author: BOOTH, Judge.

text:
    Betty G. CHAVERS and Harley Kirkpatrick, Jr., Petitioners, v. FLORIDA REAL ESTATE COMMISSION, Respondent.
    No. OO-286.
    District Court of Appeal of Florida, First District.
    June 23, 1980.
    Benjamin T. Shuman, Orlando, for petitioners.
    Howard Hadley and Frederick H. Wilsen, Orlando, for respondent.
   BOOTH, Judge.

This cause is before us on petition for review of the order of the Florida Real Estate Commission dated June 6, 1979 denying motion to dismiss the administrative complaint seeking to revoke or suspend the real estate registration of the petitioners herein. The motion to dismiss raised the failure of the agency to comply with Florida Statutes § 120.60(5), which requires as a condition precedent to instituting agency action to revoke or suspend a license, that the licensee be given notice and allowed opportunity to respond showing compliance with the law. We have today rendered a decision in another, independent, case involving the same question.

The facts here are that, on April 20,1979, the Florida Real Estate Commission (FREC) entered its order finding probable cause and permitting the filing of an administrative complaint. No notice was mailed or served on licensee of the agency’s intended action. Thereafter, on May 1, 1979, the complaint was filed, and copies of the complaint and election of rights form were mailed to petitioners. On May 21, 1979, petitioners filed their motion to dismiss based on noncompliance with § 120.-60(5). Hearing was had on motion to dismiss, and, on June 7, 1979, the FREC entered its order denying the motion. Thereafter, proceedings were commenced in this court resulting in issuance of rule to show cause and briefing by the parties, including as amicus curiae, the Department of Professional Regulations.

Florida Statutes § 120.60(5) provides:

No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has given reasonable notice by certified mail or actual service to the licensee of facts or conduct which warrant the intended action and the licensee has been given an opportunity to show that he has complied with all lawful requirements for the retention of the license.

The FREC contends that the requirements of the above-quoted statute are satisfied if a licensee is notified by mail that “an administrative complaint had been filed against him” and that he has 21 days to respond, the procedure followed in this case. The Commission further points out its practice on receiving a complaint against a licensee is to conduct an investigation, to review the investigative report, and, by majority vote at a regularly scheduled meeting, to determine probable cause to initiate formal disciplinary proceedings by filing an administrative complaint. This process, says the Commission, provides numerous safeguards for licensees.

The Department of Professional Regulations, in its amicus brief, suggests that the true intent of § 120.60(5) is to guarantee the method of service of the complaint but not to create duplicative proceedings. The Department states that it is “unfortunate” that the Legislature used the phrase “prior to the institution of agency proceedings” as the time in the statute for giving notice, when it would have been better to say “prior to the entry of a final order.” The Department also points out that “normal” investigative procedures include contact with the licensee before the completion of the investigative report so that he can tell his side of the story to the investigator.

The question thus presented is whether an agency can avoid the giving of notice and opportunity to respond prior to filing the administrative complaint in a license revocation proceeding by satisfying those requirements after filing of the complaint. We hold that the agency may not thus avoid statutory requirements. The language is clear, and the intent and purpose of the requirement, as discussed more fully in Sheppard v. Board of Dentistry, 385 So.2d 143 (Fla. 1st DCA 1980), is that the pre-filing notification of licensee supplements the agency’s investigative procedures and is an additional safeguard against the filing of illfounded complaints. In the instant case, unlike Sheppard, supra, the failure to comply with § 120.60(5) was promptly raised, and the complaint should have been dismissed. Florida Real Estate Commission v. Frost, 373 So.2d 939 (Fla. 4th DCA 1979).

Accordingly, the order sought to be reviewed is REVERSED.

MILLS, C. J. and ERVIN, J;, concur.

      . As appearing in Florida Statutes (1978). Subsection now renumbered to 120.60(6).

      . Sheppard v. Board of Dentistry, 385 So.2d 143 (Fla. 1st DCA 1980).


source: Caselaw Access Project

license: Public Domain

text:
    Bobby Earl PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. NN-358.
    District Court of Appeal of Florida, First District.
    June 24, 1980.
    Michael J. Minerva, Public Defender and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   LILES, WOODIE A., Associate Judge (Retired).

Appellant appeals the trial court’s revocation of his probation. We reverse and remand.

Appellant was charged with failing to abide by the conditions of his probation requiring him to pay toward his cost of supervision pursuant to § 945.30, Fla.Stat., to pay $1,944 in restitution to a victim, and to pay the cost of the defense and prosecution in his case. He was also charged with breaching the conditions requiring him to work diligently at a lawful occupation and to support his dependents to the best of his ability.

At the revocation hearing, appellant, having been declared indigent, was represented by a public defender. Testimony indicated that appellant is employed, earning $3 per hour. Testimony further indicated that appellant did have certain expenses to meet, such as transporting his children from Texas to Florida. The record before this Court does not show conclusively, and the trial court did not specifically find, that appellant has the ability to make the payments required of him as part of his probationary condition. In Jones v. State, 360 So.2d 1158 (Fla. 1 DCA 1978), this Court declared:

We agree that these cases indicate that in order for an order of probation requiring payments of costs by a defendant to be enforceable, the court must find that the indigent defendant’s financial condition is such that payment can be made. The record before us does not reveal that this determination was made. Accordingly, it is necessary that this cause be reversed and remanded for a further hearing before the court.
At such hearing, the testimony should establish specifically the financial condition of appellant at the time the probation order was entered. Further, the financial condition of appellant at the present time should be examined. The court should make findings of fact concerning the aforementioned and should specifically determine whether appellant had the ability to pay costs during the probationary period.

See also Coxon v. State, 365 So.2d 1067 (Fla. 2 DCA 1979). On the basis of Jones and Coxon, and especially considering the fact that appellant was declared indigent by the trial court, we reverse and remand to the trial court for a determination of whether appellant has the ability to meet the monetary conditions of his probation.

We recognize that in this case appellant’s probation possibly could have been revoked solely on the basis of the charge that appellant was periodically unemployed, in violation of one of his conditions of probation. However, as appellant points out, he was unemployed only from September 1976 until June 1977 and from October 1977 until March 1978. In April 1978 he was charged with violating probation in that he failed to work diligently at a lawful occupation in reference to the same two periods of unemployment, but the court did not choose to revoke his probation on that ground at that time. He has been gainfully employed since that time. We are unsure as to whether the trial court would have revoked appellant’s probation in this case and imposed the same sentence for the sole reason that appellant failed to be gainfully employed during certain months of 1977 and 1978. Therefore, we decline to uphold the probation revocation on that ground alone and instead remand for further consideration. Compare Page v. State, 363 So.2d 621 (Fla. 1 DCA 1978).

Reversed and remanded for further consideration consistent with this opinion.

BOOTH and SHAW, JJ., CONCUR.


author: DANIEL S. PEARSON, Judge.

text:
    J. O. and R. G., Juveniles, Appellants, v. The STATE of Florida, Appellee.
    No. 78-1908.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.

      Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

J.O. and R.G., adjudicated, delinquent by having committed an attempted robbery, contend that the circumstantial evidence relied on by the State was insufficient to support the adjudications. We agree and reverse.

The totality of the State’s evidence, viewed in a light most favorable to it, shows (a) the presence of these juveniles at the scene when a third person attempted to snatch a woman’s purse, (b) their later participation in the obnoxious behavior of taunting the woman, and (c) their flight upon the arrival of a police car. The juveniles did not touch the victim, nor did they say or do anything to assist the perpetrator in his efforts to take the purse.

Since the evidence of the intent of the juveniles to participate in the commission of the crime is entirely circumstantial, it must not only be consistent with guilt, but also inconsistent with any reasonable hypothesis of innocence. Pack v. State, 381 So.2d 1199 (2d DCA 1980); K.W.U. v. State, 367 So.2d 647 (Fla. 3d DCA 1979). Neither presence at the scene, Pack v. State, supra; Chaudoin v. State, 362 So.2d 398 (Fla. 2d DCA 1978), nor flight from the scene, Pack v. State, supra; J. H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979); Williams v. State, 206 So.2d 446 (Fla. 4th DCA 1968), nor other equivocal after-the-fact behavior, Douglas v. State, 214 So.2d 653 (Fla. 3d DCA 1968), is sufficient, even in combination with each other, to exclude reasonable hypotheses of innocence.

Reversed.


author: PER CURIAM.

text:
    Danford FRANCIS, Jr., Appellant, v. The STATE of Florida, Appellee.
    No 78-2151.
    District Court of Appeal of Florida, Third District
    June 24, 1980.

      Bennett H. Brummer, Public Defender and Peter Raben and Herb Smith, Asst. Public Defenders, Miami, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, J., and CHAPPELL, BILL G., Associate Judge and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Defendant, Danford Francis, Jr., was convicted of armed robbery, and he now appeals on the ground that a mistrial should have been granted due to the prosecutor’s closing remarks as to his personal belief in the credibility of the identification witness, Beamer Burley.

These remarks in which the prosecutor asserted his personal opinion as to the credibility of the witness, Burley, appear to be in violation of DR7-106(C)(4) Code of Professional Responsibility, but under this rule he may argue, on his analysis of the evidence, for any position or conclusion with respect to the credibility of a witness. The question, thus raised, is whether the remarks are of such a prejudicial nature as to warrant a reversal. We think not.

