author: STOKER, Justice Ad Hoc.

text:
    CITY OF MONROE v. Kenneth Ray WYRICK.
    No. 80-KA-1737.
    Supreme Court of Louisiana.
    Jan. 26, 1981.

      C. Daniel Street, Kostelka, Swearingen & Street, Monroe, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William Armstrong, City Prosecutor, for plaintiff-respondent.
   STOKER, Justice Ad Hoc.

Defendant, Kenneth Ray Wyrick, was charged by affidavit on April 14,1980, with simple battery, a violation of § 10-6 of the City of Monroe Code (Ordinance 3263). On April 23, 1980, defendant was arraigned, waived his right to an attorney and entered a plea of guilty in the City Court of the City of Monroe. On April 25,1980, defendant was sentenced to six months in jail. Defendant appealed to the Fourth Judicial District Court for the Parish of Ouachita. The District Court affirmed defendant’s conviction and sentence in a written ruling on July 22, 1980. Defendant now appeals to this Court on the basis of three assignments of error.

According to the police report filed in the record, the defendant, a thirty-two year old male, committed a battery upon Lisa Jacobs, an eighteen year old female, in the Flamingo Lounge, in Monroe, Louisiana. Defendant was convicted after pleading guilty in the City Court and sentenced to six months in jail. Defendant appealed his conviction to the district court urging two assignments of error, namely, that the trial (city court) judge did not comply with the sentencing guidelines of LSA-C.Cr.P. art. 894.1 and that the sentence imposed was excessive. In oral argument before the district court the defendant raised an additional argument that he had not knowingly and intelligently waived his right to counsel. The district court rejected defendant’s arguments and affirmed defendant’s conviction and sentence. The defendant now urges this court to reverse that holding.

We find reversible error in the trial court’s procedure concerning the giving of advice as to right to counsel and the acceptance of waiver of counsel based on that procedure. We reverse and remand the case for a new trial.

In the last above mentioned assignment the defendant asserts that the trial court committed error when it failed to advise him adequately in regard to his right to counsel.

At the time of defendant’s arraignment, before he was called upon to plead, the trial judge offered the following instruction to all present in the courtroom:

“Everyone knows these days, but I’ll just mention it again, that you have the right to be represented by an attorney. If you’re too poor to hire a lawyer, you may be entitled to the Court appointment of one. If you want me to consider the appointment of a lawyer in your case, let me know of your desire here today. If you remain silent about the attorney, I’ll assume that you’ve made your own arrangements or that you don’t care to be represented by one. This is what it all pretty much summarizes down to.”

Thereafter the defendant’s name was called and the following colloquy took place between the trial judge and the defendant:

“Mrs. Hendrix: Kenneth Wyrick
BY THE COURT: You’re charged with committing a battery on Lisa Jacobs. How do you plead.
Mr. Wyrick: Guilty.
BY THE COURT: Do you enter a plea of guilty understanding your right to be represented by an attorney?
Mr. Wyrick: Yes sir.”

No further questioning occurred; there was no additional attempt to ascertain whether defendant understood or appreciated the consequences of his action.

On appeal, the district court judge in his decision placed emphasis upon his personal knowledge that the defendant was a recidivist who had been before the court several times and who was therefore aware of the import of his trial proceedings. The judge reasoned that the defendant’s lengthy record was further evidence that he understood the consequences of his actions at trial. Additionally, the judge indicated that he was personally aware that defendant could afford retained counsel.

In a criminal prosecution in this State an accused is entitled to representation by counsel chosen by the accused. If the offense with which the accused is charged is one punishable by imprisonment and the accused is an indigent, he has a right to court appointed counsel. LSA-C. Cr.P. art. 513 provides as follows:

“In the case of an offense punishable by imprisonment, when the defendant appears for arraignment without counsel, the court shall inform him before he pleads to the indictment of his right to have counsel appointed to defend him if he is indigent. When a defendant states under oath that he desires counsel but is indigent, and the court find the statement of indigency to be true, the court shall provide for counsel in accordance with the provisions of R.S. 15:145 to the defendant before he pleads to the indictment.”

Constitutional guarantees are afforded before an accused may actually be sentenced to a term of imprisonment. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979). LSA-Const. of 1974, Art. 1, § 13; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); State v. Adams, 369 So.2d 1327 (La.1979) and State v. Goody, 275 So.2d 773 (La.1973). Accordingly, in the absence of a knowing and intelligent waiver of one’s right to assistance of counsel, no person may be imprisoned for any offense unless he was represented by counsel. In the case before us the defendant was entitled to counsel because the offense with which he was charged carried imprisonment as a possible sentence. He was in fact sentenced to serve the maximum prison term of six months.

