author: LEMMON, Justice.

text:
    STATE of Louisiana v. Jose F. CASILLAS
    No. 80-K-1564.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Leon A. Cannizzaro, Asst. Dist. Attys., for plaintiff-relator.
    Michael L. Karmazin, for defendant-respondent.
   LEMMON, Justice.

The only issue presently before the court in this case is the correctness of the trial court’s judgment ordering suppression of the marijuana seized from defendant’s truck by two police officers.

On May 20,1980 Officers Jacobs and Norton were conducting a routine traffic check at a busy intersection. As defendant approached in a pickup truck, Officer Norton noticed that the truck’s inspection sticker was expired and ordered defendant to stop his truck on the side of the road. Defendant at first appeared to comply, but then drove away. Officer Norton pursued defendant on a motorcycle for several blocks and through two stop signs before defendant finally stopped.

Officer Norton began writing a ticket and asked defendant to produce his driver’s license and the registration papers for the truck. In the meantime Officer Jacobs arrived at the scene and observed defendant through the window on the passenger side. As defendant reached into his glove compartment to obtain his registration papers, he accidentally displaced a blanket covering a large object on the seat and exposed a bundle wrapped in burlap. From his vantage point, Officer Jacobs could clearly see the rectangular, tightly bound, burlap-covered bundle, about two and a half feet long and a foot square, sewn on the ends, with a silver carpet tape bearing the inscription “seventy five pounds”. Jacobs immediately recognized the type of packaging used in bundling marijuana for wholesale distribution. He placed defendant under arrest and seized the package. When he opened the package, he verified that it did indeed contain marijuana. Defendant was ultimately charged with possession of marijuana with intent to distribute.

The principal issue as to suppression of the seized evidence is whether the bundle was in fact readily recognizable as contraband, thereby justifying its seizure. Clearly, the officers had a right to stop the defendant after they observed his expired inspection sticker and he attempted to elude them. The observation of the marijuana was inadvertent, and the circumstances otherwise justified a warrantless seizure.

As to the immediately recognizable nature of the bundle, the evidence established that Officer Jacob’s training and experience qualified him to draw such a conclusion from his observations. His job had brought him into contact with marijuana packaged in this unique fashion on several prior occasions, in connection with arrests made by him as well as arrests made by fellow officers. Additionally, he had attended narcotics training schools sponsored by the New Orleans Police Department and by the Drug Enforcement Administration of the United States Department of Justice.

Furthermore, defendant’s unexplained and unexpected flight from detention for a minor traffic infraction gave added color to the policeman’s observations. The fact that the bundle appeared to have been concealed initially by the cloth, which was knocked aside when defendant reached for his registration papers, also lent support to the officer’s conclusion.

Thus, once the bundle was observed by the officer under these circumstances, he had a right to seize it. This bundle was, to the officer’s trained eye, easily recognizable as contraband (a bundle of marijuana) because of its size, shape and manner of packaging. See also People v. Robbins, 103 Cal. App.3d 32, 162 Cal.Rptr. 780 (Cal.App.1980); United States v. Roberts, 619 F.2d 379 (5th Cir. 1980).

Finally, the warrantless opening of the bundle was reasonable under the circumstances. Here, unlike Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), the officer was not dealing with a repository for personal effects, such as a purse or suitcase, but with an object in which defendant had little expectation of privacy. Moreover, even if the entire package was not in plain view (as defendant contends), the officer had probable cause to search, once he saw what he reasonably believed to be marijuana, under the existing circumstances.

We conclude that the trial court erred in sustaining defendant’s motion to suppress.

Accordingly, the ruling of the trial court on the motion to suppress is reversed, and the motion is overruled. The case is remanded for further proceedings.

       Judges Guidry, Foret and Laborde of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . This court granted the district attorney’s application for certiorari in order to review that ruling. 391 So.2d 460 (La. 1980).

      .Compare State v. Parker, 355 So.2d 900 (La. 1978), in which this court suppressed marijuana observed and seized by officers from an automobile which was unoccupied and parked on a street. While plain view does not alone justify a warrantless seizure, in this case the presence of the package in a vehicle whose driver was alerted to the presence and suspicions of police constituted circumstances which made the immediate seizure reasonable.

      . See State v. Abadie and Schielder, 390 So.2d 517 (La.1980), in which several men were observed carrying a safe into a house in the middle of the night, and one of them later fled at the slight of police officers.

      . See State v. Dupuls, 378 So.2d 934 (La.1979), in which this court upheld seizure of bundles of marijuana seen by officers as the bundles were being loaded into trucks.


source: Caselaw Access Project

author: WATSON, Justice.

license: Public Domain

text:
    Odeal Martin BANKS v. ADMINISTRATOR OF the DEPARTMENT OF EMPLOYMENT SECURITY OF the STATE OF LOUISIANA and Winnsboro Manor Nursing Home.
    No. 80-C-1588.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      Randy Hillhouse, North La. Legal Assistance Corp., Winnsboro, for plaintiff-applicant.
    James A. McGraw, Willie D. Maynor, Baton Rouge, for defendant-respondent.
   WATSON, Justice.

This is a suit for judicial review of an administrative determination that plaintiff is not entitled to unemployment compensation. LSA-R.S. 23:1634.

FACTS

Plaintiff, Odeal Martin Banks, was employed by the defendant Winnsboro Manor Nursing Home as a cook for four and one-half years. She was fired on December 20, 1978. The Louisiana Department of Employment Security denied unemployment compensation on the ground that Ms. Banks had failed to report for work without notifying her employer. The appeals referee upheld the disqualification stating that Ms. Banks had been “... absent without permission or being properly excused after being warned and counseled.” (Tr. 11) The board of review and the trial court affirmed. In reasons for judgment, the trial court stated that: “Claimant’s termination was for absenteeism without notification .... ” (Tr. 43). A divided panel of the Court of Appeal also affirmed. Banks v. Administrator of Dept. of Employment, 384 So.2d 485 (La.App. 2 Cir. 1980). The majority opinion states that there was sufficient evidence to support the finding of unexcused absenteeism; that claimant was given proper notice of the issue, received due process, and a fair hearing. A dissent states that: “The findings of the appeals referee went beyond the grounds for the agency determination of which claimant had fair notice and from which she appealed.” 384 So.2d 489. A writ of certiorari was granted to review the judgment of the Court of Appeal.

Odeal Banks worked from 11:00 A.M. until 7:00 P.M. Monday through Friday. Her immediate supervisor was Letha Jemerson, the food service supervisor. Ms. Banks worked on Friday, December 15, but received a message on Sunday, December 17, that her sister in Lake Charles was seriously ill. Being nervous and upset about her sister’s illness, Ms. Banks had her niece, Patricia Hitt, call Ms. Jemerson to report that she would not be at work the next day because she had to go to Lake Charles. On Wednesday morning, December 20, Ms. Banks called Letha Jemerson to advise that she was returning to work but was told that she on longer had a job.

The administrator of the nursing home, J. D. Sikes, testified that Ms. Banks was fired for excessive absenteeism. The payroll records showed four unauthorized days in July, three unauthorized days in August, two unauthorized days in September, four unauthorized days in October, and two unauthorized days in December. Someone always notified the nursing home when Ms. Banks would not be there. However, ghe was advised that she had been discharged for “.. . failure to work on days scheduled without calling in.” (Tr. 8) Ms. Banks said she only missed work when she or members of her family were ill. She made up some of the days she missed and arranged for a relief worker on other occasions. The record is not clear as to the circumstances in which an absence would be excused.

A written report by Sikes states: “Employee failed to work days scheduled. On many occasions the Food Service Supervisor spoke to her concerning this matter: ... (Tr. 18)

However, neither Sikes nor Ms. Jemerson testified to that effect at the hearing. There was no competent evidence that Ms. Banks had been warned or counseled about her absences or told that she would be discharged if they continued.

The policy of the nursing home is as follows:

“Inability to meet the schedule must be reported to the Administrator or the Director of Nurses, given at least 24 hours notice in advance of the shift affected. Failure to do so is grounds for dismissal.” (Tr. 32)

Sikes said that Ms. Banks’ absences were improperly reported because she did not call personally. However, the posted rule does not specify that the report must be made by the employee. It was admitted that Letha Jemerson was the proper person for Ms. Banks to notify.

ISSUES

The first issue is procedural: whether plaintiff had proper notice of the reason for her disqualification, LSA-R.S. 23:1625; and a fair hearing, LSA-R.S. 23:1629. The second issue is whether the determination that plaintiff was discharged for misconduct connected with her employment is a reasonable finding from the evidence presented. LSA-R.S. 23:1601; 23:1634.

CONCLUSION

Ms. Banks was discharged for excessive absenteeism rather than unreported absences. However, she was incorrectly advised that the reason for her dismissal was failure to report her absences. Ms. Banks was entitled to be told the ground for her disqualification prior to the hearing. LSA-R.S. 23:1625; Goff v. Administrator of Division of Employment Security, 157 So.2d 268 (La.App. 3 Cir. 1963); King v. Brown, 115 So.2d 405 (La.App. 2 Cir. 1959). Ms. Banks took her niece to the hearing to verify that she had given notice when she was going to be absent. She might have produced evidence that her absences were justified if she had known that absenteeism rather than absenteeism without notice was the basis for her disqualification. She did not have a fair hearing without proper notice of the reason for her disqualification. LSA-R.S. 23:1629; King v. Brown, supra. However, since the evidence does not show disqualifying misconduct, a new hearing for Ms. Banks is unnecessary.

LSA-R.S. 23:1601 provides that:
“An individual shall be disqualified for benefits:
******
“(2) If the administrator finds that he has been discharged for misconduct connected with his employment ... ”.