In his final argument, defense counsel strenuously attacks the prosecutor for apologizing for Beamer Burley, and he urges the jury to challenge the prosecutor to explain why he did so. Likewise, he gave his analysis of the testimony of Beamer Burley by stating,

“ . . He picks the man out. He thinks that’s who robbed him. That’s what Beamer Burley thinks. He is not lying to you. He is not getting up there and lying for a spiteful reason. He picks the man out who he thinks robbed him

We cannot accept the argument that the prosecutor’s statement, “I think he is truthful”, is a highly prejudicial and unfair statement constituting reversible error when defense counsel reviews the testimony of the same witness and states, “He is not lying to you.”

In reviewing defendant’s claims of other improper remarks, we also fail to find the prosecutor’s remarks concerning the absent police officer to be suggestive that other evidence of an incriminating nature would be available if he were present. By stipulation between counsel, the officer’s report was to be admitted in evidence, and the record reveals that both the prosecutor and defense counsel had referred to the officer’s absence in their opening statements. Further, during the State’s presentation of the case, the court instructed the jury that if the officer was present, he would testify consistent with his police report which was in evidence.

Lastly, we consider defendant’s claim that the prosecutor improperly argued his guilt or innocence on two separate occasions. Though the rule definitely prohibits improper argument as to the guilt or innocence of an accused, we must review the record to see if there is an acceptable basis to support the remarks made in this particular case, and we must decide whether such remarks deprived the defendant of a fair trial upon consideration of the entire record.

Our review of the record shows that during his opening statement, defense counsel asked the jury to pay careful attention to the testimony of Detective Heatherington regarding the photo identification procedures which were employed in this case because it is very unusual. Obviously having been forewarned that defense counsel would argue this subject in his closing argument, the prosecutor spoke to this matter in his opening summary. Likewise, the statement concerning fingerprints was in direct response to final argument for the defense.

In considering the total record of this case, we find that the prosecutor’s expressions of opinion as to the credibility of the witness, Beamer Burley, individually or collectively, were not so tainted as to lead a jury to a wrongful verdict and that any possible harm was properly nullified by the curative instruction given by the court. Further, we find ample basis in the record to support the other remarks complained of.

The trial judge acted properly in not granting a mistrial.

Affirmed.

      . Defendant complains of prosecutor’s remarks in final arguments on three separate occasions:
      a. “ . . .He said, ‘Those particular words he used up there, I didn’t hear the accent on’, and he is trying to be truthful, but it would have been very easy for him to simply say, ‘Yes, I heard the accent’, but I think he was being very truthful to you, and he was trying to tell you exactly what he perceived. . . ”
      b. “ . . .1 don’t think Beamer Burley . . here he is, under subpoena to come in and testify, and I don’t think he really feels this case ... I don’t think he really is that interested in it, but he is testifying as a State’s witness, and he testified as to the truth ...”
      c.“ . . Now, Beamer works in an adult theater, but he sat down before you, and I think you could see this is a guy that has worked a long life, and he is doing his own job, too, and I think he is a moral fellow, and I think he is truthful . . ” [Here, the court gave a curative instruction.]

      . Compare Arline v. State, 303 So.2d 37 (Fla. 1st DCA 1974).

      . In final argument, the prosecutor said,
      “ . ... The State wanted the report. Mr. Smith [defense counsel] wanted the report in for argument that he made on his cross-examination. We didn’t have the officer. It would have been nice to have him. I would have liked to have him, but he was sick for that . . . ”

      . a. In opening final argument following his comments summarizing the involvement of the witness, Detective Heatherington, the prosecutor said,
      “ . . .1 don’t think you have ever seen anything in this entire trial that indicates to you that anybody is full of vengeance — is full of vengeance in this particular case, and even if Beamer Burley wants to see the man that struck him across the cheek and knocked him unconscious and stole his watch and stole his money — if he wants to see that person put in jail, my God, that man has got a conscience just like you all do, and he doesn’t want to put the wrong person in jail
      b. In closing his final argument and referring to final argument of defense counsel, the prosecutor said,
      “ . . . He says ‘Fingerprints.’ Why didn’t we have the I.D. come in and testify here that there was nothing; otherwise, what are we trying to do? Do you think this is a subterfuge on the part of the State here that we are trying to protect some guilty party and railroad some innocent party here, that we are trying to keep evidence? . ”

      . Darden v. State, 329 So.2d 287 (Fla.1976); Collins v. State, 180 So.2d 340 (Fla.1965).

      . In closing argument, defense counsel stated, “ . . They have an I.D. Unit go all the way out, dust for fingerprints, lift latents, and then try to make some comparisons and not be able to make a comparison. Why didn’t they bring the I.D. Unit in to say, T lifted fingerprints. Here they are. Let me show them to you, and they are not of any value’? Because it’s not necessary. It’s not important for the State ...”

      . Johnson v. State, 348 So.2d 646 (Fla. 3d DCA 1977); Frierson v. State, 339 So.2d 312 (Fla. 3d DCA 1976); Sanders v. State, 241 So.2d 430 (Fla. 3d DCA 1970).

      . Darden v. State, 329 So.2d 287 (Fla.1976).


text:
    Lorraine VASSALLO, etc., et al., Appellants, v. FLORIDA POWER & LIGHT COMPANY, a Florida Corporation, Appellee.
    No. 79-676.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Horton, Perse & Ginsberg and Arnold R. Ginsberg, Samuel M. Spatzer, Miami, for appellants.
    Daniels & Hicks and Sam Daniels, Wright & Silverio, Miami, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   PER CURIAM.

The final judgment under review is affirmed upon a holding that the trial court properly directed a verdict for the defendant Florida Power and Light Company and excluded certain evidence at trial because: (a) the plaintiff Lorraine Vassallo and the plaintiff’s decedent Nicholas Vassallo were as a matter of law trespassers or at least uninvited licensees at the time of the subject accident, and (b) the defendant Florida Power and Light Company as landowner did not, as a matter of law, breach its duty to the said plaintiff and plaintiff’s decedent as trespassers or uninvited licensees in this cause. Wood v. Camp, 284 So.2d 691 (Fla. 1973); Hix v. Billen, 284 So.2d 209, 210 (Fla.1973); Bovino v. Metropolitan Dade County, 378 So.2d 50 (Fla.3d DCA 1979); Libby v. West Coast Rock Co., 308 So.2d 602 (Fla.2d DCA 1975); cert. den. 325 So.2d 6 (Fla.1975).


author: BASKIN, Judge.

text:
    Daniel CANNON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1050.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.

      Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HUBBART, BASKIN and PEARSON, DANIEL, JJ.
   BASKIN, Judge.

Daniel Cannon, found guilty by a jury of robbery without the use of a weapon, as charged, appeals his conviction and sentence to seven years imprisonment followed by three years probation. He claims error on two grounds. First, Cannon argues that an impermissibly suggestive pre-trial identification so tainted an in-court identification as to deprive him of a fair trial. Second, he contends that the trial court erred in failing to sentence him pursuant to the Florida Youthful Offender Act. § 958.011 et seq., Fla.Stat. (1979).

Error, if any, in permitting the victim’s in-court identification of the defendant was not properly preserved for review by this court, and was therefore waived. Douglas v. State, 328 So.2d 18 (Fla.1976); Thomas v. State, 249 So.2d 510 (Fla. 3d DCA 1971).

As to the appellant’s second point, the record presented upon appeal does not reflect error in the trial court's failure to sentence under the Youthful Offender Act. We affirm the conviction and sentence without prejudice to appellant’s future application to the trial court pursuant to Rule 3.850, Florida Rules of Criminal Procedure. Jenrette v. State, 373 So.2d 718 (Fla. 3d DCA 1979).


text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. Minerva A. PEREZ, Appellee.
    No. 79-1332.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.

      Corlett, Merritt, Killian & Sikes and Linda Loomis Shelley, Miami, for appellant.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Miami, for appellee.
    Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   BASKIN, Judge.

We are confronted with the question of whether a release of all claims executed by the insured in favor of the insurer, subsequent to the entry of an excess judgment in favor of an injured third party, bars a “bad faith” action against the insurer by the injured third party. We hold that the release does not bar the bad faith claim, and consequently, affirm the decision of the trial court.

Louisa DiMeola, a Travelers’ insured under a policy issued to her husband, drove her vehicle across the center line and collided head-on with the vehicle driven by Minerva Perez. Both women were seriously injured.

Appellee Perez notified Travelers of her liability insurance claim against Travelers and its insured. Within a few months, Ms. DiMeola informed Travelers that she would pursue a claim for uninsured motorist benefits because a third and “fantom” vehicle had forced her to drive into Ms. Perez’s path.

Travelers refused Ms. Perez’s offer to settle within the policy limits until just prior to the jury trial of the liability claim. At that time, Travelers made an offer of judgment of the $25,000 policy limits, which was rejected. The jury returned a verdict of $70,000 in favor of Ms. Perez and against Travelers and its insured. Travelers “cross-claimed” with a motion to limit its liability to the policy limits, and Ms. Perez “answered and cross-claimed” seeking damages for Travelers’ “bad faith” in handling the liability claim.

While Ms. Perez was litigating her liability claim, Mr. DiMeola proceeded with the uninsured motorist claim. Travelers at first agreed to settle, but then refused to follow through with the agreement. Thus, some time after entry of judgment, pursuant to the jury verdict in favor of Ms. Perez on her liability claim, Mr. DiMeola filed a suit to enforce the settlement agreement and to claim damages for Travelers’ bad faith in handling this proceeding.

Travelers ultimately settled with Mr. DiMeola and obtained a release of all claims from him. Travelers then asserted this release as a defense in Ms. Perez’s pending bad faith action against Travelers. The trial court granted Ms. Perez’s motion to strike this defense, the matter proceeded to trial, and Ms. Perez obtained a judgment for $45,000 against Travelers. Travelers now appeals claiming that the trial court erred in striking its defense. We find no merit in this argument for reasons we now discuss.

