text:
    P & H VEHICLE RENTAL AND LEASING CORPORATION, Holiday Rent-a-Car International, Inc., and The Insurance Company of the State of Pennsylvania, Appellants, v. William GARNER, as Personal Representative of the Estate of Linda Sue Garner, William Gamer, Individually, Hilda Garner, Individually, Peter John Wickenden, Individually, and Allstate Insurance Company, Appellees.
    No. 81-1319.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.

      Margaret E. Sojourner of Haas, Boehm, Brown & Rigdon, P.A., Orlando, for appellants.
    Reinald Werrenrath, III, of Akerman, Senterfitt & Eidson, Orlando, for appellees Wickenden and Allstate.
    No appearance for appellees Garner.
   ORFINGER, Chief Judge.

This appeal is from a non-final order determining primary coverage as between two insurers, and denying to the primary insurer the right to seek indemnification from the lessee of the leased automobile involved here.

Appellee Wickenden rented a car from appellant P & H Vehicle Leasing Corporation (P & H). While driving this car, he was involved in an accident with a vehicle operated by Linda Sue Garner, resulting in her death. Garner’s personal representative filed suit against P & H as the owner of the vehicle, and The Insurance Company of the State of Pennsylvania (Pennsylvania), its insurer, and against Wickenden and his insurer, Allstate Insurance Company (Allstate). Each insurer then filed a cross-claim against the other, seeking a determination that the other’s coverage was primary. In the partial summary judgment appealed from, the trial court determined that Pennsylvania had the primary coverage and that it was not entitled to seek indemnity from Wickenden, because Wick-enden was an insured under its policy. Pennsylvania appeals from this non-final order.

Appellee questions our jurisdiction to hear this non-final appeal. We have jurisdiction, if at all, under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). The part of the order denying to appellant the right to indemnity is clearly not an order determining liability in favor of appellant, so we have no jurisdiction to consider it. Weltz v. Mann, 383 So.2d 324 (Fla. 5th DCA 1980).

The portion of the order determining the priority of insurance coverage is more troublesome. We think the correct rule in that regard is stated in Alamo Rent-a-Car, Inc. v. Summers, 404 So.2d 131 (Fla. 2d DCA 1981). On an identical question of primary vs. secondary coverage in a car rental scenario, raised by co-defendants against each other, as here, the court held that as between the defendants there was a claim for affirmative relief and that a determination that one defendant had primary coverage was a determination of “liability”, even though the decision did not carry with it an obligation to pay. We agree on both points, and find that we do have jurisdiction to consider the appeal of the portion of the summary judgment determining which of the two contesting carriers has primary coverage. We recognize that this holding appears to be in conflict with Ogur v. Mogel, 390 So.2d 105 (Fla. 3d DCA 1980).

The trial court found that Pennsylvania had primary coverage as the lessor’s insurer because the rental agreement did not properly shift that burden to the lessee under section 627.7263, Florida Statutes (1981). That statute provides the means for shifting primary insurance coverage from the lessor to the lessee of a rental motor vehicle. The agreement in issue here clearly did not “[state otherwise] in bold type on the face of the ... agreement” and the space in which lessee’s insurance carrier could be filled in was left blank. The trial court was correct in holding that the statute had not been complied with.

But, Pennsylvania says that the lessee here is not insured at all under the policy, because he violated a condition of the rental agreement by driving the rental car while intoxicated. Under the terms of Pennsylvania’s insurance policy, Wickenden was an insured. There is nothing in the policy which says otherwise. The rental agreement contained these conditions on the reverse side:

Paragraph 2 — The vehicle shall not be used ... (2) by any person who is under the influence of intoxicants, narcotics or drugs.
Paragraph 5 — The vehicle is covered by an automobile liability insurance policy . .. said policy provides coverage and limits of liability at least equal to the liability coverage and limits of liability required of the operator to satisfy this State’s financial responsibility motor vehicle laws, but only if no other valid and collectible insurance, whether primary, excess or contingent, is available to renter. Renter . .. agrees to comply with and be bound by all of the terms, conditions, limitations, and restrictions of said policy. LESSORS POLICY SHALL NOT APPLY ... to any liability of renter or any driver, ... arising while the vehicle is being used in violation of any of the limitations set forth in paragraph 2.

Pennsylvania’s contention cannot be sustained. The owner of a motor vehicle (a dangerous instrumentality) is liable for its negligent operation, so long as the vehicle is operated with his knowledge and consent. In Roth v. Old Republic Insurance Co., 269 So.2d 3 (Fla.1972), the court held that a provision of a rental agreement stating that the lessor was not responsible for the operation of the motor vehicle if driven by someone other than the lessee, except with lessor’s knowledge and consent, was invalid as against public policy. See also, Susco Car Rental Systems v. Leonard, 112 So.2d 832 (Fla.1959). The same public policy reasons apply here. P & H leased the vehicle to Wickenden, and P & H is responsible for the negligent operation of the vehicle by Wickenden, whether Wickenden was drunk or sober, and the provision quoted above attempting to avoid liability if the lessee is driving while intoxicated is invalid as against public policy. Similarly, the provision relied on is ineffective to relieve P & H’s insurer from liability because coverage is provided in the insurance policy to the owner, which by the terms of the policy extends to the owner’s lessee. State Farm Mutual Automobile Insurance Company v. Day Car, Inc., 395 So.2d 179 (Fla. 3d DCA 1980). Section 627.7263 provides a means by which the lessor may shift the obligation for primary coverage to the lessee, and that method was not followed here. The trial court was correct in holding that Pennsylvania had primary coverage.

That portion of the order holding that Pennsylvania has primary coverage is affirmed. The appeal from that portion of the order denying the right of Pennsylvania to seek indemnity from Wickenden is dismissed, without prejudice to the right to present this issue in an appeal from a final judgment.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . Review of non-final orders of lower tribunals is limited to those which:
      (c) determine:

      (iv) The issue of liability in favor of a party seeking affirmative relief.

      .Section 627.7263, Florida Statutes (1981):
      Rental and leasing driver’s insurance to be primary; exception—
      (1) The valid and collectible liability insurance or personal injury protection insurance providing coverage for the lessor of a motor vehicle for rent or lease shall be primary unless otherwise stated in bold type on the face of the rental or lease agreement. Such insurance shall be primary for the limits of liability and personal injury protection coverage as required by §§ 324.021(7) and 627.-736.
      (2) Each rental or lease agreement between the lessee and the lessor shall contain a provision on the face of the agreement, stated in bold type, informing the lessee of the provisions of subsection (1) and shall provide a space for the lessee’s insurance company’s name if the lessor’s insurance is not to be primary.

      . Instead, just above the place for the lessee’s signature, in type no different than found elsewhere in the agreement, is this statement: “Notice — Florida Statutes 627.7263 provides that the rental customer’s automobile liability and personal injury insurance shall be primary.” This is an incorrect statement of the law in effect when this agreement was signed. See Guemes v. Biscayne Auto Rentals, 414 So.2d 216 (Fla. 3d DCA, 1982).

      . The only reference in the record to consumption of alcohol by Wickenden was his deposition testimony that he had had three draft beers within a two-hour period prior to the accident. In the light of our holding here, whether he was intoxicated has no bearing on the question of coverage in this case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard N. NAOUM, Appellant, v. STATE of Florida, Appellee.
    No. 81-1379.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    James B. Gibson, Public Defender, and Leonard R. Ross, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982).

FRANK D. UPCHURCH, Jr., SHARP and COWART, JJ., concur.


text:
    Richard SIMARI, Appellant, v. STATE of Florida, Appellee.
    No. 81-1404.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

DISMISSED. See Robinson v. State, 373 So.2d 898 (Fla.1979); Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

FRANK D. UPCHURCH, Jr., SHARP and COWART, JJ., concur.


author: COWART, Judge.

text:
    Stanley Edward FORREST, Appellant, v. Ann Joy FORREST, Appellee.
    No. 81-1491.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    Henry J. Martocci, Cocoa, for appellant.
    Richard E. Stadler of Crofton, Holland, Starling, Harris & Severs, P.A., Titusville, for appellee.
   COWART, Judge.

A Virginia divorce decree gave the mother custody of a minor daughter of the parties. The child visited her father in Florida. The father retained her and enrolled her in school here, rather than returning her to her mother in Virginia. In an action brought by the mother in Florida, the trial judge enforced the custody provision of the foreign decree, ordered the father to surrender the daughter to her mother and entered a judgment in favor of the mother for $400 expenses, $500 as a contribution toward the mother’s attorney’s fees and $201.50 court costs. The father appeals, contending he did not “willfully violate” the Virginia decree and that the award of expenses, costs and attorney’s fees was unauthorized and improper. We disagree and affirm.

Section 61.1332(2), Florida Statutes (1981), provides:

A person violating a custody decree of another state which makes it necessary to enforce -the decree in this state may be required to pay necessary travel and other expenses, including attorney’s fees, incurred by the party entitled to the custody or his witnesses.

That statute requires no special willfulness or specific intent to violate a custody decree but only a general intent to do an act, or omit to do an act, which does in fact violate the’custody decree.

AFFIRMED.

FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


author: FRANK D. UPCHURCH, Jr., J.

text:
    Carlos RODRIGUES, etc., et al., Appellant, v. EMC CORPORATION, Appellee.
    No. 81-1620.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    Luis F. Gomez, Orlando, for appellant.
    Harvey B. Hardy, Jr. of Clark & Hardy, P.A., Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., J.

Appellant Carlos Rodrigues seeks to appeal from an order which granted FMC’s motion to sever.

FMC sued Rodrigues and Induser, Inc. in Orange County Circuit Court. The U. S. Bankruptcy Court for the District of Puerto Rico issued a Notice of Filing Petition in Bankruptcy and Automatic Stay of Suits, informing creditors of Induser that the corporation had filed a petition in bankruptcy and that the filing thereof acts as an automatic stay of all civil proceedings pending against Induser. FMC then moved to sever. The court granted the motion severing FMC’s claims against Rodrigues from those against Induser.