The employer bears the burden of proving that a discharge resulted from disqualifying misconduct. The issue is primarily a factual one to be determined by the administrator and the board of review. LSA-R.S. 23:1634. However, there must be legal and competent evidence to support the factual findings on which the administrative determination turns. Evans v. State Department of Employment Security, 292 So.2d 265 (La.App. 2 Cir. 1974); Caldwell v. Gerace, 378 So.2d 1045 (La.App. 2 Cir. 1979). Moreover, if the determination made does not meet “a threshold test of reasonableness”, it is erroneous as a matter of law. 35 La.Law Rev. 349 at 369. See Simmons v. Gerace, 377 So.2d 407 (La.App. 2 Cir. 1979); Brown v. Lockwood, 380 So.2d 685 (La.App. 4 Cir. 1980); Turner v. Brown, 134 So.2d 384 (La.App. 3 Cir. 1961); Boudreaux v. Louisiana Board of Review, 374 So.2d 1182 (La., 1979).

The word “misconduct” in LSA-R.S. 23:1601 is used to connote intentional wrongdoing. King v. Brown, supra; Turner v. Brown, supra. Thus, an employee can be unsatisfactory to the employer without being guilty of disqualifying misconduct. An intent to do wrong must be present. Here, there is no legal evidence that Ms. Banks had been told her method of reporting absences was faulty or that repetition would result in her discharge. Thus, the element of intentional wrongdoing is absent. The evidence does not support a finding that Ms. Banks willfully disregarded her employer’s rules.

White v. Gerace, 372 So.2d 756 (La.App. 4 Cir. 1979) held that an employee was disqualified for benefits because of unexcused absenteeism. However, the claimant there failed “... to call in or otherwise notify his employer ...” 372 So.2d 757. That is not the case here. It is undisputed that Ms. Banks’ absences were always reported. Her testimony that they were all occasioned by illness was uncontradicted. The frequency of these occurrences placed a burden on her employer, and she was appropriately discharged. However, there is no legal evidence that she had been warned or counseled about absenteeism. Compare Goff, supra, where the employee had been warned about his unexplained absences. When, as here, no deliberate violation of the employer’s standards is proven, an administrative determination of disqualifying misconduct is unreasonable. There is no evidence of wrongful intent on the part of Ms. Banks, and she was not guilty of misconduct within the meaning of LSA-R.S. 23:1601.

For the reasons assigned, the judgment of the court of appeal is reversed, and the matter is remanded to the board of review for it to enter an order in compliance with this opinion. LSA-R.S. 23:1634.

REVERSED AND REMANDED.

DIXON, C. J., concurs.

      . Faculty Symposium Comment on “Administrative Regulation: Law and Procedure” by Paul R. Baier, Assistant Professor of Law, Louisiana State University.


author: P. J. LABORDE, Jr., Justice ad hoc.

text:
    STATE of Louisiana v. James E. GUTTER.
    No. 80-KA-1684.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee.
    Michele Fournet, Baton Rouge, for defendant-appellant.
   P. J. LABORDE, Jr., Justice ad hoc.

By bill of information filed on September 26, 1979, defendant James E. Gutter was charged with two counts of armed robbery in violation of La.R.S. 14:64. Following trial before a twelve member jury, defendant was convicted of both counts and sentenced to two five-year terms at hard labor, said sentences to run concurrently. On appeal, defendant relies on two arguments for reversal of his conviction and sentence.

FACTS

At about 10:30 p. m. on September 7, 1979, the victims — Bruce Jackson and David Tyler — pulled into a Fina service station located at the intersection of Blount Road and Louisiana Highway 19 in Baton Rouge, Louisiana. Jackson parked his car on the side of the service station and both he and Tyler walked toward the station to buy a coke and some cigarettes. Finding the door locked, the pair returned to Jackson’s car.

As Jackson and Tyler were getting in their car, a second vehicle pulled in directly behind them. One of the three occupants of the second vehicle approached the Jackson vehicle and asked Jackson for a dollar. After both Jackson and Tyler refused his request, the man left, only to return moments later with a companion. One of these two individuals walked over to Tyler who was sitting on the passenger's side, held a pistol up to his face, and demanded money from him. After Tyler surrendered his Timex wristwatch and $25.00 in cash, the assailant handed the gun over the roof of the car to his companion on the other side who then proceeded, at gun point, to rob Jackson of $28.00 in cash. It was about this time during the course of the robberies that Tyler, and later Jackson, noticed the third individual standing about a foot from the rear of Jackson’s car. This third man was later apprehended and identified as James E. Gutter, the defendant herein. Gutter’s two companions were never apprehended and Gutter alone was tried for two counts of armed robbery. At the trial, the State utilized a conspiracy theory to attribute the acts of Gutter’s companions to Gutter, thus making it possible to convict Gutter of the armed robberies.

ASSIGNMENTS OF ERROR NOS. 4, 6 AND 9

Gutter’s first argument focuses on the State’s use of a conspiracy theory to secure his convictions for both counts of armed robbery. More particularly, Gutter contends that the trial judge erred in permitting the state’s attorney to rely on a conspiracy theory even though he, Gutter, was not charged with the separate and distinct crime of conspiracy. Gutter also contends that because the State failed to establish a prima facie case of conspiracy, the trial judge erred in charging the jury with that law. Gutter’s motion for a new trial, based in part on these contentions, was denied.

Where, as here, a defendant is not charged with the inchoate crime of conspiracy but rather with a substantive offense such as armed robbery, reference to the law of conspiracy may nevertheless be relevant and permissible to allow the state to take advantage of the evidentiary rules found in La.R.S. 15:455, which provides:

Each coconspirator is deemed to assent to or to command whatever is said or done in furtherance of the common enterprise, and it is therefore of no moment that such act was done or such declaration was made out of the presence of the conspirator sought to be bound thereby, or whether the conspirator doing such act or making such declaration be or be not on trial with his codefendant. But to have this affect a prima facie case of conspiracy must have been established. (Emphasis added.)

By its term then, the references and allusions to the law of conspiracy were proper only if the State adduced evidence sufficient to establish a prima facie case of conspiracy. La.R.S. 15:455.

It is necessary to define a conspiracy in order to then determine whether a prima facie case of conspiracy has been established. The substantive offense of criminal conspiracy is defined in La.R.S. 14:26 as the agreement or combination of two or more persons for the specific purpose of committing any crime, provided however, that such an agreement or combination shall not amount to a criminal conspiracy unless, in addition to such combination or agreement, one or more of the parties does an act in furtherance of the object of the agreement or combination.

Louisiana Courts have held that a prima facie case of conspiracy is presented when the State introduces evidence which, if un-rebutted, would be sufficient to establish the fact of conspiracy. State v. McCoy, 395 So.2d 319 (La.1980).

Bearing these principles in mind, we find that there was a prima facie showing that Gutter agreed or combined with his two companions for the specific purpose of committing a crime.

The record contains direct eyewitness testimony from both victims regarding Gutter’s participation in the robberies. Their testimony is supplemented by Gutter’s statement given to the police subsequent to his arrest and advisement of his rights.

A review of the record indicates that Gutter was the driver of the vehicle which turned into the darkened service station and pulled in directly behind the Jackson vehicle. During the actual perpetration of the robberies, Gutter stood approximately one foot from the rear of Jackson’s car. From his position, Gutter was able to observe the robberies, yet he made no attempt to interfere with or otherwise question the acts of his companions. An available inference, supported by Jackson’s testimony, is that Gutter served as a “lookout” for his two companions. This inference is strengthened by evidence establishing that immediately after the robberies, Gutter returned to his car with his two companions whereupon one of them handed Tyler’s wristwatch to Gutter who accepted it. Thereafter, the trio divided the stolen monies between themselves, climbed into their vehicle, then left together with Gutter again at the wheel.

The victims reported the robbery to the police. They also gave the police the license number of the vehicle used by the trio.

The car was registered to Irene Gutter who lived at 1900 Blount Road, about one-half mile from the scene of the robberies. Upon arrival at that address, the police located the car and spoke with Irene Gutter’s son — James, the defendant herein. The police noticed that James Gutter was wearing a Timex wristwatch similar to the one described by the victims. Gutter was then detained and informed of his rights. The victims were called and they identified Gutter as the individual who stood behind their vehicle during the armed robberies.

Considering only the evidence presented by the State, it can fairly be said that the State made a showing that two or more persons committed a crime and that Gutter either combined or agreed to commit the criminal act. We are satisfied that a prima facie case of conspiracy has been established. Therefore, no errors resulted either from the references to the law of conspiracy or from the trial judge’s denial of Gutter’s motion for new trial. These assignments lack merit.

ASSIGNMENT OF ERROR NO. 8

By this assignment, Gutter contends that the trial court erred in denying his Motion for Mistrial brought after the State advanced the argument that the law presumes an individual to intend the natural and probable consequences of his acts. More particularly, the district attorney addressed the jury as follows:

“You’ve heard about the presumption of innocence. A presumption relieves him in whose favor it exists from the necessity of proof of the subject matter which covers the presumption. Because this defendant is presumed to be innocent, he does not have to prove his innocence. He is relieved of that responsibility, which means the State, through me, bears the burden of proving the crime charged. But there are many other presumptions in our law. For example, as a way of explanation, there is a presumption of sanity and responsibility for one’s acts of conduct. That’s why it is when a defendant is tried, the State does not have to prove that mentally he is competent and sane. You see, you can’t try an insane man. So the presumption is of sanity. So the state doesn’t have to deal with that question because it is presumed that this defendant and every other defendant is presumed to be sane. And it is also presumed that he intended the natural and probable consequences of his act." (Emphasis supplied)

On appeal, defendant argues that the effect of such instruction was to compel him to offer exculpatory proof to refute the inference of. specific intent, thereby shifting the burden of persuasion, in violation of his due process rights. In support of his contention, defendant relies on the recent Supreme Court decision in Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979).

