text:
    Glenn Elbert GRISSOM, Appellant, v. STATE of Florida, Appellee.
    No. YY-489.
    District Court of Appeal of Florida, First District.
    Oct. 30, 1981.

      Theodore E. Mack, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant seeks review of a judgment of conviction and sentence for the offense of grand theft, upon an information alleging the unlawful taking of a “cow.” At trial the state proved the unlawful taking of a male calf; appellant contends that the proof at trial thus did not conform to the allegation of the charging document, so as to preclude conviction and sentence. We find that in the circumstances of this case the variance is immaterial, and we affirm the order appealed.

Of course, the proof at trial must substantially conform to the allegations of the charging document, in order that the defendant not be misled and thereby prejudiced, and to insure against reprosecution for the same offense. See, e. g., Robinson v. State, 69 Fla. 521, 68 So. 649 (1915); cf., Fla.R.Crim.P. 3.140(o). However, where a variance between the allegations and proof is not such as to have misled the defendant or subject him to a substantial possibility of reprosecution for the same offense, the variance is immaterial and does not preclude conviction. See Hagy v. State, 347 So.2d 773 (Fla. 3d DCA 1977); Ricks v. State, 224 So.2d 413 (Fla. 3d DCA 1969). In the circumstances of the present case appellant is not subjected to a substantial possibility of reprosecution, and it is clear that he was not misled or prejudiced in his defense: appellant admitted the “taking,” there was no dispute as to the animal taken, and appellant’s counsel repeatedly referred to the male calf as a “cow.” We therefore conclude that in this case the variance was immaterial and does not preclude conviction.

Appellant cites Higginbotham v. State, 78 Fla. 114, 82 So. 601 (1919), and Mobley v. State, 57 Fla. 22, 49 So. 941 (1909), but these authorities are unavailing in the present case. Neither Higginbotham nor Mobley involved circumstances similar to this case, and the decision in Mobley is expressly predicated upon a larceny statute which distinguishes “cow” and “steer;” the present theft statute, § 812.014, Florida Statutes, is dissimilar and without any such specification or distinction.

Accordingly, the order appealed is affirmed.

ERVIN and JOANOS, JJ., concur.


source: Caselaw Access Project

author: SCHEB, Chief Judge.

license: Public Domain

text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellant, v. James L. COPE, as Personal Representative of the Estate of Anna L. Cope, Deceased, Appellee.
    No. 80-2353.
    District Court of Appeal of Florida, Second District.
    Oct. 30, 1981.

      Jeffrey R. Fuller of Williams, Brasfield & Wertz, St. Petersburg, for appellant.
    Robert W. Holman of Hammond & Holman, Pinellas Park, for appellee.
   SCHEB, Chief Judge.

Appellant, Florida Insurance Guaranty Association (FIGA), contends the trial court erred in holding that multiple claimants can recover the per accident rather than the per person entitlement from their uninsured motorist carrier. We agree.

Anna L. Cope died as a result of injuries received in an automobile accident. She left surviving a husband and two minor children. Appellee, as personal representative, recovered a judgment for $100,000 against the tortfeasors and their respective insurers. Each tortfeasor carried only $10,-000 per person, $20,000 per accident liability coverage so appellee filed claims on behalf of decedent’s separate statutory beneficiaries against Reserve Insurance Company, the decedent’s uninsured motorist carrier, which covered decedent for $10,000 per person, $20,000 per accident. Reserve became insolvent and FIGA was substituted as a party defendant.

Each of the parties moved for summary judgment. Appellee contended that since the decedent had uninsured motorist coverage of $10,000 per person, $20,000 per accident, the multiple claimants who derived their entitlement from the decedent were entitled to recover $20,000. FIGA, on the other hand, argued that the wrongful death claim brought by the personal representative was only one claim. Therefore, FIGA contended that since the per person liability limits of the tortfeasors were not less than the limits under the decedent’s uninsured motorist coverage, appellee could not recover from FIGA. The court granted summary judgment awarding appellee $20,000. This appeal ensued.

The Limits of Payment clause in the policy states:

AMOUNTS PAYABLE FOR UNINSURED MOTORISTS LOSSES. Our obligation to pay uninsured motorists’ losses is limited to the amounts for each person and each accident stated in the Declarations. The following conditions apply to these limits:
1. The limit stated for any one person is for all damages claimed by anyone for bodily injury or loss of services of one person as a result of one accident. For each such accident, the total limit of our liability stated is for all damages sustained by two or more persons.

In Biondino v. Southern Farm Bureau Casualty Insurance Co., 319 So.2d 152 (Fla. 2d DCA 1975), we held under similar policy language that the amount which a husband could recover for bodily injuries and his wife could recover for loss of consortium was limited to the per person entitlement. We rejected the wife’s contention that the per accident limitation should be applied to allow her a separate entitlement as a derivative claimant. In Mackoul v. The Fidelity & Casualty Co. of New York, 402 So.2d 1259 (Fla. 1st DCA, 1981), the First District cited our opinion in Biondino and held that the each person limit of liability under uninsured motorist coverage in that policy provided the total liability of the insurance company for all damages that could be recovered for the death of one person. It specifically rejected the contention that each party who has a claim arising out of the wrongful death of the deceased has a separate entitlement to the extent of the limit of liability for each person. We agree with the result in Mackoul and find, as applied to the facts of the instant case, that appellee is not entitled to recover under the uninsured motorist provision of decedent’s policy.

Finally, we reject appellee’s assertion that the language included under Coverage, “Under this coverage we will pay damages others may be legally entitled to recover because of bodily injury suffered by an insured,” conflicts with the limits of payment provision so as to render the policy provisions ambiguous. We think the quoted provision merely authorizes recovery by derivative claimants and does not expand the stated policy limits available for payment.

Accordingly, we vacate the summary judgment entered in favor of appellee, and direct the trial court to enter summary judgment in favor of appellant.

SCHEB, C. J., and BOARDMAN and CAMPBELL, JJ., concur.

      . Bodily injury is elsewhere defined in the policy as including death.

      . In Biondino, 319 So.2d at 153, the payment clause in the policy provided:
      The limit of liability as applicable to “each person” is the limit of the Company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by one person, as the result of any one accident and, subject to the above provisions respecting each person, the limit of liability as applicable to “each accident” is the total limit of the Company’s liability for all damages, including damages for care or loss of services, because of bodily injury sustained by two or more persons as a result of any one accident.

      . In Mackoul, 402 So.2d at 1260, the relevant provision states:
      The limit of liability shown in the Declarations for “each person” for Uninsured Motorist Coverage is our maximum limit of liability for all damages for bodily injury sustained by any one person in any one auto accident. Subject to this limit for “each person” the limit of liability shown in the Declarations or in this endorsement for “each accident” for Uninsured Motorists Coverage is our maximum limit of liability for all damages for bodily injury resulting from any one auto accident.
      This is the most we will pay regardless of the number of covered persons, claims made, vehicles or premiums shown in the declarations, or vehicles involved in the auto accident.


author: MOORE, Judge.

text:
    STATE of Florida, Appellant, v. Julie Ann FERGUSON, Appellee.
    No. 80-165.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.

      David H. Bludworth, State’s Atty., and Joseph L. Ackerman, Jr., Asst. State’s Atty., West Palm Beach, for appellant.
    Gregory L. Scott, West Palm Beach, for appellee.
   MOORE, Judge.

The State appeals from the trial court’s order suppressing certain statements made by the appellee during an investigation of an automobile accident which resulted in a fatality. The appellee cross-appeals from the trial court’s refusal to suppress the results of a breathalyzer test given to her during the investigation.

The appellee was charged by information with vehicular homicide and leaving the scene of an accident involving death or personal injuries. The sole question on appeal is whether Section 316.066(4), Florida Statutes (1979) prohibits introduction in a criminal trial of statements made by an alleged hit and run driver to investigating police officers. We hold that the statute is not applicable to the facts of this case and that the trial court erred in suppressing the statements.

On July 19, 1979, an automobile accident occurred between a pickup truck and a fourteen year old bicyclist who received fatal injuries. The pickup truck, allegedly driven by the appellee, immediately left the scene of the accident. Investigation of the accident led police officers to believe that the appellee was the driver and sole occupant of the pickup truck. The officers contacted the appellee at her residence and immediately advised her of her constitutional rights. During an interrogation, the appellee made certain statements to the police officers concerning the ownership of the pickup truck and the identity of the driver at the time of the accident. She persistently denied involvement in any accident at the time and place alleged.

The appellee moved to suppress these statements and others which she made while en route to the police station and while at the police station. In support of suppression she asserted that the police never advised the appellee of the fact that the police investigation was related to a criminal charge, but rather they informed her that their questioning related only to an accident investigation. The appellee therefore contended that Section 316.066(4) mandated suppression of her statements.

Section 316.066(4), Florida Statutes (1979) reads:

(4) All accident reports made by persons involved in accidents shall be without prejudice to the individual so reporting and shall be for the confidential use of the department or other state agencies having use of the records for accident prevention purposes, except that the department may disclose the identity of a person involved in an accident when such identity is not otherwise known or when such person denies his presence at such accident, and except that the department shall disclose the final judicial disposition of the case indicating which if any of the parties were found guilty. No such report shall be used as evidence in any trial, civil or criminal, arising out of an accident, except that the department shall furnish upon demand of any person who has, or claims to have, made such a report or upon demand of any court a certificate showing that a specified accident report has or has not been made to the department solely to prove a compliance or a failure to comply with the requirements that such a report be made to the department.

The “confidentiality privilege” conferred by this section is designed to encourage and promote the gathering of information for the purpose of documenting the nature and causes of automobile accidents. The section clearly was not intended to afford a suspected hit and run driver, whom the police eventually tracked down and questioned about the accident, with greater protection than is constitutionally required for other criminal suspects.