A motion to sever is not a final order from which an appeal will lie. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974). Florida Rule of Appellate Procedure 9.130 provides interlocutory appeal jurisdiction to review certain types of non-final orders but limits them to those categories specified in the rule. Yates v. Roller Skating Rinks, Inc., 379 So.2d 1333 (Fla. 5th DCA 1980). The rule does not include orders granting a motion to sever.

We decline to treat this as a petition for common law certiorari because it is also inappropriate in this case. There is no showing or allegation that appeal after trial would be inadequate. Colonial Penn. Ins. Co. v. Blair, 380 So.2d 1305 (Fla. 5th DCA 1980).

Therefore, the appeal is dismissed sua sponte.

ORFINGER, C. J., and SHARP, J., concur.


text:
    STATE of Florida, Appellant, v. Paul CARDEN, Appellee.
    No. 82-51.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    James B. Gibson, Public Defender, and Michael B. Jones, Asst. Public Defender, Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of State v. Bender, 382 So.2d 697 (Fla.1980).

DAUKSCH, COBB and FRANK D. UP-CHURCH, Jr., JJ., concur.


text:
    Inez SILVERA, Petitioner, v. STATE of Florida, Respondent.
    No. 82-316.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    James P. Gibson, Public Defender, and James Dickson Crock, Asst. Public Defender, Daytona Beach, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus to secure belated review is granted. Baggett v. Wainwright, 229 So.2d 239 (Fla.1970). See also Meyer v. State, 415 So.2d 70 (Fla. 5th DCA 1982). For the reasons expressed in Meyer, we hereby certify to the Supreme Court of Florida the following questions which we deem to be of great public importance:

A. IN THE LIGHT OF THE DECISION IN POLK COUNTY v. DODSON [, - U.S. -,] 102 S.Ct. 445 [, 70 L.Ed.2d 509,] (1981), IS STATE ACTION INVOLVED IN THE FAILÚRE OF A PUBLICLY APPOINTED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS?
B. IN THE LIGHT OF THE DECISION IN POLK COUNTY v. DODSON [, __ U.S. -,] 102 S.Ct. 445 [, 70 L.Ed.2d 509,] (1981), IS STATE ACTION INVOLVED IN THE FAILURE OF A PRIVATELY RETAINED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS?

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


text:
    Phillip Michael LEVESQUE, Petitioner, v. STATE of Florida, Respondent.
    No. 82-317.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    James P. Gibson, Public Defender, and James Dickson Crock, Asst. Public Defender, Daytona Beach, for petitioner.

      Jim Smith, Atty. Gen., Tallahassee, and Shawn L. Briese, Asst. Atty. Gen., Daytona Beach, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus to secure belated review is granted. Baggett v. Wainwright, 229 So.2d 239 (Fla.1970). See also Meyer v. State, 415 So.2d 70 (Fla. 5th DCA 1982). For the reasons expressed in Meyer, we hereby certify to the Supreme Court of Florida the following questions which we deem to be of great public importance:

A. IN THE LIGHT OF THE DECISION IN POLK COUNTY v. DODSON [, - U.S. -,] 102 S.Ct. 445 [, 70 L.Ed.2d 509,] (1981), IS STATE ACTION INVOLVED IN THE FAILURE OF A PUBLICLY APPOINTED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS?
B. IN THE LIGHT OF THE DECISION IN POLK COUNTY v. DODSON [, - U.S. -,] 102 S.Ct. 445 [, 70 L.Ed.2d 509,] (1981), IS STATE ACTION INVOLVED IN THE FAILURE OF A PRIVATELY RETAINED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS?

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


author: PER CURIAM. FRANK D. UPCHURCH, Jr., Judge,

text:
    Cynthia Denise SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 82-553.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.
    Jerry S. Luxenberg, Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus to secure belated review is granted. Baggett v. Wainwright, 229 So.2d 239 (Fla.1970). We will dispose of any issue of neglect by appellant’s attorney by separate order. See Meyer v. State, 415 So.2d 70 (Fla. 5th DCA 1982). For the reasons expressed in Meyer, we hereby certify to the Supreme Court of Florida the following questions which we deem to be of great public importance:

A. IN LIGHT OF THE DECISION IN POLK COUNTY v. DODSON, [-U.S. -,] 102 S.Ct. 445 [, 70 L.Ed.2d 509,] (1981), IS STATE ACTION INVOLVED IN THE FAILURE OF A PUBLICLY APPOINTED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS?
B. IN LIGHT OF THE DECISION IN POLK COUNTY v. DODSON, [-U.S. -,] 102 S.Ct. 445 [, 70 L.Ed.2d 509,] (1981), IS STATE ACTION INVOLVED IN THE FAILURE OF A PRIVATELY RETAINED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS?

ORFINGER, C. J., and COBB, J., concur.

FRANK D. UPCHURCH, Jr., J., concurs specially with opinion.

FRANK D. UPCHURCH, Jr., Judge,

specially concurring.

While I concur in the opinion of the majority and with Judge Orfinger’s reasoning in Meyer v. State, 415 So.2d 70 (Fla. 5th DCA 1982), I submit that the term “state action” is a legal fiction. The court should consider the broader question, “Should a criminal defendant, whether represented by publicly appointed or privately retained counsel, be deprived of an opportunity to have his case reviewed after his attorney, through negligence, permits the appeal time to run?”

In civil cases, I have no problem with barring an appeal if not instituted within the appeal time after judgment, without regard to cause. In such a case, if the failure to file is the result of the negligence of the attorney, his client has a cause of action against him for damages.

In criminal cases, a different problem obviously exists. Recovery of damages would be of little comfort to a defendant. To preclude a defendant from presenting a meritorious appeal because of his attorney’s carelessness is grossly unfair. The failure of an attorney to file the requisite notice of appeal when timely requested by the defendant constitutes ineffective assistance of counsel. Ford v. Wainwright, 415 So.2d 76 (Fla. 1st DCA 1982). The consequences of the attorney’s negligence should fall where it belongs, on the shoulders of the offending attorney, and not on the defendant who played no part in the problem.

I suggest that the supreme court amend Florida Rule of Criminal Procedure 3.850 to provide that should the lower court determine that a defendant was deprived of effective assistance of counsel due to his attorney’s negligent failure to file a timely notice of appeal, the defendant is entitled to belated review.


author: COBB, Judge.

text:
    Gail Lloyd COX, Appellant, v. STATE of Florida, Appellee.
    No. 82-614.
    District Court of Appeal of Florida, Fifth District.
    July 7, 1982.

      S. Ray Gill of S. Ray Gill, P. A., Ocala, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ON MOTION FOR ADMISSION TO BAIL

COBB, Judge.

Cox was convicted of two misdemeanors and sought post-conviction bail. Concluding that Cox was “not entitled to bail” because other felony charges were pending against him and that probable cause had been found that Cox had committed those felonies, the trial judge denied Cox bail pending appellate review of his misdemean- or convictions. Cox has filed a “Motion for Admission to Bail.”

Whether the conviction is misdemeanor or felony, no absolute constitutional right to post-conviction bail exists. Gallie v. Wainwright, 362 So.2d 936, 941 (Fla.1978). With certain qualifications, however, a trial judge has the discretion to grant post-conviction bail in non-capital cases. The relevant court rule regarding post-conviction bail is Rule 3.691, which provides:

All persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles enunciated in Younghans v. State, 90 So.2d 308 (Fla.1956), provided, that no person may be admitted to bail upon appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous; provided that in no case shall bail be granted if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and such person’s civil rights have not been restored, or if other felony charges are pending against him and probable cause has been found that the person has committed the felony or felonies at the time the request for bail is made.

Seizing upon the language “provided . . . that in no case shall bail be granted ... if other felony charges are pending against him and probable cause has been found that the person has committed the . .. felonies,” the trial judge apparently concluded that he lacked the discretion to grant bail. However, upon review of Rule 3.691 and its relationship with section 903.132, Florida Statutes (1981), we construe the above-mentioned qualification to the court’s discretion as applying only when the conviction being appealed is a felony. Because Cox is appealing misdemeanor convictions, the trial court had the discretion to either grant or deny bail. Because the court below did not exercise its rightful discretion, we temporarily relinquish jurisdiction of the cause so that in accordance with Rule 3.691 the court may, in its discretion, grant or deny bail.

DAUKSCH and SHARP, JJ., concur.

      . Both Florida Rule of Criminal Procedure 3.691(c) and Florida Rule of Appellate Procedure 9.140(e) provide for appellate review of a denial of post-conviction bail.

      . See also Kelly v. State, 362 So.2d 945, 947 (Fla. 1978) (“Release on bail pending appeal is not an absolute right guaranteed by the Constitution, and the granting of bail pending appeal must be exercised within the guidelines established by case law and adopted by court rule....”).

      . The Preamble to Chapter 76-138, Laws of Florida (the law codified in section 903.132), clearly indicates that in passing the law the Legislature was concerned with previously convicted felons. The comment to Rule 3.691 states that the rule was amended so as to include the provisions of Chapter 76-138. Of course, the Legislature may, by proper vote, only repeal a rule of procedure; it cannot amend or supersede a rule by enacting a law. Art. V, § 2(a), Florida Constitution; In re Clarification of Florida Rules of Practice and Procedure, 281 So.2d 204 (Fla.1973).


author: HERSEY, Judge. LETTS, Chief Judge,

text:
    In the ESTATE OF Arlethia PARSON, Deceased. Forrest PARSON, Appellant, v. Robert J. HENDLEY, Jr., Individually and as Personal Representative of the Estate of Arlethia Parson, deceased, Eddie Hendley Felder, Henry Hendley, Charlie Hendley, L. C. Hendley, Charlie Hendley, Rosa Mae Hendley, Elizabeth Hendley, Wallace Hendley, and James L. Hendley, Appellees.
    No. 81-894.
    District Court of Appeal of Florida, Fourth District.
    July 7, 1982.