Sandstrom is distinguishable however, in that instead of appearing as part of a district attorney’s argument to the jury, the presumption was presented by the judge to the jury as part of the jury instructions. The Court in Sandstrom was concerned that the presumption could have the effect in a criminal prosecution of shifting the burden to the defendant to show that he lacked the requisite mental state for the crime. Such use of the presumption by the jury would alleviate the state’s burden of proving, beyond a reasonable doubt, every fact necessary to constitute the crime charged, in violation of the constitution and of the mandate of In re Winship, 397 U.S. 357, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Here, unlike Sandstrom, there was little danger that a reasonable juror would credit the prosecution’s argument in such a way to shift the burden of persuasion to the accused. The district attorney’s reference to the forbidden presumption of La.R.S. 15:432 was followed by an immediate defense objection. Outside the jury’s presence, a lengthy discussion was had in which the trial court eventually agreed with, defense counsel that the prosecutor’s remarks were improper under Sandstrom. The jury was then returned to the courtroom and admonished to disregard the prosecutor’s remarks:

THE COURT: “Okay. Ladies and Gentlemen, before we proceed I would like to admonish you at this point to once again bear in mind things that I’ve told you on one or two occasions previously that the arguments of counsel, of course, both for the state aiid for :the defense, are not evidence. They are intended to help you understand the contentions of the state and of the defendant. And to that extent, you may have heard counsel for the state refer to a presumption that the defendant— Let me read the exact language here. The presumption that the defendant intends the ordinary consequences of his voluntary action. So at this point you are admonished to disregard that.”

During his charge to the jury, the trial court also delivered a strong statement as to the presumption of an accused’s innocence and the necessity that his guilt be established beyond a reasonable doubt.

Under these circumstances, it cannot be said that the trial court’s admonition was not sufficient to protect the accused’s right to a fair trial. La.C.Cr.P. Art. 771. This assignment lacks merit.

For the foregoing reasons, defendant’s convictions and sentences are affirmed.

AFFIRMED.

       Judges Guidry, Foret and Laborde of the Court of Appeal, Third Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche, and Lemmon.

      . Louisiana Courts have found prima facie evidence of conspiracy where the defendant and another individual are shown to have been together both prior to and following the commission of an offense to which the accused has been circumstantially linked. State v. Kaufman, 331 So.2d 16 (La.1976); State v. Clark, 387 So.2d 1124 (La.1980).


author: BLANCHE, Justice.

text:
    Joseph A. COURVILLE, Sr. et al v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 80-C-1704.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      Patrick C. Morrow, James P. Ryan, Morrow & Morrow, Opelousas, for plaintiff-applicant.
    Norman Foret, McBride & Brewster, Lafayette, for defendant-respondent.
   BLANCHE, Justice.

Plaintiffs, a major child and his father, filed suit to recover medical expenses, pain and suffering, and property damage, caused by an automobile accident which occurred late at night on February 12, 1978 in St. Landry Parish, Louisiana. Joseph A. Cour-ville, Jr., the major child living with his parents, was driving his father’s 1964 GMC pickup truck when he was hit by an automobile driven by Danny P. Richard, an uninsured motorist. Plaintiffs sued Danny P. Richard, Danny P. Richard’s father, and State Farm Mutual Automobile Insurance Company (hereinafter referred to as State Farm), from whom they had purchased uninsured motorist coverage.

Plaintiffs sought recovery against State Farm on two policies, one covering the 1964 GMC pickup truck, and the second covering a 1968 Oldsmobile also owned by Joseph A. Courville, Sr. Each policy had an uninsured motorist limit of $10,000. State Farm filed a motion for summary judgment denying that the plaintiffs were entitled to “stack” the limits of the two policies, which was tentatively denied by the trial judge.

At the trial on the merits, the defendants stipulated to their liability and to property damage in the amount of $850. The only issue given to the jury was damages due to Joseph A. Courville, Jr. The jury returned a verdict in his favor for $30,000. The trial judge ruled that the plaintiffs could stack the two $10,000 policies, resulting in State Farm being cast in judgment for $20,000.

State Farm appealed and the Third Circuit Court of Appeal affirmed the decision but amended it as to State Farm, holding that the plaintiffs could not “stack” and, thus, the judgment against State Farm was limited to $10,000. Plaintiffs sought this writ, which we granted, under the jurisdiction of the 1974 La.Const., art. 5, § 5.

The issue is whether the plaintiffs can “stack” the uninsured motorist coverage provided by the two policies issued to them by State Farm. We find that they may do so in this situation; thus, we reverse the Third Circuit’s amendment and hold State Farm liable for a total of $20,000.

Act 623 of 1977 amended R.S. 22:1406(D)(l)(c), relative to uninsured mo- ■ torist insurance, to prohibit stacking except under certain designated circumstances. The Act became effective on September 9, 1977. Both policies were issued prior to the effective date of the Act — the policy covering the GMC pickup was originally dated December 15, 1970, and the policy covering the Oldsmobile automobile was originally dated July 19, 1973. However, each policy is issued for only six months and then renewed for subsequent six-month periods unless the insurer or insured decides not to renew the policy. Thus, there is no absolute right to insurance beyond six months. Since the initial insurance contract is limited to that six-month term, each subsequent renewal is a separate contract, even though a new policy is not involved. Fontenot v. State Farm Mutual Ins. Co., 119 So.2d 588 (La.App. 1st Cir. 1960). Both policies were renewed after the effective date of the Act and were in effect when the accident occurred. Thus, we agree with the Third Circuit that the renewal of the two policies may be seen as a new contract and they are subject to the laws at that time — namely, R.S. 22:1406(D)(l)(c), as amended. ■

Nevertheless, turning to that amended Act and applying it to the present situation, we must disagree with the Third Circuit. In pertinent part, the Act is as follows:

“(c) If the insured has any limits of unin-, sured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l),then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insur-' anee and such limits of uninsured' motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
“With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
“(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
“(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.” (Emphasis added).

Both the trial judge and the Third Circuit recognized that a literal reading of R.S. 22:1406(D)(l)(c) would allow the plaintiffs to stack in this situation. Using the second paragraph of the Act: the injured party, Joseph A. Courville, Jr., was occupying an automobile not owned by him; the uninsured motorist policy on the GMC pickup truck in which Joseph A. Courville, Jr., was an occupant is primary; and, since the primary uninsured motorist coverage is exhausted due to the extent of the damages ($30,000), Joseph A. Courville, Jr., may recover as excess from other uninsured motorist coverage available to him, namely, the policy on the 1968 Oldsmobile.

While the first paragraph of the Act provides the general rule that an insured who has insurance available to him under more than one uninsured motorist policy may not stack, that paragraph is followed by the exception that this plaintiff finds himself within; for under the second paragraph of the Act, Joseph A. Courville, Jr., may stack as he was an occupant of a vehicle which he did not own when he was injured.

The Third Circuit Court of Appeal felt the Act was ambiguous as applied to these facts; therefore, they endeavored to ascertain the intent of the legislature. We do not deem such a journey necessary.

According to Louisiana Civil Code art. 13:
“When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”

The letter of the Act which allows Joseph A. Courville, Jr., to stack these two policies may not be disregarded simply because of some notion that the legislature’s spirit behind the above statute is to prevent stacking in situations such as this. Of course, if that is the true spirit, then the legislature should amend the Act by providing in the second paragraph that an insured may not stack even if he is an occupant and a non-owner of the vehicle in which he is injured. For the present, a strict reading of the entire Act allows this plaintiff to recover.

For these reasons, the judgment of the Third Circuit Court of Appeal is reversed to allow the plaintiff to stack the two State Farm policies for a total of $20,000. The remainder of the Third Circuit’s opinion was not appealed, and is affirmed. Costs of this appeal are assessed to the respondent, State Farm.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Glenn Wayne KELLY.
    No. 80-K-1706.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    Claude R. Sledge, Gamble & Sledge, Mansfield, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Herman L. Lawson, Asst. Dist. Atty., for plaintiff-respondent.
   DENNIS, Justice.

The relator’s probation was revoked. We granted certiorari, 391 So.2d 459 (La.1980), to review his claims that he was (1) deprived of his right to counsel, and (2) found guilty of a probation violation without evidence of any infraction of a special condition of his probation. Finding reversible merit in relator’s second argument, we vacate the probation revocation without considering his argument that he was not advised of his right to appointed counsel.

Glenn Wayne Kelly pleaded guilty to production of marijuana, La.R.S. 40:967(A)(1), and was sentenced to three years at hard labor. His sentence was suspended and he was placed oh supervised probation subject to special conditions. His special conditions of probation were substantially identical to those recommended by the district attorney in a letter filed of record with the guilty plea. The special conditions provide: (1) “that the defendant will be confined for one year to an inpatient mental care facility; (2) at the termination of the one year, the defendant will participate in an out-patient psychiatric treatment for a period of' one year with visits of not less than twice monthly; and (3) during the third year of probation, the defendant will receive credit for any time previously incarcerated on the charge.” The district attorney’s letter explained why he recommended no credit for time spent either as inpatient or outpatient: “Mr. Kelly is being given a chance to obtain help from qualified medical personnel as to his problem, and the sentence in that regard is non-penal.”

The undisputed evidence shows that the day after he was sentenced Kelly met with his probation officer and offered to enter a Veterans Administration hospital in compliance with his special conditions of probation. Although the officer had not been present at relator’s sentencing, she questioned whether this hospitalization would fulfill the condition since she thought the judge intended for Kelly to enter a drug rehabilitation facility. Later the probation officer told him that the VA hospital was not a “suitable facility” and suggested that he go to a drug rehabilitation house in Texas. When Kelly insisted that the judge intended for him to become a patient in a mental care hospital, not a drug rehabilitation place, the probation officer testified that she told him, “we needed to come back before the Judge that apparently the sentence was something was wrong with it because you did not agree with it.”

Without seeking an in-court clarification of the special condition of probation, the probation officer on the thirty-third day following imposition of relator’s sentence petitioned Kelly to show cause why his probation should not be revoked because he had not been admitted “to an in-patient mental care facility as ordered.” After hearing the testimony of the officer and the relator, which reflects nothing more than a disagreement over the meaning of a “mental care facility,” the trial judge found that the evidence established “beyond any question” that Kelly violated the special condition of his probation.