Section 316.065, Florida Statutes, (1979) provides that the drivers of all vehicles involved in traffic accidents shall make immediate reports of these accidents to local police. Section 316.066(4) allows persons making such reports to enjoy the privilege of confidentiality in their reports. The clear purpose of these statutory sections is to create a mandatory accident reporting system, while at the same time to promote candor in the making of such reports. To gain this candor, the legislature has expressed an intent to free the reporting person from having his own version of an accident used against him in a civil or criminal trial. The legislature did not intend to confer the confidentiality benefits on those who do not comply with their duty to assist in making accident reports. Surely, the legislature did not intend to confer such benefits on a person who flees the scene of an accident where serious and, in this case, fatal personal injuries occurred. The appel-lee was a suspect for the crime of leaving the scene of an accident rather than an accident participant who merely was performing her statutory duty of reporting.

As the Supreme Court stated in State v. Coffey, 212 So.2d 632 (Fla. 1968), [while interpreting the substantially identical statutory predecessor of Section 316.066, Section 317.171, Florida Statutes (1967)]:

And we think that these circumstances are ample to take the evidence of the results of the blood test out from under the protective cloak of Sec. 317.171, supra. This particular section of the statute was designed to protect the constitutional right against self-incrimination guaranteed by Sec. 12, Decl. of Rights, Fla.Const., while, at the same time, requiring persons involved in accidents to make a true report thereof so as to enable the Department of Public Safety “to facilitate the ascertainment of the cause of accidents ...” Wise v. Western Union Telegraph Co., Fla.App. 1965, 177 So.2d 765. Being in derogation of the common law, it should be strictly construed “in the sense that no situation should be held within its operation to which the legislature did not clearly intend to accord the privilege.” Wise v. Western Union Telegraph Co., supra, 177 So.2d 765. And we do not think that the Legislature intended Sec. 317.171, supra, to have the effect of shielding a person suspected of committing a crime in the operation of a motor vehicle from any investigation whatsoever. The fact that the crime was committed in the operation of a motor vehicle is pertinent to the highway safety program of this State; but it does not entitle the person suspected of or charged with committing such a crime to any special treatment insofar as the determination of his guilt or innocence is concerned. In our opinion, he is entitled to the same constitutional safeguards as any other person suspected of or charged with a crime — no more and no less.

See also, State v. Mitchell, 245 So.2d 618 (Fla. 1971). Because we find that Section 316.066(4) does not operate to confer its privilege of confidentiality on those who have abandoned their duties after involvement in an accident, and who choose instead to leave the scene of an accident, we hold that the trial court erred in suppressing the statements of the defendant.

We also find that we do not have jurisdiction to entertain the appellee’s cross-appeal of the pretrial order denying her motion to suppress the results of the breathalyzer test. Fla.R.App.P. 9.130(a)(2) limits review of non-final orders in criminal cases to those prescribed by Rule 9.140. Rule 9.140 does not authorize review of the trial court’s denial of appellee’s motion to suppress. After final judgment she may appeal the denial of her motion to suppress, assuming the issue is properly preserved at trial.

Accordingly, the trial court’s order suppressing the appellee’s statements is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

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


author: PER CURIAM. ANSTEAD, Judge,

text:
    STATE of Florida, Appellant, v. John Steven TRIMEL, Appellee.
    No. 81-166.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    James R. Holmes, Fort Lauderdale, for appellee.
   PER CURIAM.

We affirm the order appealed from on authority of State v. Jenkins, 389 So.2d 971 (Fla.1980).

DOWNEY and HURLEY, JJ., concur.

ANSTEAD, J., specially concurs with opinion.

ANSTEAD, Judge,

specially concurring:

I concur in the affirmance of the trial court’s order of dismissal on the authority of State v. Jenkins, 389 So.2d 971 (Fla.1980) and write separately only to note that I am somewhat taken aback that the state has taken an appeal when the record reflects that it was virtually at the state’s instance that the case was dismissed.


author: PER CURIAM.

text:
    MURPHY WHITE DAIRY, INC., Appellants, v. J. F. SIMMONS and Esther Simmons, Appellees.
    No. 80-1831.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Arthur J. Morburger of Weinstein & Bavly, P. A., Miami, for appellants.
    Harvie S. DuVal of Greenfield & DuVal, North Miami, for appellees.
   PER CURIAM.

In 1977, Murphy White Dairy, Inc. brought a multi-count complaint containing assorted claims arising out of an alleged oral agreement made by the Simmonses to sell certain real property to the Dairy. In August 1978, a summary judgment was entered in favor of the Simmonses on one count of the complaint which sought specific performance, and the Dairy appealed. On October 24, 1979, we dismissed the Dairy’s appeal on the authority of Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974). The next day, October 25, 1979, our order of dismissal was filed in the trial court.

Some eight months later, in July 1980, the Simmonses, asserting that no record activity had occurred for a period of one year, moved to dismiss the Dairy’s action for lack of prosecution under Florida Rule of Civil Procedure 1.420(e). The trial court dismissed the cause, and the Dairy seeks review of that order. We reverse.

We reject the Simmonses’ contention that the filing in the trial court of our order dismissing the Dairy’s appeal, clearly record activity, see Ortiz v. Biscayne Medical Center, Inc., 385 So.2d 1146 (Fla. 3d DCA 1980), is not, as required, see Bair v. Palm Beach Newspapers, Inc., 387 So.2d 517 (Fla. 4th DCA 1980), record activity directed towards disposition of the case and is thus insufficient to preclude dismissal. The Dairy’s act of appealing the summary judgment entered against it on the count seeking specific performance was not merely a passive act on its part which had no tendency to move the case to its conclusion. Simply because the Dairy’s appeal, viewed retrospectively, did not succeed in accomplishing that end does not mean that it was not genuinely calculated to bring the suit to finality. See, e. g., Ortiz v. Biscayne Medical Center, Inc., supra (filing in trial court of appellate court order denying plaintiff’s petition for common law certiorari is record activity precluding dismissal). Indeed, even where record activity calculated to advance the cause is negated by a later act or omission which tends to delay the cause, the initial record activity is still considered sufficient to preclude dismissal under the Rule. See, e. g., Harris v. Winn-Dixie Stores, Inc., 378 So.2d 90 (Fla. 1st DCA 1979) (record activity shown by defendant’s filing of notice of taking deposition of co-defendant is not vitiated by later cancellation of deposition); Eastern Elevator, Inc. v. Page, 263 So.2d 218 (Fla.1972) (record activity shown by filing of written interrogatories to plaintiff is not vitiated by plaintiff’s failure to answer).

The Dairy also challenges the propriety of the trial court’s entry of summary judgment on the specific performance count. Of course, were the Dairy’s appeal taken solely from the summary judgment, we would be without jurisdiction to entertain it, Agriesti v. Clevetrust Realty Investors, 381 So.2d 753 (Fla. 4th DCA 1980), and would dismiss it even as we did in 1979. But here our jurisdiction has been properly invoked, because the Dairy’s appeal is from an order dismissing for lack of prosecution. See n. 3, supra. Since we have jurisdiction to entertain an appeal from that order, we “may review any ruling or matter occurring prior to filing of the notice,” here, the summary judgment. Fla.R.App.P. 9.110(h) (emphasis supplied). Thus, while we are authorized by Rule 9.110(h) to reach this secondary issue, we are not required to do so.

The design of Rule 9.110(h) was to enable appellate courts to consider more than the order appealed so as to bring the matter to an end then and there. For example, while formerly we could not decide a party’s entitlement to a directed verdict where the opposing party appealed from the grant of a new trial, we now can decide the potentially dispositive directed verdict issue. See Bowen v. Willard, 340 So.2d 110 (Fla.1976). In the present case, however, no matter what we decide about the propriety of the summary judgment on the specific performance count, the case must be returned for trial, and appeal will or will not follow thereafter depending not on our decision, but on the outcome of the trial of the interrelated claims. The issue which we are urged to review may very well be mooted or controlled by further developments in the case, the very reasons why an interrelated claim is not reviewable in the first instance. See Mendez v. West Flagler Family Association, Inc., supra. We do not consider it an appropriate use of judicial time for us to address this further issue.

REVERSED AND REMANDED for further proceedings.

DOWNEY and GLICKSTEIN, JJ., and PEARSON, DANIEL S., Associate Judge, concur.

      . Mendez held that where one of several joined causes of action is dismissed, only a dismissed cause of action which is separate and distinct is appealable. The corollary is that an order dismissing less than all of interrelated claims involving the same transaction and same parties is not appealable. S.L.T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974).

      . Florida Rule of Civil Procedure 1.420(e) provides, in pertinent part:
      “Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court or otherwise has occurred for a period of one year shall be dismissed by the court on its own motion or on the motion of any interested person, ...”

      . A dismissal for lack of prosecution is a final order for purposes of appeal, but not final— that is, without prejudice — so as to be res judicata. Bair v. Palm Beach Newspapers, Inc., 387 So.2d 517 (Fla. 4th DCA 1980); Gibbs v. Trudeau, 283 So.2d 889 (Fla. 1st DCA 1973). Moreover, the order appealed from, although titled “Order Granting Motion to Dismiss, etc.,” actually dismisses the cause so as to give the order requisite finality for appeal purposes. Compare, e. g., Shupack v. Allstate Insurance Company, 356 So.2d 1298 (Fla. 3d DCA 1978).

      . It certainly cannot be said that an unsuccessful appeal by a party faced with the Mendez finality-nonfinality dilemma is frivolous and designed to delay rather than move the case towards prosecution. As Mendez notes, had we concluded that the specific performance claim was distinct and separate so as to permit the Dairy’s appeal, and reversed the summary judgment, a trial on all claims could be had together. It is better to be safe than sorry under Mendez, and an unsuccessful appeal under Mendez cannot be condemned as dilatory or not a good faith effort to bring the case to a conclusion.