      Louis L. Williams and Mikel D. Greene of Farish, Farish & Romani, West Palm Beach, for appellant.
    Cunningham & Cunningham, and James E. Weber of Weber & Fulton, West Palm Beach, for appellees.
   HERSEY, Judge.

Application of the so-called “Dead Man’s Statute,” Section 90.602, Florida Statutes (1979), precluded appellant from testifying in support of his position that a “lost” will had not been revoked. We are called upon by this appeal to decide, inter alia, whether exclusion of that testimony was error.

Arlethia Parson died on April 2, 1980. A petition seeking to have her estate administered in intestacy was filed by a nephew, Robert Hendley, Jr., who was appointed personal representative. Shortly thereafter, appellant, Forrest Parson, located a conformed copy of a will of the decedent which had been executed on December 2, 1965. He filed a petition for the establishment and probate of a lost or destroyed will. The matter then proceeded to final hearing.

There was some indication in the testimony that Arlethia Parson believed that the 1965 will had never been revoked. It was established, on the other hand, that Arlethia Parson initiated litigation against Forrest and Ruby Parson in 1980 to reform certain deeds alleged to have been executed by reason of their misrepresentations to her. This evidence was introduced to show that Forrest and Ruby had fallen out of favor with the decedent subsequent to execution of the 1965 will. The evidence further shows that one or more of the heirs-at-law had access to the home of Arlethia Parson both before and after her death. Presumably the original will was once located somewhere in that home.

At the close of appellant’s presentation in the trial court, appellees’ motion for an involuntary dismissal was denied. Final judgment was ultimately rendered adverse to appellant, based upon findings that while the conformed copy of the will had been established as a correct copy of the 1965 will, it had not been satisfactorily proved that the 1965 will was not subsequently revoked.

Decedent’s heirs-at-law, destined to share in the estate in the absence of a will, are various members of the Hendley family: brothers, a sister, and nephews and nieces of the decedent. The Hendley’s are the real parties in interest/appellees here.

The will, on the other hand, favors Forrest Parson, a stepson of decedent, (and his wife, Ruby Parson, not a party to this appeal) the actual appellant here.

The trial court began, as do we, with the presumption that a will which was in the possession of the testator prior to 'death and which cannot be located subsequent to death was destroyed by the testator with the intention of revoking it. Schaefer v. Voyle, 88 Fla. 170, 102 So. 7 (1924); Stewart v. Johnson, 142 Fla. 425, 194 So. 869 (1940); In re Evers’ Estate, 160 Fla. 225, 34 So.2d 561 (1948); In re Washington’s Estate, 56 So.2d 545 (Fla.1952); Upson v. Estate of Carville, 369 So.2d 113 (Fla. 1st DCA 1979). The presumption may only be overcome by competent and substantial evidence, the lack of which requires a finding of revocation. In re Estate of Baird, 343 So.2d 41 (Fla. 4th DCA 1977). (Proof of nonrevocation in a proceeding to establish a lost or destroyed will is the subject of an annotation in 3 A.L.R.2d beginning at page 949.)

Appellant argues that evidence of the fact that “persons with adverse interest in destroying a will have had an opportunity to do so may serve to rebut the presumption [of revocation] .... ” In re Estate of Baird, supra. The fact that one or more of the appellees had access to the house where the will was presumably located is only one factor to be considered by the trial court in the process of determining whether the presumption of revocation has been overcome. See, e.g., In re Washington’s Estate, supra. Evidence of access by no means automatically overcomes the presumption of revocation. In Upson v. Estate of Carville, supra, the circumstances surrounding the will’s disappearance plus evidence of access was sufficient to overcome the presumption of revocation. However, in In re Estate of Baird, supra, the evidence of access was insufficient to overcome the presumption. We have no reason to assume that the trial court failed to consider access as a relevant factor, assigning it appropriate weight among the findings of fact upon which the final judgment was ultimately based.

Appellant takes the position that denial of appellees’ motion for involuntary dismissal constituted a ruling that a prima facie case of non-revocation had been established requiring appellees to go forward with evidence of revocation. We do not seriously fault that contention. However, the facts which gave rise in the first instance to the presumption of revocation continue to play a part in the case and may be considered, along with the testimony and other evidence subsequently adduced, in making a final determination on the issue of revocation. See, e.g., In re Estate of Carpenter, 253 So.2d 697 (Fla.1971), involving the presumption of undue influence.

We have consistently held that findings of fact by the trial judge will be presumed to be correct and are to be given the same weight as a jury verdict. Gaisford v. Frostman, 202 So.2d 790 (Fla. 4th DCA 1967). This proposition is based upon the logical premise that it is the function of the trial court to judge the weight of the evidence and the credibility of the witnesses based upon his direct observation, and this court will not substitute its judgment for that of the trial court unless there is a lack of competent and substantial evidence to support the findings upon which a final judgment is based. Hernandez v. Leiva, 391 So.2d 292 (Fla. 3d DCA 1980).

We need not tediously dissect the testimony and other evidence which the trial court properly considered. We conclude that the final judgment is supported by competent and substantial evidence.

The result might have been quite different, however, had appellant and his wife been permitted to testify. Evidence that Arlethia Parson at all times had the intention of leaving most of her worldly goods to appellant and that she believed that her will accomplished that result could not fail to have had a substantial impact on the deliberations of the trier of fact. It is therefore necessary to address the issue of the Dead Man’s Statute which excluded such testimony.

Section 90.602, Florida Statutes (1979), provides:

90.602 Testimony of interested persons.—
(1) No person interested in an action or proceeding against the personal representative, heir-at-law, assignee, legatee, devisee, or survivor of a deceased person, or against the assignee, committee, or guardian of an insane person, shall be examined as a witness regarding any oral communication between the interested person and the person who is deceased or insane at the time of the examination.
(2) This section does not apply when:
(a) A personal representative, heir-at-law, assignee, legatee, devisee, or surviv- or of a deceased person, or the assignee, committee, or guardian of an insane person, is examined on his own behalf regarding the oral communication.
(b) Evidence of the subject matter of the oral communication is offered by the personal representative, heir-at-law, as-signee, legatee, devisee, or survivor of a deceased person, or the assignee, committee, or guardian of an insane person.

(The Dead Man’s Statute has been amended and renumbered from time to time but its language and effect as applied to the facts of this case and the rules of law to which we will refer have not changed in any material respect with one possible exception that will be discussed later in this opinion.) Appellant, as he must, takes the position that the statute is not applicable or has been improperly applied on the facts of this case. Because we think the issues raised are of some importance, we consider each of appellant’s arguments concerning the statute.

In the ordinary situation where a creditor files a claim against an estate based upon an oral contract, application of the statute and its waiver provision (which we will subsequently consider at length) do not present undue difficulty. The creditor may not initially testify as to the content of that oral communication. He may, however, require the personal representative or a devisee having specific knowledge of the oral communication to give testimony in an attempt to establish the oral contract. That is, such an adverse witness may not refuse to testify; the statute does not create immunity from testifying. In re Estate of McClintock, 374 So.2d 93 (Fla. 2d DCA 1979). As we said, in Heebner v. Summerlin, 372 So.2d 518, 519 (Fla. 4th DCA 1979):

The legislative intent in passing the Dead Man’s Statute was to provide a shield when, by reason of death, a party to a transaction is prevented from testifying. It is not to provide a privilege akin to the privilege against self incrimination.

In that case we ultimately held that the Dead Man’s Statute would not be applied to prohibit a witness from giving testimony adverse to his own interests. It is also well established that when, for example, the personal representative is subpoened and thus required by the interested person to testify, the Dead Man’s Statute has not been waived because he is not testifying “on his own behalf.” In re Estate of Grant, 123 So.2d 560 (Fla. 2d DCA 1960). Application of these elementary principles to the case at bar, however, presents some unusual problems.

Appellant maintains that: (1) the Dead Man’s Statute should not be applied for policy reasons; or (2) the statute does not apply here because of the nature of these proceedings; or, in the alternative, (3) that appellant fits within an exclusion from the statute established by Section 90.602(2), Florida Statutes (1979); or (4) an exception to the statute established by case law. It is argued by appellant that the common law prohibition against testimony by an interested party exists today only in the anachronistic Dead Man’s Statute and even this vestigial remnant has been criticized by legal scholars. See McCormick, Evidence, § 65 (2d ed. 1972) and Wigmore, Evidence, § 578 (3d ed. 1940). As part of this same policy argument, appellant explains that unlike a case in which a creditor claims against an estate on an oral contract and the estate has no means of rebutting the testimony of an interested party to the transaction, the estate here has a means of defending itself. For example, says appellant, the personal representative could refute appellant’s testimony and that of his wife by introducing a subsequent will or by introducing some evidence that the original will had been revoked, or by introducing testimony of the heirs-at-law in support of their own respective positions.

Revocation may be accomplished by the simple, quiet and unpublished act of throwing a will in the trash with the intention of revoking it. Recognizing that possibility (and innumerable variations on that theme) the law creates a presumption of revocation under the circumstances present here. Appellant’s argument that it is a simple matter for the estate to produce evidence to counter appellant’s preferred testimony that revocation did not occur simply does not comport with common experience. We therefore reject that argument as being contradicted by logic and experience and also because it is supported neither by the statute nor by case law.

We also deem it inappropriate for this court in this case to contemplate whether or not the Dead Man’s Statute has outlived its usefulness. We decline to exercise that value judgment even if we have the power to do so.

Appellant argues that the Dead Man’s Statute was erroneously applied by the trial court. Specifically it is contended that a proceeding in the probate division to probate a lost or destroyed will is not an action or proceeding against a party who stands in the capacity of a representative of the decedent. Appellant indicates that the purpose of the statute is to protect the interest of the decedent, and that the interests of the estate (the decedent) cannot be adversely affected by a proceeding to probate a will.

