author: JORGENSON, Judge.

text:
    Ronald R. SLEIGHT, Appellant, v. SUN AND SURF REALTY, INC., etc., et al., Appellees.
    No. 80-2400.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Lee, Schulte, Murphy & Coe and Jack M. Coe, Jupiter, for appellant.
    Maurice Jay Kutner, Miami, for appel-lees.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   JORGENSON, Judge.

Ronald Sleight, defendant below, appeals from an adverse judgment following a jury trial awarding Sun and Surf Realty, plaintiff below, $20,000 actual damages and $100,000 punitive damages. The alleged cause of action arose out of a real estate commission agreement involving the sale of the Hurricane Motor Lodge in Monroe County, Florida. Count 2 of the amended complaint (the only count involving Mr. Sleight) sounded in common law fraud and conspiracy to defraud. Evidence adduced during the course of the trial disclosed that the cooperating brokers had agreed to a reduced commission of $20,000 (secured by a promissory note) which was to be paid some six months after the closing. The closing occurred on February 1,1978. Neither broker took any action to collect the commission until after August, 1978.

Florida law is well-settled that a misrepresentation must ordinarily relate to a past or existing fact to be the basis of a claim for relief sounding in fraud. Upchurch v. Mizell, 50 Fla. 456, 40 So. 29 (1905). A false statement amounting to a promise to do something in the future is not actionable fraud. Stoler v. Metropolitan Life Insurance Company, 287 So.2d 694 (Fla. 3d DCA 1974); Evans v. Gray, 215 So.2d 40 (Fla. 3d DCA 1968), cert. denied, 222 So.2d 748 (Fla.1969); 27 Fla.Jur.2d, “Fraud and Deceit” § 24. The record before us is entirely devoid of any evidence to support a theory of fraud or conspiracy to defraud. Accordingly, the judgment below is reversed and this cause is remanded with directions to enter judgment for appellant.

Reversed and remanded with directions.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Josephine DUBINS and Tamara Swali, Appellants, v. The STATE of Florida, Appellee.
    Nos. 81-168, 81-327.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Bennett Brummer, Public Defender and Barry Weinstein, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen. and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Finding that the phrase “competence to consent to treatment” in Section 394.-467(3)(a), Florida Statutes (Supp.1980), is not unconstitutionally vague, indefinite, uncertain or standardless so as to violate the due process clauses of the Constitutions of the United States and the State of Florida, and that no procedural due process right of either appellant was violated by the hearings conducted, we affirm the orders under review in these consolidated appeals.

Affirmed.


author: PER CURIAM. SCHWARTZ, Judge

text:
    Eladio GODOY and Lesbia Godoy, his wife, Appellants, v. DADE COUNTY, a political subdivision of the State of Florida John A. Braxton, Jr., and Delores Marquez, Appellees. Delores MARQUEZ, Appellant, v. DADE COUNTY, a political subdivision of the State of Florida, John A. Braxton, Jr., Eladio Godoy and Lesbia Godoy, Appellees.
    Nos. 81-346, 81-1079, 81-492 and 81-1117.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Goldstein Professional Association, Daniels & Hicks and Mark Hicks, Miami, for Eladio Godoy and Lesbia Godoy.
    Talburt, Kubicki & Bradley, Miami, for Delores Marquez.
    Robert A. Ginsburg, Dade County Atty., and John E. Finney, Asst. County Atty., for Dade County and John A. Braxton, Jr.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The single issue left in this appeal is court costs in the amount of $5,666.36, which the trial court declined to tax against the County in light of our opinion in Berek v. Metropolitan Dade County, 396 So.2d 756 (Fla. 3d DCA 1981). Appellant concedes Berek, supra, is controlling and points to the direct conflict in State Board of Regents v. Yant, 360 So.2d 99 (Fla. 1st DCA 1978). We adhere to our previous opinion in Berek, supra, and decline to follow Yant, supra. Accordingly, the judgment finding the County not liable for court costs in excess of its statutory limitation is affirmed.

Affirmed.

SCHWARTZ, Judge

(specially concurring).

Only because my dissenting views, to which I still adhere, did not prevail in Ber-ek, I concur in the decision of the court.


text:
    G. B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 81-556.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Bennett H. Brummer, Public Defender and Robert R. Schrank, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

G. B., a juvenile appeals from an adjudication of delinquency for burglary and grand larceny. The State concedes the only point on appeal, i.e., that the adjudication should be reduced to petit larceny because the State failed to prove that the property G. B. was charged with stealing had a value of $100.00 or more as required by Section 812.014, Florida Statutes (1979).