      . It appears that the one type of record activity that is not facially sufficient is the withdrawal of counsel. The progenitor of this line of cases is Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706 (Fla. 1951), which held that a court order approving a stipulation for withdrawal of defendant’s counsel was not “ ‘action’ in the prosecution of a cause within the meaning of § 45.19, Fla.Stat. (1949),” the predecessor to Florida Rule of Civil Procedure 1.420. While that case involved change of defense counsel, it was followed in cases involving withdrawal of plaintiffs counsel, see, e. g., St. Anne Airways Corp. v. Larotonda, 308 So.2d 129 (Fla. 3d DCA 1975); Florida Power & Light Company v. Gilman, 280 So.2d 15 (Fla. 3d DCA 1973), an action that might very well be calculated to move the case along. It is clear, however, that despite Gulf Appliances’ insistence on “some active measure taken by plaintiff,” record activity solely by a defendant is sufficient to preclude dismissal. See Musselman Steel Fabricators, Inc. v. Radziwon, 263 So.2d 221 (Fla.1972) (filing by court reporter of depositions taken by defendant).

      . Had we affirmed the dismissal for failure to prosecute, then the summary judgment on the specific performance count would become ripe for review, since a ruling thereon could be dispositive.


text:
    William C. LEWIS, Trustee, Debtor in Possession and William C. Lewis, individually, Petitioner, v. FIRST AMERICAN BANK OF PALM BEACH COUNTY, a Florida banking corporation, Respondent.
    No. 81-1573.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.

      Gary I. Zwickel of Zwickel, Gross & Kes-sler, Lake Worth, for petitioner.
    Steven J. Greenwald of L. M. Taylor, Lawyers, North Palm Beach, for respondent.
   PER CURIAM.

The defendant in an action based on alleged fraud petitions this Court to review an order compelling him to answer certain questions propounded to him at the taking of his deposition. The petitioner contends that his answers would tend to incriminate him or would constitute a link in a chain of evidence leading to his conviction.

It is well settled that in any type of proceeding a person is exempt from answering questions which may directly or indirectly incriminate him. State v. Sullivan, 37 So.2d 907 (Fla. 1948). The matter of deciding what answers may be incriminating is not solely up to the witness himself, but is one requiring the exercise of the trial court’s discretion. State v. Kelly, 71 So.2d 887 (Fla. 1954). In exercising this discretion, the court must determine whether the witness has reasonable cause to apprehend danger from a direct answer. The court may require the witness to answer only if it is perfectly clear that the witness is mistaken in his apprehensions and the answers cannot possibly have a tendency to incriminate. United States v. Goodwin, 625 F.2d 693 (5th Cir. 1980).

In reviewing the questions which the trial court included in its order, we find that the answers to a majority of them could directly or indirectly incriminate the petitioner and that his apprehensions are real. We therefore grant his petition for certiorari on all questions except the two found on pages 25 and 27 of his deposition. As to those two questions, the answers to which cannot possibly incriminate him, the petition is denied. The order of the trial court is quashed except as to the noted questions.

QUASHED AND REMANDED.

LETTS, C. J., and MOORE and BERA-NEK, JJ., concur.


text:
    James BATCH, Appellant, v. STATE of Florida, Appellee.
    No. 79-646.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Victor Tobin, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

Appellant, a minor, was indicted for second degree murder and tried by a jury. He appeals his conviction and sentence for the lesser included crime of manslaughter. He was sentenced as an adult to the Department of Corrections.

With respect to the conviction, appellant advances two theories for reversal. He initially contends that his conviction was erroneous because the trial court failed to suppress certain recorded statements made by him to the police before they notified his parents of his detention. He argues that Section 39.03(3), Florida Statutes (1977) requires such notification and that any statements obtained before notification are, per se, involuntary. The appellant also contends that he is entitled to a new trial because a witness’ mother improperly coached the witness during trial testimony. We find no error concerning either point and affirm the conviction. Nevertheless, we will discuss the requirement of notification.

With respect to the appellant’s sentence, he also advances two arguments for reversal. First, he argues that his sentence as an adult violates Section 39.111(6), Florida Statutes (1978 Supp.) which requires a predisposition hearing and written findings of fact, together with the reasons for imposing adult sanctions. Finally, appellant argues that the trial court erred in refusing to allow him to review, prior to sentencing, the confidential portion of the presentence investigation report. We hold that the trial court violated Section 39.111(6) and improperly denied the appellant an opportunity to review any factual information contained in the presentence investigation report.

The appellant and the victim were passengers in an automobile. When the victim became upset with appellant’s advances toward her, he commenced waiving a sawed-off .22 caliber rifle around aimlessly. He claims it accidentally discharged, striking and killing the victim. The appellant took the victim to the hospital where she was pronounced dead. The appellant then telephoned his mother who immediately went to the hospital. Appellant and his mother had a brief conversation after which the police took the appellant to the scene of the shooting. The parents, pursuant to advice of the police, went to the Pompano Beach Police Station to wait for their son.

At the scene of the shooting and after being advised of his constitutional rights, the appellant admitted that he accidentally fired the gun, and he assisted the police in locating the gun which he had thrown in the bushes. The police then took the appellant to the police station and commenced taking a statement from him. Upon learning that appellant was 16 years of age, the interrogation ceased and the police transported him to the juvenile detention center. Although the parents were at the police station, no effort was made to put the appellant in contact with them.

At the detention center the police again advised the appellant of his constitutional rights, this time in the presence of a juvenile counsellor, and took a taped statement from him. After obtaining additional evidence, the police took a second taped statement. Again the police advised the appellant of his rights. The record is not clear as to precisely when the appellant requested to speak with his parents, but there is competent evidence showing that he made a request immediately after giving the first statement. The juvenile counsellor then put him in telephone contact with his parents who had remained at the police station.

Appellant argues that all of his oral and written statements should have been suppressed because the police didn’t notify his parents of his detention pursuant to Section 39.03(3), Florida Statutes (1977). We first note that his parents were at the hospital before appellant was in custody and they were told that he was being taken to the police station. Cf., K.L.C. v. State, 379 So.2d 455 (Fla. 1st DCA 1980) (son arrested at home in presence of parents). Second, notification to the parents of a juvenile’s detention is not necessarily related to interrogation. It is merely to advise the parents of the juvenile’s whereabouts, and although the lack of notification may, and should be, considered as part of the totality of the circumstances under which statements are made, the failure to notify is not controlling. Doerr v. State, 383 So.2d 905 (Fla.1980). Admission of a juvenile’s statements depends upon their voluntariness considered in the light of the totality of the circumstances. Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962). We find substantial competent evidence to support the trial court’s finding that appellant gave the statements voluntarily.

Appellant claims that the trial court erred by failing to conduct a predisposition hearing and enter written findings of fact before adult sanctions could be imposed against him as required by Section 39.-111(6), Florida Statutes (1978 Supp.) This section became effective on October 1,1978, which was after appellant’s criminal act but before his trial and sentencing. Nevertheless, the section is procedural and such statutory changes apply to pending cases. Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1979). See also McShay v. State, 321 So.2d 464 (Fla. 4th DCA 1975).

Section 39.116 applies “[w]hen a child has been transferred for criminal prosecution and the child has been found to have committed a violation of Florida law....” The appellant was eligible for consideration under the procedures of Section 39.111(6) because a child charged by indictment is considered transferred to the criminal division of the circuit court from the juvenile division pursuant to Chapter 39, Florida Statutes (1977). See State v. Goodson, 403 So.2d 1337 (Fla.1981). Furthermore, the provisions of Section 39.111(6) are mandatory. Johnson v. State, supra; Proctor v. State, 373 So.2d 450 (Fla. 2d DCA 1979). Consequently, the trial court improperly failed to follow the procedures set forth in Section 39.111(6).

All factual information contained in a presentence investigation report (PSI) must be disclosed to a defendant a reasonable time prior to sentencing. Cunningham v. State, 349 So.2d 702 (Fla. 4th DCA 1977), cert. denied, 362 So.2d 1052 (Fla.1978); Campbell v. State, 342 So.2d 1010 (Fla. 4th DCA 1977); Dickens v. State, 368 So.2d 950 (Fla. 1st DCA 1979). Although we have not been provided with a copy of the PSI in this case, the record discloses that the court refused defense counsel’s motion to review what, if any, factual information was contained in the confidential portion of the PSI. This refusal was erroneous.

Accordingly, the defendant’s conviction is affirmed and this cause is remanded for resentencing in accordance with Section 39.-111(6) and with directions that the trial court review the confidential portion of the PSI and disclose to the defendant, a reasonable time before sentencing, any factual matter that may be contained therein.

AFFIRMED and REMANDED for RE-SENTENCING.

ANSTEAD and HERSEY, JJ., concur.

      . The testimony of the appellant’s mother and father is conflicting as to whether both parents were at the hospital.


author: ANSTEAD, Judge.

text:
    Glen Allen DUDLEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-1969.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.

      Arnold R. Ginsberg of Horton, Perse & Ginsberg and Colodny & Fass, P. A., Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

This is an appeal from a conviction of appellant for grand theft after trial by jury. We reverse.

The two errors asserted by appellant upon which we base our decision involve jury instructions. The trial court refused to instruct the jury on appellant’s asserted defense that he had taken possession of the property in question upon the mistaken but good faith belief that he was lawfully entitled to such property. In addition the trial court instructed the jury, over the appellant’s objection, that it should receive the testimony of an accomplice with great caution. In this case the alleged accomplice was appellant’s business associate who testified in appellant’s behalf as to the good faith defense.