The trial court was clearly in error. To hold Kelly responsible for a violation of his probation under the circumstances would constitute a denial of fairness and due process. He did not display unreasonableness or a non-conformist attitude. He made a good faith attempt to initiate steps toward entering the VA hospital to.satisfy the condition that he be confined for one year in a mental care facility. He was thwarted by the probation officer who informed him that the judge actually meant for him to enter a drug rehabilitation facility and that they must go back before the judge because something was wrong with the sentence. He reasonably believed that a psychiatric ward of a Veterans hospital was fairly connoted by “mental care facility.” Indeed, the judge’s further requirement of “outpatient psychiatric treatment” and the district attorney’s recommendation of “help from qualified medical personnel” supports his interpretation and seems inconsistent with the probation officer’s notion of drug counseling. After being led to believe he would be given a hearing to clarify the sentence, Kelly was not unreasonable in waiting approximately thirty days for this opportunity, rather than confining himself to a Texas drug rehabilitation facility on the basis of the probation officer’s interpretation of the special condition. The fault lies in the judge’s articulation of the special condition or the probation officer’s interpretation of it, and not in the probationer’s conduct.

The revocation of probation is set aside, and this case is remanded to the district court for further proceedings consistent with the views expressed.

PROBATION REVOCATION SET ASIDE; CASE REMANDED.

       Judges Cecil C. Cutrer, Jimmy M. Stoker and Ned E. Doucet, Jr., of the Court of Appeal, Third Circuit, participated in this decision as Associates Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Ca-logero, Dennis, and Watson.


text:
    CALVARY TABERNACLE v. LOUISIANA CENTRAL BANK.
    No. 80-C-1727.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    William G. Avery, Baton Rouge, for plaintiff-applicant.
    James H. Brown, Melvin Bellar, Baton Rouge, Dale, Brown & Wooley, Ferriday, for defendant-respondent.
   WATSON, Justice.

Plaintiff, Calvary Tabernacle, contends that defendant, Louisiana Central Bank, warranted the Tabernacle’s title to a mobile home from which the Tabernacle was evicted.

The Bank held a mortgage from the Crossroads Apostolic Church of Lord Jesus Christ of Louisiana on a two acre tract, described as a three acre tract with improvements, less a one acre tract. The Bank foreclosed on the mortgage. A writ of fieri facias issued which described the property as including three mobile homes, the one now in dispute bearing serial number LM081A0E. That mobile home was also particularly described in the ¿dvertisément for the sheriffs sale of the property. At the sale, the Bank’s attorney announced to the public that mobile home number LM081A0E was not included in the sale. However, it was not deleted from the property description. The Bank bought the mortgaged property, including mobile home number LM081A0E for $29,000; its appraised value was $37,000. Representatives of the Bank and the Tabernacle were present. The Tabernacle’s pastor, James Paul Pruitt, purchased the adjoining one acre tract at the same sale for approximately $3,000. He purchased it individually for the future use of his church.

The parties negotiated a sale of the two acre tract from the Bank to the Tabernacle for $31,925.98, that amount representing the Bank’s loan balance, plus attorney fees, interest and costs. The President of the Bank, Howard Hobson, had written authority from the Board of Directors to sell the two acre tract to the Tabernacle. At the insistence of Pastor Pruitt, mobile home number LM081A0E was included in the authorization. The warranty deed had already been drafted to include the mobile home.

The act of sale conveying the two acre tract provides in pertinent part that the Bank:

“.. . does by these presents GRANT, BARGAIN, SELL, CONVEY AND DELIVER, with full guarantee of title, free of all mortgages and encumberances [sic], and with complete transfer and subrogation of all rights and actions of warranty, against all former proprietors of the property herein conveyed unto “CALVARY TABERNACLE ... the following described property, to-wit:
******
“Together with all buildings and improvements and appurtenances thereon, .. . and particularly including “1. One (1) 1973 Oak Manor Mobile Home, Serial Number LM081A0E

After the sale, the Tabernacle took possession of the property and spent approximately $1,000 to improve the mobile home. The Tabernacle was then advised of an adverse claim to the mobile home and gave both verbal and written notice to its vendor. Tuloka Affiliates, which held a chattel mortgage on mobile home number LM081A0E, had it seized and bought it at sheriff’s sale for its appraised value of $6,995.

The Tabernacle purchased a similar mobile home for $10,698.74 and brought this suit for the value of mobile home number LM081A0E, $1,000 expended to improve it and attorney’s fees.

At trial, President Hobson testified that the mobile home was included in the warranty deed only to reassure Pastor Pruitt; that he did not intend to warrant title to the mobile home. Hobson had been advised by the Bank’s attorney that the mobile home was not mortgaged. (Tr. 92) Pastor Pruitt testified that he did not bid on the two acre tract at the sheriff’s sale because of concern about liens against it.

The trial court concluded that the parties had not intended for the Bank to warrant title to the mobile home but awarded the Tabernacle $1,000 as a matter of “substantial justice”. (Tr. 183) The Bank appealed.

The Court of Appeal, 384 So.2d 814, which did not have either a transcript of testimony or narrative of facts, reversed the $1,000 award and entered judgment in favor of the Bank, relying on LSA-C.C. art. 2505. The Tabernacle applied for a writ of review to this Court, which was granted, 391 So.2d 457 (La.).

The issue is whether the terms of the warranty deed should have been altered by the Bank’s parol evidence as to its intention in executing the agreement.

Generally, parol evidence is inadmissible to vary the terms of a written transfer of immovable property. LSA-C.C. art. 2276. An exception to this rule is allowed when there are allegations of fraud or error. Gulf States Finance Corp. v. Airline Auto Sales, Inc., 248 La. 591, 181 So.2d 36 (1965). Here, the Bank alleged “... mutual error and mistake and/or ... misrepresentation or misunderstanding inducing the defendant to sign the instrument.” (Tr. 49) However, the parol evidence did not show fraud or mutual error. There may have been a misunderstanding, but it was unilateral on the part of the Bank. The Tabernacle intended to purchase two acres with mobile home number LMO81A0E. The Bank agreed to those terms. If the Bank had contemplated quit-claiming the mobile home, it should have stated as much in the deed. Having agreed to the terms asked by the Tabernacle, the Bank cannot defeat the warranty deed by claiming a contrary intention. It is bound by the written agreement. White v. Rimmer & Garrett, Inc., 340 So.2d 283 (La., 1976).

The Court of Appeal erred in relying on LSA-C.C. art. 2505, which applies only when no warranty is stipulated. Since there was no mutual error, the terms of the warranty deed prevail. The Tabernacle is entitled to damages for partial eviction from the thing sold. LSA-C.C. art. 2500.

The trial court erred in not awarding the Tabernacle the value of the mobile home. After the improvements made by the Tabernacle, it was appraised and sold for $6,995. This represents a fair proportion of the total sale price. LSA-C.C. art. 2514. Attorney’s fees are not considered part of the costs occasioned by the eviction and cannot be recovered. LSA-C.C. art. 2506; Citizen’s Bank v. Jeansonne, 120 La. 393, 45 So. 367 (1907). Judgment is hereby rendered in favor of plaintiff, Calvary Tabernacle, and against the defendant, Louisiana Central Bank, for $6,995 together with legal interest from date of eviction and all costs.

REVERSED AND RENDERED.

      . The record has now been supplemented with the transcript of testimony.

      . LSA-C.C. art. 2505 provides:
      “Even in case of stipulation of no warranty, the seller, in case of eviction, is liable to a restitution of the price, unless the buyer was aware, at the time of the sale, of the danger of the eviction, and purchased at his peril and risk.”

      . Hale v. City of New Orleans, 13 La.Ann. 499 (1858).


author: J. BURTON FORET, Justice ad hoc.

text:
    STATE of Louisiana v. Michael G. FERGUSON.
    No. 80-KA-1750.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee.
    Lawrence Roe Dodd, MacAllynn J. Achee, Baton Rouge, for defendant-appellant.
   J. BURTON FORET, Justice ad hoc.

The issue in this matter is whether a person found guilty of conspiracy to commit first degree murder is eligible for parole under the provisions of LSA-R.S. 14:26(B).

Defendant, Michael Ferguson, was charged with conspiracy to commit first degree murder, in violation of LSA-R.S. 14:26. See also LSA-R.S. 14:30. The defendant pleaded guilty pursuant to a plea bargain arrangement and was sentenced to twenty-one years imprisonment at hard labor. It was stipulated that no restrictions would be placed upon the defendant’s eligibility for parole. LSA-R.S. 15:574.2 et seq.

FACTS

The trial court, in sentencing the defendant, recognized that this Court had never squarely addressed the issue of a murder conspirator’s eligibility for parole. A “Memorandum of Sentence Understanding” was executed in which the trial court spelled out its intention to impose a non-pa-rolable sentence of ten and one-half years in the event that defendant’s original sentence was judicially overturned. This was done in an attempt to avoid the possibility that an erroneous grant of such parole eligibility might later be used collaterally to assail the accused’s guilty plea. This memorandum was signed by the defendant and filed into evidence on October 26, 1979.

Defendant filed a petition for habeas corpus on December 18,1979, claiming that the Louisiana Department of Corrections had incorrectly classified him as being ineligible for parole in violation of the “Memorandum of Sentence Understanding”. Defendant sought to either be released from custody or to be sentenced in accordance with the express intentions of the trial court.

The district court denied defendant’s application, finding it to be premature. This Court then granted the defendant’s application for writs, State v. Ferguson, 381 So.2d 1245 (La.1980), and remanded the matter to the trial court for consideration of the merits of defendant’s application. The trial court, on remand, again sentenced defendant to twenty-one years imprisonment at hard labor emphasizing that this commitment was made under the general parole law. The trial court further instructed defendant that the purpose of this “resen-tence” was to allow him to seek relief within the Department of Corrections.

DEFENDANT’S ELIGIBILITY FOR PAROLE

Defendant argues, on this appeal, that his conviction for conspiracy to commit first degree murder properly precluded any possibility of release on parole and that, for this reason, the trial court’s granting of such parole eligibility was improper. Defendant further contends that reversal of his illegal sentence will necessitate imposition of a ten and one-half year sentence pursuant to the plea bargain arrangements made below.