Ms. Perez is a third party beneficiary of the contract between Travelers and its insured. As such, she has the right to bring a direct action against Travelers alleging the insurer’s bad faith as grounds for an excess judgment. Thompson v. Commercial Union Insurance Co. of New York, 250 So.2d 259 (Fla.1971). See also Boston Old Colony Insurance Co. v. Gutierrez, ___ So.2d ___ (Fla.1980) (Case No. 54,769, Op. filed April 10, 1980), reaffirming the position taken by the Thompson court. Ms. Perez’s right to bring a direct action for bad faith against the insurer vested in or accrued to her at the same time she became entitled to sue the insured. Shingleton v. Bussey, 223 So.2d 713 (Fla.1969). Once Ms. Perez obtained the right to proceed against the insurer she could not be divested of that right by the actions of the insured or the insurer without her consent. O’Hern v. Donald, 278 So.2d 257 (Fla.1973).

Public policy considerations militate against interpreting the release to have so drastic an effect. To allow an insured to release an insurer from a third party beneficiary’s claim would invite collusive or coerced contracts and afford the insurer a means of escaping liability for a breach of its duty of good faith. See Boston Old Colony Insurance Co. v. Gutierrez, supra, (noting that a “hold harmless” agreement executed by the insured in favor of the insurer was not a determining factor in its decision.)

Travelers also urges this court to find that the trial court erred in allowing an insurance company employee of another company to give expert testimony as to the method he would have used in handling Ms. Perez’s claim. We find the admission of this testimony, if error, to be harmless error since there was sufficient evidence to support the jury’s finding of bad faith. Seaboard CoastLine Railroad Co. v. Hill, 250 So.2d 311 (Fla. 4th DCA 1971).

The decision of the trial court is affirmed.

      . Ms. DiMeola ultimately died from the injuries she suffered in the accident. Mr. DiMeola, individually and as personal representative of the deceased’s estate, pursued the claim.


author: HENDRY, Judge.

text:
    Eugene WESTBROOK and Westbrook Motors, Incorporated, Appellants, v. ALL POINTS, INCORPORATED and Integrity Insurance Company, etc., Appellees.
    No. 79-1474.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.

      H. C. Starkweather, Miami, for appellants.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellees.
    Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant, Eugene Westbrook, sought damages below for injuries sustained in a vehicular collision with the appellee, All Points, Inc. After weighing the evidence, which included appellant’s testimony, testimony of appellant’s and the court’s medical experts and defendant’s surveillance film footage (which tended to dispute the medical experts’ testimony), the jury returned a verdict in favor of appellant, limiting his damage award, however, to the amount of his medical expenditures. We review the final order of the trial court, in which appellant’s motion for new trial was denied.

The scope of our inquiry is delimited by the scope of the trial court’s authority with regard to motions for new trial. The narrow issue before us is whether the trial judge abused his discretion in denying appellant’s motion. Lassitter v. International Union of Operating Engineers, 349 So.2d 622, 627 (Fla.1977).

When a motion for a new trial is made, it is directed to the sound, broad discretion of the trial judge [citations omitted], who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached .

Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959) (citation omitted).

The criteria by which a trial court properly assesses the need for a new trial have been the cause of not a little judicial confusion in the past. It was with concern for the divergent standards employed in the several state appellate districts that the Florida Supreme Court definitively addressed the issue in Cloud, supra, 110 So.2d at 673:

When the judge, who must be presumed to have drawn on his talents, his knowledge and his experience to keep the search for the truth in a proper channel, concludes that the verdict is against the manifest weight of the evidence, it is his duty to grant a new trial, and he should always do that if the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record . . .

(citation omitted). The court has had recent occasion to reaffirm its adherence to the test stated in Cloud. See Cassat Avenue Mobile Homes, Inc. v. Bobenhausen, 363 So.2d 1065 (Fla.1978); Wackenhut Corp. v. Canty, 359 So.2d (Fla.1978).

[We note that a parallel test was enunciated in Griffis v. Hill, 230 So.2d 143, 145 (Fla.1969): “The test to be applied in determining the adequacy of a verdict is whether a jury of reasonable men could have returned that verdict.” That language appears to represent a rewording of, rather than a deviation from, the standard set forth in Cloud; the two formulations have been used conjunctively. See, e. g., White v. Martinez, 359 So.2d 7, 10 (Fla. 3d DCA 1978); Perenic v. Castelli, 353 So.2d 1190 (Fla. 4th DCA 1977), cert. denied 359 So.2d 1211 (Fla.1978).]

The appellant contends that the jury’s zero verdict for pain and suffering, mental anguish, disability and loss of earnings is unsupportable under Florida law. We disagree.

The Florida rule has been concisely stated by the United States Court of Appeals for the Fifth Circuit: “It would , appear that a zero verdict in Florida may be sustained only where there is conflicting evidence as to whether the plaintiff was in fact injured . . . .” Parker v. Wideman, 380 F.2d 433, 437 (5th Cir. 1967). In that case, testimony regarding the plaintiff’s injuries was uncontroverted and un-impeached. Similarly, in Pickel v. Rosen, 214 So.2d 730 (Fla. 3d DCA 1968), this court found that a new trial was warranted by the jury’s failure to award damages for pain and suffering, where it had awarded medical expenses. The decision to reverse was grounded on the undisputed facts that the plaintiff had suffered a severe injury, and that the treatment was painful. In Grossman v. Short, 285 So.2d 11 (Fla. 3d DCA 1970), cert. discharged 245 So.2d 217 (Fla.1971), we reversed for new trial a final judgment recompensing neither medical expenses nor the plaintiff’s pain and suffering, where liability was admitted and medical expenses were proved.

Unless the jury could reasonably conclude there was no need for the plaintiff to be examined by a doctor, the verdict at least should have included some award to the plaintiff for medical expenses . Also, there was evidence from the doctors, as well as from the plaintiff, that the latter suffered certain personal injuries as a result of the collision, for which the plaintiff (by virtue of the defendant’s admission of liability) was entitled to recover unless the jury should disbelieve entirely that any bodily injury, pain and suffering or physical discomfort resulted to the plaintiff from the incident.

Grossman, supra, 235 So.2d at 12-13 (emphasis supplied).

Apparently, the appellant’s jury chose the last alternative. Our authority to reverse, were we so disposed, is constrained by the power of the jury to consider the totality of the evidence submitted and render a verdict not inconsistent with the manifest weight thereof, and by the discretion of the trial judge, who must satisfy himself that the jury’s verdict conforms to that standard, and that the evidence was the sole basis of their decision.

Our study of the record and the caselaw compels the conclusion that we are without authority to overturn the findings of this jury, and the decision of this trial court. Nothing in the record forbids the jury’s finding liability on the part of appel-lee, finding that appellant reasonably sought medical advice, finding that the expense thereby incurred was reasonable, but finding that appellant had not incurred a preponderantly demonstrable injury. The jury simply did not believe appellant's protestations of incapacitating back pain. Their decision in that regard was undoubtedly influenced by appellee’s rebuttal evidence, to wit: Eight reels of movie film starring appellant as he stooped, bent, lifted, and climbed a twelve-foot chain-link fence.

We note finally that medical experts — both the appellant’s and the court’s —uniformly agreed that appellant had suffered a back injury, and that pain is a concomitant of the injury diagnosed. However, the difficulty of accurate diagnosis in such cases of purported back injury is common knowledge, and the jury may quite properly have taken that factor into consideration, along with the the fact of appellant’s refusal to undergo certain medical tests which might have been dispositive. In an instance where lay testimony (the film) and lay knowledge (difficulty of diagnosis) bring into question the accuracy of expert testimony, a jury may properly refuse to give credence to the medical expert testimony. Shaw v. Puleo, 159 So.2d 641, 643-44 (Fla.1964).

We have considered the other issues raised by appellant, and have found them to be similarly without merit. Therefore, we affirm.

Affirmed.

      . The record discloses that appellant has neither lost his job nor suffered a reduction in pay since the date of the collision. Hereinafter, we consider the jury’s (and the trial court’s) assessment of appellant’s less demonstrable claims.


text:
    Jerry KAHN, Appellant, v. CAPITAL BANK, a Florida Banking Corporation, Appellee.
    No. 79-1959.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Jerry Kahn, Miami, in pro. per.
    Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and Sue M. Cobb, Miami, for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

The issue in this case is whether certain proceeds of a fire insurance policy should have been ordered paid to Kahn or to Capital Bank. The trial court ordered that payment of these proceeds be made to Capital Bank, and Kahn appeals.

The facts are not in dispute. In May 1977, a restaurant corporation known as Las Brisas executed and delivered to Kahn a $20,000 promissory note. To secure this obligation, Las Brisas gave to Kahn a security interest in all restaurant equipment, inventory, fixtures, machines and other tangible property of the debtor, as well as accounts receivable and “any other intangible assets of the debtor now or hereinafter acquired,” together with “all proceeds thereof.” By the terms of the security agreement, Las Brisas was required to insure the collateral against loss by fire, theft and other hazards. Las Brisas obtained the required insurance and assigned to Kahn “all sums which may become payable under such insurance ... as additional security for the indebtedness.”

In September 1977, Kahn entered into an agreement with Capital Bank. In consideration for the bank lending money to Las Brisas, Kahn assigned to Capital Bank “all rights and interest” that Kahn had under the May 1977 Las Brisas-Kahn note, mortgage and security agreement. Kahn did not separately and specifically assign the insurance proceeds to the bank, nor was the bank made a loss-payee under the insurance policy. In February 1978, fire destroyed the Las Brisas Restaurant.