If the defendant asserts a valid legal defense and there is evidence presented to support the defense then the trial court is obligated to instruct the jury as to such defense upon request by the defendant. Palmes v. State, 397 So.2d 648 (Fla. 1981). In Rodriguez v. State, 396 So.2d 798 (Fla. 3d DCA 1981) our sister court reversed a conviction under circumstances very similar to those involved herein, although the evidence in support of the good faith defense there appeared to be more substantial. Upon review of the record we believe that there was sufficient evidence presented to entitle the appellant to a jury instruction on his good faith defense. We also reject the state’s contention which, while admitting the existence of some evidence as to the good faith defense, asserts that the standard instruction on the element of felonious intent was sufficient to cover such defense. In a sense, most theories of defense constitute negation of some element of the offense charged. However, this does not mean that an instruction on the required elements will necessarily satisfy the requirement that the jury be separately instructed on recognized theories of defense. It is one thing to inform the jury as to the state’s obligation to prove each element of its case, but quite another to inform the jury that certain matters, if established, constitute a defense to the crime charged.

Our decision to reverse is also influenced by our conclusion that the trial court erred in giving a jury instruction on accomplices. This instruction is intended to be used when the state presents the testimony of an accomplice whose motivation for testifying against his alleged colleague and cooperating with the state may be substantially influenced by his own self-interest. The instruction was not intended to be used against a defendant who may present a co-defendant or other person involved in the incident in question as a witness for the defense. Wheelis v. State, 340 So.2d 950 (Fla. 1st DCA 1976); Taylor v. State, 403 So.2d 585 (Fla. 2d DCA 1981). The instruction may have been especially damaging here since the appellant did not testify but instead relied almost entirely on the testimony of his business associate, who was not formally charged with the commission of any offense, to establish the good faith defense. When considered together with the denial of the requested defense instruction, it appears that appellant was not only denied the right to have the jury informed of the legal basis of his defense, he was also deprived of the opportunity to have the jury fairly evaluate the credibility of the main witness called to substantiate that defense.

Accordingly, this cause is reversed and remanded for a new trial in accordance with this opinion.

HURLEY, J., and MINER, CHARLES E., Jr., Associate Judge, concur.

      . The trial court stated: “Accomplice; What is an accomplice? What is the law regarding accomplices in the State of Florida? First of all, when two or more persons take part in the commission of a crime, each is an accomplice of the other. That is an accomplice. The testimony of an accomplice must be received with great caution and carefully and closely examined by you before a conviction is based on the testimony of an accomplice. This is particularly true where there is neither direct testimony nor circumstances tending to corroborate the testimony of an accomplice. However, the testimony of an accomplice, even though uncorroborated, is sufficient upon which to base a conviction if you are convinced of the testimony and of the defendant’s guilt beyond and to the exclusion of every reasonable doubt.”


text:
    FINANCIAL INTERNATIONAL LIFE INSURANCE COMPANY OF NEW MEXICO, Appellant, v. BETA TRUST CORPORATION, LTD., a B.V.I. Corporation, Friedricke Charter and Sales Company, a Liberian Corporation and David Fraser, Inc., a Florida Corporation, Appellees.
    Nos. 80-1645, 80-1646.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.

      Jeanne Heyward, Miami, and Burdick & Donahoe, Fort Lauderdale, for appellant.
    No appearance for appellees.
   MOORE, Judge.

Financial International Life Insurance Company of New Mexico, a third party defendant, appeals from an order denying its motion to dismiss and quash service of process, and from an order requiring it to deposit $200,000 into the registry of the court pursuant to Florida Rule of Civil Procedure 1.600.

This suit arose out of a contract for the sale of a yacht. Appellant, a New Mexico corporation, had issued an annuity contract in New Mexico to George Mitchell, who subsequently assigned it to the yacht broker, David Fraser, Inc. The purchase agreement for the yacht obligated the buyer, Beta Trust Corporation, Ltd., a British Virgin Islands corporation, to deposit with a broker an annuity contract with a cash value of $200,000.

The buyer sued the seller for specific performance of the sales contract. The seller of the yacht, Friedricke Charter and Sales Company, a Liberian corporation, filed a third party complaint against the appellant for payment of the annuity. The appellant, appearing specially to contest jurisdiction, moved to dismiss and quash service of process alleging no jurisdiction because it transacts no business in Florida and is not registered with the office of the State Treasurer and Insurance Commissioner as a foreign insuror. On June 10, 1980, the court denied appellant’s motion to dismiss and quash service.

The seller then moved for an order of payment into the court registry pursuant to Florida Rule of Civil Procedure 1.600. The motion alleged that no matter which party is successful, one of the litigants will be entitled to the fund generated by payment of the annuity. The motion stated that the appellant had been placed into receivership. The motion requested an order compelling the receiver to pay the annuity into the court registry for disbursement upon further order of the court. On August 25, 1980, the court entered an order granting that motion and instructing the appellant to pay into the court registry the surrender value of the annuity, $200,000, to be disbursed only by the Clerk upon appropriate motion and order.

On September 24, 1980, the appellant filed a notice of appeal directed to both the order denying its motion to dismiss and quash service of process and the order granting the seller’s motion for an order of payment into the court registry.

Initially, we must determine whether this court has jurisdiction to review the appealed orders. An order determining jurisdiction of the person is an appealable non-final order pursuant to Florida Rule of Appellate Procedure 9.130{a)(3)(C)(i). To invoke jurisdiction pursuant to this provision, the appellant must file a notice of appeal within 30 days of rendition of the order to be reviewed. Fla.R.App.P. 9.130(b). In the present case, however, the appellant failed to file a notice of appeal within 30 days of rendition of the order denying its motion to dismiss and quash service of process.

The appellant argues that the order of payment into the court registry is a final order and therefore, the prior non-final order denying the motion to dismiss and quash service would be subject to review pursuant to Florida Rule of Appellate Procedure 9.130(g). We disagree. The order of payment into the court registry is in the nature of a non-final order. A judgment is final for the purposes of an appeal if the judicial labor required has been completed. Slatcoff v. Dezen, 72 So.2d 800 (Fla.1954); Chan v. Brunswick Corp., 388 So.2d 274 (Fla. 4th DCA 1980). The order here clearly contemplates further judicial action to determine the rights of the parties regarding the $200,000 fund.

The appellant untimely filed its notice of appeal to the order denying its motion to dismiss and quash service of process. Therefore, we do not have jurisdiction to review this order. Conversely, the appellant timely filed its notice of appeal directed to the order of payment into the court registry. Furthermore, this order is an ap-pealable non-final order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B). See Dunes Development Corp. of Palm Beach v. Dunes Towers Association, Inc., 380 So.2d 572 (Fla. 4th DCA 1980).

We find that the order directing deposit of the funds into the court registry constitutes a prohibited interference with receivership assets. The Uniform Insurers Liquidation Act, adopted in both Florida and New Mexico, Section 631.001 et seq., Florida Statutes, and Article 59-6-7 et seq., New Mexico Statutes, provides that the claim against the appellant must be proved in New Mexico because no ancillary receiver has been appointed in Florida. See § 631.171, Fla.Stat. (1979); Vlasaty v. Avco Rent-A-Car System, Inc., 60 Misc.2d 928, 304 N.Y.S.2d 118 (1969).

Furthermore, it is unclear whether Florida Rule of Civil Procedure 1.600, under the facts of this case, could authorize the order requiring deposit into the court registry. See 23 Am.Jur.2d, Deposits in Court, § 2, which states that a party to a controversy involving a right to a certain sum of money or thing cannot be required to deposit that money or thing in court unless it is either clearly admitted in his pleading or shown in some proceeding in the cause that he has himself no right to retain it and that the other party to the action is entitled to it or at least has an absolute interest in it.

Accordingly, we reverse the order directing payment into the court registry and dismiss the appeal as to the order denying the appellant’s motion to dismiss and quash service of process.

BERANEK and GLICKSTEIN, JJ., concur.


text:
    Danny Lee LOWE, Petitioner, v. Honorable Joseph E. PRICE, as Circuit Court Judge, Broward County, Florida, Respondent.
    No. 81-1531.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Donald A. Wich, Jr. of Sullivan, Rana-ghan, Bailey & Gleason, P. A., Pompano Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of prohibition is denied on the authority of Sherrod v. Franza, 396 So.2d 1136 (Fla. 4th DCA 1981). Also see Hunter v. Franza, 405 So.2d 1035 (Fla. 4th DCA 1981). Contra, see Bates v. Keating, 396 So.2d 1172 (Fla. 5th DCA 1981).

ANSTEAD, BERANEK and HURLEY, JJ., concur.


text:
    Victor Ruiz CONCEPTION, Appellant, v. STATE of Florida, Appellee.
    No. 81-258.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.

      Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant appeals his sentence of 15 years in prison based on a conviction of aggravated battery. In sentencing defendant, the trial court ruled that application of the Youthful Offender Act, Section 958.04, Florida Statutes (1979), was discretionary. This court held the Act to be mandatory if the defendant meets the statutory criteria in Barnhill v. State, 393 So.2d 557 (Fla. 4th DCA 1980). The ruling of the trial court is reversed and the matter is remanded for a finding as to whether defendant met the statutory criteria and for resentencing in accordance with Barnhill v. State, supra, if appropriate.

REVERSED AND REMANDED.

LETTS, C. J., BERANEK, J., and OWEN, WILLIAM C., Jr., Retired, Associate Judge, concur.


text:
    BAIRD BUSINESS ASSOCIATES, INC., Appellant, v. LENS-MASTERS, INC., a Florida Corporation, Appellee.
    No. 80-1280.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Robert J. Cotton, Boston, Mass., for appellant.
    Philip Bloom and Phyllis K. Harte of Finley, Kumble, Wagner, Heine & Under-berg, Miami, for appellee.
   PER CURIAM.