LSA-R.S. 14:30 provides, in pertinent part, that:

“Whoever commits the crime of first degree murder shall be punished by death or life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence in accordance with the recommendation of the jury.” (Emphasis ours.)
LSA-R.S. 14:26(B) provides that:
“B. Whoever is a party to a criminal conspiracy to commit any crime shall be fined or imprisoned, or both, in the same manner as for the offense contemplated by the conspirators; provided, however, whoever is a party to a criminal conspiracy to commit a crime punishable by death or life imprisonment shall be imprisoned at hard labor for not more than thirty years.” (Emphasis ours.)

LSA-R.S. 14:26(B), on its face, places no restrictions on the availability of parole for a murder conspirator. The “provided however” clause indicates both the term “thirty years” and the manner “at hard labor” of imprisonment for individuals convicted of conspiracy to commit a crime punishable by death or life imprisonment. To accept the defense’s suggestion that the “in the same manner” language of the previous clause be construed as limiting a murder conspirator’s eligibility for parole would wholly vitiate the “provided however” clause which appears to be properly construed as an exception to the first clause. Since there is no express “direct or indirect” reference to parole, none can be properly assumed.

This Court, in State v. Welch, 368 So.2d 965 (La.1979), had occasion to interpret LSA-R.S. 14:27(D)(1) which reads as follows:

“D. Whoever attempts to commit any crime shall be punished as follows:
(1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than fifty years:”

The defendant in that case had been convicted of attempted aggravated rape. LSA-R.S. 14:42 in effect at that time provided that: “Whoever commits the crime of aggravated rape shall be punished by death”. We there concluded that sentences imposed for conviction of an attempt to commit an offense punishable by death or life imprisonment could not, as a matter of law, be without benefit of parole. In view of the identical language contained in LSA-R.S. 14:26(B), this result should be equally controlling as to conspiracy convictions punishable by death or life imprisonment.

The Louisiana Attorney General’s office , in response to an inquiry from the Department of Corrections, issued Opinion Number 79-901 which reads:

“It is the opinion of this office that the language “in the same manner as” used in both of the above quoted articles indicates that the legislature in drafting the article intended that a person convicted of criminal conspiracy should receive the same sentencing consideration as provided for the particular substantive crime itself, with the specific time exceptions enumerated in the statute. Therefore, a person convicted and sentenced for conspiracy to commit an offense for which the punishment for the basic intended crime is life imprisonment without parole, probation, or suspension of sentence is not eligible for parole, probation or suspension of sentence. This reasoning would lead to a similar result in reference to your third listed circumstance in the case of conspiracy.”

We find that this opinion ignores the fact that the “provided however” clause of LSA-R.S. 14:26{B) does not merely provide for a specific term of incarceration in cases where the intended crime is punishable by death or life imprisonment, but also stipulates the manner of such imprisonment (“at hard labor”).

We hold that a person found guilty of conspiracy to commit first degree murder is eligible for parole under the provisions of LSA-R.S. 14:26(B).

The sentence imposed by the trial court on the defendant of twenty-one years imprisonment at hard labor with benefit of the general parole law is affirmed.

SENTENCE AFFIRMED.

       Judges Edmond L. Guidry, Jr., J. Burton Foret and P. J. Laborde, Jr. of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Walter F. Marcus, Jr., Fred A. Blanche, Jr., and Harry T. Lemmon.

      . The State in brief on this appeal now takes the position that LSA-R.S. 14:26(B) allows parole eligibility for a person convicted of criminal conspiracy to commit a crime punishable by death or life imprisonment.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Eddie D. LANDRY.
    No. 80-KA-1829.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Stephen Wimberly, Asst. Dist. Attys., for plaintiff-appellee.
    Louis A. Heyd, Jr., New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

Defendant pleaded guilty to possession of cocaine with the intent to distribute, R.S. 40:967, and was sentenced to five years’ imprisonment. He reserved the right to appeal from the denial of his motion to suppress the cocaine as evidence. State v. Crosby, 338 So.2d 584 (La.1976).

Defendant was initially approached by an officer in an unmarked car as he was walking down the shoulder of a road. The officer testified that defendant was not violating any law or engaging in any criminal activity at that time, but that defendant appeared to resemble the description of a suspect who was wanted for theft in another parish. When the officer, dressed in plain clothes, stopped his car on the shoulder, defendant apparently believed that he was being offered a ride, and approached the side of the vehicle. The officer identified himself and ordered defendant to the rear of the car. Defendant was carrying a shoulder bag, which the officer removed and placed behind him; the defendant was then frisked. Finding no weapons, the officer leaned backwards, unzipped the bag, and discovered a pistol. He placed defendant under arrest. (Presumably, the search of the bag also revealed contraband).

It is argued that the officer was without lawful cause for detaining defendant and that, even assuming that some lawful ground existed for the detention, the search of the shoulder bag was unjustified. Because we agree with the latter argument, we pretermit discussion of the former.

The suspect whom defendant was said to resemble was reported to have fired a shot at another police officer. For this reason, the initial frisk or pat down of defendant was completely justified, as it was reasonable to believe that defendant might have been armed. However, the officer made an additional search of defendant’s shoulder bag: no probable cause for defendant’s arrest existed until this search was made. It is axiomatic that such a search may not precede an arrest and serve as part of its justification. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Under these circumstances, the search of the shoulder bag cannot be justified as incident to a lawful arrest.

It is clear that a police officer is entitled to make a protective search of a suspect for his own safety and the safety of others. Since the justification for such a search is the protection of the investigating officer and others nearby, the search “must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968). As noted, the pat down of defendant’s clothing constituted such a search. However, the additional search of the shoulder bag exceeded this justification: the bag was behind the officer and out of the reach of defendant; the officer had already discovered that defendant was unarmed; and defendant remained in the “frisk position” at the rear of the car.

The circumstances surrounding this search are similar to those found in State v. Greenwald, 369 So.2d 1317 (La.1979), in which a police officer searched a burlap bag that was out of the reach of the defendant and at a time when the officer was in complete control of the situation. In that case, the scope of the search exceeded the underlying justification of self-protection, since there was no necessity for the officer to take any further action to insure his own safety. The same is true in the present case. Once the officer found no weapons on defendant’s person, there was no need to expand his search to the bag which was in his own control.

The threat of harm had been neutralized. The only purpose served by the search of the bag was to uncover evidence of a crime. Because this search was made without a warrant, and under circumstances that do not fall within any of the exceptions to the warrant requirement of the Fourth Amendment, the fruits of the search must be excluded from evidence.

Accordingly, the trial court was in error in refusing to suppress the introduction of the cocaine as evidence. The conviction and sentence based thereon must be reversed, and the case remanded for further proceedings consistent with this opinion.

       Judges Cecil C. Cutrer, Jimmy M. Stoker and Ned E. Doucet, Jr. of the Third Circuit participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.


author: CALOGERO, Justice .

text:
    STATE of Louisiana v. Richard A. ROBERDS
    No. 80-KA-1831.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Clarence McManus, Asst. Dist. Attys., for plaintiff-appellee.
    Brian M. Begue, New Orleans, for defendant-appellant.
   CALOGERO, Justice .

Defendant Richard A. Roberds was charged by bill of information with possession of quaalude with the intent to distribute in violation of R.S. 40:967(A). Following denial of his motion to suppress the evidence, defendant entered a plea of guilty to the reduced charge of simple possession, reserving his right to appeal the ruling on the motion to suppress. State v. Crosby, 338 So.2d 584 (La.1976). The trial court sentenced defendant to one year in the parish prison, suspended this sentence, placed defendant on active probation for two years and ordered defendant to pay a fine of One Thousand Dollars plus court costs. Additionally, the court ordered defendant to tour Angola at his own expense.

At approximately 1:30 a. m. on November 19, 1979, the Volkswagen driven by defendant struck a parked automobile belonging to Mr. Edward Butler. Defendant continued driving a short distance before stopping to survey the damage sustained by his car. Carrying a shotgun, Mr. Butler pursued defendant to question him about the accident. Mr. Butler found defendant standing outside his own car in a somewhat dazed condition. Fearing that defendant might have a weapon in his automobile, Mr. Butler conducted a search of the vehicle before laying aside the shotgun. Mr. Butler and defendant were discussing the accident when Officer Dennis Erwin of the Gretna Police Department passed on routine patrol. Officer Erwin noticed the pair and stopped to investigate. Mr. Butler told the policeman about the accident and Officer Erwin requested defendant’s driver’s license.

Regarding events after this point in time, witnesses at the hearing on the motion to suppress related differing versions, especially of the finding of the quaaludes.

Officer Erwin stated that defendant entered the car to retrieve his license from the glove compartment. According to the policeman, defendant made several sweeping motions with his hand as though attempting to push something under the seat of the car. Defendant’s hand motions drew Officer Erwin’s attention and he noticed 20-25 white pills scattered on the floorboard of the car. The officer inspected one pill carefully, observed that it was marked with the manufacturer’s code for quaalude, a hypnotic and sedative, and arrested defendant for possession of a controlled dangerous substance and for hit and run. The policeman testified that he did not run a check on defendant’s license to determine whether there was a warrant out for defendant’s arrest when he first received the license from defendant, but thought that he had run one at some time during the evening. Officer Davis, a narcotics officer with the Gretna Police Department, arrived after defendant’s arrest and stayed until defendant was transported to the station. Officer Erwin also stated that he believed his sergeant “passed by to check” but didn’t think that he ever got out of the car.

Mr. Butler, the victim of the hit and run accident, was the next witness at the hearing on the motion to suppress. Mr. Butler related how he had chased after defendant with a shotgun and found defendant, somewhat dazed, inspecting the damage to his own car. Mr. Butler said that he did not see any white tablets on the floor of the car when he inspected it to determine whether defendant might have a weapon available. It was at this time, according to Mr. Butler, that Officer Erwin arrived on the scene. Mr. Butler testified that Officer Erwin did not conduct a search of defendant’s vehicle but immediately, upon learning of the hit and run accident, placed defendant under arrest, handcuffing him and placing him in the police car. Another officer arrived whom Mr. Butler said he would not be able to recognize. This officer went directly to the Volkswagen, raised the front cover of the car, looked inside and closed it. Following this action, the new policeman on the scene entered the interior of the car with a flashlight, raised the floor mat and said “ah ha, look what I’ve got here.” On cross-examination by the prosecutor, Mr. Butler reiterated that Officer Erwin never searched the car. The witness further stated that he did not remember seeing defendant enter his car.

