignment on the theft charge, the defendant said he wanted an attorney but couldn’t afford one. The judge questioned him and learned that he had been earning $8.00 an hour with a construction company and was living at home. Observing that the defendant paid his $150.00 bail, the judge apparently concluded that he had the financial resources to hire an attorney and remanded him to jail with the following comment:

“There’s no reason why the Court should appoint an attorney for you. I don’t suppose these lawyers clear eight dollars an hour. ... You can either waive or-but you have a seat in the jail until you’re ready to decide what you want to do.”

The judge’s brief interrogation does not comply with R.S. 15:147, which sets forth the procedure to be used in determining whether an accused is indigent. Since it is not clear that the defendant could afford to hire an attorney, we cannot find an implicit waiver of the right to counsel here. The explicit waiver represented by the signed form must be considered invalid because not voluntarily and intelligently made.

The plea of guilty is set aside, the conviction and sentence are reversed, and the case is remanded to the district court for further proceedings consistent with this opinion.

MARCUS, J., specially concurring.

WATSON, J., concurred in the result.

BLANCHE, J., concurs with reasons.

BLANCHE, Justice

(concurring).

The mechanical parroting of the three magical proofs of voluntariness by the trial judge is, in this writer’s opinion, a poor way to satisfy us as to whether a guilty plea is knowingly and intelligently made. Sadly, we require the trial judge to make this recitation, evidently not being able to trust his counsel, whether appointed or employed; or the trial judge, who has a parallel duty to accept only those pleas that are knowingly and intelligently made. This writer is personably satisfied that the colloquy means very little, if anything, to the defendant who wants to plead guilty. Accordingly, it is suggested that if we are not satisfied to trust the court and counsel, then we should require the defendant to make a factual admission as to each and every element of the offense and insist that such admissions satisfy Jackson standards.

Such a procedure at first blush seems to be time consuming but, in reality, it is not when time is computed for the furnishing of Boykin transcripts and the multitudinous habeas writs which are acted upon by the Court wherein such pleas are challenged.

      . In State v. Touchet, 372 So.2d 1184 (La.1979), the trial judge also expressed a desire to teach young people a lesson when he sentenced the defendant for distribution of marijuana. We remanded that case for resentencing with instructions to consider the guidelines provided by C.Cr.P. 894.1.

      . R.S. 15:147 states:
      “A. The determination of indigency of any accused person shall be made by the court at any stage of the proceedings. The chief indigent defender or his assistants, or a member of the indigent defender panel appointed by the board or the court for such purpose, shall be allowed to summon witnesses to testify before the court concerning the financial ability of any accused person to employ counsel for his defense.
      In determining whether or not a person is indigent and entitled to the appointment of counsel, the court shall consider:
      a) Whether the person is a needy person and the extent of his ability to pay, the court shall consider such factors as income, property owned, outstanding obligations, number and ages of dependents;
      b) Release on bail alone shall not disqualify a person for appointment of counsel. In each case, the person subject to the penalty of perjury shall certify in writing such material factors relating to his ability to pay as the court prescribes.”
      A Louisiana State Bar Association report to the commission on the indigent defender system suggests that the trial judge should appoint counsel in cases where a question of indigency arises (and resolve the question of indigency). Where the court appoints an attorney and later finds that the defendant is able to pay, it may order partial reimbursement under R.S. 15:148, which states:
      “A. To the extent that a person is financially able to provide for an attorney, other necessary services and facilities of representation and court costs, the court shall order him to pay for these items. The court may order payment in installments, or in any manner which it believes reasonable and compatible with the defendant’s financial ability.
      B. Payments so made shall be transmitted to and become a part of the indigent defender fund of the district in which the person is prosecuted.”