Affirmed on the authority of Kay v. Sperling, 83 So.2d 881 (Fla. 1956).

ANSTEAD, BERANEK and HURLEY, JJ., concur.


text:
    Thomas MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    No. 80-2105.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Robert C. Stone of Stone, Dell & Schae-fer, P.A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s sentences are vacated and the cause is remanded for resentencing pursuant to the dictates of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981).

MOORE, HERSEY and HURLEY, JJ., concur.


text:
    Catherine McCarthy SCHILLING, Appellant, v. Max Terrance SCHILLING, Appellee.
    No. 79-2309.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    William J. Bosso, Sr., of Bosso & Bosso, Riviera Beach, for appellant.
    John T. Christiansen of Christiansen, Jacknin & Myers, Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Shaw v. Shaw, 334 So.2d 13 (Fla. 1976).

ANSTEAD, BERANEK and HERSEY, JJ., concur.


author: LETTS, Chief Judge.

text:
    Paul Jerome SIRMONS, Appellant, v. STATE of Florida, Appellee.
    No. 81-179.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Jay S. Spechler, Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

Appellant and appellee State agree that the trial court’s refusal to credit appellant for time served in the county jail was error. Groves v. State, 361 So.2d 730 (Fla. 4th DCA 1978). The time to be credited should have been specified in the sentence and credited toward one of the charges. Lawrence v. State, 306 So.2d 561 (Fla. 4th DCA 1975). Because of the discrepancy between the oral pronouncements of the trial court and the written sentences, the written sentences must be corrected to conform to the oral pronouncements giving appellant the same maximum of four years in prison, but followed by six years on probation rather than the eight now in the written sentences Sandstrom v. State, 390 So.2d 448 (Fla. 4th DCA 1980).

REMANDED FOR CORRECTION IN ACCORDANCE WITH THIS OPINION.

HERSEY and GLICKSTEIN, JJ., concur.


text:
    Theophilus E. MORLEY and Annie D. Morley, his wife, and Charles S. Scheffler and Berit Scheffler, his wife, Appellants, v. TITLE & TRUST CO. OF FLORIDA For the Use and Benefit of Melvin E. KATZ, Paul A. Katz, Alfred Abdo and Dorothy Abdo, Appellees.
    No. 80-1295.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.

      Peter J. Forman and William W. Price of Gustafson, Stephens, Ferris, Forman & Hall, P.A., Fort Lauderdale, for appellants.
    William Robert Leonard of Coleman, Leonard & Morrision, Fort Lauderdale, for appellees.
   PER CURIAM.

Plaintiff appeals from an order setting aside a final judgment which had previously established plaintiffs’ claim for an equitable lien on certain real property. The order was entered on the basis of a motion to vacate filed pursuant to Rule of Civil Procedure 1.540. We conclude that reversible error has not been demonstrated and affirm. In doing so we note that no final judgment is now in effect in this case. The matter is remanded for further proceedings which may include amendments to the pleadings raising the issue of whether ap-pellees/intervenors were in fact bona fide purchasers without actual notice.

AFFIRMED AND REMANDED.

MOORE, BERANEK and HERSEY, JJ., concur.


text:
    Ronald Gene MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 80-774.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.
    Richard L. Jorandby, Public Defender, and John R. Cullom, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s conviction is affirmed, but this action is without prejudice to appellant’s right to file a motion for post-conviction relief pursuant to Rule 3.850, Fla.R. Crim.P., alleging ineffective assistance of counsel.

LETTS, C. J., and HERSEY and HURLEY, JJ., concur.


text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Zipporah COLLIER, Appellee.
    No. 81-1837.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 1981.

      James B. Denman of Bunnell & Denman, P. A., Fort Lauderdale, for appellant.
    Mark J. Mintz of Ress, Gomez, Rosenberg & Howland, P. A., North Miami, for appel-lee.
   ON MOTION TO REMAND FOR ENTRY OF FINAL DECLARATORY JUDGMENT

LETTS, Chief Judge.

The appellant’s motion to remand for entry of a Final Declaratory Judgment is denied.

This Court is of the opinion that the Summary Judgment here appealed is in fact final because it contains “magic words demonstrating finality.” See Sloman v. Florida Power & Light Co., 382 So.2d 834 (Fla. 4th DCA 1980). The totality of the words set forth in the instant Summary Judgment which lead us to that conclusion are as follows:

Defendant’s motion for final summary judgment is hereby granted ... that the plaintiff take nothing by this suit and ... go hence without day.

In moving for a remand in filing a notice of intent to rely, both parties appear to doubt the finality of the instant judgment and cite Renard v. Kirkeby Hotels, Inc., 99 So.2d 719 (Fla. 3d DCA 1958) and Rizzuto v. DiPaolo III, 357 So.2d 490 (Fla.2d DCA 1978) as support. However, both these last two cited cases merely intoned that the motion for summary judgment was granted and neither contained additional language.

By contrast we base our conclusion here on the Supreme Court case of Catchings v. Florida-McCracken Concrete Pipe Co., 135 So. 561 (Fla.1931) and Baker v. Colley, 104 So.2d 473 (Fla.2d DCA 1958) which both indicate that the use of additional language such as “the plaintiff take nothing by [this] suit .. . and go hence without day” lends the necessary unequivocal declaration of finality that will support an appeal.

MOTION DENIED.

MOORE and BERANEK, JJ., concur.


text:
    Sally WEINER, Appellant, v. Al WEINER, Appellee.
    No. 79-941.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 1981.
    Goethel & Garcia-Vidal and Richard Karl Goethel, Coral Gables, for appellant.
    Roberts, Miller, Baggett, LaFace, Richard & Wiser and Barry S. Richard, Tallahassee, for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on July 29, 1980 (386 So.2d 1251, Fla.App.) affirming in part and reversing in part the judgment of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed July 23, 1981, 403 So.2d 408, and mandate now lodged in this court, affirmed in part and reversed in part and remanded the cause with instructions.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on September 26,1980 is withdrawn the judgment of this court filed in this cause on July 29, 1980, except as is affirmed by the judgment of the Supreme Court dated July 23, 1981, is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment appealed from herein is reversed in part and affirmed in part and the cause is remanded to the trial court with instructions to reinstate the trial court’s alimony award. Costs allowed shall be taxed in the trial court (Rule 9.400 a Florida Rules of Appellate Procedure).


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

text:
    TERREBONNE PARISH POLICE JURY v. Carroll MATHERNE.
    No. 81-C-0531.
    Supreme Court of Louisiana.
    Sept. 8, 1981.
    Rehearing Denied Oct. 9, 1981.

      A. J. Gray, III, Camp, Carmouche, Palmer, Barsh & Hunter, Lake Charles, H. Minor Pipes, Sr., Pipes & Pipes, Houma, for defendant-applicant.
    Michael J. Samanie, Houma, for plaintiff-respondent.
   DENNIS, Justice.

The question presented for our decision is whether a parish governing authority may have a landowner enjoined from diverting his property’s drainage from its natural flow and destination into a parish drainage project because the diversion of the natural drain impairs the efficiency of the public drainage system and contributes to the flooding of homes. The district court granted an injunction and the court of appeal affirmed. We granted certiorari to determine whether the action below constituted a taking or damaging of property for a public purpose without just compensation. We affirm. An injunction preventing a landowner from diverting the natural drain of his property is not a taking or damaging of his property because he has no right to do anything to render the natural servitude of drain more burdensome upon the estates situated below. The parish governing authority was entitled to have the landowner’s unlawful acts enjoined in order to prevent irreparable injury to its drainage project.

The Terrebonne Parish Police Jury completed in December, 1979 Forced Drainage Project No. 1-1A. This project was designed to drain about 1700 acres and provide flood control for roughly 2200 residents.

Carroll Matherne owns an 800-acre tract of agricultural land south of the project area. The northern boundary of his land is formed by “Canal C,” an artificial, non-navigable drainage canal constructed many years ago by one of his ancestors in title. The canal which serves as a public drainage channel for the project also forms its southwestern boundary. Matherne’s property, which is mostly farmland, was not included within the project.

On April 12 and 13, 1980, heavy rains of approximately eleven inches drenched the area causing severe flooding. When the drainage system failed to perform satisfactorily, employees of the police jury inspected the drainage channels and found two large ditches on defendant’s property emptying substantial quantities of water into Canal C. Matherne had cut the ditches only a few weeks before. Since the flow from Matherne’s new ditches appeared to contribute substantially to the prolonged flooding in the project area, the police jury blocked the ditches on April 16 and 17. After closure of the cuts, standing water in the residential area within Project 1-1A subsided as much as twelve inches in twelve hours. Matherne reopened one of the two ditches, began digging a third ditch, and ordered parish employees from his property when they attempted to close them. The police jury obtained a temporary restraining order enabling it to reclose the new ditches and to prevent further resistance by defendant until a hearing could be held.

After a full hearing, the trial court granted a preliminary injunction. The trial judge in his written reasons found that before Matherne cut the new ditches only 120 of his 800 acres drained into Canal C. By reversing the drain of additional portions of his property, the trial judge found, the defendant had introduced substantially more water into the forced drainage project than it was designed to handle. The trial court concluded that La.R.S. 38:113 entitled the police jury to injunctive relief to prevent defendant from destroying the integrity of the drainage system and doing irreparable harm to residents within the project area.

Matherne appealed and the court of appeal affirmed the preliminary injunction judgment. 394 So.2d 1302 (La.App. 1st Cir. 1981). The court of appeal held that by authority of La.R.S. 38:113 the police jury had acquired a limited servitude to control and maintain Canal C as a public drainage channel extending for a space of 100 feet on each side of the channel; that the police jury may take any appropriate measures for the preservation of the efficiency of the drainage channel; that, because Canal C is part of a parish drainage project, the police jury may enjoin the activity of a landowner outside the project which overloads the drainage channel and thereby reduces its efficiency as part of the drainage project; and that, if the police jury has taken or damaged Matherne’s property, he must pursue other available remedies outside the injunction proceeding.