Kahn claims that he, not Capital Bank, is entitled to the insurance proceeds. Kahn’s arguments are (1) his assignment to Capital Bank was not effective to assign the insurance policy and proceeds to the bank, since Section 679.104(7), Florida Statutes (1977), by excluding from secured transactions “a transfer of an interest or claim in or under any policy of insurance,” prevents the creation of a security interest in insurance; and (2) even if Kahn assigned to the bank his interest, inter alia, in “proceeds” of the mortgaged property, moneys paid on an insurance policy covering collateral are not “proceeds” within the meaning of Section 679.306(1), Florida Statutes (1977). We reject Kahn’s arguments and affirm the decision of the trial court.

The exclusion of Section 9-104(g) of the Uniform Commercial Code, enacted by our legislature as Section 679.104(7), Florida Statutes (1977), applies to the creation of a security interest in an insurance policy itself, not to insurance of collateral as exists in the present case. PPG Industries, Inc. v. Hartford Fire Insurance Company, 531 F.2d 58 (2d Cir. 1976). See also Paskow v. Calvert Fire Insurance Company, 579 F.2d 949 (5th Cir. 1978). Thus, Kahn’s assignment to the bank was not excluded under the statute and was effective to assign his interest in “proceeds” to the bank.

Moreover, moneys paid on an insurance policy as a result of the destruction of mortgaged collateral are “proceeds” within the meaning of Section 679.306(1), Florida Statutes (1977). Insurance Management Corporation v. Cable Services of Florida, Inc., 359 So.2d 572 (Fla. 2d DCA 1978); see also Paskow v. Calvert Fire Insurance Company, supra, and PPG Industries, Inc. v. Hartford Fire Insurance Company, supra. Thus, Kahn’s assignment to the bank of his interest in “proceeds” was, without any need for a more specific assignment or need to make the bank a loss-payee of the policy, effective to assign the insurance moneys payable due to the destruction of the collateral. Insurance Management Corporation v. Cable Services of Florida, Inc., supra.

Affirmed.

      . The parties agreed with the insurance company that the amount of $17,500 would be paid on account of the fire.

      . In 1979, the legislature amended Section 679.-104(7) and specifically provided an exception to the existing exclusion. That section now reads that the chapter does not apply: “To a transfer of an interest or claim in or under any policy of insurance except as provided with respect to proceeds (S. 679.306) and priorities in proceeds (S. 679.312).” (emphasis supplied). At the same time, Section 679.306(1) was amended by adding: “Insurance payable by reason of loss or damage to the collateral is proceeds . . .” Since this case arose before the amendment, the pre-amendment language, as the bank concedes, controls. However, it is the bank’s position with which we agree that the adoption of the amendment did no more than codify the existing case law of Insurance Management Corporation, Paskow and PPG Industries. Indeed, as the court in PPG Industries noted, the 1972 amendment to Section 9-306(1), Uniform Commercial Code, adopted in Florida in 1979, was a persuasive indication of the effect which Section 9-306 was originally intended to have. PPG Industries, Inc. v. Hartford Fire Insurance Company, supra, at 61.


text:
    Raul IGLESIAS, Appellant, v. Rogelia IGLESIAS, Appellee.
    No. 79-2005.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Aronovitz & Weksler and Anne Lise Gus-tafson, Miami, for appellant.
    Saul T. Von Zamft, Coral Gables, for appellee.

      Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Kuhn v. Kuhn, 261 So.2d 532 (Fla. 3d DCA 1972); Fla.R.Civ.P. 1.540(b)(1).


author: SCHWARTZ, Judge.

text:
    Ligia TORRES, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES of the State of Florida, Appellee.
    No. 79-2089.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    William J. Flanagan, Legal Services of Greater Miami, Miami, for appellant.
    Leonard Helfand, Miami, for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   SCHWARTZ, Judge.

Ligia Torres appeals from a decision of a Department of Health and Rehabilitative Services (HRS) hearing officer upholding the rejection of her May and June, 1979 applications for Aid to Families with Dependent Children (AFDC). The claims were denied on the grounds that Ms. Torres had failed to furnish the HRS “payments worker” with “all necessary facts and documentation to establish [her] eligibility” as required by Florida Administrative Code Rule IOC-1.43, and had refused “to cooperate with the Department by not providing required information,” in violation of Florida Administrative Code Rule 10C-1.46(1). We reverse.

On May 3, 1979, Ms. Torres made a full and truthful request for AFDC which demonstrated her eligibility for that relief. The application was denied only because she did not report to the HRS worker that she had thereafter paid her rent with $290.00 she received later in the month from the sale of a stereo. It is admitted that the sale of such an asset did not affect the appellant’s eligibility for AFDC. Much more important, there is no indication that Ms. Torres was told or was otherwise aware that a supplementary report of this kind was necessary. There is no question of the validity or propriety of the rules in question. 42 U.S.C. § 602(a); see generally, New York State Department of Social Services v. Dublino, 413 U.S. 405, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973). It is entirely unreasonable, however, to interpret their general terms so as to permit a forfeiture of needed benefits because an applicant has failed to do something she has no way of knowing is required. Cf. McBride v. Blum, 70 App.Div.2d 595, 416 N.Y.S.2d 77 (1979).

We thus find no competent, substantial evidence to support the conclusion that Ms. Torres was not eligible for AFDC in May, 1979. City of Plant City v. Mayo, 337 So.2d 966 (Fla.1976); North Miami General Hospital, Inc. v. Office of Community Medical Facilities, Dept. of Health and Rehabilitative Services, 355 So.2d 1272 (Fla. 1st DCA 1978). The order below is therefore reversed and the cause remanded for determination of the amount of benefits to which she is entitled by virtue of this conclusion.

Reversed and remanded.

      . Since there is no provision for subsequent administrative review, such an order constitutes “final agency action” on an AFDC claim which is appealable to this court. § 120.68(1), (2), Fla.Stat. (1979).

      . Rule 10C-1.43 provides in pertinent part:

        Rights and Responsibilities of Applicants and Recipients. Any person has the right to apply for assistance, have his/her eligibility determined, and if found eligible, to receive an established monthly amount. Although persons receiving a direct payment are to use these funds for the benefit of the AFDC children, there are no restrictions otherwise on their use. The recipient of public assistance funds must assume the responsibility of furnishing all necessary facts and documentation to establish or reestablish eligibility, advise the Department of any changes in his/her circumstances which might affect eligibility and/or the amount of the assistance grant, and to provide the Department with any channel of information concerning his/her affairs that may be determined necessary.

      .Rule 10C-1.46(1) provides:
      (1) The Department must determine the individual’s eligibility for continued AFDC assistance on a scheduled basis at least every six months. Special redeterminations may be scheduled in advance during the interim period based on known facts. A special re-determination which is unscheduled may be held due to receipt of facts indicating a possible change in the recipients circumstances. A special redetermination, scheduled or unscheduled, may develop into a complete rede-termination of eligibility. An applicant/recipient who refuses to cooperate with the Department by not providing required information, verification or documentation shall be denied/cancelled from AFDC as eligibility cannot be established.

      . It appears that the worker thought that Ms. Torres had paid her rent on May 1, and had not revealed this fact in the application. It was demonstrated below, however, that this was not the case and that the worker’s contrary belief was based on a misunderstanding. Cf. Bovinas v. Savoretti, 146 F.Supp. 274 (S.D.Fla.1956).

      . See AFDC Assistance Payments Manual (# 009), Section II, Chapter V, page 4a.

      . We are told that under HRS practice, once a client is eligible for AFDC, the eligibility is presumed to continue for at least six months thereafter. See Rule 10C-1.46(1), supra, note 3. Our holding that Ms. Torres was eligible for assistance in May, 1979, therefore makes it unnecessary to consider the somewhat different issues involved in the denial of the June application.


text:
    Janie McCRAY, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES of the State of Florida, Appellee.
    No. 79-2130.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Rena Wisotsky, Marcia K. Cypen, Miami, Legal Services of Greater Miami, Inc., for appellant.
    Leonard Helfand, Miami, for appellee.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

The final administrative order under review is affirmed upon a holding that: (a) the termination of AFDC benefits in June 1979 as to the subject three minor children was properly upheld by the hearing officer below as there was competent, substantial evidence in the record to support such a termination [to wit, an AFDC program sheet in an audit report which was admissible below under the law of evidence as a business record and a statement of fact concerning family history], which result is not changed by the presence of other conflicting evidence in the record [to wit, a written statement by Calvin McCray II] because the hearing officer as the trier of fact was privileged to weigh and reject such conflicting evidence, G & B of Jacksonville, Inc. v. State, Dept. of Business Regulation, Div. of Beverage, 362 So.2d 957 (Fla. 1st DCA 1978); §§ 90.803(6), (13), 120.68(10), Fla.Stat. (1979); Fla.Admin.Code Rule 10-2.60(1); see De Groot v. Sheffield, 95 So.2d 912 (Fla.1957); and (b) the denial of AFDC benefits upon re-application in July 1979 as to the minor child Calvin McCray III was properly upheld by the hearing officer below as there was competent, substantial evidence in the record to support such a denial of benefits notwithstanding other contrary evidence in the record which the hearing officer was privileged to reject. G & B of Jacksonville, Inc. v. State, Dept. of Business Regulation, Div. of Beverage, 362 So.2d 957 (Fla. 1st DCA 1978); § 120.68(10), Fla.Stat. (1979); Fla.Admin.Code Rule 10-2.60(2).