In State v. Bell, 381 So.2d 393 (La.1980) this Court vacated the defendant’s conviction because the record failed to reveal that the defendant’s decision to waive counsel was knowing and intelligent. The defendant there gave no indication that he understood the consequences of his action. This Court determined, as earlier established in State v. Hegwood, 345 So.2d 1179 (La.1977), that before a trial judge can allow a defendant to defend himself he must personally determine that defendant’s waiver of the right and privilege of having appointed counsel to represent him is an unequivocal and clear assertion of his right to represent himself. This Court’s decision in Bell, supra, followed the rationale of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) in which the United States Supreme Court declared that the trial court should inform the defendant of the disadvantages and dangers that could result from self-representation. Recently in State v. LaFleur, 391 So.2d 445 (La.1980) this Court reversed a defendant’s conviction where the record lacked any indication that the trial judge made an assessment of the factors listed in Faretta. Further, this Court in LeBlanc v. Watson, 378 So.2d 427 (La.1979) noted that the city court in Monroe continued to follow the procedure of collectively advising defendants of their rights to counsel despite earlier disapproval of that procedure in State v. Carlisle, 315 So.2d 675 (La.1975). In Carlisle and Le-Blanc, this Court concluded that the trial judge’s en masse procedure could serve as a general introduction for defendant but was not sufficient to assure that the accused in fact received instruction as to his rights, understood them and intelligently and knowingly waived his right to counsel.

In the instant case, after reading the transcript of April 23, 1980, it is apparent that under the standard announced in Far-etta and accepted by this Court, the trial judge failed to adduce enough information in the record to form a basis for his conclusion that defendant’s was a knowing and intelligent waiver of counsel. Although the trial judge and the district judge may have had personal knowledge of the defendant which compelled their belief that defendant knew and understood the consequences of his action, this personal knowledge does not satisfy the Faretta requirement that there be a basis in the record for the conclusion that the defendant knowingly and intelligently waived his right to counsel. Absent that reviewable basis, it is impossible to ascertain the voluntariness or intelligence of this defendant’s waiver of counsel.

From reading the transcript of the record in the instant case, it is apparent that under Faretta standards adopted by this court, the trial judge failed to adduce sufficient information in the record to form a basis for his conclusion that defendant made a knowing and intelligent waiver of counsel. In Carlisle and LeBlanc the trial judges concluded that the defendants in those cases knowingly and intelligently waived their rights to counsel by not voicing a request for counsel as instructed to do in the en masse address in the event the individuals desired appointed counsel. This court held in Carlisle that a mere failure to request appointment of counsel did not suffice to make the affirmative showing- of waiver which is required. In LeBlanc this Court stressed the necessity for an express waiver to be reflected in the record. Evidently, the trial judge in this case sought to avoid the error found in Carlisle and Le-Blanc by propounding to defendant, when he entered his plea, the question: Do you enter a plea of guilty understanding your right to be represented by an attorney?

We hold that asking such a question at the time of reception of a plea and receiving an affirmative answer does not avoid the error we disapproved of in Carlisle and LeBlanc. Such a procedure does not indicate in the record either (1) that a defendant knows what his rights to an attorney actually are, or (2) that the defendant knowingly and intelligently waived counsel. Such a procedure does not conform to the Faretta standards and requirements.

In the district court’s written ruling on the appeal in this case from the Monroe City Court the district judge noted the holding of this court in State v. Goody, supra. The district court also discussed this court’s holding in Carlisle and LeBlanc. In the written ruling the district judge found certain circumstances which he held made it unnecessary to test the case on the basis of Carlisle and LeBlanc. These circumstances were that the defendant, Kenneth Ray Wyrick, was known by the judge from previous appearances before him on battery and non-support charges, and the record revealed other battery convictions in other courts. The district judge reasoned that the defendant was “a recidivist, thoroughly familiar with court procedures and his rights.” Under these circumstances the district judge in the appeal took the not unreasonable position that he was entitled to assume appellant did understand his right to counsel and did knowingly and intelligently waive the right to counsel.

The district judge as the judge in the appeal concluded as follows:

“Here, the individual comment by the trial judge to appellant about his ‘right to be represented by an attorney’ clearly referred to the general, clear and inclusive instruction given collectively to all persons assembled for arraignment; and defendant’s affirmative response clearly implied his understanding and his waiver of those rights. This Court cannot agree with appellant that in these circumstances, talking to a recidivist who had been in court many times, the judge must under penalty of reversal make additional specific remarks about the rights of indigents to free counsel, particularly when the record reveals appellant was not indigent.”