      . A supplemental brief, mailed November 17, 1980, after oral argument on November 14, 1980, adverts to errors in the proceedings on the theft charge. Those proceedings are not before the court; only the proceedings involving the perjury charge are here considered.


author: PER CURIAM.

text:
    STATE of Louisiana v. Debra Ann McCALL.
    No. 66899.
    Supreme Court of Louisiana.
    Nov. 26, 1980.

      Robert E. Piper, Jr., Frank E. Brown, Piper & Brown, Shreveport, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Billy Guin, Asst. Dist. Atty., for plaintiff-respondent.
   PER CURIAM.

Defendant was charged by bill of information filed on December 13, 1977 with possession of marijuana, a violation of La. R.S. 40:966. A bench trial conducted on January 4, 1980, resulted in her conviction. On the same day the court imposed a sentence of six months’ imprisonment in the parish jail. We granted writs to consider primarily whether prescription ran on the prosecution before defendant was brought to trial. Finding merit in that assignment of error, we pretermit consideration of the others.

Louisiana Code of Criminal Procedure Article 578 provides that in misdemeanor cases such as this “no trial shall be commenced . . . after one year from the institution of the prosecution.” On November 15, 1979, almost two years after the institution of the prosecution, defendant filed a motion to quash on grounds of prescription. It was denied after a hearing, the trial judge concluding that the running of the time limitation had been suspended by the filing of various pretrial motions. See, La.C.Cr.P. art. 580. Those motions, howeyer, were filed under the case number and into the record of a companion felony prosecution against defendant. There was no cross-filing, and no stipulation of record to indicate that the motions pertained to the instant case as well. Consequently, their filing did not serve to suspend the running of prescription in this case, and defendant’s motion should have been granted.

The ruling of the trial court is reversed and defendant is ordered discharged.

LEMMON, J., dissents.


author: CALOGERO, Justice. MARCUS, Justice

text:
    STATE of Louisiana v. Wilbur L. VEZINA.
    No. 67245.
    Supreme Court of Louisiana.
    Nov. 26, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Jr., Dist. Atty., Evelyn Oubre, Asst. Dist. Atty., for plaintiff-appellee.
    Newman & Thibodeaux, Ulysses Gene Thibodeaux, Lake Charles, for defendant-appellant.
   CALOGERO, Justice.

Defendant Wilbur L. Vezina was charged by Bill of Information with the felony of operating a motor vehicle while under the influence of alcohol, third offense (DWI-3), in violation of R.S. 14:98(D). After waiving his right to a jury trial, defendant was found guilty as charged and was sentenced, on January 17, 1980, to serve two years in the Calcasieu Parish Jail. Defendant appeals on the basis of five assignments of error presented in two arguments. For the reasons that follow, we reverse the conviction and remand the case to the trial court for further proceedings.

On May 31, 1979, defendant was arrested for driving while intoxicated (DWI). Defendant had two prior misdemeanor convictions for DWI, one dated November 15, 1976 and the other dated March 20, 1979. Accordingly, defendant was charged by Bill of Information, under R.S. 14:98(D), with DWI-3, a felony. On December 14, 1979, trial was held before the judge, defendant having waived his right to a jury trial. At the trial, defendant objected to the introduction of two of the state’s exhibits, S-2 and S-3, the certified copies of the court minutes relating to the defendant’s two pri- or DWI convictions. The objection was overruled. Thereafter, at the close of the state’s case, defense counsel moved for a directed verdict of acquittal. Relying on several decisions by this Court, defense counsel argued that the records of defendant’s prior DWI convictions failed to disclose affirmatively that defendant had been informed of his right to court appointed counsel and had knowingly waived that right or that defendant had waived his Boy-kin rights prior to pleading guilty. The trial court denied the motion and convicted defendant of DWI-3. From these rulings, defendant appeals.

ASSIGNMENT OF ERROR NO. 2

By this assignment of error defendant argues that the minute entries of his two prior guilty pleas for DWI were erroneously admitted into evidence at his trial for the instant offense because the minutes do not show that defendant knowingly waived his right to court-appointed counsel.