Affirmed.


author: OTT, Judge.

text:
    L. J. E. and T. A. E., Minors, Appellants, v. STATE of Florida, Appellee.
    No. 79-1134, 79-1200.
    District Court of Appeal of Florida, Second District.
    June 25, 1980.
    Martin M. Murry, St. Petersburg, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen. and G. P. Waldbart, Legal Intern, Tampa, for appellees.
   OTT, Judge.

Appellants, teenage sisters, were found guilty in juvenile proceedings of obstructing police officers making an arrest, and of committing a battery upon such officers. We believe that under the peculiar facts of this case the evidence presented to the court was not sufficient to sustain the findings of guilt. Accordingly, we reverse.

The trial judge made no findings of the facts upon which he based his judgment, and we have examined the record in vain for evidence to support the judgment of guilt. A full recitation of the factual background of this unusual case would unduly prolong this opinion. Briefly, the conduct complained of occurred when a police officer attired in casual clothes (tee shirt and bluejeans), without badge, weapons or any other indicia of his status, apparently attempted to arrest appellants’ father during an altercation between neighbors. Appellants are honor students with excellent reputations in their community and they have no record of any previous transgressions. They came out of their house just in time to witness what appeared to be a violent attack on their father by a stranger who seemed to be one of the neighbor’s guests. The officer was totally without means of identifying himself as a law enforcement officer. In fact, there was a sharp conflict in testimony as to whether he even attempted to do so. A uniformed officer who had been called to the scene was standing by, and it is not clear whether he ever, while the girls were present, offered to vouch for or otherwise establish the attacker as a police officer acting in any official capacity. When he seemingly ignored the appellants’ frantic appeals to intervene and stop the beating, they personally went to their father’s aid.

We think that the evidence produced by the state, even when given its full weight and effect, was insufficient as a matter of law to establish the guilt of these appellants beyond and to the exclusion of every reasonable doubt.

The orders of the court below adjudicating appellants guilty of the offenses charged against them are reversed.

SCHEB, Acting C. J., and RYDER, J., concur.


author: RYDER, Judge.

text:
    Michael Wayne LYONS, Appellant, v. STATE of Florida, Appellee.
    No. 79-2023.
    District Court of Appeal of Florida, Second District.
    June 25, 1980.
    Jack O. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Appellant, Michael Wayne Lyons, appeals from a judgment and sentence for battery.

Appellant’s only point on appeal is that the trial court erred in precluding defense counsel from cross-examining the battery victim regarding whether he had a pending claim under the Florida Crimes Compensation Act.

The Florida Crimes Compensation Act, Chapter 960, Florida Statutes (1979), was enacted by the legislature to provide governmental financial assistance for victims of crimes who suffer personal injury as a direct result of a criminal act. Section 960.-09(3) of the act specifically provides that the outcome of any criminal proceeding shall have no bearing upon the consideration of any claim under the act:

(3) Claims shall be investigated and determined, regardless of whether the alleged criminal has been apprehended or prosecuted for, or convicted of, any crime based upon the same incident, or has been acquitted or found not guilty of the crime in question owing to lack of criminal responsibility or to other legal exemption or defense.

In light of this statutory provision, we hold that the trial court correctly sustained the objection to testimony regarding the existence of a claim under the Crimes Compensation Act. The existence or nonexistence of such a claim was irrelevant to any issue at trial. The Crimes Compensation Act was carefully drafted to have no bearing on any criminal proceeding. Certainly the legislature did not intend the Crimes Compensation Act could be used as a means of attacking the credibility of victims who testify at trial.

Accordingly, the judgment and sentence of the trial court are affirmed.

SCHEB, Acting C. J., and CAMPBELL, J., concur.


text:
    STATE of Louisiana v. John Edward BROWN.
    No. 66120.
    Supreme Court of Louisiana.
    May 28, 1980.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Charles B. Bice, Dist. Atty., Kermit M. Simmons, Asst. Dist. Atty., for plaintiff-appellee.
    Herman A. Castete, Sanders & Castete, Ltd., P. C., Winnfield, for defendant-appellant.
   PER CURIAM.

Defendant John Edward Brown was charged by bill of information with aggravated burglary, a violation of La.R.S. 14:60. On October 24, 1977, he was tried before a twelve person jury and found guilty as charged. Thereafter the court sentenced defendant to serve twenty years at hard labor. Some eighteen months later, defendant applied for a writ of habeas corpus, alleging that he had been denied his right of appeal. After a hearing the trial court ordered an out-of-time appeal and appointed new counsel to represent defendant. The sole issue raised on appeal relates to the effectiveness of trial counsel.

The issue of whether defendant was denied effective assistance of counsel is more properly raised by application for a writ of habeas corpus in the district court, where a full evidentiary hearing may be conducted if warranted. See, State v. Malveaux, 371 So.2d 820 (La.1979); State v. Barnes, 365 So.2d 1282 (La.1978).

Finding no reversible error on the record before us, we affirm defendant’s conviction and sentence.

      . The defense claim that the trial court should have intervened to protect defendant’s interests is actually an adjunct of the ineffectiveness argument, because it relates to the proper remedy of trial counsel’s alleged shortcomings.


text:
    STATE of Louisiana v. Jesse J. CUEVAS.
    No. 66298.
    Supreme Court of Louisiana.
    June 6, 1980.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., J. Kevin McNary, Asst. Dist. Atty., for plaintiff-appellee.
    Robert Barnard, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
   PER CURIAM.

Affirmed.

LEMMON, J., would remand to determine whether assignment # 14 represents reversible error.


text:
    Daniel G. DIEFENDERFER, Jr. et al. v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY et al.
    No. 66881.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Fireman’s Fund Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of West Baton Rouge. 383 So.2d 1032.

Granted.


text:
    Daniel G. DIEFENDERFER, Jr. et al. v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY et al.
    No. 66891.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Louisiana Farm Bureau Mutual Insurance Company et al., applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of West Baton Rouge. 383 So.2d 1032.

Granted.


text:
    Darrell DANOS et al. v. Terry ST. PIERRE et al.
    No. 66876.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Allstate Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 383 So.2d 1019.

Granted.


text:
    Darrell DANOS et al. v. Terry ST. PIERRE et al.
    No. 66882.
    Supreme Court of Louisiana.
    March 14, 1980.
   In re Terry St. Pierre et al., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. 383 So.2d 1019.

Granted.


text:
    Louise C. SANDERS v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, EAST LOUISIANA STATE HOSPITAL.
    No. 67130.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Department of Health and Human Resources, East Louisiana State Hospital, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Civil Service Commission. 383 So.2d 1053.

Granted.


text:
    Louise C. SANDERS v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, EAST LOUISIANA STATE HOSPITAL.
    No. 67177.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re the Department of State Civil Service, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Civil Service Commission. 383 So.2d 1053.

Granted.


text:
    Sterling COX v. Andrew L. CHASE, Chase Enterprises, Inc. and the Travelers Indemnity Company.
    No. 67178.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Sterling Cox, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of Iberville. 383 So.2d 1044.

Denied. Result is correct.

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


text:
    Johnny R. DAVIS v. CITY OF BATON ROUGE et al.
    No. 67174.
    Supreme Court of Louisiana.
    April 18, 1980.
   In re Johnny R. Davis, applying for cer-tiorari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 383 So.2d 1057.

Denied; result correct.


author: WATSON, J.,

text:
    Harold E. DWYER, Jr. v. Warren K. STATLER and Farm Bureau Mutual Insurance Company.
    No. 67294.
    Supreme Court of Louisiana.
    May 9, 1980.
   In re Harold E. Dwyer, Jr., applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 10194.

Writ denied.

CALOGERO, J., would grant the writ.

WATSON, J.,

would grant and set aside the judgments below and order a new trial by a district judge being of the opinion that plaintiff and defendants have been denied the right to a trial by either a jury or an elected judge as provided by the Louisiana Constitution.


text:
    Harold E. DWYER, Jr. v. Warren K. STATLER and Farm Bureau Mutual Insurance Company.
    No. 67294.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Harold E. Dwyer, Jr., applying for reconsideration for denied writ. Fourth Circuit, Parish of Orleans. No. 10194.

Not considered. See Rule 9, § 6.


text:
    STATE of Louisiana v. Allen D. MORRISON.
    No. 67324.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Allen D. Morrison, applying for remedial writs. Parish of Ouachita. No. 43,093.

Granted.


text:
    Jules DUSAND v. HENRY C. BECK BUILDERS, INC., and Aetna Life and Casualty Insurance Co.
    No. 67111.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Jules Dusand, applying for certiora-ri or writ of review, to the Court of Appeal, Fourth Circuit. Orleans Parish. No. 10,-489.

Granted.

LEMMON, J., recused.


text:
    STATE of Louisiana ex rel. Melvin BUJOL v. Hon. Frank A. MARULLO, Jr., Criminal District Court, Section “D”, Parish of Orleans.
    No. 66521.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Melvin Bujol applying for writ of mandamus. Parish of Orleans. No. 255-381.

Granted. Trial judge is ordered to act on relator’s application within one week.


text:
    STATE of Louisiana ex rel. Jimmie A. MAMON v. Judge David T. CALDWELL, Criminal District Court, Jackson Parish.
    No. 65952.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Jimmie A. Mamón, applying for writ of mandamus. Parish of Jackson.

Denied.


text:
    STATE of Louisiana v. Doyle CARTER.
    No. 66134.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Doyle Carter, applying for writ of habeas corpus. Parish of Orleans. Number unknown.

Denied.


text:
    STATE of Louisiana ex rel. Percy L. TATE v. Warden Frank BLACKBURN.
    No. 66455.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Percy L. Tate, applying for supervisory writs. Parish of Orleans. No. 255-943.