We conclude that the district court committed error in making the assumption it did. With due respect to the position of the district judge sitting as an appellate court in this case, that position does not accord with the pronouncements in the jurisprudence developed with respect to the necessity of court instructions relative to the right to counsel and waiver of those rights. Repeatedly it has been emphasized that in such cases as this the record (the minutes of the court, for example) must affirmatively show the giving of proper instructions, offer of counsel if warranted and a knowing and intelligent waiver. Assumptions such as were made by the trial judge in this case do not appear in the record.

A further question we consider' is whether the district judge’s recitation into the record (in this case in his written ruling) of his knowledge of the accused’s familiarity with his right to counsel dispenses with the necessity of individually advising him of his rights or of inquiring into the matter of whether the waiver is knowingly and intelligently made. That question, to rephrase it, is whether the personal knowledge of a judge before whom an accused appears (or a judge sitting as an appellate court as here) stated into the record may be substituted for the requirements of instruction as to right to counsel and a proper waiver of this right. We recognize the heavy burden imposed on trial courts with respect to explaining the right to counsel and determining when a waiver may be accepted. Nevertheless, previous developments and interpretations of law concerning these duties of criminal trial courts leave no room for less than literal compliance. They do not permit substitution of the knowledge of a court of the past history of an accused which would indicate that he had been previously instructed as to his rights and should therefore be familiar with them.

Inasmuch as we find reversible error on the basis of the assignment of error discussed above we pretermit discussion of the two other assignments of error.

For the foregoing reasons assigned, we hold that the defendant’s conviction and sentence must be reversed, and the case should be remanded to the trial court for further action consistent with the views expressed in 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.

      . In State v. LaFleur, supra, the following pronouncement was made:
      “There should be some indication that the trial judge tried to assess the defendant’s literacy, competency, understanding and volition before he accepted the waiver of counsel. State v. Bell, 381 So.2d 393 (La.1980).”

      . The transcribed colloquy between the trial judge and Kenneth Ray Wyrick does not show that Wyrick had heard the advice given en masse by the trial judge. The record does not otherwise establish that Wyrick heard the advice being given. All the trial judge asked was “Do you enter a plea of guilty understanding your right to be represented by an attorney?” Wyrick answered “Yes, sir."
      Under the circumstances the record does not establish what it was that Wyrick said he understood. If a collective or en masse instruction as to rights is given, it may be that certain persons accused and later called to plead either did not hear what was said, were not present at the time or did not actually understand the advice given. The trial court has the duty, not only of advising as to rights of counsel, but also of ascertaining whether or not the accused knowingly and intelligently waives his right to counsel. See State v. LaFleur, supra. In a sense the trial judge passed both responsibilities on to Wyrick. The trial judge left it up to the defendant Wyrick to state whether or not he understood his rights. The trial judge assumed that the “rights” referred to were those rights he had explained to a group collectively at the beginning of the session of court. In the end therefore, the record does not show either that Wyrick’s rights to counsel were explained to him or that he understood them and therefore knowingly and intelligently waived them.

      . The district judge also reasoned: “He obviously was not indigent when arraigned, since 9 days later (7 days after sentence) his retained attorney filed motion for appeal and bail.” (Emphasis supplied) The bail bond (a $500 appearance bond) in the form of a purchased corporate surety bond was posted immediately upon the granting of the appeal and the fixing of the bond. Ability to make bail does not alone disqualify an accused for appointment of counsel. LSA-R.S. 15:147A(b).

      . Articles 513 and 514 of the Louisiana Code of Criminal Procedure provide in pertinent part as follows:
      Art. 513. Assignment of counsel in other cases
      In the case of an offense punishable by imprisonment, when the defendant appears for arraignment without counsel, the court shall inform him before he pleads to the indictment of his right to have counsel appointed to defend him if he is indigent.

      Art. 514. Minute entry regarding counsel The minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of the defendant’s right to court-appointed counsel.


source: Caselaw Access Project

author: NED E. DOUCET, Justice ad hoc.

license: Public Domain

text:
    STATE of Louisiana v. Lloyd SAUNDERS.
    No. 80-KA-1476.
    Supreme Court of Louisiana.
    Feb. 4, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Lynn Davis, Dist. Atty., Abbott J. Reeves, Herman L. Lawson, Asst. Dist. Attys., for plaintiff-appellee.
    Richard Ware, Ronald J. Kilgarlin, Ware & Kilgarlin, Natchitoches, for defendant-appellant.
   NED E. DOUCET, Justice ad hoc.