Accordingly we affirm the adjudication of delinquency for burglary and remand to the trial court for purposes of reducing the adjudication of delinquency for grand larceny to an adjudication of delinquency for petit theft.


text:
    Salomon GUTMAN and Gena Gutman, Appellants, v. AMERICAN MOTORISTS INSURANCE COMPANY, Appellee.
    No. 81-607.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Kosdan & Pariser and Brian W. Pariser, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for appellee.
    Before HENDRY and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final judgment entered in favor of the defendant, American Motorists Insurance Company, after a non-jury trial is affirmed. In our view, the evidence was sufficient for the trial judge to conclude, as he did, that cracks in appellants’ forty-five year old home were due to natural settlement rather than vibrations from nearby construction and were therefore not covered under the policy. Abelson v. Bosem, 336 So.2d 482 (Fla. 3d DCA 1976); Duncanson v. Service First, Inc., 157 So.2d 696 (Fla. 3d DCA 1963). See Underwriter’s National Assur. Co. v. Harrison, 338 So.2d 58 (Fla. 3d DCA 1976).

Accordingly, the trial court properly denied attorney’s fees to appellants since no final judgment on the merits was rendered in their favor. American Home Assur. Co. v. Keller Industries, Inc., 347 So.2d 767 (Fla. 3d DCA 1977), cert. denied, 360 So.2d 1249 (Fla.1978), cert. dism., 367 So.2d 1124 (Fla.1979); Hart v. Bankers Fire and Casualty Ins. Co., 320 So.2d 485 (Fla. 4th DCA 1975); Dawson v. Blue Cross Association, 293 So.2d 90 (Fla. 1st DCA 1974); Section 627.428(1), Florida Statutes (1979).

Affirmed.


author: BASKIN, Judge.

text:
    UNITED STATES TELEPHONE COMPANY, Appellant, v. STATE of Florida, DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Division of Employment Security, Appellee.
    No. 81-726.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Ciravolo & Feldman and Bennett G. Feld-man, Miami, for appellant.
    Ollie Evans, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   BASKIN, Judge.

In this appeal, United States Telephone Company challenges an assessment levied by the Department of Labor and Employment Security. The Department defined the company’s sales personnel as employees rather than as independent contractors under section 443.03(5), Florida Statutes (1979), transferred to section 443.036(17), Florida Statutes (1981). We reverse.

United States Telephone Company sells and installs private office telephones. It utilizes sales personnel who work on commission to obtain customers. Following a hearing, the Special Deputy entered findings of fact:

To achieve its business goals, the Petitioner contracts with certain individuals hereinafter referred to as ‘salesmen,’ to solicit and sell to customers these telephone systems. The Petitioner contracts with each ‘salesman’ individually, and said contracts are verbal in nature. The verbal contracts were of an ongoing, continuing nature and not for a stated period of time. Upon contracting with the ‘salesmen,’ the Petitioner provides sales training and familiarization with its products, depending upon the ‘salesman’s pri- or experience. The Petitioner provides to the ‘salesmen,’ at no charge, office space and telephone service. The Petitioner also supplies secretarial and clerical assistance to the ‘salesmen’ at no charge. These ‘salesmen’ are not given customer leads. Upon completion of a customer survey sheet by the ‘salesmen,’ it is typed by the Petitioner’s secretarial/clerical staff and submitted to the Petitioner for approval. The Petitioner processes the survey and said pricing includes the ‘salesmen’s’ commission. Once the sales contract is given to the Petitioner and approved by the Petitioner, the Petitioner ■handles and further deals with the customer. The Petitioner is responsible for billing the customer, installing the systems, and handling any customer problems or complaints.
The ‘salesmen’ are paid a draw against commission. Each ‘salesman’s’ commission rate is individually contracted with the Petitioner, said rate varying from ‘salesman’ to ‘salesman.’ The ‘salesman’ receives a draw on a weekly basis and the amount of each ‘salesman’s’ draw is mutually agreed upon by the ‘salesman’ and the Petitioner. No social security, withholding, or other taxes are withheld from the ‘salesman’s’ check. The ‘salesmen’ hold no occupational licenses in connection with their sales for the Petitioner. The Petitioner has no supervisor or manager over the ‘salesmen’ and the Petitioner exerts little if any direct supervision over the ‘salesmen.’ The ‘salesmen’ are responsible for their own transportation and related expenses. The ‘salesmen’ have no set hours of work and no sales quotas are dictated by the Petitioner. The ‘salesmen’ do not have assigned territories, but can only sell in the Miami, Fort Lauderdale, Palm Beach Florida, area, (emphasis added).