Denied.


text:
    STATE of Louisiana v. Joel MORRISON.
    No. 66460.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Joel Morrison, applying for supervisory writs. Parish of Orleans. No. 268-605.

Denied.


text:
    STATE of Louisiana ex rel. Calvin WILLIAMS v. Warden Frank C. BLACKBURN.
    No. 66609.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Calvin Williams, applying for writ of habeas corpus. Parish of Orleans. No. 259-071.

Denied.


text:
    STATE of Louisiana ex rel. Thomas E. TARR v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66664.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Thomas E. Tarr, applying for supervisory writs. Parish of Orleans. No. 180-678.

Denied.


text:
    STATE of Louisiana ex rel. Felix A. PRICE v. Judge SCHULINGKAMP, Orleans Criminal Judicial District Court.
    No. 66742.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Felix A. Price, applying for writ of mandamus. Parish of Orleans. No. 269-823.

Denied.


text:
    STATE of Louisiana ex rel. Quenton N. BROWN v. William F. KLINE, Judge, 20th Judicial District Court.
    No. 66921.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Quenton N. Brown applying for writ of mandamus. Parish of West Felicia-na. Number unknown.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Roy A. DOCKENS v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 66922.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Roy A. Dockens applying for writ of habeas corpus. Parish of Sabine. No. 29-999.

Denied.


author: CALOGERO, J., concurs.

text:
    STATE of Louisiana ex rel. Harold J. VINCENT v. CLERK OF COURT, Chester HYDE, Vernon Parish, Leesville, Louisiana.
    No. 67246.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Harold J. Vincent applying for remedial writs. Parish of Vernon. Number unknown.

Denied.

CALOGERO, J., concurs.

If and when relator should complain here on the ruling below, this Court will determine whether to order furnished here transcript of eviden-tiary hearing.


text:
    STATE of Louisiana v. Floyd JEFFERSON.
    No. 67251.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Floyd Jefferson, applying for remedial writs. Parish of Orleans. No. 272-245.

Denied.


text:
    STATE of Louisiana ex rel. Edward BROUSSARD v. Frank C. BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67280.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Edward Broussard applying for writ of habeas corpus. Parish of Jefferson. No. 77-2118.

Denied.


text:
    STATE of Louisiana ex rel. James BATISTE v. Honorable Matthew S. BRANIFF, Judge, Criminal District Court, Section “B”, Parish of Orleans, State of Louisiana.
    No. 67305.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re James Batiste applying for writ of mandamus. Parish of Orleans. No. 258-777.

Denied.


text:
    STATE of Louisiana ex rel. Jay A. VICTORIAN v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67306.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Jay A. Victorian applying for writ of habeas corpus. Parish of East Baton Rouge. No. 7-74-2858.

Denied.


text:
    STATE of Louisiana ex rel. John Freeman WILLIAMS v. Warden Hayden DEES, Dixon Correctional Institute.
    No. 67309.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re John Freeman Williams, applying for writ of certiorari. Parish of Terre-bonne. Nos. 72,181, 76,131.

Denied.


text:
    STATE of Louisiana ex rel. Jerome WEST v. STATE of Louisiana.
    No. 66561.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Jerome West applying for writ of certiorari. Parish of Orleans. No. 263-364.

Writ denied.


text:
    STATE of Louisiana ex rel. McKinley DOYLE v. STATE of Louisiana.
    No. 66588.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re McKinley Doyle applying for writ of habeas corpus. Parish of Orleans. No. 248-673.

Denied.


text:
    STATE of Louisiana ex rel. Lawrence BLACKWELL v. STATE of Louisiana.
    No. 67195.
    Supreme Court of Louisiana.
    May 30, 1980.
   In re Lawrence Blackwell applying for remedial writ. Parish of Orleans. No. 266-351.

Denied.


text:
    STATE of Louisiana v. Ray Mitchell CALDWELL.
    No. 67746.
    Supreme Court of Louisiana.
    June 5, 1980.
   In re Ray Mitchell Caldwell, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Caddo. No. 114,680.

Denied.


text:
    STATE of Louisiana ex rel. Ken SEAVEY v. Judge Frank MARULLO, Orleans Criminal Judicial District Court.
    No. 66401.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Ken Seavey applying for remedial writ. Parish of Orleans. No. 268-919.

Granted; the trial judge is ordered to act on relator’s petition forthwith.


text:
    STATE of Louisiana ex rel. Edward A. JENNINGS v. Judge Frank SHEA, Criminal District Court, Section “G”, Parish of Orleans.
    No. 67634.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Edward A. Jennings applying for writ of habeas corpus. Parish of Orleans. No. 256-044.

Denied; moot.


text:
    STATE of Louisiana ex rel. Glen Raymond HATHAWAY v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 67646.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Glen Raymond Hathaway applying for writ of certiorari. Parish of St. Mary. No. 108-240.

Writ denied.


text:
    STATE of Louisiana ex rel. Percy JOHNSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 67647.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Percy Johnson applying for writs of habeas corpus, mandamus and certiorari. Parish of Orleans. No. 248-206, Section “A”.

Denied.


text:
    STATE of Louisiana ex rel. Larry W. DIXON v. STATE of Louisiana, 20TH DISTRICT COURT, EAST FELICIANA PARISH.
    No. 67648.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Larry W. Dixon applying for writ of habeas corpus. Parish of East Feliciana. Nos. 3-79-444 and 3-79-446.

Denied.


text:
    STATE of Louisiana ex rel. Lawrence E. JACKSON v. Honorable Frank J. SHEA, Judge.
    No. 64870.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Lawrence E. Jackson applying for writ of mandamus. Parish of Orleans. No. 234-503.

Writ granted. Trial judge ordered to act or file judgment by June 30, 1980.


text:
    STATE of Louisiana ex rel. Curtis JACKSON v. Honorable Judge Matthew S. BRANIFF.
    No. 67240.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Curtis Jackson applying for writ of mandamus. Parish of Orleans. No. 266-726.

Denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Charles HAMILTON v. Honorable Edwin LOMBARD, Clerk of Court, Orleans Parish.
    No. 67171.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Charles Hamilton, applying for writ of mandamus. Parish of Orleans. No. 261-029.

Denied.


text:
    STATE of Louisiana v. Willie I. JOHNSON.
    No. 67083.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Willie I. Johnson, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Ouachita. No. 39,-258.

Denied.

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


text:
    STATE of Louisiana ex rel. Gregory KITT v. STATE of Louisiana.
    No. 66931.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Gregory Kitt, applying for writ of habeas corpus. Parish of Orleans. No. 264-478.

Denied. Relator must first apply to district court.


text:
    STATE of Louisiana ex rel. Carnell CASTON v. H. J. DEES, Warden, Dixon Correctional Institution.
    No. 66912.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Carnell Gaston, applying for writ of habeas corpus. Parish of Orleans. No. 262-135.

Denied. Relator must first apply to the district court for relief.


text:
    STATE of Louisiana ex rel. George FOURNETTE v. Warden BLACKBURN, Louisiana State Penitentiary.
    No. 67073.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re George Fournette, applying for writ of mandamus. Parish of Orleans. Number unknown.

Granted. District Court is ordered to act by June 30, 1980 or send copy of judgment if already acted upon.


text:
    STATE of Louisiana ex rel. Maurice GIBBS v. Honorable Frank MARULLO, Jr.
    No. 67080.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Maurice Gibbs applying for writs of mandamus and prohibition to Orleans Parish. No. 255-403.

Granted. District court is ordered to act by June 30, 1980 or send copy of judgment if already rendered.


text:
    STATE of Louisiana v. Lee Arthur SIMMONS.
    No. 67244.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Lee Arthur Simmons applying for remedial writs. Parish of Caddo. No. 111,225.

Granted.

MARCUS, BLANCHE and WATSON, JJ., would deny the writ.


text:
    CITY OF BASTROP v. Harmon H. JONES.
    No. 65550.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Harmon H. Jones, applying for writ of review. Parish of Morehouse. No. 32,-786.

Denied.


text:
    STATE of Louisiana v. Ronny K. SYKES.
    No. 66383.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Ronnie K. Sykes, applying for writ of certiorari, review, prohibition and mandamus. Rapides Parish. No. 149,365.

Denied.


text:
    STATE of Louisiana ex rel. Warren SCHMITT v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66712.
    Supreme Court of Louisiana.
    June 6, 1980.
   In re Warren Schmitt, applying for writ of habeas corpus, certiorari and mandamus. Parish of Orleans. No. 249-073.

Denied.


text:
    William S. WIEDORN, Jr. v. John M. HALAHAN.
    No. 67782.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re William S. Wiedorn, Jr., applying for remedial writs. Parish of Orleans, Civil District Court. No. 77-10447.

Writ denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana v. Jessie O’KEE.
    No. 67778.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Jessie O’Kee, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Caddo. First Judicial District Court. No. 114,437.

Denied.


text:
    STATE of Louisiana v. Clarence ROBERTSON, Jr.
    No. 67776.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Clarence Robertson, Jr., applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Caddo. No. 114,439.

Writ denied.


text:
    SUCCESSION of Calvin Andrew REVERE.
    No. 67755.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Karen S. Revere Wilson, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of St. Tammany. No. 8538.

Denied.


text:
    Harvey GRIMBALL v. PLAINS GROVE PLANTATION, INC.
    No. 67735.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Henry Irvin Scallan, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 19th Judicial District Court. No. 13,325.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Kenneth J. SHARP, Jr.
    No. 67732.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Kenneth J. Sharp, Jr., applying for writs of certiorari, mandamus and prohibition and stay order. Parish of Jefferson. 24th Judicial District Court, Section H. No. 80-566.