On November 6, 1979, the defendant, Lloyd Saunders, was arrested for altering a prescription for Percodan to read “70” instead of “10” in violation of R.S. 40:971(B)(l)(f). He was indicted by a grand jury for this offense on February 6, 1980 and defendant plead guilty on April 2,1980. A sentencing hearing was held on May 28, 1980, allowing a pre-sentence investigation. The defendant, who was found to be a third felony offender, was sentenced to four (4) years imprisonment at hard labor and, in addition, to pay a fine of $3,500 together with court costs, or in default of payment, to serve one additional year of imprisonment.

Defendant does not enumerate assignments of error but argues errors which relate to the excessive sentence rendered by the District Court.

The defendant argues that the trial court’s imposition of what amounts to a five (5)years sentence for this victimless crime, is clearly excessive despite the fact that it complies with the statutory maximum of five (5) years, with or without hard labor, as authorized by La.R.S. 40:971. It is well established that the sentencing judge does not possess unbridled discretion to impose a sentence within statutory limits, regardless of mitigating facts. State v. Sepulvado, 367 So.2d 762 (La.1979).

The record in this case reveals that the trial court gave great weight to the defendant’s prior record which showed two (2)prior felony convictions for passing worthless checks. The court concluded that these two prior felonies rendered the defendant ineligible for probation, therefore the Court gave no further consideration to the grounds listed in La.C.Cr.P. Art. 894.-1(B).

A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation;
(1) The defendant’s criminal conduct neither caused nor threatened serious harm;
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
(3) The defendant acted under strong provocation;
(4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
C. THE COURT SHALL STATE FOR THE RECORD THE CONSIDERATIONS TAKEN INTO ACCOUNT AND THE FACTUAL BASIS THEREFOR IN IMPOSING SENTENCE.
[Emphasis added.]

However, the criteria of Art. 894.1 provide the appropriate guidelines by which to measure not only whether a sentence is excessive, because it specified confinement rather than the less onerous sentencing alternatives, but additionally, whether a sentence is excessive by reason of its length. State v. Sepulvado, supra.

The defendant argues that the sentence which was actually imposed clearly demonstrates that the trial court gave no consideration to the defendant’s circumstances as outlined in the pre-sentence investigation report and as testified to by the defendant at the sentencing hearing. The pre-sen-tence report reveals that the defendant is presently thirty years old, married, with three children. He is employed by the Merchant Marines earning approximately $1600 per month.

The defendant’s involvement with narcotic drugs began in 1976 when he broke his back while working on a tugboat. Pursuant to the surgical removal of two discs from his back he became addicted to the pain-killer “Demerol” which had been prescribed by the treating physicians. He eventually “kicked” this habit and returned to work, only to be injured again on a ship, in 1979, when his little finger was caught in a line and ripped off. The physician treating the defendant consistently prescribed the pain-killer “Percodan” and the defendant again became drug-dependent. On November 2, 1979 the defendant underwent surgery for the third time on his hand. He had developed gangrene in the bone so it had to be amputated. The treating physician again prescribed Percodan and on November 4, 1979 the defendant altered that prescription to read “70” pills instead of only “10”.

As the Court pointed out in State v. Jackson, 360 So.2d 842, 843 (La.1978), the Codal sentencing article [C.Cr.P. Art. 894.-1(B)] “establishes procedures designed to adapt the sentence to the offender as well as the offense”.

When the factors listed in Article 894.-1(B) are applied to the circumstances of the present case, it appears that most of those mitigating factors are applicable.

Because the defendant neither stole the pills nor intended them for re-sale: (1) the defendant’s criminal conduct neither caused not threatened serious harm; and (2) the defendant did not contemplate that his criminal conduct would cause or threaten serious harm. Due to the extreme pain suffered by the defendant; (3) the defendant acted under strong provocation; and (4) there was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense. (5) There was no “victim”; (6) So, no “compensation” is possible; (7) Only the defendant’s “prior criminal activity” appears to have been considered by the trial court; (8) Although this defendant quite obviously has an addictive personality, short of another serious physical injury, this criminal conduct appears unlikely to recur; (9) The defendant’s strong motivation to kick his addiction is demonstrated by his own independent efforts to seek professional drug-counseling help; (10) Defendant’s strong desire to enter a drug rehabilitation program, as evidenced by the record, indicates that he is particularly likely to respond affirmatively to such a probationary condition; (11) In view of the fact that the defendant is the sole support of his wife and three children, it appears that imprisonment would entail hardship to his family and place an unnecessary additional burden upon the state’s prison and welfare systems.