We address first the technical argument that a proceeding to probate a lost or destroyed will is not an action or proceeding against one representing (or having an identity of interest with) the decedent within the contemplation of the statute. The test of whether the statute applies in a particular circumstances does not depend upon semantics or technical niceties. The questions to be answered in each instance are (1) whether the witness has a personal and immediate interest in the issue being litigated (in which event the law presumes a tendency or at least a temptation to therefore give false, selfserving testimony) and (2) whether the other party to the communication about which testimony is elicited is deceased so that the personal representative is deprived of the decedent’s version of the communication. Disbro v. Boyce, 124 So.2d 756 (Fla. 3d DCA 1960); Traurig v. Spear, 102 So.2d 165 (Fla. 3d DCA 1958). An exception, not material here, permits testimony concerning execution of a testamentary document.

Appellant has such an interest as primary devisee under the will sought by him to be established. It is irrelevant to suggest, as does appellant, that his interest is not “antagonistic” to the estate. Acceptance of appellant’s suggested test would nullify the statutory safeguard. If the decedent in good faith had entered into an oral contract or had incurred a debt, it is presumed that she intended to perform the contract or repay the debt. It could therefore be argued that the surviving party does not have an interest which is truly “adverse” or “antagonistic” to the decedent or her estate. For that reason the test is not whether a claim is antagonistic but rather whether the claimant stands to gain by his own testimony. Appellant clearly falls into that category.

The second prong of appellant’s argument is based upon precedent and section 2 of the statute, each of which is said to create an exception or exclusion from the operation of the Dead Man’s Statute.

Appellant first postulates that declarations of a decedent have always been deemed admissible to show dispositive intent. Thus, argues appellant, testimony as to those oral declarations of the decedent are admissible.

Two cases are cited for the proposition that evidence as to declarations of a testator is admissible: In re Estate of Deane, 153 So.2d 26 (Fla. 3d DCA 1963); In re Burton’s Estate, 45 So.2d 873 (Fla.1950). Both cases are correctly cited for the proposition stated. The difficulty is that neither case (nor any other we have found) holds that testimony as to such oral declarations is immune from objection based upon the Dead Man’s Statute. In fact, in recognition of the probability that upon remand to the trial court the petitioner would be precluded by the statute from testifying, the Burton court suggested that “the petitioner may be in a position at the time of trial to offer testimony of disinterested third persons.” Id. at 875. We therefore conclude that the precedents (involving oral declarations of a decedent’s intent) do not establish the exception for which appellant contends. See, e.g., Leighton v. Harmon, 111 So.2d 697 (Fla. 2d DCA 1959).

It is also our conclusion that Section 2 is not intended to create an exclusion from operation of the statute. We view that section as simply a codification of the circumstances under which a waiver of the statute may occur.

The section in question provides that when an individual in one of the categories enumerated by the statute “is examined on his own behalf” regarding an oral communication of the decedent the prohibition against such testimony established by the preceding section does not apply. This does not mean, however, that a witness with a direct pecuniary interest in the issue being litigated may be called by his own counsel to testify “on his own behalf” and thus become immune from the statutory prohibition. The two sections must be read together. The “oral communication” referred to in Section 2 is only that oral communication between the interested person and the decedent which the interested person (referred to in section 1) has placed in issue. There must be “a person interested” who is claiming adverse to the interest of the witness (the latter being in one of the categories listed in section 1). In other words, there must be both an interested person and a witness against whom that interested person has brought or become involved in an action or proceeding, before subsection 2 has any application. Put another way, we read Section 90.602(2) as saying that if a personal representative (or another representative of the decedent’s interest, named in Section 90.602(1)) voluntarily testifies on an issue raised by a party adversely interested (paragraph l’s “interested person”) concerning an oral communication of the decedent, then the “interested person” is no longer prohibited by the statute from testifying as to that same oral communication. Applying that analysis to the present case, appellant is an interested person under section 1. He is thereby disqualified from inclusion as one of those parties listed in section 2.

On the other hand there is some support for the view that at least under an earlier version of the statute, Comp.Gen.Laws 1927, § 4372, appellant would not be precluded from giving testimony under such circumstances. In Barber v. Barber, 128 Fla. 645, 648, 175 So. 713, 715 (1937), the court stated, as one of two alternative grounds for its holding, that the parties in question “were within the exception noted in the concluding part of the statute, ...” (Emphasis added). The Barber case has been interpreted in Mathews v. Hines, 444 F.Supp. 1201 (1978), as establishing that an individual may be a member

of both classes under the statute: those protected against testimony, and those precluded from testimony. Such persons are claimed against in their representative capacity in a lawsuit, but also possess a claim of right or interest against a decedent or his estate. In other words, the same conditions that create representative capacity for a person also confer interest upon that person. In such circumstances, the person who is a member of both classes under the statute (1) is free to testify on his own behalf concerning transactions or communications with the decedent, Barber v. Barber, 128 Fla. 645, 175 So. 713, 715 (1937); but (2) such testimony may waive his protection and objection under the statute against testimony about transactions or communications with the decedent. Macknet v. Rogers, 119 So.2d 72, 73-4 (Fla. 2d DCA 1960).

Even if that interpretation has continued viability in view of revision of the statute, it does not innure to appellant’s benefit. Only if the will was not revoked does appellant fall within the category of persons protected “against testimony.” The trial court expressly found to the contrary.

We do not mean to appear to dismiss the Barber rationale cavalierly. The facts of the instant case present more clearly than could a hypothetical the dilemma which an indiscriminate application of the rule in Barber might produce. In candor, we do not view changes which have been made in the dead man’s statute as justifying a different result on Barber facts were we to be presented with such facts in a case today. The result would in our view be unfortunate and somewhat of a self-contradiction at least in terms of policy. For that reason we do not approve of the Barber rule which permits a witness to testify solely because he falls in both category 1 (protected against testimony) and category 2 (prevented from testifying). Having registered this disapproval as an expression of our support for a change in the rule should the Supreme Court have occasion to revisit the issue, we reiterate, in order to redefine, the narrow holding that distinguishes the present case from Barber. We hold that where an individual may or may not have status as a category 1 witness, depending upon how an ultimate issue in the case is decided, then the prohibition of the statute applies, rather than the exception which Barber might seem to produce. Thus appellant is a devi-see under and personal representative of the 1965 will only if the 1965 will is viable and was not revoked. Barber, broadly applied, might permit appellant to boot-strap his own status. That is, he might be able to argue that his status as a category 1 person is established by the very will in issue so that his status as a category 2 person should not prohibit him from testifying. We are reasonably clear that Barber intended no such result. In any event we feel the rule has been properly and appropriately avoided here. The trial court found that the 1965 will had been revoked. Appellant thus never attained category 1 status.

We thus conclude that appellant is precluded by the Dead Man’s Statute from testifying concerning oral communications of the decedent and that the trial court properly excluded appellant’s testimony.

Since the trial court did not err in excluding appellant’s testimony and because the final judgment is otherwise supported by substantial competent evidence, we affirm.

AFFIRMED.

HURLEY, J., concurs.

LETTS, C. J., concurs specially with opinion.

LETTS, Chief Judge,

concurring specialty-

This opinion as written, is a masterpiece and I find it irresistible. However, I must confess I believe that the language of the “Dead Man’s Statute” presents a classic paradox especially when it is applied to facts such as we have here.


author: DANAHY, Judge.

text:
    Merlo WINLAND, Appellant, v. Henrietta WINLAND, Appellee.
    No. 81-2148.
    District Court of Appeal of Florida, Second District.
    July 9, 1982.
    Herb Blessing, Bradenton, for appellant.
    Scott M. Brownell of Brownell & Far-rance and William H. Garland, Bradenton, for appellee.
   DANAHY, Judge.

The husband appeals from a final judgment adopting and establishing, as Florida judgments, two orders entered in Ohio divorce proceedings pertaining to the husband and the wife. We reverse as to one of the Ohio orders but not as to the other.

The husband and wife were married and resided in Ohio. In 1972, the wife instituted divorce proceedings in Ohio. In those proceedings, an order was entered in 1972 directing the husband to pay $35.00 per week to the wife for her support.

The husband moved to Florida in December of 1972 and has resided here since that time. Up until the time the instant proceedings were instituted, the husband had made no support payments as required by the 1972 Ohio order.

The husband filed a dissolution of marriage action in Florida and obtained a final judgment dissolving the parties’ marriage in January of 1978. The wife was not personally served with process in that action and did not appear.

On February 23,1981, the wife obtained a judgment or order in Ohio establishing ar-rearages of $14,500 under the 1972 Ohio order. In March of 1981, the wife filed this action to establish the two Ohio orders as Florida judgments. The husband raised defenses of the statute of limitations and laches. The trial judge rejected those defenses and entered a final judgment adopting and establishing both the 1972 and 1981 Ohio orders as Florida judgments. This appeal by the husband followed.

The husband challenges the final judgment on two grounds. First, he argues that both the 1972 and 1981 orders of the Ohio court are barred by limitations or laches under the provisions of section 95.11(2)(a), Florida Statutes (1981). That statute requires that an action on a judgment or decree of another state must be commenced within five years. Recognizing that, as to the 1972 Ohio order, the matter is one cognizable in equity, the husband calls our attention to subsection (6) of section 95.11. That section provides that laches shall bar any action unless it is commenced within the time provided for legal actions concerning the same subject matter. As to the 1981 Ohio order, the husband argues that it merely represents a calculation based on the 1972 order and should be barred by limitations or laches because the 1972 order is so barred.

The husband also argues that the 1972 Ohio order cannot survive the dissolution of the parties’ marriage obtained by the husband in Florida. That point has been decided squarely against the husband by the Florida Supreme Court in Kruvand v. Kruvand, 59 So.2d 857 (Fla.1952). We find no merit in the husband’s position in this respect.