Writ denied.


text:
    Barry L. NETTLES v. Earl E. BOWLIN et al.
    No. 67730.
    Supreme Court of Louisiana.
    June 13, 1980.
   In re Barry L. Nettles, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. No. 67,730. Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. WALDEN BOOK COMPANY, Southland Corporation, General Host, Pearson’s Pharmacy, Shreveport News Agency, Inc. et al.
    No. 67768.
    Supreme Court of Louisiana.
    June 20, 1980.
   In re Penthouse, Ltd. applying for writ of certiorari. Parish of Rapides. No. 197,203.

Writ granted.


author: CHEHARDY, Judge.

text:
    Larry J. HALVERSON v. EAGLE TRUCKING COMPANY.
    No. 11505.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 22, 1980.
    Greenberg & Dallam, Roger I. Dallam, Gretna, for plaintiff-appellee.
    Maughan, Atkinson & Martin, Ltd., Roy A. Maughan, Baton Rouge, for defendant-appellant.
    Before SAMUEL, CHEHARDY and SARTAIN, JJ.
   CHEHARDY, Judge.

This matter is before us solely on an appellee motion to dismiss the appeal “or to remand.”

The judgment appealed from was read, rendered and signed on November 8, 1979. It grants plaintiff, Larry J. Halverson, a money award against the defendant, Eagle Trucking Company. On November 12, 1979, Halverson moved for a new trial, seeking to modify the judgment; and, although the trial court entertained a hearing of the motion for a new trial on February 7, 1980, it has not yet either granted or denied the motion. On January 10, 1980 the trial court granted this devolutive appeal to the defendant.

We agree with the general rule expressed in Billeaud v. Perry, 336 So.2d 539 (La.App.3d Cir. 1976), to the effect that where, as here, a motion for a new trial was filed timely and that motion has not been acted upon by the trial court, the judgment appealed from is not final.

Accordingly, particularly as the appellant, while reserving all of its rights to appeal when the motion for a new trial is decided, has no objection, we dismiss this appeal, without prejudice, on the ground of prematurity and remand the matter to the trial court.

APPEAL DISMISSED; REMANDED.


author: BARRY, Judge. SAMUEL, Judge,

text:
    STATE of Louisiana In the Interest of Mark GALVAN.
    No. 11154.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 30, 1980.
    Richard L. Ducote, Gretna, for defendant-appellee, Mark Galvan.
    David J. Hebert, Marrero, for defendant-appellee, Jesus Galvan.
    Heisler, Wysocki & DeLaup, Frederick P. Heisler, New Orleans, for defendant-appellant, Rosalee Galvan.
    Before SAMUEL, BOUTALL and BARRY, JJ.
   BARRY, Judge.

This matter concerns whether Mark Gal-van, a 14 year old male, is a child “in need of care” or “in need of supervision” under the provisions of the Code of Juvenile Procedure.

Mark’s parents were married in 1964. They lived in Brownsville, Texas where Mark was born in 1965 and his sister in 1972. Mrs. Galvan has been deaf from birth and attended Chinchuba Institute for the Deaf in Marrero when she was a youngster. Shortly after Mark was born it was discovered that he had a hearing impairment and should attend Chinchuba for its specialized training. The family moved from Texas to Marrero and Mrs. Galvans father, Dr. Vidal Longoria, provided funds to purchase the family home. In May, 1979, the Galvans separated and in conjunction with Mrs. Galvan’s lawsuit for a legal separation a custody rule was tried in the 24th Judicial District Court on June 25, 1979.

The custody hearing was an adversary proceeding at which Mr. and Mrs. Galvan each sought custody of both children. After a full hearing the district judge awarded custody of Mark and his sister to Mrs. Galvan with the stipulation that she stay in Marrero until Mark finished school on July 20, 1979. After Mark finished summer school, Mrs. Galvan and her parents began preparations to move to Brownsville, Texas to establish a new domicile.

On July 21, 1979, Mr. Galvan had visitation rights with the children. During their visit, he had a private conversation with Mark after which both children returned to their mother in the evening. A short time later Mark had a disagreement with his sister and grandmother and left his home about 8:00 p. m. and ended up four hours later at a place of business supervised by his father. The father contacted the Office of Human Development, after which a social worker and Mr. Galvan returned the child to his home.

On July 25, 1979, when the Galvans were ready to move to Texas, Mr. Galvan went to Mrs. Galvan’s home accompanied by a social worker and asked to speak to Mark in private. The private conversation lasted about one-half hour and Mr. Galvan left. A short time later Mark told his mother and grandparents that he hated them and his sister and that he was not going to Texas. That evening Mark again left his home and a few hours later went to a place of business supervised by his father. Mr. Galvan called another social worker who spoke to a detective (a friend of Mr. Galvan’s) who happened to be at the same location as Mark and Mr. Galvan. Based upon the recommendation of the detective, the social worker called a juvenile judge who gave a verbal order which resulted in Mr. Galvan being granted temporary custody of Mark. A hearing was held in juvenile court on August 10, 1979, and a judgment was rendered giving custody of Mark to his father.

In his judgment the ad hoc Juvenile Judge gave three reasons why the juvenile court assumed jurisdiction. The first two were:

“1. The child was found to be without necessary supervision because his mother, then having custody, could not prevent his running away from home to be with his father. This placed the child in severe danger in that he is deaf and cannot hear traffic and other perils of the streets. This brings him within the definition at CJP 13(14)(c).
2. The child’s emotional condition was substantially threatened as a result of cruel punishment and the allowing of the grandparents to do the same. Because of the child’s special needs resulting from his handicap, and the separation of his parents and his strong attachment to his father, the threat of sending the child to a distant military school for normal behavior under the circumstance was, in this instance, cruel punishment. This brings him within the definition of CJP 13(14)(b).
******
The court assumes jurisdiction, therefore, under CJP 15(c) [15(C)].”

The Code of Juvenile Procedure Art. 15 provides:

“Except as otherwise provided herein, a court exercising juvenile jurisdiction shall have exclusive original jurisdiction over the following proceedings:
(C). A proceeding in which a child is alleged to be in need of care.”

Counsel for Mrs. Galvan urges in his brief that there is insufficient evidence to conclude that Mark is a child in need of care or supervision and therefore juvenile court did not have jurisdiction. Appellant stresses that this matter is basically a dispute over custody of Mark which had been adjudicated in the District Court only two months earlier.

The first reason given by the ad hoc judge to find Mark “a child in need of care” concerned the alleged lack of supervision by the mother in not preventing his leaving home alone with special emphasis placed on the judge’s feeling that the child was in danger due to his hearing disability. CJP 13(14)(c) is the cited authority for this conclusion. Section 14(c) states:

(14) “ ‘Child in need of care’ ” means a child:
(c) Who is without necessary food, clothing, shelter, medical care, education, or supervision because of abandonment by, or the disappearance or prolonged absence of, his parent, or because of any other reason.”

We fail to see how the ad hoc judge’s application of the facts herein apply to any part of 14(c). There is no evidence that Mark failed to receive food, clothing, shelter, medical care, education, or that Mrs. Galvan abandoned him or that Mrs. Galvan disappeared or was absent for a prolonged period. Perhaps the ad hoc judge used the “any other reason” provision of (c) as the basis to conclude that Mark’s leaving home on two occasions to be with his father was justification to find that this 14 year old is “a child in need of care”. We strongly disagree with this reason of the judgment.

The second reason in the judgment concerned a finding of “cruel punishment” under CJP 13(14)(b) which provides:

(14) “ ‘Child in need of care’ ” means a child:
(b) Whose physical, mental or emotional condition is substantially threatened or impaired as a result of the refusal or neglect of his parent to supply the child with necessary food, clothing, shelter, medical care, counseling or education, or as a result of the parent’s neglect or imposition of cruel punishment;”

The foundation for the ad hoc judge’s determination of “cruel punishment” came about because of the “threats of sending the child to a distant military school”. Somehow, the ad hoc judge reasons that a military school away from home would constitute “cruel punishment” considering that Mark has a 30% hearing impairment. We note in the record that Mark attended a regular high school and apparently functions quite well with a hearing aid. There is no evidence that Mark encountered unusual (or any) problems in his day-to-day school activities with other children. Disagreements between a teenager and a parent certainly are not uncommon and the “threat” to send the youngster to a military school is often intended to have a positive effect. We find absolutely no evidence of “cruel punishment” as enunciated in Section 14(b).

The third and last reason in the judgment states:

“The court also finds that the child is within the jurisdiction of the court as a ‘Child in Need of Supervision’, without adjudicating him as such. The evidence clearly showed that on at least two occasions the child ran away from home without the consent of his mother, placing him within the definition at CJP 13(13)(b).” (Emphasis added).

The Code of Juvenile Procedure Art. 13(13)(b) provides:

(13) “ ‘Child in need of supervision’ ” means a child who needs care or rehabilitation because:
(b) He habitually disobeys the reasonable and lawful demands of his parents, and is ungovernable and beyond their control.”

The apparent intent of the ad hoc judge was to utilize the provisions of (c) in CJP 13(13) which states:

(c) “He absents himself from his home or usual place of abode without the consent of his parent;”

The language in this third reason is inappropriate. To state that a child “ran away from home” means that the child left his parent(s), or that the child left the area of his domicile and went to another locality, or that the child wanted to change his environment. On the two occasions when Mark left home he simply went to a place where he could be with his father. It appears he did so because he was leaving Marrero to move to Texas or because he may have thought that he would be sent to military school (even though there is no specific proof of this). We fail to see how Mrs. Galvan can spend every moment with each of her children which would be the only way to avoid the opportunity for either child to leave home. These two instances standing alone do not form a basis to conclude that Mark habitually disobeyed and is ungovernable by his mother under CJP 13(13)(b) or that he is a runaway child “in need of supervision” under CJP 13(13)(c).