At defendant’s trial for DWI-3 the state attempted to prove that defendant had been convicted of DWI on two prior occasions, once on November 15, 1976, to a misdemeanor charge of DWI-1, and again on March 20,1979, to a misdemeanor charge of DWI-2. Certified copies of the minutes from the Criminal District Court for those dates were admitted into evidence at defendant’s trial over defense objection. In neither case do the minutes recite that defendant was informed of his right to court-appointed counsel as required by C.Cr.P. art. 514.

Louisiana Code of Criminal Procedure Article 514 provides:

“The minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of the defendant’s right to court-appointed counsel.”

Since it is clear from the minutes that defendant was not represented by counsel, the above statute requires that the minutes show that he was informed by the court of his right to court-appointed counsel.

In State ex rel. Bishop v. Blackburn, 384 So.2d 406 (La.1980), this Court was presented with the identical issue as is presented here. Defendant Bishop had been tried and convicted for DWI-3. The conviction was based on a prior DWI guilty plea. The minutes of that guilty plea merely reflected that he “waived the presence of an attorney.” The Court held that since Bishop was unrepresented by counsel and the minutes did not show that he had been informed of his right to court-appointed counsel as required by C.Cr.P. art. 514, the guilty plea could not be used to support the conviction for DWI-3. Justice Marcus, speaking for the majority, stated, “[w]e are unable to say that the waiver was knowingly and intelligently made since the record does not reveal that defendant was informed of his right to court-appointed counsel.”

In the present case, defendant has been convicted of DWI-3, the conviction being based on the two prior guilty pleas by defendant. The minute entry for the November 15, 1976 guilty plea reflects that defendant, along with several other defendants, was “advised by the court of their right to counsel” and waived same. The minute entry for the March 20, 1979 guilty plea merely provides “[djefendant waives his right to counsel.” The minutes do not show that defendant “was informed by the court of the defendant’s right to court-appointed counsel” in either proceeding. In fact, in the latter entry, the minutes do not reflect that defendant was informed of his right to counsel whether court-appointed or not, but only that he “waives his right to counsel.”

Since defendant was not represented by counsel at either of his prior two guilty pleas, and since the minutes do not show that he was informed of his right to court-appointed counsel as mandated by C.Cr.P. art. 514, following State ex rel. Bishop v. Blackburn, supra, those minute entries should not have been admitted into evidence at defendant’s trial for the instant offense, to prove defendant guilty of driving while intoxicated for the third time. Accordingly, defendant’s conviction for DWI-3 must be reversed.

In the recent case of State v. Byrd, 385 So.2d 248 (La.1980), this Court held that when the evidence does not support a conviction of the crime charged, but it is nevertheless clear that the trier of fact necessarily found that the elements of a lesser and included offense had been proved beyond a reasonable doubt, the case should be remanded to the trial court with the instruction to enter a judgment of guilty of that lesser included offense and to sentence the defendant accordingly. In the present case defendant was charged with the crime of DWI-3. While we hold that the evidence does not support a conviction against defendant as a third offender, it is clear from the verdict that the elements of the lesser included offense of DWI-1 were proven beyond a reasonable doubt. (There are no assignments of error relating to the proof of the crime of DWI, only to whether it was properly proven to be his third offense.) Therefore, we remand the case to the trial court with instructions to enter a judgment of guilty of DWI-1 and to sentence the defendant accordingly.

Because of our holding on this assignment of error, we pretermit consideration of defendant’s other assignments of error, that the minutes of the prior guilty pleas were not admissible because defendant had not been Boykinized.

DECREE

For the foregoing reasons, defendant’s conviction and sentence are reversed and the case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

BLANCHE and WATSON, JJ., dissent.

MARCUS, Justice

(concurring in part and dissenting in part).