We granted certiorari because of our concern that the lower courts’ sweeping interpretation of a local government’s powers under La.R.S. 38:113 impinges upon individual citizens’ rights to own, use and enjoy private property. Our review convinces us that the trial and appellate courts’ statutory construction is partially incorrect, but we conclude that the judgments should be affirmed on other grounds, although the language of the injunction must be restricted somewhat.

1.

Property may not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. La.Const. art. I, § 4. In every expropriation, a property owner has the right to a trial by jury to determine compensation and the right to be compensated to the full extent of his loss. Id. Due process of law guarantees a property owner a judicial review of whether the government acted arbitrarily, capriciously, or in bad faith in determining that the taking or damage of property was necessary. State, thru Dept. of Highways v. Olinkraft, Inc., 350 So.2d 865 (La.1977). Cf. State, thru Dept. of Highways v. Jeanerette Lumber & Shingle Co., Ltd., 350 So.2d 847 (La.1977).

La.R.S. 38:113 provides:

“The various levee and drainage districts shall have control over all public drainage channels within the limits of their districts and for a space of one hundred feet on each side of the channel, selected by the district and recommended and approved by the Department of Public Works, whether the drainage channels have been improved by the levee or drainage district, or have been adopted without improvement as necessary parts of or extensions to improved drainage channels, and may adopt rules and regulations for preserving the efficiency of the drainage channels.”

La.R.S. 38:113, by its terms, merely authorizes a levy or drainage district to preserve and maintain the efficiency of public drainage channels within its districts. Undoubtedly, the local governing body may exercise its power to prevent obstruction of the channels and to perform ordinary maintenance necessary for the efficient operation of the canals and ditches. When necessary for these purposes, the authorities may send their workers and equipment on to private property along public drainage channels for a space of 100 feet on each side of the channel. The legislative aim was a modest one, viz., to enable levy and drainage authorities to keep the public drainage channels within their districts clear and in good working order. See Dugas v. St. Martin Parish Police Jury, 351 So.2d 271 (La.App. 3d Cir. 1977); Grayson v. Comm’rs of Bossier Levee Dist., 229 So.2d 139 (La.App. 2d Cir. 1969); Scott v. Red River-Bayou Pierre Levee & Drainage Dist. of La., 7 So.2d 429 (La.App. 2d Cir. 1942).

The statute does not authorize the taking or damaging of private property without just compensation or without due process of law; nor do we think the legislature could do so constitutionally. Accordingly, we must reject the lower courts’ interpretation of La.R.S. 38:113 as an impingement upon an individual’s constitutional right to property and as unjustified by the words of the statute. The statute does not authorize the governing authority to enjoin activities on private property which do not have the effect of obstructing a public drainage channel or impeding its maintenance. The act certainly does not enable a local government to take or damage property rights by way of injunction. See, Plaquemines Parish Comm’n Council v. Hero Lands Co., 388 So.2d 790 (La.1980). It may be desirable and in the public interest to take property or prevent its enjoyment in order to promote the overall efficiency of a drainage system. The lawful method, however, is through expropriation and not by enjoining an owner from use of his property rights. See Arkansas Louisiana Gas Co. v. City of Minden, 341 So.2d 607 (La. App. 2d Cir. 1977).

2.

The injunction preventing Math-erne from diverting the natural drain of his property was not a taking or a damaging of his property, however, because he had no right to do anything to render the natural servitude of drain more burdensome on estates situated below. Under the conception of our law, the right to drain water from one’s property over the lands of others is not a prerogative of ownership but a real right of servitude requiring a dismemberment of the ownership of others or a charge laid on their immovables. La.C.C. art. 646, et seq., 1977 La.Acts, No. 514, Exposé des Motifs.

The articles of the code governing the servitude of drain, in pertinent part, provide:

Art. 655. An estate situated below is bound to receive the surface waters that flow naturally from an estate situated above unless an act of man has created the flow. (Acts 1977, No. 514).
Art. 656. The owner of the servient estate may not do anything to prevent the flow of the water. The owner of the dominant estate may not do anything to render the servitude more burdensome. (Acts 1977, No. 514).

Our jurisprudence has established a consistent interpretation of these precepts. The owner of the lower lands of two estates can do no act which would impede the natural flow of waters on his lands from those of the higher estate. The owner of the dominant estate may make all drainage works which are necessary to the proper cultivation and to the agricultural development of his estate. To that end, he may cut ditches and canals by which the waters running on his estate may be concentrated, and their flow increased beyond the slow process by which they would ultimately reach the same destination. But the owner of the dominant estate cannot improve his lands to the injury of his neighbor by diverting waters from their natural flow, and concentrating them so as to flow on the lower lands of the servient estate at a point which would not be their natural destination, thus increasing the volume of water which would by natural flow run over or reach any portion of the servient estate, and to thus render the servitude due by the estate below more burdensome. E. g., Nicholson v. Holloway Planting Co., Inc., 255 La. 1, 229 So.2d 679 (1969); Broussard v. Cormier, 154 La. 877, 98 So. 403 (1923); Ludeling v. Stubbs, 34 La.Ann. 935 (1882); Guesnard v. Executors of Bird, 33 La.Ann. 796 (1881); David v. Dixie Rice Agricultural Corp., 379 So.2d 62 (La.App. 3d Cir. 1979), writ denied, 382 So.2d 166 (La.1980).

Testing the facts of this case by the codal precepts as thus interpreted, we conclude that Matherne’s efforts to alter the natural drainage of his land exceeded his lawful rights as owner of a dominant estate. By cutting new ditches through the natural ridge bordering Canal C, Matherne diverted the drainage from most of his estate away from its natural flow, prevented it from reaching its natural destination and rendered more burdensome the servitudes due by the lower estates receiving Canal C’s water by substantially increasing its volume.

3.

Because the record does not establish that the police jury was owner of a servient estate or neighboring property overburdened or damaged by Matherne’s activities, we initially questioned the governing authority’s standing to bring this suit. After considering the problem, however, we conclude that the police jury has standing to sue and is entitled to injunctive relief.

A party seeking an injunction must have standing to sue or, more comprehensively, the action must present a justiciable controversy. Stoddard v. City of New Orleans, 246 La. 417, 165 So.2d 9 (1964); Cf. Maraist, Work of Appellate Courts—1974-1975, 36 La.L.Rev. 556; Moore, Federal Practice, § 65.17. To have standing the plaintiff must assert an adequate interest in himself, which the law recognizes, against a defendant having a substantial adverse interest. La.C.C.P. art. 681; La. Hotel-Motel Ass’n, Inc. v. Parish of East Baton Rouge, 385 So.2d 1193 (La.1980); Hainkel v. Henry, 313 So.2d 577 (La.1975); Abbott v. Parker, 259 La. 279, 249 So.2d 908 (La.1971). The fact that the plaintiff may suffer damage will not suffice unless he has a right, which the law will recognize, to be immune from damage by the defendant. League of Women Voters v. City of New Orleans, 381 So.2d 441 (La.1980); Abbott v. Parker, 259 La. 279, 249 So.2d 908 (La. 1971); Moore, Federal Practice, § 65.17.

The police jury in this case has a right, which the law has recognized, to be immune from damage by Matherne’s actions in overburdening the natural servitude of drain. The governing body is authorized to adopt rules and regulations for preserving the efficiency of channels within its drainage district. La.R.S. 38:113. In aid of this local government power, the legislature also enacted criminal sanctions prohibiting obstruction of drainage channels, La.R.S. 38:219, or “[d]rain[age] into channels by natural or artificial inlets except under regulations prescribed by the district, ...” La.R.S. 38:219(6). By analogy to these criminal statutes we conclude that the police jury enjoys a substantive civil right to be immune from damage to its public works project by excessive, unlawful drainage into its system. Boyer v. Johnson, 360 So.2d 1164 (La.1978); Pierre v. Allstate Insurance Co., 257 La. 471, 242 So.2d 821 (La.1970); Cf. A. Yiannopoulos, Louisiana Civil Law System, 153 (1977). As we noted earlier in this opinion, these statutes cannot authorize the police jury to take or damage property without just compensation. The regulation or prohibition of drainage into a public system that is not authorized by a natural servitude or other legal right, however, does not constitute a taking or damaging of property.

La.C.C.P. art. 3601 provides that an injunction shall issue where irreparable injury, loss or damage would otherwise result to the applicant. Irreparable injury is considered to be a loss sustained by an injured party which cannot be adequately compensated in money damages or for which such damages cannot be measured by a pecuniary standard. Pennington v. Drews, 209 La. 1, 24 So.2d 156 (1945); City of Lake Charles v. Lake Charles Ry., L. & W. Co., 144 La. 217, 80 So. 260 (1918). Matherne’s unauthorized activity on his land caused a dramatically increased flow of water into the forced drainage system which significantly reduced the ability of the system to drain the watershed area quickly and efficiently. The system had not been designed to drain the bulk of defendant’s agricultural property and Matherne’s unilateral decision to use it for this purpose rendered the entire project inadequate to protect residential property it was designed to serve. Furthermore, Matherne testified that he would reopen the ditches if not enjoined from doing so.

Under these circumstances, the record sufficiently demonstrates the police jury’s standing to sue and the potential irreparable damage to its drainage system that will result in the absence of injunctive relief. The language of the trial judge’s injunction must be modified, however, to conform with a narrower view of the police jury’s authority. The judgment is amended as follows:

It is decreed that a preliminary injunction issue against Carroll J. Matherne, prohibiting him, his agents, employees, and servants from unblocking the large drainage ditches blocked by the Terrebonne Parish Police Jury, from digging other such ditches in the future, and from diverting waters from his property into “Canal C” a/k/a Bayou Tecon which would not otherwise naturally flow into that canal.