Parents are certainly free to discipline their children when the need arises subject to proper discretion and within legal constraints. A 14 year old teenager leaving home unannounced on two occasions to be with his father (probably prompted to do so), and the admonition of attending military school as a method of discipline clearly fails to prove that Mark Galvan is “ a child in need of care” and/or a “child in need of supervision”.

This young man is fortunate to have two parents and grandparents who obviously love him very much and place him at the focal point of their personal concerns. There is uncontradicted testimony that the home of Mrs. Galvan is suitable for the needs of her family. The care and interest of maternal grandparents adds a greater foundation to Mark’s security. We have searched this extensive record to rationalize the ad hoc judge’s effort to remove custody from Mrs. Galvan. The only plausible explanation is Mark’s testimony that he preferred to live with his father. This desire should certainly be considered, but, standing alone, it is not a compelling basis to change custody. If it was, then custody hearings would simply require testimony from the minor as to parental preference.

The record is totally void of reliable, direct evidence on which to base a conclusion that Mark Galvan is a neglected child under the provisions of the Code of Juvenile Procedure. To change custody would punish Mrs. Galvan when she did nothing wrong and there is no proof she did anything detrimental to her child. Mark should be returned to the legal custody of his mother as of the date of the rendition of this judgment pending it becoming final.

For the reasons assigned the decree of the Juvenile Court placing custody of the minor, Mark Galvan, in the custody of Jesus Galvan, is reversed and set aside. It is now ordered that the said minor be returned to the custody of his mother, Mrs. Rosalee L. Galvan, immediately upon the rendition of this judgment, it being the intent of this Court that Mrs. Galvan retain custody of the minor pending the finality of these proceedings.

REVERSED.

SAMUEL, J., concurs with written reasons.

SAMUEL, Judge,

concurring.

I agree with the facts found in the majority opinion and with the majority decree. However, under the facts of this case, I am of the opinion the juvenile court was without jurisdiction following a factual determination. Jurisdiction over the custody of Mark Galvan remained solely in the district court.

I respectfully concur.


author: GARRISON, Judge. GULOTTA, Judge,

text:
    STATE of Louisiana In the Interest of Catrice ALEXANDER.
    No. 10921.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 1980.
    Writ Refused July 7, 1980.

      Steven Scheckman, Mark McTernan, New Orleans, for plaintiff-appellant.
    Harry F. Connick, Dist. Atty., Mary L. Beck, Asst. Dist. Atty., New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT, and GARRISON, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the Family Court of Orleans Parish, declaring Catrice Alexander, then age 4, to be in need of the care and protection of Family Court, removing her from the custody of her natural mother, Cassandra Alexander, and placing her in the temporary custody of her maternal grandmother, Mrs. Albertha Alexander. Cassandra Alexander was granted daily visitation and was ordered to attend a Mental Health Clinic. Should Cassandra Alexander be released from the Mental Health Clinic, the court stated, it would order the child rejoined with her mother. Additionally, the court stated that, if medical authorities suggested therapy which required Cassandra to be rejoined with her child, the court would agree to rejoin Cassandra and Catrice Alexander. From that judgment, which we now affirm, Cassandra Alexander appeals.

Catrice Alexander came to the attention of the Family Court subsequent to a referral of child abuse to Juvenile Police Officers on January 4, 1979. The detective charged with the investigation found bruises on the child’s back and a cast on her left arm. X-rays showed a supracondylar fracture of the left humerus and an older fracture to the right ulna. The child’s entire body was covered with linear scars. Cassandra Alexander admitted to beating her then three year child with a belt and that the linear marks were scars resulting from the beating.

On January 4, 1979, Catrice Alexander was placed in the temporary custody of the Louisiana Health and Human Resources Administration by virtue of an emergency instanter order issued by the Juvenile Court. The mother was investigated by the Welfare Department and the District Attorney’s Office accepted the referral on February 9,1979. The matter was set for a hearing on February 19, 1979.

On February 20, 1979, counsel for the mother filed a motion to dismiss or in the alternative, to dissolve the instanter order on the basis that several juvenile statutes were unconstitutional. The motion was denied on March 8, 1979 and the instanter order was confirmed.

Meanwhile, on February 26, 1979, the State filed a petition praying that Catrice be declared “a child in need.” On March 14, counsel for the mother filed a notice of intent to file for writs of prohibition, certio-rari, and mandamus. In response thereto, the Juvenile Court stayed all proceedings.

On April 23,1979, the Louisiana Supreme Court denied writs stating that the ease did not “appear to involve a criminal prosecution” and transferred the application to the Fourth Circuit. This court granted writs, dissolving the instanter order as expired, allowing the Juvenile Court to issue “any orders ... for the temporary protection of the child, as long as relator is not denied a timely hearing on the necessity of such an order.” (At 1246), and remanding for further proceedings.

On appeal, the mother argues that the judgment of the trial court should be reversed on the following specifications of error:

1. Petitioner was denied procedural due process by the Court when it issued an instanter order, authorizing the summary seizure of the child without first holding a contradictory hearing.

2. Petitioner was denied procedural due process by the Court when it failed to hold a preliminary hearing within 24 hours of the child’s seizure.

3. Petitioner was denied procedural due process when the court failed to hold an adversary adjudicatory hearing within 10 days on the summary seizure of the child.

4. Petitioner was denied due process in that the instanter order was issued pursuant to the authority of R.S. 14:403, R.S. 13:1569 and C.J.P. Art. 13 and Art. 14, which statutes are unconstitutionally vague, ambiguous and overbroad.

We initially note that the first three specifications of error have been previously ruled on by this court in State In Interest of Alexander, cited above, wherein we stated:

“Relator (the child’s mother) complains that the statute is unconstitutional in its failure to require (1) a preliminary hearing prior to or immediately after issuance of an instanter order on the issue of necessity of immediate removal and (2) an adjudicatory hearing on the merits of the neglect or abuse issue within a reasonable time.

“In view of the result reached in the present case it is not necessary to rule on the constitutionality of the statute at this time. The juvenile court issued the instanter order upon being presented with an affidavit which convincingly established good cause for temporary removal and placement of the child. Relators did not dispute the verified factual allegations or request a hearing on the necessity of immediate removal. Indeed, rela-tors made no attempt to contest the temporary removal until 47 days after the issuance of the instanter order, when they moved to dismiss the abuse proceeding for failure to hold a hearing within 45 days after issuance of the instanter order. “At the time relators filed their motion, the instanter order had expired because no hearing was held within 45 days of its issuance. However, because the instanter order relates only to the temporary removal and placement of the child as is necessary for the child’s protection pending completion of an investigation, the expiration of the order did not affect the abuse proceedings based on facts alleged in the petition filed after the completed investigation. The juvenile court therefore properly denied the motion to dismiss the abuse proceedings, and the matter should proceed to trial without further delay.

“Nevertheless, the juvenile court had no authority to continue the instanter order in effect after 45 days. We accordingly grant the application for supervisory writs and order, in the exercise of our supervisory jurisdiction, that the instanter order be dissolved as expired. However, nothing herein is to be construed as preventing the request for, or the issuance of, any orders by the juvenile court for the temporary protection of the child, as long as relator is not denied a timely hearing on the necessity of such an order.” (At pp. 1245-6)

See also State In Interest of Brown, 372 So.2d 1246 (App. 4th, 1979); State In Interest of Duvernay, 372 So.2d 1248 (App. 4th, 1979). Thus, the first three specifications of error raised on appeal have been previously resolved by this court at an earlier time.

Turning now to the fourth specification of error, we note that there is a strong presumption in favor of the constitutionality of legislation. In City of Natchitoches v. State, 221 So.2d 534 (App. 3rd, 1969) the scope and standard of review to be applied by appellate courts in suits challenging the constitutionality of statutes was discussed:

“The general rule is that every statute is presumed to be constitutional, and the court is bound to uphold the constitutionality of a statute when it is reasonably possible to do so. Every consideration of public need and public policy upon which the legislation could rationally have been based should be weighed by the court, and the statute should be upheld as being valid and enforceable unless it clearly is inconsistent with provisions of the state or federal constitutions. Michon v. Louisiana State Board of Optometry Examiners, 121 So.2d 565 (La.App. 2d Cir. 1960); Police Jury of Parish of St. Charles v. St. Charles Parish Waterworks District No. 2, 243 La. 764, 146 So.2d 800 (1972).” At 544.

Our review of the legislation at issue convinces this court that appellant has failed to overcome the strong presumption of constitutionality. Our review of the law and facts, as well as the evidence adduced, leads this court to the inevitable conclusion that the judgment of the juvenile court was correct in its results. Accordingly, the judgment of the Family Court is affirmed.

AFFIRMED.

GULOTTA, J., dissents and assigns reasons.

GULOTTA, Judge,

dissenting.

I respectfully dissent.

Based on our holding in State In Interest of Alexander, 372 So.2d 1243 and State In Interest of Brown, 372 So.2d 1246, I would set aside the judgment of the trial court and remand the matter for further proceedings. The remand would not disturb the custody of the child with the grandmother provided further proceedings were initiated in conformity with the Code of Juvenile Procedure.

Accordingly, I respectfully dissent from the judgment of this Court affirming the judgment of the family court.

      . Further investigation revealed that an abuse referral had previously been made to the Child Protection Center regarding Catrice, but it had not been substantiated and was subsequently closed.

      . Sup.Ct. No. 64,423.

      . 372 So.2d 1243 (App. 4th 1979).