I would reverse defendant’s conviction and sentence and order the bill of information dismissed. State ex rel. Bishop v. Blackburn, 384 So.2d 406 (La.1980). Accordingly, I respectfully concur in part and dissent in part.

       The minutes admitted into evidence as S-2 and S-3 provide in pertinent part:
      “Lake Charles, Louisiana, November 15, 1976.

      “The following defendants having been advised by the court of their right to counsel, inform the court they waive their right to counsel, waive reading of the bill of information and plead guilty. Each defendant is sentenced to pay a fine of $175.00 and costs or in default to serve 30 days in the Parish Jail.

      “State Vs. No. 15558-76 Wilbur L. Vezina D.W.I.”
      and
      “Lake Charles, Louisiana, March 20th, 1979

      “State Vs. # 3901-79 Wilbur Vezina
      “Charge; -DWI, 2nd Offense.
      “Defendant waives his right to counsel and pleads guilty. The court sentences him to pay a fine of $400.00 and costs, or in default thereof to serve 60 days in jail; in addition, defendant is sentenced to serve 125 days in jail.”


text:
    CITY OF BATON ROUGE v. Michael F. MALIK.
    No. 80-K-1775.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Michael F. Malik applying for writ of review and certiorari. Parish of East Baton Rouge. No. 3-80-195.

Granted only as to Assignment of Error No. 2, otherwise denied.

BLANCHE, J., would grant as to both assignments.


text:
    Curtis RAYMOND v. Sharon ZERINGUE et al.
    No. 80-C-1728.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Hon. Charles S. Becnel, Judge, Division B, 23rd Judicial District Court, applying for certiorari, or writ of review to the Court of Appeal, Fourth Circuit. Parish of St. James. 386 So.2d 1052.

Denied.

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


text:
    Loretta McKee BURT v. Vernon McKEE, Jr.
    No. 80-C-1589.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Vernon McKee, Jr., applying for writ of certiorari or review to the Court of Appeal, Second Circuit. Parish of De Soto. No. 37,566.

Denied.


text:
    Coley DAVIDSON v. NEW ROADS MOTOR COMPANY, INC. and Ford Motor Company.
    No. 80-C-1548.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re New Roads Motor Company, Inc., and Ford Motor Company applying for writ of certiorari to the Court of Appeal, First Circuit. Parish of Pointe Coupee. 385 So.2d 319.

Denied.


text:
    Robert M. BALDWIN v. Dr. Laxmi HEDGE et al.
    No. 80-C-1503.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Robert M. Baldwin, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Assumption. 385 So.2d 318.

Denied.


text:
    Elwood TRAHAN v. BAILEY’S EQUIPMENT RENTALS, INC., et al. BAILEY’S EQUIPMENT RENTALS, INC., et al. v. SOUTHEASTERN FIDELITY INSURANCE COMPANY et al.
    No. 80-C-1487.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Insurance House, Inc., and Employers Reinsurance Corporation, applying for certiorari, or writ of Review to the Court of Appeal, Third Circuit. Parish of Acadia. 383 So.2d 1072, 383 So.2d 1078.

Denied.


text:
    Alfred RIVERE v. BELLEFONTE INSURANCE COMPANY.
    No. 80-C-1500.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Alfred Rivere, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of Assumption. 388 So.2d 75.

Writ denied.

WATSON, J., would grant the writ.


author: DENNIS and BLANCHE, JJ.,

text:
    Lois PROSSER v. Virginia B. CRAWFORD et ux.
    No. 80-C-1493.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Virginia B. Crawford, et ux., applying for certiorari or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapdies. 383 So.2d 1363.

Denied. The court of appeal properly declined to decide the issue of gross negligence.

DENNIS and BLANCHE, JJ.,

concur. There apparently being no evidence of willfulness or gross negligence, the court of appeal should have corrected the erroneous finding.


text:
    LOUISIANA RESOURCES COMPANY v. Wally LANGLINAIS et al.
    No. 80-C-1492.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Louisiana Resources Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. No. 7478.