We agree with the husband, however, that the 1972 Ohio order is barred by Florida’s statute of limitation or laches. Accordingly, we reverse the final judgment to the extent that it established the 1972 order as a Florida judgment.

With respect to the 1981 Ohio order, the result is different. That order clearly is not barred by section 95.11(2)(a). We reject the husband’s argument that the 1981 order should be barred because the 1972 order is barred. Florida courts are required to give full faith and credit to judgments of courts of other states, including judgments for arrearages in alimony. Sackler v. Sackler, 47 So.2d 292 (Fla.1950). Full faith and credit is required even though the cause of action underlying the judgment of the sister state would be barred under the statute of limitations or laches of the forum state. Broday v. Broday, 360 So.2d 645 (La.Ct.App.1978). Thus, the 1981 Ohio order is entitled to recognition in this state notwithstanding that it is based on a prior Ohio order which is barred by our statute of limitations or laches.

For the foregoing reasons, we reverse that part of the final judgment establishing the 1972 Ohio order as a Florida judgment. We affirm that part of the final judgment establishing the 1981 Ohio order as a Florida judgment.

REVERSED in part, AFFIRMED in part, and REMANDED.

GRIMES, A. C. J., and SCHEB, J., concur.

      . We note that the husband was represented in the Ohio proceedings which produced the 1981 order, as well as in the 1972 proceedings.


author: DOWNEY, Judge.

text:
    Joseph LOFTON, Appellant, v. STATE of Florida, Appellee. Albert P. DEANDREA, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-1691, 81-444.
    District Court of Appeal of Florida, Fourth District.
    July 28, 1982.
    Alan H. Schreiber, Public Defender, Peter F. LaPorte, Asst. Public Defender, and Lee F. Carney, Legal Intern, Fort Lauder-dale, Richard L. Jorandby, Public Defender, and Richard B. Greene, Asst. Public Defender, West Palm Beach, for appellant-Lofton.
    Richard L. Jorandby, Public Defender, and Richard B. Greene, Asst. Public Defender, West Palm Beach, for appellant-Deandrea.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer and Russell S. Bohn, Asst. Attys. Gen., West Palm Beach, for appellee.
   ON PETITION FOR REHEARING

DOWNEY, Judge.

By petition for rehearing appellant points out that our opinion, issued June 16, 1982, contains an erroneous statement of the law regarding legal malice in arson. While we adhere to our decision generally, we have modified our opinion to eliminate the aforesaid statement. Accordingly, appellant’s petition for rehearing is granted, our opinion is modified, and as so modified it is republished.

These consolidated cases involve the constitutionality of Section 806.01(l)(a), Florida Statutes (1979), commonly known as the Arson Statute. The parties in Deandrea v. State, Case No. 81-444, have agreed that the decision in Lofton v. State, Case No. 80-1691, should control in both cases. Accordingly, we shall deal specifically with the Lofton case.

The State charged appellant, Joseph Lof-ton, with arson pursuant to Section 806.-01(l)(a), Florida Statutes (1979). Lofton moved to dismiss the information on the ground that the statute is unconstitutional. When the trial court denied that motion, Lofton pleaded nolo contendere to attempted arson, reserving the right to appeal the denial of the motion to dismiss. In presenting a factual basis for the plea, the State indicated it was prepared to prove that appellant had been a tenant of the subject premises and was evicted because his rent was in arrears. Appellant asked the landlord if he could go back into the apartment to remove his belongings and the landlord consented. A short time later, appellant told a next door neighbor he had started a fire and suggested the neighbor tell the landlord to call the fire department. By the time the fire department arrived the fire was out. Two expert witnesses would testify that the fire, which was limited to the bed and some material on top of it, had been deliberately set. The trial court accepted the plea and placed appellant on probation for two years.

Appellant contends the trial court erred in denying his motion to dismiss on the grounds the statute is unconstitutional.

The statute in question was amended effective June 1, 1979. The amendment contained two major changes: 1) the new amendment prohibited the “willful and unlawful” burning, as opposed to the “willful and malicious” burning contained in the prior statute, and 2) it prohibited the willful and unlawful burning of the contents of a dwelling and specified structures.

Appellant contends that the common law definition of arson involved malice and that substitution of the term unlawful for the traditional term malicious leaves the statute without an adequate standard of proscribed conduct. We disagree.

Under the former statute, arson convictions were difficult to obtain because of the problems inherent in proving malice, i.e., the defendant’s evil intent. For example, in Gould v. State, 312 So.2d 225 (Fla. 1st DCA 1975), the First District Court of Appeal reversed the arson conviction of a defendant who had burned his own house with intent to defraud the insurer of the house because proof of malice was lacking.

In order to alleviate this problem, the Legislature substituted the word “unlawfully” for the word “maliciously.” Under this new wording the State need not prove an evil intent on the part of the perpetrator. It need only be shown that the willful act was done without a legitimate, lawful purpose.

Lofton also contends the statute is vague because the term “contents” is itself vague. Rhetorically he asks whether a homeowner would be guilty of arson by willfully breaking up and burning his furniture in his fireplace on a cold night. In our judgment the obvious answer is no because the act described is not unlawful. In any event, we hold the term is not vague.

After consideration of Lofton’s contentions regarding the constitutionality of Section 806.01, we are convinced the trial judge properly concluded the statute is constitutional. Accordingly we affirm the conviction in both of these consoliated cases.

AFFIRMED.

ANSTEAD, J., and OWEN, WILLIAM C., Jr., (Retired), Associate Judge, concur.

      . Section 806.01, Florida Statutes (1981), provides as follows:

        (1)Any person who willfully and unlawfully, by fire or explosion, damages or causes to be damaged:
      (a) Any dwelling, whether occupied or not, or its contents;
      (b) Any structure, or contents thereof, where persons are normally present, such as: Jails, prisons, or detention centers; hospitals, nursing homes, or other health care facilities; department stores, office buildings, business establishments, churches, or educational institutions during normal hours of occupancy; or other similar structures; or
      (c) Any other structure that he knew or had reasonable grounds to believe was occupied by a human being,
      is guilty of arson in the first degree, which constitutes a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      (2) Any person who willfully and unlawfully by fire or explosion, damages or causes to be damaged any structure, whether the property of himself or another, under any circumstances not referred to in subsection (1), is guilty of arson in the second degree, which constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      (3) As used in this chapter, “structure” means any building of any kind, any enclosed area with a roof over it, any real property and appurtenances thereto, any tent or other portable building, and any vehicle, vessel, watercraft, or aircraft.

      . Fla.Stat. § 806.01: Florida Arson Law — Evolution of the 1979 Amendments, 8 F.S.U.L.Rev. 81 (1980).


author: MARCUS, Justice . DENNIS, Justice. CALOGERO, Justice, BLANCHE, Justice

text:
    STATE of Louisiana v. Rodney SANTIAGO.
    No. 81-KA-1983.
    Supreme Court of Louisiana.
    March 1, 1982.
    On Rehearing July 2, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Connick, Dist. Atty., Fred P. Harper, Jr., Louise Korns, John H. Craft, Asst. Dist. Attys., for plaintiff-appellee.
    Patrick McArdle, and Dwight Doskey, of Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   MARCUS, Justice .

Rodney Santiago was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury, defendant was found guilty as charged and sentenced to serve twenty-five years at hard labor with credit for time served. Subsequently, pursuant to La.R.S. 15:529.1 (Habitual Offender Law), the district attorney filed an information accusing defendant of having been previously convicted of two felonies under the laws of this state. Both prior felony convictions were based on pleas of guilty; the first was entered on November 16, 1968, and the second was on October 29,1974. After a hearing, the trial judge found defendant to be a third felony offender. He vacated the sentence previously imposed and sentenced defendant to serve fifty years at hard labor with credit for time served. Defendant urges two assignments of error on appeal to this court.

ASSIGNMENT OF ERROR NO. 2

Defendant contends the trial judge erred in finding him to be a third felony offender in that the state failed to prove that the 1974 conviction used to enhance his sentence was taken in compliance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971).

At the habitual offender hearing, New Orleans Police Officer Robert W. Italiana, an expert in fingerprint identification, identified an original arrest register (S-1) containing the fingerprints of defendant in connection with his 1974 conviction. A properly certified copy of the arrest register (S1-A) was introduced in evidence in place of the original. The witness further identified a document (S-5) containing the fingerprint of the right, middle finger of defendant taken that morning by him. He stated that he had compared the fingerprint on S-5 with the fingerprint on the original arrest register and found that they were both made by defendant. S-5 was properly introduced in evidence. In addition, the state introduced a certified copy of the bill of information, minute entries and a plea of guilty form in connection with defendant’s 1974 conviction. This conviction was based on a plea of guilty entered to armed robbery on October 29, 1974.

The minute entry for October 29, 1974 reads as follows:

In the presence of his counsel, Barry F. Yiosca, Esq., of the Orleans Indigent Defender Program, the defendant withdrew his former pleas of Not Guilty in the above cases and in all cases entered pleas of Guilty as Charged. The Court advised the defendant that by entering pleas of Guilty he, the defendant, was waiving certain of his constitutional rights, which the Court explained to the defendant in detail. The defendant executed a written waiver of these rights acknowledging that he had been fully advised of his rights and, after being so advised, maintained his pleas of Guilty in each of the above cases. These waivers were filed into the records.

The plea of guilty form, entitled “Waiver of Constitutional Rights Plea of Guilty,” was signed by defendant and his attorney on October 29, 1974. In addition, each of the six paragraphs was initialed by defendant. Paragraph 4 of this document reads as follows:

I understand that by entering this plea of guilty I am waiving my right to trial, and my right to appeal if I were found guilty by trial. I also understand that I am waiving my right to confront witnesses who may appear and testify against me, and my right to cross examine those witnesses. I know that I am waiving the right I have to compulsory process of the court to require witnesses to appear and testify for my defense. I further understand that I am waiving my privilege against self incrimination and by pleading guilty I am in fact incriminating myself.