Finally defendant testified, stating that when Mr. Butler approached him with the shotgun, he was outside his car somewhat dazed and very frustrated with himself for having had the accident. He said that there was no contraband in plain view inside the automobile and that Mr. Butler was in a position to have seen it had there been. Defendant Roberds testified that he retrieved his license from his right rear pocket where he always kept it and gave it to Officer Erwin. Defendant believed that, upon receiving his license, Officer Erwin radioed headquarters and found that there was a traffic attachment on defendant. Mr. Roberds said that when Officer Erwin arrested and handcuffed him, the policeman did not say why he was making the arrest but did say something about a traffic attachment. While defendant was handcuffed and seated in the police car, other officers arrived and searched his car. It is unclear from defendant’s testimony whether he means that more than one officer arrived later or that another officer arrived who, together with Officer Erwin, searched the car. Mr. Roberds admitted that he had quaaludes in his car and stated that the contraband was in a plastic bag under the floor mat from which location it was retrieved. Defendant testified that he did not personally see the white tablets removed from his automobile, but knew that they had been located under the floor mat.

At the close of the hearing the trial judge denied the motion to suppress and defendant entered a guilty plea to the reduced charge.

Defendant argues, correctly, that the trial judge improperly allocated the burden of proof at the hearing on the motion to suppress. Code of Criminal Procedure article 703 provides that at the hearing on a motion to suppress the defendant has the burden of proof with the specific exception that the burden rests on the state to prove that a confession or inculpatory statement was made freely and voluntarily. The Official Revision Comment notes that no attempt has been made to deal with other possible exceptions to the general rule of burden of proof: that the burden is on the movant.

In State v. Franklin, 353 So.2d 1315 (La. 1977), however, we addressed the issue of who bears the burden of proof at a suppression hearing involving a warrantless search and held:

“[0]nee the defendant makes the initial showing at a motion to suppress hearing that a warrantless search occurred, the burden of proof shifts to the State to affirmatively show that the search is justified under one of the narrow exceptions to the rule requiring a search warrant.” 353 So.2d at 1318-19.

Since Franklin, we have decided numerous cases on this same issue. E. g., State v. MacDonald, 390 So.2d 1276 (La.1980); State v. Jernigan, 390 So.2d 1306 (La.1980); State v. Robinson, 386 So.2d 1374 (La.1980); State v. Hatfield, 364 So.2d 578 (La.1978); State v. Banks, 363 So.2d 491 (La.1978); State v. Braud, 357 So.2d 545 (La.1978).

In the case before us, defense counsel and the trial judge haggled throughout the hearing regarding upon which side the burden of proof rested. Ultimately, the judge stated that under Article 703 the defendant has the burden of proof. After expressing his opinion that the defendant bore the burden of proof, the trial judge denied the motion to suppress. Apparently the judge did not consider that the defendant had carried the burden.

As we have held on numerous occasions, once defendant establishes that a warrantless search occurred, the burden of proof shifts to the state to affirmatively establish that one of the exceptions to the warrant requirement is applicable. The trial judge in the case before the bar committed error in placing the burden upon the defendant.

As noted above, defendant and Officer Erwin related markedly different versions of the circumstances surrounding the finding of the quaaludes. In the usual situation, such divergence in testimony presents an issue of fact to be determined by the trial judge and his determination will not be overturned by this Court absent a clear abuse of the much discretion granted him. The trial judge who had an opportunity to observe the demeanor of the witnesses while they were testifying is in a better position to assess their credibility. State v. Robinson, supra. The improper allocation of the burden of proof in the instant case prompts us to give the trial judge’s determination less than the heavy presumption that his view of the evidence is correct.

Normally, when defendant and the police offer contradictory testimony, we recognize that defendant’s statements are apt to be self-serving and view them with a certain degree of skepticism. At the same time, we keep in mind that the policeman may be attempting to justify an overzealous attempt to ferret out crime.

In the instant case, however, we are not presented with the typical situation for three reasons. First, as previously ex-plained, the trial judge improperly allocated the burden of proof to defendant. Secondly, the testimony of Mr. Butler tends to corroborate that of defendant. We would expect this witness to be hostile to defendant based on his unfortunate experience as the victim of defendant’s hit and run accident. Instead of testifying in an antagonistic manner, Mr. Butler related essentially the same version of the encounter with the police as did defendant. This is the same man who chased defendant with a shotgun following the collision. Finally, we stress that, despite the burden placed upon the state by the jurisprudence and the testimony of the impartial victim Mr. Butler, the prosecutor did not call as a witness the policeman identified by defendant and Mr. Butler as the individual who searched the automobile and retrieved the white tablets. Under these circumstances, the evidence preponderates in favor of the version of events as related by defendant and the victim of the hit and run accident. It is more likely than not that the police entered the car to search for drugs and discovered the quaaludes only after raising the floor mat. A warrantless search took place and the evidence does not indicate that the search fits any of the limited exceptions to the warrant requirement.

Defendant had argued in the alternative that the white tablets were not subject to seizure even if in plain view because the policeman picked up one and examined it to ascertain the manufacturer’s code number. See State v. Meichel, 290 So.2d 878 (La.1974). Defendant contends that the tablets were not immediately known to be contraband. Because we reverse the ruling on the motion to suppress on other grounds, we do not reach this argument.

Decree

We reverse the ruling on the motion to suppress. Defendant entered his guilty plea contingent upon our review of the trial judge’s denial of the motion to suppress. Our reversal of that ruling requires that we void defendant’s guilty plea so that his conviction is reversed. We remand the case to the trial court for proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

       Judges Cecil C. Cutrer, Jimmy M. Stoker, and Ned E. Doucet, Jr., of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Pascal F. Calogero, Jr., James L. Dennis and Jack C. Watson.

      . C.Cr.P. art. 703 was recently amended, Acts 1980, No. 431, and now specifically provides “... the state shall have the burden of proving the admissibility of a purported confession or statement by the defendant or of any evidence seized without a warrant.’’ (emphasis supplied).

      . We realize that tempers cool with the passage of time and any animosity felt by Mr. Butler toward defendant at the time of the accident (November 19, 1979) would most likely have lessened by the date of the hearing on the motion to suppress (February 26, 1980).


author: CECIL C. CUTRER, Justice ad hoe.

text:
    STATE of Louisiana v. John Randall McPHATE.
    No. 80-KA-1849.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leon A. Picou, Jr., Dist. Atty., A. Z. Butterworth, Asst. Dist. Atty., for plaintiff-appellee.
    Clayton M. Perkins, Jr., St. Francisville, for defendant-appellant.
   CECIL C. CUTRER, Justice ad hoe.

Defendant, John Randall McPhate, an inmate at Dixon Correctional Institute at Jackson, Louisiana, was charged by bill of information with possession of contraband, marijuana, while on the grounds of Dixon Correctional Institute, a violation of La.R.S. 14:402 B. Defendant pleaded not guilty at his arraignment held on February 27, 1980, and jury trial was set for June 2,1980. The trial was later reset for June 5, 1980. On the latter date defendant pleaded guilty pursuant to a plea bargain. Defendant was sentenced to serve two years at hard labor to run consecutively to his previous sentence. As part of the plea bargain the defendant reserved, and the trial court granted, the right to appeal the denial of a motion for a continuance and a motion to suppress. On appeal defendant contends that the trial judge erred (1) in denying the motion for a continuance; and (2) the denial of the motion to suppress.

The two motions at issue were filed on the day of trial, June 5, 1980. A hearing was had out of the presence of the jury venire. The trial judge reserved the defendant’s right to appeal the denial of both motions.

We must first observe that the principles enunciated in the case of State v. Crosby, 338 So.2d 584 (La.1976), which set forth the right to appeal certain pre-trial rulings after a plea of guilty was entered, sought to limit such appeals to the type of terror which represents a violation of a constitutional or statutory right which, for reasons beyond guilt or innocence, would mandate a reversal of a conviction resulting from a trial. The procedure set forth in State v. Crosby did not contemplate the appeal of pre-trial rulings which were procedural in nature and which did not substantially relate to guilt. In State v. Crosby this court made the following ruling in this regard:

“Normally, the trial court will not accept a plea of guilty conditioned upon review of procedural irregularity .... Of this nature .. .,lare pre-trial rulings which affect the conduct of the trial but which do not substantially relate to guilt, such as the denial of a continuance or of a severance."

The trial judge, in the case at bar, however, did reserve the defendant’s right to appeal the denial of the motion for continuance and even though such ruling is not contemplated by State v. Crosby, we will review same as defendant contends he was “pressured into taking a plea bargain, with the opportunity to appeal” the rulings of the trial court.

The facts which gave rise to both motions at issue were as follows:

On December 15, 1979, Officer Leo De-latte, a three-year employee of the Dixon Correctional Institute, was in the process of making a routine inspection of defendant’s footlocker. Pursuant to such inspection, the officer instructed defendant to unlock his locker and step aside. Defendant complied with the officer’s request but remained close to the locker after being told to move further away. The officer, suspecting that contraband may be in the locker, relocked the locker without opening it. The officer then summoned assistance. While waiting for assistance to arrive and with the locker still locked, the defendant, without any interrogation from the officer, told Officer Delatte that he was holding some stuff in the locker for another guy and if the officer would let him flush it, he wouldn’t hold the stuff anymore. Thereafter the locker was searched and the contraband located therein.

At arraignment on February 27, 1980 defendant was represented by appointed counsel. On March 3, 1980, a motion for discovery was filed by defense counsel requesting the state to inform the defendant of any oral inculpatory statement that the state may introduce into evidence upon trial of the matter. In the state’s answer to the motion, it stated that it knew of no such statement.

The day before trial, June 4, 1980, the state, during an interview with Officer De-latte, became aware of the statement for the first time. The state’s attorney immediately notified defense counsel of such by telephone. Formal notice was also given in writing the following day, June 5,1980, the day set for trial.