Denied.


text:
    Ronald F. BREWER v. Eric G. LOEWER et al.
    No. 80-C-1473.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Ronald F. Brewer, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Cameron. 383 So.2d 1325.

Writ denied.

WATSON, J., would grant the writ.


text:
    Dennis TALLEY et al. v. ESTATE of John B. TALLEY et al.
    No. 80-C-1466.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Dennis Talley, et al., applying for certiorari, or writ of review to the Court of Appeal, Third Circuit. Parish of St. Martin. 383 So.2d 1065.

Denied.


text:
    Jerry M. POOL v. KEMPER INSURANCE GROUP et al.
    No. 80-C-1401.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Jerry M. Pool, applying for certiora-ri, or writ of review to the Court of Appeal, Third Circuit. Parish of Cameron. 386 So.2d 1006.

Denied.

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


text:
    STATE of Louisiana, In the Interest of Troy Dexter WRIGHT.
    No. 80-C-1954.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Troy Dexter Wright, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 387 So.2d 75.

Granted in part and remanded for re-computation of sentence; otherwise denied.


text:
    CALVARY TABERNACLE v. LOUISIANA CENTRAL BANK.
    No. 80-C-1727.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Calvary Tabernacle applying for writ of certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Concordia. 384 So.2d 814.

Granted.

Reversed and rendered, 393 So.2d 708.


text:
    STATE of Louisiana v. Dennis PATE.
    No. 80-K-2165.
    Supreme Court of Louisiana.
    Sept. 22, 1980.
   In re Dennis Pate, applying for writs of certiorari, mandamus, prohibition and stay order. Orleans Parish, Section A.

Denied; adequate remedy in the event of conviction.


text:
    STATE of Louisiana v. Moses THORNTON.
    No. 80-K-2203.
    Supreme Court of Louisiana.
    Sept. 24, 1980.
   In re Moses Thornton, applying for supervisory writs and stay order. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana ex rel. Paul PHILLIPS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 66894.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re Paul Phillips, applying for writ of certiorari, prohibition, mandamus or habeas corpus, Parish of Orleans. No. 237-088.

Denied, reserving to relator the right to contest the forfeiture of good time in 19th Judicial District Court. See, State ex rel. Peck v. Phelps, 385 So.2d 212 (La.1980).


text:
    STATE of Louisiana ex rel. Darnell MAYS v. Frank BLACKBURN, Warden.
    No. 67847.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re Darnell Mays applying for writ of habeas corpus, Parish of Avoyelles. Nos. 37915 and 40636.

Denied.


text:
    STATE of Louisiana ex rel. Evertt Clayton MAYO v. STATE of Louisiana.
    No. 67844.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re Evertt Clayton Mayo applying for writ of mandamus, Parish of Jefferson. No. 78-2679J.

Writ denied on the basis that a hearing is scheduled on relator’s motion and will be heard on October 7, 1980.


text:
    STATE of Louisiana ex rel. Roynell JOSHUA, Quentin Joshua, Robert P. Gaines v. Frank C. BLACKBURN, Warden.
    No. 67761.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re Roynell Joshua, Quentin Joshua, and Robert P. Gaines applying for writ of habeas corpus, Parish of Orleans. No. 80-406, Sect. D.

Writ denied.


text:
    STATE of Louisiana ex rel. Richard Wayne CRAIG v. J. D. MIDDLEBROOKS, Warden.
    No. 80-KH-1876.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re Richard Wayne Craig applying for supervisory writ, Parish of Ouachita. No. 38542.

Granted. Evidentiary hearing ordered.


text:
    Harold BOUTTE et al. v. Frank LASSITER, Commissioner of Financial Institutions.
    No. 80-C-1856.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re Mississippi River Bank Group, applying for remedial writs, Parish of East Baton Rouge. Nos. 228,077 and 228,076.