Defense counsel objected on the ground that defendant was not “Boykinized” in connection with his 1974 conviction. The trial judge agreed but noted that he was relying on the plea of guilty form. At the conclusion of the hearing, the trial judge found defendant to be a third felony offender and sentenced him as aforesaid.

A constitutionally valid guilty plea requires an express and knowing waiver of the accused’s right to trial by jury, his right to confront his accusers and his privilege against compulsory self incrimination. Boykin v. Alabama, supra; State ex rel. Jackson v. Henderson, supra; State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972).

A conviction by guilty plea in a Louisiana state court subsequent to December 8, 1971 (date of Jackson’s finality) may not be used to enhance punishment in an habitual offender proceeding unless the record affirmatively discloses that the plea was constitutionally valid. State v. Holden, 375 So.2d 1372 (La.1979). In Holden, we stated:

Upon objection by defense counsel that the [predicate] guilty plea does not affirmatively show it was taken in compliance with Jackson and LeBlanc, the state will have the burden to show as to these convictions that the defendant waived his constitutional rights as required by the cited opinions of this court.

In State v. Dunn, 390 So.2d 525 (La.1980), this court held that a plea of guilty form may be considered along with a colloquy between the judge and the defendant in determining whether defendant was adequately informed of his constitutional rights and made an express and knowing waiver of those rights. In State v. Tucker, 405 So.2d 506 (La.1981), this court held that a minute entry concerning an abbreviated colloquy along with a “well executed ‘waiver of rights’ form signed by defendant, his attorney and the judge” constituted a sufficient affirmative showing in the record that defendant knowingly and intelligently waived his constitutional right to trial by jury, right to confront his accusers and privilege against compulsory self incrimination. The form in Tucker expressly provided as follows:

I understand that in pleading guilty in this matter I waive the following rights:
(1)To trial by either a judge or a jury and that further the right to a trial by judge extends until the first witness is sworn, and the right to a trial by a jury extends until the first juror is sworn, and if convicted the right to an appeal. Please specify: Judge trial or Jury Trial.
(2) To face and cross-examine the witnesses who accuse me of the crime charged.
(3) The privilege against self-incrimination or having to take the stand myself and testify.
(4) To have the Court compel my witnesses to appear and testify.

In the instant case, the state sought to show that defendant’s 1974 guilty plea was taken in compliance with Boykin and Jackson through the introduction of the minute entry dated October 29, 1974, and the plea of guilty form executed on the same date. The minute entry only reflects that defendant was advised of certain unspecified rights. The plea of guilty form, which may constitute part of the record for Boykin purposes under our decisions in Dunn and Tucker, reflects that defendant understood he was waiving his right to confront his accusers and his privilege against compulsory self incrimination. However, neither of these documents affirmatively shows that defendant expressly and knowingly waived his right to trial by jury. We do not consider the introduction of a plea of guilty form which includes a general waiver of right to trial to be a sufficient affirmative showing that defendant knowingly waived his right to trial by jury. Hence, the state failed to carry its burden under Holden, and is therefore precluded from using defendant’s 1974 conviction in an enhancement proceeding.

Accordingly, the trial judge erred in finding defendant to be a third felony offender. Hence, we must reverse the sentence based on that finding and remand the case to the district court for the purpose of resentenc-ing defendant as a second felony offender.

DECREE

Defendant’s conviction is affirmed but his sentence as a third felony offender is vacated and set aside and the case is remanded to the district court with instructions to the trial judge to resentence defendant as a second felony offender.

DENNIS, J., concurs.

ON REHEARING

DENNIS, Justice.

Upon defendant’s motion we granted a rehearing to consider whether our opinion and decree on original hearing were correct. After rehearing, we conclude that they were correct, except that the case should have been remanded merely with instructions to the trial judge to resentence the defendant in accordance with law. The defendant may not be resentenced as a second offender as the original opinion and decree required.

As we noted in the original opinion, the state failed to carry its burden under State v. Holden, 375 So.2d 1372 (La.1979) and is therefore precluded from using defendant’s 1974 conviction in an enhancement proceeding. The multiple offender statute is inapplicable in cases where more than five years have elapsed between the expiration of the maximum sentence of the previous conviction and the time of the commission of the last felony for which the offender has been convicted. La.R.S. 15:529.1(0). Because the defendant’s 1974 conviction and sentence cannot be considered in this enhancement proceeding, more than five years has elapsed since the expiration of his six months sentence following his first conviction in 1968. Consequently, the multiple offender statute is inapplicable and the defendant must be sentenced as a first offender.

We have been informed that the trial judge prematurely resentenced the defendant as a second felony offender in response to our original decree. Accordingly, our original decree is amended to read as follows:

Decree

Defendant’s conviction is affirmed but his sentences previously imposed in this case are vacated and set aside and the case is remanded to the district court with instructions to the trial judge to resentence defendant in accordance with law and this opinion.

CALOGERO and BLANCHE, JJ., concur and assign reasons.

LEMMON, J., dissents and will assign reasons.

CALOGERO, Justice,

concurring.

I concur in the majority opinion because I agree that the 1974 conviction may not be used to enhance defendant’s sentence, and without it, the 1968 conviction is barred from use by La.R.S. 15:529.1(C).

However, the majority, on rehearing, reaffirmed the original opinion of the Court which held that the 1974 conviction could not be used to enhance defendant’s sentence because the state failed to meet its burden under State v. Holden, 375 So.2d 1372 (La.1979), since the waiver of rights form did not evidence a waiver, by defendant, of his right to trial by jury. For the reasons stated in my concurring opinion in State v. Age, 417 So.2d 1183 (La.1982) on rehearing, I seriously question whether the state’s burden is ever met merely by the introduction into evidence of the waiver of rights form without also the introduction of a contemporaneously recorded transcript of the colloquy between the trial judge and the defendant conducted during the guilty plea proceedings.

BLANCHE, Justice

(concurring).

With regard to the opinion on original hearing, this writer finds it intellectually frustrating to apply Boykin in such a technical manner. But since State v. Jones, 404 So.2d 1192 (La.1981), this writer has gone along with the majority’s application of Boykin, and does so today, noting defendant’s guilty plea was nonetheless, in my opinion, knowingly and intelligently made although not in compliance with our application of Boykin.

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

      . Defendant has neither briefed nor argued Assignment of Error No. 1; therefore, we consider it to have been abandoned. State v. Blanton, 325 So.2d 586 (La.1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . In LeBlanc, we held that the requirements enunciated by Jackson applied to all pleas of guilty to felonies in Louisiana state courts subsequent to December 8, 1971, the date Jackson became final.


author: CALOGERO, Justice.

text:
    STATE of Louisiana v. Betty Jean RATCLIFF.
    No. 81-KA-2197.
    Supreme Court of Louisiana.
    June 21, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Lavalle Salomon, John R. Harrison, Nancy Gilliland and Vicki Green, Asst. Dist. Attys., for plaintiff-appellee.
    Paul Henry Kidd, Monroe, for defendant-appellant.
   CALOGERO, Justice.

In this appeal from her conviction for attempted second degree murder, Betty Jean Ratcliff argues that the trial court erred in denying her motion for a new trial, grounded on allegations of ineffective assistance of counsel, newly discovered evidence, admission of hearsay and admission of evidence of another crime. Defendant also contends that the trial court imposed an inadequately reasoned, excessive sentence. Because we find that these assignments of error are without merit, we affirm defendant’s conviction and sentence.

By bill of information the state charged defendant with the attempted second degree murder of one Danny Wayne Zeigler in violation of La.R.S. 14:30.1 and La.R.S. 14:27. Following trial, the jury found defendant guilty as charged. The trial judge denied defendant’s motion for a new trial. After ordering and reviewing a pre-sen-tence investigation report, the trial judge sentenced defendant to twenty-five years at hard labor. Defendant’s appeal of her conviction and sentence assigns three errors to the proceedings below.

At trial, Danny Zeigler, the victim, related that at the time of the offense he was married to, but had been separated from, defendant’s daughter Charlene. Zeigler testified that on April 1, 1980, he had gone to the Shorewood Village Trailer Park in West Monroe to visit his wife. After a brief conversation, the two went to get something to eat and returned to the trailer about dusk. Zeigler said that he and his wife were in the trailer when he saw defendant at the front door. According to Zeigler, defendant “throwed a gun in my face at the door, and I turned around to run, and she grabbed me and I couldn’t get away from her.” Zeigler stated that he did not remember what happened next, but did know that he had been shot through the shoulder and through the back of the head. Zeigler admitted that he carried a gun in his boot because he was afraid of defendant and her family. Although his memory of the evening was hazy, Zeigler said that, to the best of his memory, the gun remained in his boot.

Mrs. Elizabeth Chenevert, who lived in the trailer next to the one occupied by the Zeiglers, was an eye witness to the shooting. She testified that she saw defendant in the doorway of the trailer holding Zeig-ler. Mrs. Chenevert said that defendant’s arm was up but that she could not see what defendant had in her hand. As defendant pushed Zeigler out of the trailer door, Mrs. Chenevert was able to see a gun in defendant’s hand. Mrs. Chenevert stated that she could see defendant very clearly when defendant, with the gun at the back of the victim’s head, shot Zeigler.'

Members of the Ouachita Parish Sheriff’s Department who investigated the shooting testified that they found a cocked .357 magnum revolver, with two spent shells in the cylinder, on the hood of defendant’s truck which was parked beside the trailer. In addition to the spent shells, the gun had a live round of ammunition under the hammer and three more live rounds ready for firing. Medical testimony established that Zeigler had been shot twice at close range (approximately one to two feet), once in the head and once in the upper arm area. Brain tissue was exiting from the head wound when Zeigler arrived at the emergency room of the hospital.

Defendant presents two arguments to this Court in support of her three assignments of error. Two of the assignments concern defendant’s conviction while the third challenges the sentence she received.

Defendant’s first assignment of error alleges that she received ineffective assistance from her court appointed counsel.