AMENDED AND AFFIRMED.

LEMMON, J., concurs and assigns reasons.

DIXON, C. J., dissents with reasons.

LEMMON, Justice,

concurring.

Prior to the drainage project undertaken by the Police Jury, a system of ditches had drained part of Matheme’s property into Canal C. Matherne contends that a spoil levee placed along the bank of Canal C during the construction of the project blocked that pre-existing drainage and that he merely unblocked the blockage caused by placement of the spoil levee. If these were the complete facts shown by the record, then I would agree with his contention that he had the right to remove the spoil levee constructed without a servitude being expropriated or obtained by contract.

However, the record further establishes that Matherne also cut new ditches across a ridge south of Canal C. Prior to that action only 120 acres drained into Canal C, whereas after that action most of the remainder of the 800-acre tract also drained into the canal. Therefore, that action by Matherne did render the servitude of drainage more burdensome on the servient estate, and the Police Jury properly sought to halt the increased flow resulting from Matherne’s action.

Nevertheless, Matherne apparently still has an action for damages caused by the unauthorized taking or damaging of his property in the course of constructing the drainage project.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

I do not understand that there is any evidence in this record that Matherne’s action renders the servitude of natural drain owed by any estate below Matherne’s more burdensome.


text:
    Boris F. NAVRATIL v. James H. SMART, d/b/a Road Runner Wrecker Service, et al.
    No. 81-C-1682.
    Supreme Court of Louisiana.
    Sept. 11, 1981.
   In re Boris F. Navratil, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 400 So.2d 268.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana, ex rel. Warren MASSEY v. COURT REPORTER, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 81-KH-1729.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Warren Massey, applying for writ of mandamus. Parish of Orleans. No. 270-376.

Denied.


text:
    CMTS INVESTMENTS, INC. v. CITY OF NEW ORLEANS and New Orleans East, Inc.
    No. 81-C-1971.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re CMTS Investments, Inc., applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans. Civil District Court. No. 81-2680, c/w 81-2775.

Denied.


text:
    STATE of Louisiana, ex rel. Earl DUPREE v. STATE of Louisiana.
    No. 81-KH-2221.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Earl Dupree, applying for writ of mandamus. Parish of West Feliciana. No. 75-6-338.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Allen CROSBY v. Charles C. FOTI, Jr., Criminal Sheriff, et al.
    No. 81-KH-1365.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Allen Crosby, applying for writ of habeas corpus. Parish of Orleans. No. 271-972, Section F.

Denied.


text:
    STATE of Louisiana v. Larry Eugene SKELTON.
    No. 81-K(A)-1355.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Larry Eugene Skelton, applying for supervisory or other writ. Parish of Cameron. Nos. 18739 and 18740.

Denied.


text:
    STATE of Louisiana v. Jimmy Dale FRYE.
    No. 81-K[A]-1354.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Jimmy Dale Frye, applying for supervisory or other writ. Parish of Cameron. Nos. 18741 and 18742.

Denied.


text:
    STATE of Louisiana ex rel. Charles STRONG v. The COURT REPORTER, SECTION “B” ORLEANS CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 81-KH-1778.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Charles Strong, applying for writ of mandamus. Parish of Orleans. No. 267— 685.

Granted as to request for Boykin transcript. Otherwise denied.


text:
    STATE of Louisiana, ex rel. Donald HAYNES v. Honorable Frank J. SHEA, Judge, Criminal District Court, Parish of Orleans, Section “G”.
    No. 81-KH-2216.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Donald Haynes, applying for remedial writs. Parish of Orleans. No. 262-981.

Granted. Furnish relator with a copy of his Boykin transcript.


text:
    STATE of Louisiana v. Ronnie BAILEY.
    No. 81-K-2173.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re State of Louisiana, applying for writ of certiorari to review. Parish of Orleans. No. 283-261.

Granted.


text:
    STATE of Louisiana v. Herman MATTHEWS and Thomas Lund.
    No. 81-K-1903.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 280-573, I.

Writ granted.


text:
    Mary A. MATTHEWS and Jack Matthews v. INSURANCE COMPANY OF NORTH AMERICA, American International Rent-A-Car Corporation, Ed. C. Hensen, Individually and as Natural Tutor of Joy M. Hansen and Joy M. Hansen and Allstate Insurance Company.
    No. 81-C-1888.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Mary A. Matthews and Jack Matthews, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 12462.

Granted.


text:
    Susan Henington, Wife of Henry J. JUMONVILLE, III v. Henry J. JUMONVILLE, III.
    No. 81-C-1875.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Susan H. Jumonville, applying for supervisory writs. Parish of Orleans. No. 79-12683.

Granted and remanded to Court of Appeal, to entertain the application for writs on its merits. Child support litigation should be handled expeditiously.


text:
    STATE of Louisiana ex rel. Percy CAGE, Jr. v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1433.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Percy Cage, Jr., applying for remedial writs. Parish of Caddo. No. 95316.

Denied.


text:
    STATE of Louisiana ex rel. Henry ANDERSON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary, et al.
    No. 81-KH-1432.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Henry Anderson applying for remedial writ. Parish of Orleans. No. 260-387, Section C.

Denied.


text:
    STATE of Louisiana ex rel. Robert MYLES v. C. Paul PHELPS, et al.
    No. 81-KH-1396.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Robert Myles, applying for remedial writs. Parish of Orleans. No. 265-242.

Writ denied.


text:
    STATE of Louisiana ex rel. Roosevelt McGEE v. Frank BLACKBURN.
    No. 81-KH-1492.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Roosevelt McGee, applying for writs of habeas corpus. Parish of Orleans. No. 253-297.

Denied.


text:
    STATE of Louisiana ex rel. John Charles STEIN, Jr. v. Frank BLACKBURN, Warden, et al. Louisiana State Penitentiary.
    No 81-KH-1468.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re John Charles Stein, Jr., applying for writ of habeas corpus and/or supervisory writs. Parish of Caddo. Nos. 94-047 and 94-048.

Denied.


text:
    STATE of Louisiana, ex rel. Charles MONROE v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1501.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Charles Monroe, applying for remedial writs. Parish of Orleans. No. 99-451 HC.

Denied.


text:
    STATE of Louisiana ex rel. Albert CLARK v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1534.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Albert Clark, applying for remedial writs. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Clarence COLLINS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1551.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Clarence Collins, applying for supervisory jurisdiction and remedial writs. Parish of Orleans. No. 274-219.

Denied.


text:
    STATE of Louisiana ex rel. Thomas JOHNSON, Jr. v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1601.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Thomas Johnson, Jr., applying for remedial writ. Parish of Tangipahoa. No. 42386.

Denied.


text:
    STATE of Louisiana, ex rel. Aubrey W. BOTTS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1626.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Aubrey W. Botts, applying for writ of habeas corpus. Parish of Avoyelles. No. 40171.

Denied.


text:
    STATE of Louisiana ex rel. Earl J. VOLPE v. Frank C. BLACKBURN.
    No. 81-KH-1628.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Earl J. Volpe, applying for writ of mandamus. Parish of West Feliciana. Nos. 78-8-852, 853 and 854.

Denied.


text:
    STATE of Louisiana v. Morena BRISCOE.
    No. 81-K[A]-1637.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Morena Briscoe, applying for writ of mandamus. Parish of St. Martin. No. 60590.

Denied.


text:
    STATE of Louisiana ex rel. Aubrey W. BOTTS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1652.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Aubrey W. Botts, applying for writs of habeas corpus. Parish of Pointe Coupee. No. 24524.

Denied.


text:
    STATE of Louisiana ex rel. Nolan LONGMIRE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1672.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Nolan Longmire, applying for writs of habeas corpus or certiorari. Parish of Orleans. No. 259-124.

Denied.


text:
    Chester D. WELLS v. CITY OF BATON ROUGE.
    No. 81-C-1718.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Chester D. Wells, applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 13988.

Denied.

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


text:
    STATE of Louisiana ex rel. Joseph ROBERTSON a/k/a Joseph Robinson v. STATE of Louisiana.
    No. 81-KH-1733.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Joseph Robertson a/k/a Joseph Robinson, applying for writs of certiorari, review, and mandamus. Parish of Iberville. No. 3600-79.

Denied.


text:
    WAYNE CUSIMANO, INC. v. Tilden PICK, et al.
    No. 81-C-1740.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Tilden Pick, et al., applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 11828.

Writ denied.


text:
    STATE of Louisiana ex rel. Lucious LAMPTON v. STATE of Louisiana.
    No. 81-KH-1782.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Lucious Lampton, applying for writs of habeas corpus. Parish of Washington. No. 34730.

Denied.


text:
    STATE of Louisiana, ex rel. Preston DAIGRE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1777.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Preston Daigre, applying for writs of certiorari, prohibition, mandamus or ha-beas corpus. Parish of Orleans. No. 254— 187.

Writ denied.


text:
    George R. CANNON v. ORMET CORPORATION, et al.
    No. 81-C-1764.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re George R. Cannon, applying for supervisory writs, to the Court of Appeal, First Circuit. 14667. Parish of Ascension. No.

Writ denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana v. Lionel BUCHANAN.
    No. 81-K-1748.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Lionel Buchanan, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 282-770.

Denied.


text:
    STATE of Louisiana, ex rel. Thomas JENKINS, Jr. v. Ross MAGGIO, Jr., Warden, Hunt Correctional Center.
    No. 81-KH-1785.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Thomas Jenkins, Jr., applying for supervisory writs, and writs of certiorari, prohibition, mandamus. Parish of Iberville. No. 287-77.