Granted. Stay order set aside reserving to all parties their right to seek injunctive relief.

DENNIS, J., would grant and bring up for oral argument.


text:
    STATE of Louisiana v. Carl Ray FOY and Arthur Berry.
    No. 80-K-1814.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re Cary Ray Foy and Arthur Berry applying for writs of certiorari, prohibition and mandamus. Parish of Madison. Nos. 31488 and 31475.

Writ granted.


text:
    STATE of Louisiana v. Bobby LEONARD.
    No. 80-K-1812.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re Bobby Leonard applying for writs of certiorari, prohibition and mandamus. Parish of Tangipahoa. Nos. 43840, 42692 and 42970.

Granted.


text:
    STATE of Louisiana v. Glenn Wayne KELLY.
    No. 80-K-1706.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re Glenn Wayne Kelly, applying for writ of certiorari. Parish of De Soto. No. 41104.

Writ granted.


text:
    STATE of Louisiana v. Robert FIELDS.
    No. 80-K-1658.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re Robert Fields applying for writs of certiorari, prohibition, and mandamus. Parish of Jefferson. No. 80-726.

Granted.


text:
    STATE of Louisiana v. James W. FRIDDLE.
    No. 80-K-1593.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re James W. Friddle applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans. No. 269-949.

Granted.


text:
    STATE of Louisiana v. Robert HICKS.
    No. 80-K-1585.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re Robert Hicks applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 79-2613.

Out of time appeal granted.


text:
    STATE of Louisiana v. Jose F. CASILLAS.
    No. 80-K-1564.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re State of Louisiana applying for writ of certiorari to Orleans Parish Criminal District Court. No. 276-691.

Granted.


text:
    Jack AYDELL and Eddie A. Williams d/b/a Challenge Cabinets v. CHARLES CARTER & CO., INC., and Insurance Co. of North America.
    No. 80-C-1557.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re Charles Carter & Co., Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 388 So.2d 404.

Denied.


author: GULOTTA, Judge.

text:
    Charles E. CABIBI v. Mr. and Mrs. Owen L. JONES.
    No. 11236.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    McCann and Volk, John J. McCann, New Orleans, for plaintiff-appellee.
    Usry, Leefe & Weeks, T. Allen Usry, New Orleans, for defendants-appellants.
    Before SAMUEL, GULOTTA and BOU-TALL, JJ.
   GULOTTA, Judge.

In this dispute between adjacent property owners in Lake Terrace Subdivision in the City of New Orleans, defendants appeal from a judgment ordering them to remove “from the side of Mr. Cabibi’s property any structure which encroaches within six feet of the side-property line.” We affirm.

Defendants’ residence was constructed on their corner lot measuring 100 feet on Jay Street and approximately 114 feet on St. Bernard Avenue. The house faces St. Bernard Avenue. In the rear is an attached two-car garage or carport, enclosed on three sides, approximately four inches off plaintiff’s side-property line, with its roof gutter overhanging plaintiff’s property by approximately one-half inch.

It is plaintiff’s contention that the lot frontage of defendants’ property is on Jay Street (lesser dimension), and the garage-carport adjacent to plaintiff’s side property is in violation of the subdivision building restrictions, which require main building construction to be no closer than six feet from the side property line. According to plaintiff, dispite defendants’ construction of their residence facing St. Bernard Avenue (greater dimension), the lot frontage is on Jay Street and the side-lot building restriction requirement of six feet minimum distance has been violated with the construction of the rear garage/carport within four inches of their property line. Plaintiff argues that by defendants’ failure to leave six feet between their garage/carport and the property line they are treating the side yard as a rear yard, and thus have shifted the lot frontage in violation of the building restrictions.

Section IV of these restrictions states, in pertinent part, “No lot shall be shifted as to frontage.” Necessarily, the frontage of the lot determines the applicable front, side and rear yard requirements as set forth in the applicable building restrictions and zoning ordinances. The resolution of this dispute, therefore, depends upon the definition of “lot frontage” as used in the Lake Terrace Subdivision building restrictions.