. Defendant first retained the services of two attorneys from Mississippi who later withdrew from representation because they were not licensed to practice in Louisiana. Upon application of defendant, the trial court determined that she was indigent (having spent her funds retaining the Mississippi attorneys) and appointed counsel to represent her. Shortly after trial defendant secured the services of the attorney who represents her on appeal. This new attorney filed a motion for a new trial. The motion urged as one of the grounds for a new trial ineffective assistance of counsel.

Defendant concedes that this Court normally holds that ineffective assistance of counsel is an issue more properly raised by writ of habeas corpus. State v. Brown, 384 So.2d 983 (La.1980); State v. Malveaux, 371 So.2d 820 (La.1979). As we explained in State v. Barnes, 365 So.2d 1282, 1285 (La.1978), this allows the “district judge in a proper case to order a full evidentiary hearing on the matter.” (citations omitted). In the case before us, the trial judge held a hearing on the motion for a new trial during the course of which the allegation of ineffective assistance of counsel was explored in detail. Since the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue was raised by assignment of error on appeal, in the interest of judicial economy we will address the issue now.

Defendant contends that trial counsel failed to develop a justification defense even though she supplied him with the names of witnesses who would have testified to threats and violent acts committed by the victim against various people prior to the shooting at issue in the instant case. At the hearing on the motion for a new trial several of these witnesses testified to altercations they had had with the victim. Trial counsel also testified at this hearing, acknowledging that prior to trial he knew of some of the incidents related by the witnesses. Trial counsel explained that he did not introduce this evidence at trial because he had notice that the state intended to introduce evidence of prior crimes of the defendant. Counsel stated that he had discussed the situation with defendant and it was decided “not to open up that kettle of fish.” According to counsel, the discussion with defendant disclosed that she had used a gun to threaten several people and that she had allegedly threatened the victim’s mother.

La.R.S. 15:482 allows a defendant to introduce evidence of the victim’s dangerous character or of his threats against the accused once there is evidence of a hostile demonstration or of an overt act on the part of the victim. Defendant testified in her own behalf and stated that Zeigler had bent over and she heard him cock his gun at the same time that her sister yelled to her that Zeigler had a gun. Defendant’s sister, Dorothy Morrison, testified that she had seen Zeigler with a gun and “hollered” to warn her sister, and that defendant then pulled the gun from her purse and shot Zeigler. Charlene Zeigler, daughter of defendant and wife of the victim, also testified as a witness for the defense, stating that her husband had bent over to pull out his gun and that she yelled to warn her mother. Thus, there was evidence of a hostile demonstration or overt act on the part of the victim which is the threshold requirement for admissibility of evidence of the victim’s dangerous character or of his threats against the accused.

In State v. Lee, 331 So.2d 455, 461 (La.1975), this Court held that “prior threats and violent acts (whether against the accused or against others) . .. are admissible if defendant knew of them at the time of the offense.” Even assuming that defendant did know of the threats and acts of the victim at the time of the shooting, we are not prepared to say that the decision not to call the witnesses to relate these incidents demonstrates constitutionally deficient representation.

One of the witnesses at the hearing was a seven-year old boy who claimed that the victim had at an earlier time pointed a gun at his head and told him to walk into another room. Counsel could well have decided not to explore this purported incident based upon a concern that the testimony would not have been admissible because of the youth of the witness. In fact, upon examination by her new attorney, defendant admitted that trial counsel had informed her that the witness “wasn’t old enough.”

Another incident related at the hearing concerned a time when the victim was alleged to have forced off the road the car in which his wife and her father were riding. This event was followed by the defendant’s threatening the life of the victim’s mother. A witness testifying to the event on the road would have been open to cross-examination by the state on the entire transaction which would have reflected poorly upon the defendant. It is understandable that counsel chose not to expose this prior conduct of the defendant.

One of defendant’s sisters was another witness counsel did not call at trial. This sister had driven defendant to Sheppard’s garage where the “tussle” between defendant and the victim happened about which Zeigler was questioned at trial. This witness drove defendant to the garage knowing that defendant had a gun in her purse and that there was a great deal of animosity between defendant and Zeigler. Fuller exploration of the encounter at Sheppard’s could well have left the jury with the impression that defendant went to the garage to instigate the trouble.

Trial treatment of the encounter at Sheppard’s Garage did show that, defendant and her son-in-law had been involved in what the victim himself termed a “tussle.” Although examination developed that defendant pulled a gun and pointed it at Zeigler (and others who were present), it also showed that defendant did not fire the gun on that occasion. At the hearing on the motion for a new trial, trial counsel explained that he used this incident to develop the defense that his client was afraid of the victim and that she did not shoot the gun on the earlier occasion when she had had an opportunity to do so.

Considering that evidence of a prior altercation between defendant and the victim was put before the jury, and considering the possible ramifications of presenting evidence of other acts of the victim coincident with threatening behavior by the defendant, trial counsel’s decision not to pursue these other acts (“open up that kettle of fish” in counsel’s words) does not seem farfetched. Full exploration of these events might well have portrayed defendant as an individual who “toted” a gun and often threatened to use it. This judgment call on the part of trial counsel did not so surely prejudice defendant’s chance of being found not guilty as to constitute a deprivation of defendant’s Sixth Amendment right to effective counsel. Effective counsel has been defined to mean “not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” United States v. Fruge, 495 F.2d 557, (5th Cir. 1974). Accord: United States v. Johnson, 615 F.2d 1125 (5th Cir. 1980).

This assignment of error lacks merit.

Defendant’s second assignment of error is that the trial court erred in denying her motion for a new trial on the basis of (a) newly discovered evidence, (b) admission of prejudicial hearsay and (c) erroneous admission of evidence of another crime.

The newly discovered evidence which defendant contends entitles her to a new trial is the testimony of witnesses regarding the prior violent acts and threats of the victim. La.C.Cr.P. art. 851 lists, among the grounds for a new trial, that “new and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidence had been introduced at the trial it would probably have changed the verdict or judgment of guilty.”

The evidence which defendant claims is newly found is evidence which she discussed with her attorney during the preparation for trial. It is clear that the evidence is not new evidence. Therefore defendant has not met the threshold requirement of Article 851 and there is no merit to this portion of the assignment of error.

Regarding defendant’s complaint of the admission of hearsay, we note that there was no objection to the testimony which she claims was hearsay. Under La.C. Cr.P. art. 841, a contemporaneous objection is required to preserve an error for appellate review. The purpose of the contemporaneous objection rule is to allow the trial judge the opportunity to rule on the objection and thereby prevent or cure an error. State v. Herrod, 412 So.2d 564 (La.1982); State v. Hysell, 364 So.2d 1300 (La.1978). Without the allegation of ineffective assistance of counsel, we would dismiss this assignment of error for lack of a contemporaneous objection. However, because defendant has asserted that she did not receive effective assistance of counsel, we shall consider the assignment despite the lack of objection.

The testimony which defendant contends was prejudicial hearsay is the testimony of Mrs. Chenevert when the state called her on rebuttal. During its case in chief, the state questioned this witness about a conversation she had had with Mrs. Zeigler, defendant’s daughter, a short time before the shooting. At that time, defense counsel objected to the line of questioning because it called for hearsay. The trial judge sustained the objection and Mrs. Chenevert did not relate the contents of the conversation.

During the presentation of the defense case, defendant’s daughter, Mrs. Zeigler testified. On cross-examination, she denied telling Mrs. Chenevert that Danny Zeigler would not be around much longer because the trouble would be settled one way or the other that night.

On rebuttal, the state again called Mrs. Chenevert to testify and she related, without objection, that Mrs. Zeigler had told her that if trouble started while Zeigler was at the trailer “that it was going to be ended tonight one way or the other, that he wouldn’t be around no longer to cause trouble.”

Hearsay is testimony in court of a statement made out of court, the statement being offered as an assertion to show the truth of the matters asserted and thus resting for its value upon the credibility of the out-of-court asserter. State v. Edwards, 406 So.2d 1331 (La.1981); State v. Martin, 356 So.2d 1370 (La.1978). However, evidence is not hearsay if introduced to show that an utterance occurred or that a conversation has taken place rather than to show the truth of the matter. State v. Naas, 409 So.2d 535 (La.1981). Furthermore, once a witness has denied making a statement, evidence that the witness did make such a statement is admissible. La.R.S. 15:493.

Thus, the evidence which defendant terms prejudicial hearsay may well have been admissible to impeach Mrs. Zeigler’s earlier testimony and thus not have been subject to objection. As noted earlier, defense counsel did object when Mrs. Chene-vert was questioned about her conversation with Mrs. Zeigler before Mrs. Zeigler took the stand and denied making the statement. Defense counsel did not object to Mrs. Chenevert’s rebuttal testimony following Mrs. Zeigler’s denial of the statement perhaps because the testimony may well have been admissible for impeachment of Mrs. Zeigler’s testimony. Counsel’s failure to object in this instance is no proof of constitutionally deficient assistance of counsel.

The trial judge properly denied a new trial based upon this allegation.

Defendant’s other contention in her motion for a new trial was that the trial court had erred in allowing into evidence testimony concerning a previous encounter between her and the victim which was in the nature of a prior unrelated crime committed by the defendant.

During cross-examination of the victim, defense counsel asked whether he had ever kicked defendant with his boot. Zeigler answered that he and defendant had had a fight. Counsel then inquired whether Zeig-ler remembered the fight. At this point, the prosecutor said that he wished to put defense counsel on notice that he (defense counsel) was “opening doors for me to explore now.” On re-direct, the prosecutor asked Zeigler for details of the fight. Zeig-ler responded that he and his wife were talking at Sheppard’s Garage and his wife slapped him. When he slapped his wife back, defendant grabbed him by the hair and they started “tussling.” Zeigler said that his brother stopped the fight and the women got into their car to leave. After entering the car, defendant “grabbed a pistol ... and pointed it at us.”