Denied.


text:
    STATE of Louisiana, ex rel. Leslie Kyle ADAMS v. STATE of Louisiana.
    No. 81-KH-1787.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Leslie Kyle Adams, applying for remedial writs. Parish of Calcasieu. Nos. 1219-79 and 2881-80.

Denied.


text:
    STATE of Louisiana, ex rel. Henry WRIGHT v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1609.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Henry Wright, applying for writs of certiorari, habeas corpus and mandamus. Parish of Orleans. No. 242-149.

Denied.


text:
    STATE of Louisiana, ex rel. James J. FAULKIN v. Oliver P. SCHULINGKAMP, Judge of Criminal District Court, Section F, Orleans Parish.
    No. 81-KH-1790.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re James J. Faulkin, applying for writ of certiorari. Parish of Orleans. No. 269-992.

Writ denied.


text:
    STATE of Louisiana, ex rel. William Joseph IRELAND v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1504.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re William Joseph Ireland, applying for remedial writs. Parish of St. Mary. No. 102878.

Denied.


text:
    STATE of Louisiana v. Nicholas B. BABCOCK.
    No. 81-K-1812.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Nicholas B. Babcock, applying for supervisory or remedial writs. Parish of Rapides. No. 201115.

Denied.


text:
    STATE of Louisiana, ex rel. Dennis Charles HOLMES v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1814.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Dennis Charles Holmes, applying for writs of certiorari and review. Parish of Orleans. No. 227-232.

Writ denied.


text:
    STATE of Louisiana v. Ronald G. PRICE.
    No. 81-K-1833.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Ronald G. Price, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Bossier. No. 57945.

Denied. Adequate remedy by review in the event of conviction.


text:
    Artis M. VARNADO v. NEW ORLEANS PUBLIC SERVICE, INC. et al.
    No. 81-C-1842.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Artis M. Varnado, applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 11905.

Denied.

DIXON, C. J., and CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana, ex rel. Otis GEORGE v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, et al.
    No. 81-KH-1847.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Otis George, applying for writ of habeas corpus, and motion to proceed in forma pauperis. Parish of West Feliciana. No. B-5048.

Denied.


text:
    In re the Matter of Harold R. SMITH, Applying for Medical Review Panel Pursuant to Louisiana R.S. 40:1299.41, et seq.
    No. 81-0-1859.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Harold R. Smith, applying for cer-tiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 12624.

Denied on the showing made.


text:
    STATE of Louisiana ex rel. Otis QUINCY v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1879.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Otis Quincy, applying for writ of certiorari. Parish of West Baton Rouge. No. 63280.

Writ denied.


text:
    EXECUTIVE OFFICE CENTERS, INC. v. Henry R. J. COURNOYER.
    No. 81-C-1883.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Executive Office Centers, Inc., applying for writs of certiorari, prohibition, mandamus and review. Parish of Orleans. Civil District Court. No. 80-12511.

Writ denied.


text:
    Ike C. DULIN, Sr., et al. v. Ralph Dewayne BUIE, et al.
    No. 81-C-1862.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re North River Insurance Company, applying for remedial writs. Parish of Livingston. No. 34462.

Denied.


text:
    Paulette BENINATE and Sherry D. Hinshaw, Individually and for all Others Similarly Situated v. GUARANTY BANK AND TRUST COMPANY.
    No. 81-C-1907.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Guaranty Bank and Trust Company, applying for supervisory writs. Parish of Jefferson. No. 244 — 106.

Denied.


text:
    STATE of Louisiana v. Arthur J. KIRBY.
    No. 81-K-1920.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Arthur J. Kirby, applying for writ of certiorari (review). Parish of Washington. No. 35980.

Denied.


text:
    CMTS INVESTMENTS, INC. v. CITY OF NEW ORLEANS.
    No. 81-C-2023.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re CMTS Investments, Inc., applying for writ of certiorari, prohibition and mandamus. Parish of Orleans. No. 81-2680.

Denied.


text:
    CITY OF NEW ORLEANS v. CMTS INVESTMENTS, INC. NEW ORLEANS EAST, INC. v. CMTS INVESTMENTS, INC.
    No. 81-C-2360.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re CMTS Investments, Inc., Robert P. Chatelain and Gerald R. Peters, applying for writs of certiorari, prohibition and mandamus. Orleans Parish. Nos. 81 — 2680 and 81-2775.

Denied.


text:
    STATE of Louisiana ex rel. Robert JACKSON v. Honorable Matthew BRANIFF, Criminal District Court, Section B.
    No. 81-KH-2189.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Robert Jackson, applying for writ of mandamus. Parish of Orleans. No. 272-897.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. Edward HALL, Jr. v. STATE of Louisiana.
    No. 81-KH-2190.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Edward Hall, Jr., applying for writ of certiorari. Parish of Orleans. No. 282-449.

Writ denied.


text:
    STATE of Louisiana, ex rel. Edward HALL, Jr. v. STATE of Louisiana.
    No. 81-KH-2388.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Edward Hall, Jr., applying for remedial writs. Parish of Orleans. No. 282-449.

Denied.


text:
    STATE of Louisiana, ex rel. Clarence HUBBARD v. STATE of Louisiana.
    No. 81-KH-2212.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Clarence Hubbard, applying for remedial writs. Parish of Orleans. No. 270-915.

Denied.


text:
    STATE of Louisiana, ex rel. Louis WRIGHT v. Frank BLACKBURN, Warden, et al., Louisiana State Penitentiary.
    No. 81-KH-2217.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Louis Wright, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 277-727.

Denied.


text:
    STATE of Louisiana ex rel. Charles PIERRE v. Harry CONNICK, and State of Louisiana, et al.
    No. 81-KH-2355.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Charles Pierre, applying for writs of mandamus. Parish of Orleans. Number Unknown.

Denied.


text:
    STATE of Louisiana ex rel. Charles WEBB v. STATE of Louisiana.
    No. 81-KH-2406.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Charles Webb, applying for remedial writs. Parish of St. Bernard. No. 53— 703.

Denied.


text:
    Sam GIALLANZA, Captain Sam V. Gardner, Captain E. B. Hendrix and Warrne A. Maher, Individually and as Industry Commissioners of the Crescent River Port Pilot Fee Commission v. LOUISIANA PUBLIC SERVICE COMMISSION and Captain Charles E. F. Arnoult, Captain E. G. Bach, III, Captain Mark Delesdernier, Jr. and Captain R. E. Ducros, Pilot Commissioners of the Crescent River Port Pilots Fee Commission, Intervenors.
    No. 81-C-1844.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Captain Charles E. F. Arnoult, Captain E. G. Bach, III, Captain Mark Deles-dernier, Jr., and Captain R. E. Ducros, applying for remedial writs. Parish of East Baton Rouge. No. 238842.

Granted. Consolidated with pending appeal in this Court, involving same matter.


text:
    STATE of Louisiana v. Charles DELAVALLADE.
    No. 81-K-1843.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Charles Delavallade, applying for writs of certiorari, mandamus and prohibition. Parish of Orleans. No. 276-163.

Granted and remanded to the trial court for an evidentiary hearing; if relator’s plea of guilty to the burglary charge was the result of a plea bargain under which relator was to receive a suspended sentence (illegal because he was not a first offender) he should be permitted to withdraw his plea.


text:
    STATE of Louisiana v. Dick HEARIN, Walter Bankston, and John A. Pritchett.
    No. 81-K-1509.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re State of Louisiana, through the District Attorney, Ossie Brown, applying for supervisory writs of certiorari and mandamus. Parish of East Baton Rouge. Nos. 3-81-652, 3-81-653 and 3-81-654.

Granted.


text:
    STATE of Louisiana ex rel. Robert JOHNSON v. Warden Frank C. BLACKBURN et al., Louisiana State Penitentiary.
    No. 81-KH-0728.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re Robert Johnson, applying for writ of habeas corpus, certiorari, and remedial writs. Parish of West Feliciana. No. 1— 75-58.

Writ granted. The district court is ordered to conduct an evidentiary hearing on the issues presented by relator's petition with respect to whether he knowingly and intelligently waived his right against compulsory self incrimination in entering his guilty plea.


text:
    STATE of Louisiana v. Joseph GAINES, Jr.
    No. 81-K-2436.
    Supreme Court of Louisiana.
    Sept. 18, 1981.
   In re State of Louisiana, through the District Attorney Harry F. Connick, applying for writs of certiorari, mandamus and prohibition. Parish of Orleans. No. 192-193 C.

Denied.


text:
    Patricia DILLON, (Formerly Medellin) In the Interest of the Minor Child, Margarita Lourdes Medellin v. Hector MEDELLIN.
    No. 81-C-2012.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Patricia Dillon, applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of Lafourche. 402 So.2d 149.

Granted.


text:
    Ervin COLLINS v. EMPLOYERS INSURANCE OF WAUSAU.
    No. 81-C-2002.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Employers Insurance of Wausau, applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of St. Mary. 402 So.2d 158.

Denied.


text:
    Beverly LITTLEFIELD v. Robert HANCOCK.
    No. 81-C-2106.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Beverly Littlefield, applying for writ of certiorari, to the Third Circuit, Court of Appeal. Parish of East Baton Rouge. 400 So.2d 292.

Granted. The plaintiff is allowed ten (10) days within which to amend her petition in order to remove the grounds of objection. C.Civ.P. Art. 934. Otherwise writ denied.


text:
    Huey LAMBERT v. John W. McREYNOLDS, D/B/A Wes Mac Equipment Company, et al.
    No. 81-C-2010.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
   In re Huey Lambert, applying for writs of certiorari or review, to the First Circuit, Court of Appeal. Parish of St. Mary.. 402 So.2d 157.

Granted. Summary judgment reversed. The case is remanded for trial on the merits.

DENNIS, J., would grant and bring case up for argument on the merits.