The record clearly reflects that the state attorneys were not aware of such a statement until the day before trial. Officer Delatte testified that he had not told the state attorneys or anyone else of the statement until the day before trial. The record reflects that the state’s actions were in good faith and that immediately upon discovery of the evidence, the defendant’s counsel was notified.

Defense counsel contends that, under the circumstances presented, he was denied the opportunity to prepare a defense. It is contended that, prior to being informed of the statement, his defense was founded on the basis that the state could not prove that the defendant had “guilty knowledge” of his possession of contraband, an essential element in a charge of possession. Defense counsel, in his motion for continuance, states that, in view of the inculpatory statement, such a defense would appear “ludicrous.” He then sets forth that:

“Defense counsel therefore needs more time to adequately structure a defense.”

He argues that, faced with such a lack of time to prepare another defense, he had no alternative but to recommend a plea bargain to the defendant. Thus, it is contended that the denial of the motion for a continuance is reversible error. We disagree.

The general rules governing the disposition of a motion for continuance are set forth in State v. Durio, 371 So.2d 1158, 1161 (La.1979), where it was held as follows:

“Article 712 of the Louisiana Code of Criminal Procedure provides that:
‘[a] motion for continuance, if timely filed, may be granted, in the discretion of the court, in any case if there is good ground therefor.’
The general rule is that the denial of a continuance is not ground for reversal absent an abuse of discretion. State v. Hammontree, 363 So.2d 1364 (La.1978); State v. Lukefahr, 363 So.2d 661 (La.1978).
“This Court has generally declined to reverse convictions absent a showing of specific prejudice caused by denial of a continuance. See e. g., State v. Hopkins, 351 So.2d 474 (La.1977); State v. Kenner, 336 So.2d 824 (La.1976); State v. Smith, 322 So.2d 197 (La.1975); and State v. Brewer, 301 So.2d 630 (La.1975) in which this Court found no abuse of discretion when the trial court denied the motions for continuance when there were three months, thirty-five working days, ninety days and three weeks respectively for counsel to prepare for trial and where there was no showing of specific prejudice.”

In this case the counsel for defendant had approximately three months to prepare for trial of this case. There is no showing either in the motion for continu-anee or in brief of any specific prejudice which may have resulted from the late discovery of the inculpatory statement. There is no indication as to what defense, if any, could have been set forth if additional time had been granted. Under these circumstances we cannot conclude that the trial judge abused his discretion, nor that defendant was so prejudiced by the denial as to require a reversal of the conviction.

MOTION TO SUPPRESS

The defendant urges that the motion to suppress should have been sustained and the inculpatory statement suppressed due to the fact that defendant was under arrest at the time of the statement and no Miranda rights had been read to him. This argument is without merit.

The facts of this case show that the statement given by defendant was clearly spontaneous and voluntary and was not given as a result of interrogation or compelling influences. Such spontaneous and voluntary statements not given as a result of police interrogation or compelling influences are admissible in evidence without Miranda warnings even though defendant is in custody. State v. Robinson, 384 So.2d 332 (La. 1980).

Defendant also argues that there was no probable cause which would justify the officer’s demand that defendant unlock his locker for inspection. It is contended that the arrest is thus illegal due to the lack of probable cause, and thus, the inculpatory statement should have been suppressed. This argument is also without merit.

The defendant was an inmate in a correctional institution at the time of this search. The Fourth Amendment rights of an incarcerated person are less than ordinary citizens. In the case of State v. Patrick, 381 So.2d 501 (La.1980), this court held as follows:

“While we have recognized that prisoners are not totally bereft of Fourth Amendment rights by virtue of their incarceration, we have also declared these rights are diminished in nature and scope because of confinement for criminal conduct. We have expressly recognized and declared that an inmate’s expectations of privacy are considerably less than those of the free members of our society in general. State v. Dauzat, 364 So.2d 1000 (La.1978); See also Bell v. Wolfish, 441 U.S. 520, 99 S.CL 1861, 60 L.Ed.Zd 447 (1979), which upheld warrantless room searches and visual body cavity searches of inmates.”

See also, State v. Williams, 375 So.2d 364 (La.1979), regarding the diminished rights of a resident of a “halfway house.” This court, in that case, held that a warrantless, routine search of defendant’s locker was not unconstitutional.

Under the circumstances presented herein, the defendant, as an inmate in a correctional institute, had no reasonable expectation of privacy and the routine search of his footlocker, without probable cause or a search warrant, was not unconstitutional.

For the reasons assigned, the conviction and sentence is affirmed.

AFFIRMED.

       Judges Cecil C. Cutrer, Jimmy M. Stoker and Ned E. Doucet, Jr., of the Court of Appeal, Third Circuit, participated in this decision as Associate Justices ad hoc, joined by Chief Justice John A. Dixon, Jr., and Associate Justices Pascal F. Calogero, Jr., James L. Dennis and Jack C. Watson.


author: BLANCHE, Justice. LEMMON, J.,

text:
    STATE of Louisiana v. Ernest MOLINET.
    No. 80-KA-1955.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, W. C. Douglas Friederichsen, Asst. Dist. Attys., for plaintiff-appellee.
    M. Michele Fournet, Baton Rouge, for defendant-appellant.
   BLANCHE, Justice.

On March 7,1980, Ernest Molinet entered a guilty plea to the charge of possession with intent to distribute methaqualone, R.S. 40:967. On May 23, 1980 the district court imposed a sentence of 5 years at hard labor, suspended, and 5 years of active probation with special conditions which included a term of 1 year in parish prison. In addition, a fine of $5000 was imposed. Moli-net’s sole contention on this appeal is that the imposition of the 1 year jail term was excessive.

The jurisprudence is clear that a sentence may not be imposed just because it is within the range prescribed for the violated statute. This Court has construed the Louisiana constitutional proscription against excessive punishment as requiring a review of sentences in order to do justice in each case, regardless of any legislative assertion. State v. Sepulvado, 367 So.2d 762 (La.1979). In addition, the legislature codified sentencing guidelines in C.Cr.P. art. 894.1 to insure that sentences are individualized to fit the offender as well as the offense. State v. LaFleur, 391 So.2d 445 (La.1980); State v. Sepulvado, supra; State v. Jackson, 360 So.2d 842 (La.1978).

Code of Criminal Procedure art. 894.1 states three general conditions under which a court should impose a prison sentence, namely: undue risk that defendant will commit another crime, the defendant is in need of correctional services provided by the institution, or a lesser sentence will deprecate the seriousness of the crime. The statute lists another 11 factors which are not controlling but which shall be accorded weight in the court’s determination of suspension of sentence. See also C.Cr.P. art. 893. Most important to the effectuation of the statute is Part (C), which requires the trial judge to state for the record the (894.-1) considerations taken into account and the factual basis therefor when imposing sentence.

In State v. Jackson, supra, this Court catalogued the general types of facts that should be reviewed before a court determines that a particular sentencing consideration is applicable to a particular offender. These factors include the defendant’s personal history (age, mental status, dependents, family, stability, employment, mental, emotional and physical health), the defendant’s prior criminal history, the seriousness of the crime, the circumstances of the offense, the likelihood that the defendant will commit another crime and his potential for rehabilitation.

Defendant is a 20 year old college student with no prior record of convictions or arrests. Born in Cuba, he emigrated to the United States with his parents in 1961. He lived with his family, and numerous letters written to the trial judge in his behalf attest to his close relationship with his family, the moral fiber of his parents, and the strong support offered by them.

The defendant’s time seems to be divided between work and school. He attends UNO part time, where he has been working on a degree in Hotel Management and, apparently, has maintained a good average. Even in high school, defendant worked part time to contribute to his support. He has held various jobs, as an exterminator, deck hand offshore, an employee at Popeye’s, and a worker at the plant his father manages. Among the letters were a few from employers, who list among defendant’s good qualities “leadership”, “cooperativeness”, “thoughtfulness”, “ingenuity”, “strength”, “persistence”, “moral character”, “hardworking” and “honesty”.

The probation report, while only a guide and, admittedly not binding on the trial judge, stated:

“In view of defendant’s youth, his first offender status, his apparent good attitude, and the strong family support which is evident, we feel that he has a high potential to succeed on probation, and that conversely, a prison sentence would not serve the best interests of either the individual or society.”

The report also referred to the defendant’s candid admission to pre-sentence investigators that he has sold drugs in the past to make money. Seizing on this one fact, the trial judge’s remarks indicate that he relied solely on this admission in meting out a jail term to the defendant, for he labelled defendant a member of the “drug culture that is going on in our society”. Further, when reminded of letters submitted in defendant’s behalf by employers, acquaintances and family members, the judge remarked:

“You know, it’s amazing that you say that, because almost everybody, when it comes time for sentencing, has learned their lesson. That’s what they say, you know, just one after another. I get one statement, ‘He’s a good boy.’ ‘He’s a fine fellow.’ ‘Everybody likes him.’ ”

The foregoing remarks by the trial judge indicates an unwillingness to consider the character and attitudes of this defendant, or to particularize the sentence to him as required by the authorities previously cited. In fact, a sentence based solely upon a similar recitation was held to have been rendered without compliance with C.Cr.P. art. 894.1 in State v. Touchet, 372 So.2d 1184 (La.1979).

The trial judge’s obvious irritation at letters from friends and others describing the defendant as a good boy and his conceived notion that the defendant was a member of the “drug culture” merely from defendant’s admission evidently precluded him from weighing any evidence of defendant’s good character. The impression gained by us from his remarks is that the judge did not consider the defendant’s qualities or character and attitudes for he did not articulate their relevance in considering the sentence of imprisonment. In fact, there is no mention in the record concerning the reasons for imprisonment as provided by C.Cr.P. art. 894.1. Thus, we hold that the foregoing recitations are insufficient to constitute full compliance with C.Cr.P. art. 894.1. Absent compliance, we lack appropriate criteria by which to measure whether the sentence imposed here is excessive. The remedy for non-compliance is a vacation of the sentence and a remand to the trial court for re-sentencing. State v. Jones, 386 So.2d 85 (La.1980); State v. Gist, 369 So.2d 1339 (La.1979); State v. Cox, 369 So.2d 118 (La.1979); State v. Sepuivado, 359 So.2d 137 (La.1979). Accordingly, we vacate defendant’s sentence and remand the case to the trial court with instructions to properly follow the mandates of C.Cr.P. art. 894.1 before imposing sentence.