Re-direct examination must be confined to the subject matter of the cross-examination and to the explanation of statements elicited on cross-examination. La.R.S. 15:281. Defense counsel elicited reference to this earlier encounter between defendant and Zeigler during cross-examination and it was the prerogative of the prosecutor to explore the matter further. As required by the above statute, defense counsel had the opportunity to re-cross examine the witness on the details of the fight which were brought out on re-direct. The re-cross examination developed that defendant did not shoot the gun on this occasion and defense counsel stressed this point in his closing argument to the jury.-

Because the re-direct examination did not exceed the scope of the cross-examination and because defendant “opened the door” for the challenged line of questioning, the judge did not err in denying a new trial based upon this contention. Additionally, there was no contemporaneous objection to preserve this issue for review. La.C.Cr.P. art. 841.

For the foregoing reasons, there is no merit to defendant’s assignment of error addressed to the denial of a new trial.

Defendant’s final assignment of error challenges the twenty-five year sentence imposed by the trial judge. Defendant contends that the length of the sentence is excessive and that the trial judge failed to state for the record adequate reasons as mandated by La.C.Cr.P. art. 894.1.

In imposing sentence, the trial judge noted that the pre-sentence investigation report showed that defendant had no prior felony offenses. The judge stressed the seriousness of the instant offense: that the victim had been shot twice at close range with a .357 magnum revolver and suffered permanent brain damage with attendant impaired vision, partial loss of use of his left hand and arm and impaired speech. The judge also observed that the victim incurred several thousand dollars in hospital bills, and that other expenses had accumulated as a result of his injuries and continuing disabilities. Based upon these observations, the judge concluded that any lesser sentence would deprecate the seriousness of the crime.

Although the sentence imposed falls within the statutory limits, this Court may review it to determine whether it is excessive under the circumstances of the crime and the particular defendant. State v. Sepulvado, 367 So.2d 762 (La.1979). In general, a sentence is excessive if it is grossly out of proportion to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Kersey, 406 So.2d 555 (La.1981); State v. Bonanno, 384 So.2d 355 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980).

While the trial judge did not articulate every aggravating and mitigating circumstances listed in Article 894.1, he did articulate sufficient reasons for the sentence imposed. Considering the seriousness of the crime and the manner in which it was committed, we do not believe that a twenty-five year sentence is disproportionate to defendant’s conduct nor a clear abuse of the trial judge’s broad discretion in imposing sentence. State v. Kersey, supra; State v. Spencer, 374 So.2d 1195 (La.1979).

This assignment lacks merit.

Decree

For the foregoing reasons the conviction and sentence of defendant Betty Jean Rat-cliff are affirmed.

AFFIRMED.

       Judges William Norris, III and Fred C. Sexton, Jr. of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack Crozier Watson, and Harry T. Lemmon.

      . At the scene sheriff’s deputies found a .25 calibre automatic pistol, cocked but with the safety in position. The gun contained six rounds of live ammunition. Zeigler identified this pistol as his own.

      . Article 894.1 lists considerations to be taken into account by the trial judge in imposing sentence and directs that the judge “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”


author:
WILLIAM NORRIS, III, Justice Ad Hoc.
      FRED C. SEXTON, Jr., Justice Ad Hoc,

text:
    STATE of Louisiana v. Terry Jo WALKER, Jr.
    No. 81-KA-2611.
    Supreme Court of Louisiana.
    June 21, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
    Claude R. Sledge, Public Defender, for defendant-appellant.
   WILLIAM NORRIS, III, Justice Ad Hoc.

Defendant was charged by bill of information with attempted armed robbery in violation of La.R.S. 14:27 and 14:64, respectively, and after trial by jury was found guilty as charged. Subsequently, in a separate proceeding, the state filed a bill of information charging defendant as a habitual offender because of his having one prior felony conviction. Thereafter, defendant was tried and adjudged to be a habitual offender. The trial court then sentenced defendant to serve forty-two (42) years on the attempted armed robbery conviction plus one half of that sentence, or twenty-one (21) years, as a habitual offender giving him a total sentence of sixty-three (63) years at hard labor without benefit of probation, parole, or suspension of sentence.

It is solely from the imposition of this sentence that defendant appeals contending that the trial court erred in failing to comply with the guidelines of La.C.Cr.P. Art. 894.1 and in imposing an excessive sentence.

The trial court reasoned as follows in arriving at the sentence imposed:

The armed robbery statute prohibits any probation, parole or suspension of sentence. The defendant was convicted of attempted armed robbery which means that he is only liable to serve one-half of the longest term of imprisonment for armed robbery, which would be roughly 4IV2 years. Court takes that at 42 years. Having been declared an habitual offender he is subject to be sentenced to not less than one-third of the longest term and no more than twice the longest term for the first conviction. Based on the fact of defendant’s prior conviction for armed robbery and various other offenses, Court has determined that the defendant should serve, in confinement, one-half (V2) of the longest term possible for armed robbery, or 42 years, plus one-half of that sentence, or 21 years as an habitual offender for a total of sixty-three (63) years.

Accordingly, the sentence of this Court is that you are hereby sentenced to the custody of the Louisiana Department of Corrections at hard labor for sixty-three (63) years without benefit of parole, probation or suspension of sentence.

Although defendant makes no assignment of error as to the legality of this sentence, our review of the reasoning of the trial court leads us to conclude that there is present within this sentence an error patent which requires our consideration, notwithstanding the absence of an assignment of error; that is, the trial court’s imposition of two separate sentences on this defendant. The sentence is clearly improper for the following reasons.

After his conviction for attempted armed robbery, defendant was subject to an enhanced penalty upon his adjudication as a multiple offender. La.R.S. 15:529.1 provides that a district attorney may file an information charging a defendant, after conviction as a multiple offender if he has prior conviction(s). However, this additional bill of information is merely a method of informing the court of the circumstances and of requesting an enhancement of the penalty to be imposed. State v. Alexander, 325 So.2d 777 (La.1976); State v. Jackson, 298 So.2d 777 (La.1974). More particularly, this proceeding does not charge a new crime but is merely a method of increasing the punishment of second and subsequent offenders. The enhancement of the penalty for habitual offenders convicted of a new felony only addresses itself to the sentencing powers of the trial judge after conviction and has no functional relationship to the innocence or guilt of the instant crime. See State v. Stott, 395 So.2d 714 (La.1981); State v. Alexander, supra. In other words, it is clear that the sentence imposed in such cases is for the new crime only; it is simply more severe if the defendant is a habitual offender. State v. Stott, supra.

In the instant case, by imposing a sentence of 42 years for the crime committed and adding another sentence of 21 years as a result of the habitual offender adjudication, the trial court imposed one sentence for the “new crime” [attempted armed robbery] and an additional sentence for the habitual offender adjudication. This was clearly improper; defendant should have been sentenced only once as a multiple offender on the underlying charge of attempted armed robbery. See State v. Bell, 404 So.2d 974 (La.1981).

Additionally, we conclude that the trial judge failed to comply with the requirement of La.C.Cr.P. Art. 894.1(c) which requires that the trial judge state for the record the considerations taken into account and the factual basis therefor in imposing sentence. During sentencing, the trial judge gave no reasons for the imposition of the sentence other than stating:

Having reviewed the pre-sentence investigation report in light of Article 894.1 of our State Criminal Code of Procedure and the information contained in that report about the defendant and about this offense, together with the fact that he has been adjudged an habitual offender, Court has determined that a lengthy sentence of confinement is in order.

This statement alone does not satisfy the requirements of La.C.Cr.P. Art. 894.1. The statutory guidelines contained within that article provide criteria by which this court can measure whether or not a sentence within the statutory limits is excessive, either by reason of its length or its nature. State v. Bourgeois, 388 So.2d 359 (La.1980); State v. Ortego, 382 So.2d 921 (La.1980); State v. Cox, 369 So.2d 118 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). Furthermore, the trial judge’s reasons for imposing sentence are an important aid to this court when it is called upon to exercise its constitutional function to review a sentence complained of as excessive. State v. Sepulvado, supra.

Therefore, absent compliance with this statutory requirement, we lack the appropriate criteria by which to measure whether or not the sentence imposed is excessive. State v. Bourgeois, supra. In the instant case, because the trial judge failed to state his reasons for the imposition of the sentence, we are unable to review defendant’s argument that his sentence is excessive. There is nothing present in this record for us to review.

Accordingly, for the foregoing reasons, the sentence imposed is vacated and set aside, and the case is remanded to the district court with instructions to the trial judge to sentence the defendant in accordance with law.

ROBERT L. LOBRANO, J. ad hoc, concurs.

FRED C. SEXTON, Jr., J. ad hoc, concurs with reasons.

FRED C. SEXTON, Jr., Justice Ad Hoc,

concurring.

I concur. The record reflects that this is defendant’s second robbery conviction. While I believe the sentence imposed to be high under the circumstances of the defendant’s involvement in each, it is within the trial judge’s considerable discretion in my view. However, I agree that the trial judge imposed two separate sentences and added them together impermissibly, mandating a remand for resentencing.

       Judges William Norris, III, and Fred C. Sexton, Jr., of the Court of Appeal, Second Circuit, and Judge Robert L. Lobrano of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack C. Watson, and Harry T. Lemmon.

      . La.C.Cr.P. Art. 920 dictates the scope of our review on criminal appeals. It provides as follows:
      “The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors; and
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” Therefore, under this provision, the court will
      consider any errors described in subsection (2) as “patent errors.” See State v. Goodley, 398 So.2d 1068 (La.1981).

      . The minimum sentence which could have been imposed upon defendant is I6V2 years at hard labor without benefit of probation, parole, or suspension of sentence and the maximum sentence which could have been imposed is 99 years at hard labor without benefit of probation, parole, or suspension of sentence. La.R.S. 14:27, La.R.S. 14:64 and La.R.S. 15:529.1.

      . Art. I § 20, Louisiana Constitution of 1974.