It appears that the trial court’s failure to consider any of these factors arose from the judge’s reasoning that since the defendant was a multiple offender, probation was pre-eluded, and that, therefore, Art. 894.1(B) was inapplicable. As noted earlier, State v. Sepulvado, supra, held that these factors were also the criterion for determining the appropriate length of the sentence, therefore, they should have been considered by the trial court and the defendant argues that the failure to take these considerations into account constitutes inadequate compliance with Article 894.1 and this Court may therefore remand for resentencing. State v. Cox, 369 So.2d 118 (La.1979).

The defendant, however, principally argues that under La.C.Cr.P. Art. 893 he was eligible for probation. That article reads in pertinent part: When “the best interests of the public and of the defendant will be served, the Court, after conviction of a felony... which is a violation of the controlled dangerous substances law of Louisiana... may suspend the execution of imposition of the sentence of a multiple offender and place the defendant on probation if he intends to participate in the program authorized by the Federal Narcotics Rehabilitation Act or other federal or state rehabilitation programs.... ”

The trial court refused to apply Article 893 in the present case, apparently because the judge did not believe that the defendant qualified “as a narcotic addict”. The judge indicated that because the defendant had successfully kicked the habit in the past without the aid of any drug rehabilitation program, that he did not qualify for the special probationary treatment provided by Article 893. This reasoning overlooks the fact that the defendant’s past efforts to kick his habit, although temporarily successful, were short-lived. Perhaps a professional program is exactly what is required to ensure that the defendant’s drug addiction will be permanently cured. It appears from the record and the pre-sen-tence report that this defendant is an excellent candidate for the special probationary treatment afforded by Article 893.

Furthermore, Article 893 specifically leaves to the drug rehabilitation programs the decision whether to accept or reject any particular candidate:

“.... if for any reason the defendant is rejected by said program he shall be returned to the custody of the court which imposed the sentence and the sentencing judge shall order the sentence be executed.”

La.C.Cr.P. Art. 893. The trial court’s ruling that the defendant was not a narcotic addict and was therefore not qualified for the program, appears to be an abuse of discretion as well as being unfounded.

As State v. Spencer, 374 So.2d 1195 (La.1979) notes, if the trial court has stated the factual basis and individual considerations on which the sentence is based, then review will focus upon whether the trial court’s large discretion has been abused.

Defendant complains that his sentence is excessive, under the facts. This Court has the constitutional duty to review sentencing. We are unable to make a determination, in this case, because the trial judge failed to adequately articulate the factual basis for his sentencing decisions as required by La.C.Cr.P. Art. 894.1.

We therefore remand for further articulation of the determination of sentence.

Accordingly, the sentence is vacated and set aside and the case is remanded to the district court for resentencing.

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.


author: PONDER, Judge.

text:
    Alan Dale STEADMAN v. Marie M. STEADMAN.
    No. 12929.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 7, 1980.

      Janice G. Clark, Baton Rouge, of counsel for plaintiff-appellee Alan Dale Steadman.
    Boris F. Navratil, Baton Rouge, of counsel for defendant-appellant Marie M. Stead-man.
    A. J. Lord, Zachary, of counsel for inter-venors-appellees Dero Denver Steadman and Evie Knight Steadman.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Defendant appealed from an award of temporary custody of two minor children to the paternal grandparents.

The issue is the propriety of that award.

We affirm.

Plaintiff sued his wife for divorce; she filed a reconventional demand. The trial court granted the divorce to the defendant but awarded temporary custody of two small children to plaintiffs parents.

While it is true that a parent has paramount right to the custody of his or her children, Tolar v. Cunningham, 368 So.2d 1188 (3rd Cir. 1979), the most essential consideration in a custody suit is to provide for the best interest of the children. Monsour v. Monsour, 347 So.2d 203 (La.1977).

Even if we be inclined to decide differently, we cannot say the trial court erred. The mother, after a history of some instability, most likely resulting from the relationship with her husband, was at the time of the hearing trying to become self-reliant. She had recently started a job but as yet had no transportation. She had rented an apartment and was no longer living in a boarding house.

The judge decided that it was in the best interest of the children to reside for the time being with their grandparents and stated that the mother could petition for another change when her stability became proved. As a matter of fact we are informed that a rule for change has been filed and tried and that the trial court has the matter under advisement.

The judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: CHIASSON, Judge.

text:
    Marie M. STEADMAN v. Dero D. STEADMAN and Evie K. Steadman.
    No. 13927.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      Boris F. Navratil, Baton Rouge, for plaintiff-relator.
    Albert J. Lord, Baton Rouge, for defendant-respondent.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

On August 18, 1980, this Court issued “Alternate Writs of Mandamus, Certiorari and Prohibition,” directing the trial court to maintain the applicant’s declinatory exception of insufficiency of service of process or in the alternative the trial judge and/or respondents show cause why the writ should not be made peremptory. The alternative has been selected by the respondents.

This writ application arises from a custody determination between the respondents, grandparents, and the relator, Marie Stead-man, over two minor children of the marriage between the relator and the respondents’ son. A judgment awarding custody of the children to Marie Steadman was rendered on March 24, 1980. The judgment also awarded visitation rights to the grandparents who had the previous custody of the children following a consensual agreement between their son and Marie.

Two weeks after the judgment, respondents, joined by their son, Alan Steadman, filed a motion for contempt, visitation rights, and change of custody in the same numbered suit. These pleadings were served upon the attorney, Boris Navratil, who represented Marie Steadman in the previous hearing. Mr. Navratil filed the exception which was denied by the trial judge.

Even though the issue of jurisdiction is not before us, we are compelled to determine if jurisdiction exists under the rationale of Imperial v. Hardy, 302 So.2d 5 (La.1974).

“Sufficiency of the service of process on the husband’s counsel of record depends on whether the court has jurisdiction over the person of the husband. * * * ”

Respondents contend there is jurisdiction in this case under the concept of continuing jurisdiction. Imperial, supra. We find that this case is for custody of children and falls within the holding of Odom v. Odom, 345 So.2d 1154 (La.1977). Odom, supra, did not extend the concept of continuing jurisdiction to change of custody case, unless there are sufficient compelling reasons. We deem that the reasons advanced by counsel for the respondents not to be compelling. Since the children and the custodial parent are not present in this state (or in this country), and the grandparents or their son have not been ordered to pay child support, we find no compelling interest for the trial court to continue to exercise jurisdiction.

Since there is no continuing jurisdiction, service of process on Marie Steadman’s counsel of record is of no legal significance. Such service of process would have been sufficient if the concept of continuing jurisdiction would have applied. Imperial, supra.

For these reasons, the writ is made peremptory. All costs are to be borne by the respondents in rule.

WRIT MADE PEREMPTORY.


author: COVINGTON, Judge.

text:
    Ross E. COX v. Claude KIRKPATRICK, et al.
    No. 14005.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 1980.
    Rehearing Denied Jan. 26, 1981.
    Thomas K. Kirkpatrick, Baton Rouge, for appellant.
    Bert K. Robinson, Baton Rouge, for ap-pellees.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   ON MOTION TO DISMISS THE APPEAL

COVINGTON, Judge.

Appellee, Ross E. Cox, has moved to dismiss this unlodged appeal on the grounds that no timely appeal bond was filed by the defendants-appellants, Claude Kirkpatrick, Wayne D. Swenson and Southern Colonial Investment, Inc., and that the purported judgment of July 22, 1980, from which the appeal was taken, should be stricken because the trial judge had previously signed the judgment in the suit on March 25,1980.

The original suit herein (No. 167, 107 on the docket of the Nineteenth Judicial District Court) was to recover an amount for paving work performed by the plaintiff on properties owned by the defendants in the Interstate Shopping Center in East Baton Rouge Parish, Louisiana. The trial judge rendered judgment on December 3, 1979, which was filed in the record the next day, and he signed the judgment on March 25, 1980, in favor of the plaintiff and against the defendants solidarily in the amount of $12,666.64 with interest. No motion for new trial was made. On April 29,1980, the defendants petitioned for a suspensive and/or devolutive appeal, with the order signed by the trial court on the same date. The appeal bond, signed by Claude Kirkpatrick as principal and Wayne D. Swenson as surety, was also filed April 29.

Subsequently, for reasons not reflected in the record, Judge Maraist signed another judgment in the paving work suit which was identical to the March 25, 1980 judgment. This second judgment was signed on July 22, 1980, the same date that the judgment denying the motion for new trial in the lease rental suit was signed (No. 169, 896 on the docket of the Nineteenth Judicial District Court).

Then, all defendants appealed the July 22, 1980, judgment denying the new trial in the lease rental suit and the July 22, 1980 judgment in the instant suit. Attached to the petition for appeal was an appeal bond dated August 7,1980, and signed by Claude Kirkpatrick, as principal, and Wayne D. Swenson, as surety, on behalf of all appellants. The bond was stamped as filed on August 12, 1980.