Defendants claim that the Lake Terrace Subdivision restrictions relating to frontage of corner lots are vague and indefinite, and that the provision “no lot shall be shifted as to frontage” in the restrictions is unenforceable because the restrictions do not define how frontage shall be determined.

Although the provision which states that no lot shall be shifted as to frontage is clear, nowhere in the restrictions do we find the definition of frontage. However, John Rock, an expert in the field of architecture and architectural design, testified that because the definition of frontage is not contained in the building restrictions, the normal practice is to look to the city zoning ordinances to obtain a definition of that term. It was Rock’s opinion that the “frontage” of the lot involved in the instant case is on Jay Street since the lesser dimension fronts on that street. Michael Bagot, an attorney and an expert in title examination, stated that the accepted practice (as stated in the Comprehensive Zoning Law of the City of New Orleans) is that the smaller street dimension of a corner lot is the frontage of that lot.

The Comprehensive Zoning Law of the City of New Orleans of 1970, as amended, Article 14, Section 2(51) defines “lot frontage” as “the distance for which the front lot line and the street line are coincident.” Although “front lot line” is not specifically defined in the zoning ordinances, in Article 14, Section 2(118) “front yard” is defined as:

“A yard extending across the front of a lot between the side lot lines, and being the required minimum horizontal distance between the street and/or building line and the buildable area. On corner lots the front yard shall be provided facing the street upon which the lot has its lesser dimension." (Emphasis added.)

On the other hand, Lawrence J. Bodet, chief engineer for the Orleans Parish Levee Board, testified that insofar as the Lake Terrace Subdivision restrictions are concerned, the phrase “no lot shall be shifted as to frontage” has no meaning whatsoever. According to his testimony, this phrase was inadvertently carried over into the Lake Terrace Subdivision restrictions from the Lake Vista Subdivision plans. Because of the nature of Lake Vista’s development, according to Bodet, the phrase was meaningful there, which was not the case with the Lake Terrace Subdivision plan. Bodet admitted, however, that he did not draft the Lake Terrace restrictions; he said he was “generally familiar” with their drafting, but “didn’t have too much to do with [the] actual preparation.”

Despite the testimony of Bodet, we find no merit to defendants’ contention. The Lake Terrace Subdivision restrictions specifically state that no lot shall be shifted as to frontage. The language is clear and unambiguous. Although the definition of frontage is not set forth in the restrictions, our consideration of the Comprehensive Zoning Laws of the City of New Orleans of 1970, as amended, Art. 14, Sec. 2(51 and 118), leads us to conclude that the frontage of a corner lot is the lot line on the street on which the lot has its lesser dimension-in this case, Jay Street.

Defendants alternatively argue that because the construction of their residence fits within the pattern of development for corner lots in the Lake Terrace Subdivision, there exists no violation. In this respect, defendants rely on Art. 10, Sec. 8(2) of the Comprehensive Zoning Laws:

“Where these regulations refer to side streets for corner lots, the side street will normally be the street along which the corner lot has its largest dimensions, but the Director of Safety and Permits, may be guided by the pattern of development in the vicinity of the lot in question in determining which of the two streets is the side street.”

Defendants point out that the necessary permits of approval for construction were obtained from the Orleans Parish Levee f Board and the City Department of Safety and Permits. They contend this demonstrates that no violation of the building restrictions of Lake Terrace Subdivision or of the Zoning Ordinances had occurred.