LEMMON, J.,

dissents, believing the sentence was not excessive on the record.


text:
    Jewel J. NEWMAN v. CITY OF BATON ROUGE et al.
    No. 80-C-2097.
    Supreme Court of Louisiana.
    Sept. 11, 1980.
   In re Jewel J. Newman, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 392 So.2d 100.

Denied.

LEMMON, J., would grant the writ.


text:
    Ralph T. THORNHILL, Individually and as Administrator of the Estate of his minor son, Allen Arthur Thornhill v. BLACK, SIVALLS & BRYSON, INC., et al.
    No. 80-C-1528.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re Allen Arthur Thornhill, applying for certiorari to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 385 So.2d 336.

Granted.


text:
    STATE of Louisiana v. William A. MINIX.
    No. 80-K-2362.
    Supreme Court of Louisiana.
    Oct. 10, 1980.
   In re William A. Minix, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Caddo. No. 115-854.

Granted. Relator is ordered released forthwith from custody and from bail. State v. Chaney, 384 So.2d 442 (La.1980).

MARCUS and WATSON, JJ., dissent.


text:
    STATE of Louisiana v. Ernest TAYLOR, Jr.
    No. 80-K-2422.
    Supreme Court of Louisiana.
    Oct. 16, 1980.
   In re Ernest Taylor, Jr. applying for writs of certiorari, or writ of review, prohibition, mandamus and a stay order. Parish of Orleans. No. 278-312.

Granted. All hearings set by trial judge continued to allow defense counsel reasonable time to file motions and prepare for hearings.


text:
    Anthony Joseph VACCARO, III v. Virginia Rose Waltz VACCARO.
    No. 80-C-2397.
    Supreme Court of Louisiana.
    Oct. 17, 1980.
   In re Virginia Rose Waltz Vaccaro, applying for remedial writs, writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 223-459.

Denied.


text:
    STATE of Louisiana v. Charles P. COOK.
    No. 80-K-2434.
    Supreme Court of Louisiana.
    Oct. 17, 1980.
   In re Charles P. Cook, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. Nos. 278-381 and 278-374.

Denied; adequate remedy in event of conviction.


text:
    STATE of Louisiana v. Leonard Monroe HENDRICKS.
    No. 80-K-2421.
    Supreme Court of Louisiana.
    Oct. 17, 1980.
   In re Leonard Monroe Hendricks, applying for writ of review, and stay order. Parish of Terrebonne. No. 94188.

Denied.


author: LEMMON, J.,

text:
    STATE of Louisiana v. Michael D. LEATHERWOOD.
    No. 80-K-2396.
    Supreme Court of Louisiana.
    Oct. 17, 1980.
   In re Michael D. Leatherwood, applying for supervisory writs and stay order. Parish of Beauregard. Nos. CR-633, 634, 635, 636.

Denied.

LEMMON, J.,

concurs in the light of the trial court’s statement that he would reconsider the motion after the hearing on the motion to suppress.


text:
    STATE of Louisiana v. Alton ISAAC.
    No. 80-K-1626.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Alton Isaac, applying for writ of certiorari or review. Parish of Orleans. No. 276-047.

Denied. See, State v. Brown, 389 So.2d 48 (La.1980).


text:
    STATE of Louisiana v. Marion SHILOH.
    No. 80 K 1703.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re State of Louisiana, through District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition and mandamus to the Criminal District Court. Parish of Orleans. COA No. 275,553.

Granted. Ruling vacated. Remanded for further proceedings in light of State v. Brown, 389 So.2d 48 (La.1980).


text:
    STATE of Louisiana v. Robert THRIFT.
    No. 80-K-2297.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   Iii re Robert Thrift, applying for writs of certiorari. Parish of Orleans. No. 276-596.

Granted and consolidated with 80-K— 1506, State v. Mena, 390 So.2d 899 (La. 1980).


text:
    STATE of Louisiana v. Levie ALMORE and Shirley Crawford.
    No. 80-K-1628.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 276-603.

Granted. Ruling of trial judge vacated. Remanded in light of State v. Brown, 389 So.2d 48 (La.1980).


text:
    STATE of Louisiana v. Thomas SPAULDING.
    No. 80-K-1988.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 277-405.

Writ granted. Judgment granting motion to quash is vacated. Remanded in light of State v. Brown, 389 So.2d 48 (La. 1980).


text:
    STATE of Louisiana v. Ralph W. CARTER.
    No. 80-K-2088.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans. No. 277-817.

Writ granted. Judgment granting motion to quash is vacated. Remanded in light of State v. Brown, 389 So.2d 48 (La.1980).


text:
    Ruth D. ALBRITTON v. J. C. PENNEY CO., INC., Liberty Mutual Insurance Company, and Louisiana Investors of Delaware, Inc.
    No. 80-C-1890.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re J. C. Penney Co., and Liberty Mutual Insurance Company, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. 385 So.2d 549. Parish of Rapides.

Writ denied.


text:
    Freida Bordelon MARTINEZ v. POSNER, MARTINEZ, PADGETT et al.
    No. 80-C-1864.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Freida Bordelon Martinez, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of St. Landry. 385 So.2d 525.

Writ denied.

WATSON, J., recused.


text:
    Darrow PERKINS v. AMERICAN MACHINE & FOUNDARY COMPANY.
    No. 80-C-1825.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Darrow Perkins, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 385 So.2d 492.

Denied.


text:
    Jeffrey J. ROWDON v. Brenda Gail Braddy ROWDON.
    No. 80-C-1804.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Jeffrey J. Rowdon, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. No. 13318.

Denied. Not final.


text:
    Dolores Faciane, wife of/and Joseph C. DEBATTISTA v. ARGONAUT-SOUTHWEST INSURANCE CO. et al.
    No. 80-C-1772.
    Supreme Court of Louisiana.
    Oct. 20, 1980.
   In re Dolores Faciana, wife of/and Joseph C. Debattista, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. 385 So.2d 518. Parish of Orleans.

Granted.


text:
    STATE of Louisiana ex rel. Jessie GRACE, Jr. v. STATE of Louisiana.
    No. 80-KH-1580.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Jessie Grace, Jr., applying for remedial writ. Parish of Orleans. No. 273-201.

Writ denied.


text:
    STATE of Louisiana ex rel. Lionel DeBOUSE v. STATE of Louisiana.
    No. 80-KH-1661.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Lionel DeBouse, applying for remedial writ. Parish of Orleans. No. 275-458.

Denied.


text:
    STATE of Louisiana ex rel. James BOLTON, Jr. v. STATE of Louisiana.
    No. 80-KH-1693.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re James Bolton, Jr., applying for remedial writ. Parish of Orleans. No. 276-984.

Denied.


text:
    STATE of Louisiana ex rel. Wilfert VICTOR, Jr. v. STATE of Louisiana.
    No. 80-KH-1719.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Wilfert Victor, Jr., applying for remedial writ. Parish of Acadia. No. 31285.

Denied.


text:
    STATE of Louisiana ex rel. Terry J. FLUGENCE v. DEPARTMENT of CORRECTIONS.
    No. 80-KH-1768.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Terry J. Flugence, applying for remedial writ. Parish of Lafayette.

Denied. Relator must first file with the District Court.


text:
    STATE of Louisiana v. Frank WILSON.
    No. 80-K-1928.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Frank Wilson, applying for writs of certiorari, review and stay order. Parish of East Baton Rouge. No. 4-79-625.

Denied.


text:
    STATE of Louisiana v. Malcolm N. BLOUNT.
    No. 80-K-1949.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Malcolm N. Blount, applying for writs of certiorari, prohibition, mandamus and stay order. City Court of Denham Springs. Parish of Livingston. No. 35158.

Denied.


text:
    STATE of Louisiana v. Patricia CATALANI.
    No. 80-K-1951.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 276-903.

Denied.

DIXON, C. J„ and MARCUS and LEM-MON, JJ., would grant the writ.


text:
    Mrs. Ella O. B. LOTT v. Murphy WILLIAMS, Arkla Industries, Inc., and Entex, Inc. ENTEX INC. v. Ella LOTT.
    No. 80-C-1993.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Mrs. Ella 0. B. Lott, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Washington. Nos. 13247 and 13248.

Denied.


text:
    STATE of Louisiana ex rel. Glen WILLIAMS v. Judge Frank J. SHEA, Criminal District Court, Parish of Orleans.
    No. 80-KH-1998.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Glen Williams, applying for writ of mandamus. Parish of Orleans. No. 243-653.

Denied. Moot.


text:
    FONTENOT AND MITCHELL v. ROZAS, MANUEL, FONTENOT AND McGEE.
    No. 80-C-2019.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Fontenot and Mitchell, applying for remedial writs. Parish of Evangeline. No. 7996.

Denied.


text:
    STATE of Louisiana v. Chester A. WILLIAMS, M. D.
    No. 80-K-2022.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Chester A. Williams, applying for writs of certiorari, prohibition and mandamus. Parish of Concordia. No. 80-0552.

Denied.


text:
    CITY OF BATON ROUGE v. Paul N. LAMBERT.
    No. 80-K-2027.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Paul N. Lambert, applying for writs of certiorari. Parish of East Baton Rouge. No. 72143.

Denied.

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


text:
    Patrick D. GRANIER v. NEW HOTEL MONTELEONE, INC.
    No. 80-C-2029.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re New Hotel Monteleone, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 11160.

Denied.


text:
    STATE of Louisiana v. Herbert GALLO.
    No. 80-K-2034.
    Supreme Court of Louisiana.
    Oct. 24, 1980.
   In re Herbert Gallo, applying for writs of certiorari and prohibition. Parish of Orleans. No. 276-063.

Denied.