In the instant case, the thirty day delay allowed defendants-appellants to perfect their appeal commenced on March 26, 1980. The delays for perfecting a suspen-sive appeal expired on April 24, 1980. The order was not signed until April 29, 1980, and the appeal bond was filed on the same date. For the reasons assigned in “Ross E. Cox versus Southern Colonial Investment, Inc., et al.”, Number 13,997 on the docket of this Court handed down this date, we must dismiss the suspensive appeal of the appellants. See Willie v. Otasco, 347 So.2d 1215 (La.App. 1 Cir. 1977).

We grant the appellee’s motion to strike the July 22,1980, judgment from the records as null and void. The attempted appeal taken therefrom on August 6, 1980, is not a valid appeal and vests no jurisdiction in this Court. The law does not contemplate that the trial judge will sign (or render) two identical judgments on different dates in the same lawsuit. The judge, having rendered and signed one final judgment, had no authority to sign another one. LSA-C.C.P. Art. 1951. The March judgment had become definitive and the trial court could make no substantive change by the signing of “another” judgment in July, LSA-C.C.P. Art. 1842; LSA-C.C. Art. 3556(31).

For the reasons assigned, the motion to dismiss is granted insofar as it seeks dismissal of the suspensive appeal; however, we retain jurisdiction to review this matter as a devolutive appeal.

MOTION TO DISMISS SUSPENSIVE APPEAL GRANTED; DEVOLUTIVE APPEAL MAINTAINED

CHIASSON, J., concurs in result.

      . Joseph N. Traigle, Collector of Revenue, State of Louisiana versus Gulf Coast Aluminum Corporation, et a/., 391 So.2d 1290, on the docket of this Court, holds that it is the responsibility of the appellant to obtain a timely order of appeal; it is not the mere filing of an unsigned order of appeal with a deputy clerk that “perfects” the appeal.


author: WATKINS, Judge.

text:
    George PETERS, Husband of and Doris Peters and George Peters Enterprises v. LIFE GENERAL SECURITY INSURANCE COMPANY.
    No. 13977.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 10, 1980.
    Keith M. Whipple, Houma, for plaintiffs and appellees.
    G. Allen Walsh, Baton Rouge, William C. Shockey, McCollister, McCleary, Fazio, Mix-on, Holliday & Hicks, Baton Rouge, for defendant and appellant.
    Before ELLIS, COLE and WATKINS, JJ.
   ON MOTION TO DISMISS

WATKINS, Judge.

This is an appeal taken suspensively by Life General Security Insurance Company from a judgment in favor of plaintiffs. A motion for a new trial was heard and denied on July 7, 1980. Defendant filed no request for notice of judgment of the action taken on motion for new trial. Indeed, counsel for defendant was present when the court verbally denied a new trial.

Defendant did not file a suspensive appeal bond until August 29, 1980, more than thirty days after July 7, 1980. Plaintiffs-appellees filed a motion to dismiss the appeal on the ground the appeal bond had not been timely filed. An appeal bond must be' filed for a suspensive appeal, and that bond must be filed within thirty days of the denial of a new trial, if a new trial is moved for and the party appealing does not file a written request for notice of the action taken with respect to the motion for a new trial. LSA-C.C.P. arts. 1914, 2123, 2124.

This court denied a motion for a stay order filed by defendant to stay a garnishment proceeding brought against the Hibernia National Bank as garnishee and debtor of defendant in Civil District Court, Orleans Parish, for the reason that this court was without jurisdiction. The defendant then obtained a stay order from the Court of Appeal, Fourth Circuit, State of Louisiana.

The return day for the present appeal was September 2, 1980. The record was lodged September 3, 1980, and the motion to dismiss was filed October 14, 1980. Counsel for appellees (plaintiffs) concedes in his brief on motion to dismiss that appel-lees did not file a motion to dismiss within the three day delay duly provided under LSA-C.C.P. art. 2161, as is clearly the case as the motion to dismiss was not filed within 3 days of the return day or the date on which the appeal was lodged. Article 2161 reads as follows:

“An appeal shall not be dismissed because the trial record is missing, incomplete or in error no matter who is responsible, and the court may remand the case either for retrial or for correction of the record. An appeal shall not be dismissed because of any other irregularity, error or defect unless it is imputable to the appellant. Except as provided in Article 2162, a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.”