Support for this contention was offered by Frank E. Robin, who was Director of Safety and Permits at the time of the construction of defendants’ ■ building. He pointed out that the zoning ordinances permit a waiver where the “pattern of development in the vicinity of the lot in question” indicates that frontages have been placed on the streets on which the lots have their greater dimension. Robin testified further that a variance to the lot frontage on Jay Street (lesser dimension) was permitted, in accordance with Article 10, Section 8(2) of the zoning ordinances, because it was clear that it was more beneficial to the owner and more desirable to face the front of the residence on St. Bernard Avenue rather than Jay Street. He admitted, however, that in the instant case, the department was not actually guided by the pattern of development for the reason that no on-site inspections were made of the area to determine a pattern.

When a plaintiff has established the violation of a restriction, the burden shifts to the defendant to prove the restriction has been terminated or abandoned. See LSA-C.C. arts. 780-782; LSA-C.C. art. 2232. See also, Fisher v. Smith, 190 So.2d 105 (La.App. 4th Cir. 1966); Mouille v. Henry, 321 So.2d 377 (La.App. 3rd Cir. 1975).

Although the zoning ordinances permit a variation where the pattern of development in the area indicates otherwise, defendants failed to establish, by competent evidence, that a pattern of development in the subdivision had been established for corner lots with the frontage on the street of greater dimension without adherence to side yard requirements. Clearly, we cannot get from Robin’s testimony that a waiver was based on a showing of such a pattern of development. While the exhibits revealed a number of houses on corner lots in Lake Terrace have been built facing the longer street dimension, there was no evidence that any of these houses violated the lot frontage restriction by encroaching on the side line setback requirement.

We might point out further that although the Department of Safety and Permits may have the authority to waive city zoning ordinance requirements, no such authority exists to waive the building restrictions. These restrictions are an agreement between and among the property owners in the subdivision and can only be terminated as provided by law. (See LSA-C.C. arts. 775-783.)

Furthermore, well established is the rule that zoning ordinances neither terminate nor supersede existing building restrictions. LSA-C.C. art. 1945(2); Alfortish v. Wagner, 7 So.2d 708 (La.1942); Olivier v. Berggren, 136 So.2d 325 (La.App. 4th Cir. 1962). Moreover, where subdivision building restrictions are more restrictive than zoning ordinances, the building restrictions will govern. See Oak Ridge Builders, Inc. v. Bryant, 252 So.2d 169 (La.App. 3rd Cir. 1971), writ refused, 253 So.2d 384; Rabalais v. Hillary Builders, 62 So.2d 846 (La.App. 2nd Cir. 1953).

Accordingly, we conclude no showing has been made that a pattern of development in the subdivision had been established permitting lot frontage on the side having the greater street dimension without adherence to side yard requirements.

Having so concluded, we find, as did the trial judge, that the Lake Terrace Subdivision restrictions have been violated, requiring the removal from the side of defendants’ property of any structure which encroaches within six feet of the side property line. The judgment is affirmed.

AFFIRMED.

APPENDIX “A”

APPENDIX “B”

      . Plaintiff also alleges several other violations which were not mentioned in the judgment. Plaintiff has neither appealed nor answered this appeal. Accordingly, we do not consider those alleged violations.

      . Section V(A) of the building restrictions for Lake Terrace Subdivision provides, in pertinent part:
      “No part of the main building of a residence shall be built closer than 25' minimum distance from the front property line of the lot, nor closer to either side property line of the lot than 6 feet minimum distance, . . .
      An attached or detached carport may be constructed in the side yard area, provided its columns or walls are not closer than six (6) feet from the side property line, the roof may project two (2) feet into six (6) foot areas.

      See diagram, Appendix A, and photograph, Appendix B.

      . The restrictions are silent as to back yard minimum footage requirements.

      . To support this, defendants offered the building restrictions for the East and West halves of Lake Vista Subdivision, a nearby area developed by the Levee Board before Lake Terrace. (The Lake Vista restrictions were admitted as a proffer only.) These two sets of restrictions also state “no lot shall be shifted as to frontage." These restrictions provide that frontage of each lot shall be on the park or lane adjacent thereto, except for certain specified lots, which are to have their frontages on the streets designated in the restrictions.