The appellees’ brief on motion to dismiss contends that failure to file an appeal bond timely on a suspensive appeal denies the Court of Appeal jurisdiction over all matters pertaining to the appeal as taken sus-pensively. The argument that a Court of Appeal was without jurisdiction to permit a suspensive appeal to stand (on the ground that an appeal bond in the required amount had not been timely filed) where appellee had failed to file a motion to dismiss the appeal within the required time was considered, and specifically rejected in Gautreau v. Modern Finance Co., 358 So.2d 980 (La.App. 1st Cir. 1978), writs refused 359 So.2d 630, 359 So.2d 994 (1978), which apparently held the Court of Appeal had jurisdiction to refuse a motion to dismiss if the motion to dismiss were not filed within the required 3 days. The decision of this Circuit in that case specifically noted that a decision of the Fourth Circuit, Home Insurance Co. v. Southern Specialty Sales Co., 222 So.2d 649 (La.App. 4th Cir. 1969), had held a contrary view, and by implication elected not to follow it. As the Louisiana Supreme Court denied writs in Gautreau, and as Gautreau is the latest reported decision on this question, we follow Gautreau, as being controlling, and refuse to dismiss the appeal, as by counsel for appellees’ own admission in appellees’ brief, appellees’ motion to dismiss the appeal was not timely filed.

MOTION TO DISMISS DENIED.


author: GARRISON, Judge. TATE AND MARCUS, JJ.

text:
    ARLEN REALTY MANAGEMENT, INC. v. Arthur T. FIELDS, Jr.
    No. 11328.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1981.
    James C. Witcher, II, New Orleans, for defendant-appellee.

      Jacob Kansas, Carey R. Varnado, New Orleans, for plaintiff-appellant.
    Before SAMUEL, CHEHARDY and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the Second City Court, denying Arlen Realty Management’s action to nullify a judgment rendered against it by the Small Claims Court.

Shortly before November 28, 1978, Arthur T. Fields, Jr., in proper person, filed suit in the Small Claims Court, seeking damages in the amount of $300.00 from the defendant, Arlen Realty Management for damages sustained by Mr. Fields when the defendant-lessor failed to repair the leased premises. The premises were damaged during the May 3rd flood of 1978.

Service of process was made on December 4, on an attorney who had represented the corporation on numerous occasions. On December 14, 1978, the attorney, Jacob Kansas, filed an exception of insufficiency of service of process saying that he did not represent Arlen Realty Management. On that same day, Mr. Kansas requested that the trial, which had been set for December 5, 1978, be continued.

On February 21, 1979, service was issued on Arlen Realty Management through the Secretary of State’s office. However, service was not made on the defendant. This attempted service was accompanied by notice of the new trial date, March 19, 1979. On that date, neither Mr. Kansas nor an attorney representing Arlen were present for trial. The Small Claims Court rendered judgment in plaintiff’s favor.

A notice of signing of the judgment was issued to the Secretary of State’s office on March 20, 1979. On March 28, 1979, the Secretary of State’s office made a return indicating that service was made on L. E. Kleinpeter.

Mr. Kansas, on behalf of Arlen Realty Management applied to the Louisiana Supreme Court for supervisory writs. The writ disposition handed down on June 19, 1979 reads as follows:

“Writ denied.
JLD
FWS
JAD
PFC
FAB

TATE AND MARCUS, JJ.

concur. The defendant’s remedy was an independent action in nullity. La.C.Civ. Procedure, Articles 2001, et seq.”

Additionally, on April 25, 1979, Mr. Kansas had filed an action to nullify the judgment of the Small Claims Court. This action was filed in the Second City Court inasmuch as the trial judge believed there was no procedure to nullify judgments in the Small Claims Court, which is not a court of record.

The action to nullify was tried on November 26, 1979, at which time the trial judge dismissed the action to annul, granting judgment in favor of Mr. Fields. From the judgment rendered on November 26, 1979, Arlen Realty Management appeals.

Generally, there is no record of Small Claims proceedings, there being no right to appeal from a judgment of that court. R.S. 13:5209. In the instant case, however, the Second City Court has aided us greatly, not only by attempting to construct a record but also by allowing the action to be filed under its jurisdiction.

On appeal, Arlen Realty Management argues that a default judgment could not be taken against it as it had made no general appearance. We agree. The filing of an exception of insufficiency of service of process does not constitute a general appearance. We agree with the trial court’s delineation of the purposes of the Small Claims Act and mourn the defeat of so noble a purpose. However, where fundamental procedural due process requires a hearing, we cannot allow so basic a right to be trampled in the name of “expeditious justice”.

For these reasons, the judgment of the Second City Court, dated November 26, 1979, is reversed and we render judgment as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of Arlen Realty Management, Inc. and against Arthur T. Fields declaring that the judgment rendered on March 20, 1979, in the case entitled “Arthur T. Fields vs. Arlen Realty Management, Inc.” No. SC-51, is hereby vacated, annulled and set aside.

REVERSED AND RENDERED.