Based upon the foregoing findings of fact, the Deputy applied the standards delineated in Cantor v. Cochran, 184 So.2d 173 (Fla.1966), and ruled that the sales personnel were employees. While we agree that the Deputy applied the proper standards, we hold that his conclusion was not supported by the evidence.

The degree of control exercised by the company is a principal consideration in determining employment status. Magarian v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858 (1941); Collins v. Federated Mu tual Implement & Hardware Insurance Co., 247 So.2d 461 (Fla. 4th DCA), cert. denied, 249 So.2d 689 (Fla.1971); Farmers & Merchants Bank v. Vocelle, 106 So.2d 92 (Fla. 1st DCA 1958). In the case before us, as in Cosmo Personnel Agency of Fort Lauderdale, Inc. v. Department of Labor & Employment Security, 407 So.2d 249 (Fla. 4th DCA 1981), the company was concerned with profits and exerted no effective control over the salesmen. The Deputy’s findings of fact compel a determination that the salesmen were independent contractors.

For these reasons, the order appealed is reversed and the cause is remanded for further proceedings consistent with this opinion.


text:
    Joseph SWIECIKI, Appellant, v. The STATE of Florida, Appellee.
    No. 81-785.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.

      Bennett H. Brummer, Public Defender, and Ann Mason Parker, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. State v. Preston, 387 So.2d 495 (Fla. 5th DCA 1980); Lewis v. State, 296 So.2d 575 (Fla. 1st DCA 1974).


text:
    Carlos O. ROJAS, Appellant, v. Eysa ROJAS, Appellee.
    No. 81-807.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Mason & Meyerson and William John Mason, Miami, for appellant.
    Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul A. Louis and Paul E. Gifford, Miami, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Colucci v. Colucci, 392 So.2d 577 (Fla. 3d DCA 1981); Walton v. Walton, 354 So.2d 464 (Fla. 1st DCA 1978).


text:
    Eugene FIERER and Diane Fierer, Appellants, v. Stanley H. SPIELER, Appellee.
    No. 81-1102.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Samuel Sheres, Hollywood, for appellants.
    Robert F. Weiner, Miami, for appellee.
    Before HUBBART, C. J., and FERGUSON, J., and MELVIN, WOODROW N. (Ret.) Associate Judge.
   PER CURIAM.

Affirmed. Autorico, Inc. v. Government Employees Insurance Company, 398 So.2d 485 (Fla. 3d DCA 1981).


text:
    Maria HUERTA, Appellant, v. FLORIDA POWER AND LIGHT COMPANY, Appellee.
    No. 81-1153.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Robert M. Hustead, Florida Rural Legal Services, Homestead, for appellant.

      Steel, Hector & Davis and Gerry Gibson, Miami, for appellee.
    Before HUBBART, C. J., BASKIN, J., and BERANEK, JOHN R., Associate Judge.
   PER CURIAM.

Affirmed. See Florida State Constructors Services, Inc. v. Randall, 368 So.2d 421 (Fla. 3d DCA), cert. denied, 378 So.2d 348 (Fla.1979).


text:
    Ben WEISS, Appellant, v. MORRIS ROSENBLOOM & CO., INC., Appellee.
    No. 81-1453.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Jack J. Weiss, Miami, for appellant.
    Goldstein, Goldman, Kessler & Underberg and Larry A. Stumpf, Rochester, N. Y., for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

Appellant, judgment debtor in the State of New York, appeals a final judgment establishing and enforcing the foreign judgment in the State of Florida. He complains that numerous telephone calls from Florida to New York could not subject him to New York’s “long arm” statute in a suit filed therein to collect monies due for products shipped to him. We disagree, and affirm. Silitronic Chemical Corporation v. R.K.M. Enterprises, 197 So.2d 33 (Fla.3d DCA 1967); International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1947); Parke-Bernet Galleries, Inc. v. Franklyn, 26 N.Y.2d 13, 308 N.Y.S.2d 337, 256 N.E.2d 506 (1970); N.Y.Civ.Proc., § 306 (McKinney 1972).

Affirmed.


text:
    Felipe MARCEL, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1668.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.

      Bennett H. Brummer, Public Defender, and Albert J. Zemlock, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Affirmed. State v. Astore, 258 So.2d 33 (Fla. 2d DCA 1972); Winchell v. State, 362 So.2d 992 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 462 (Fla.1979); Albo v. State, 379 So.2d 648 (Fla.1980); State v. Melendez, 392 So.2d 587 (Fla. 4th DCA 1981); Cobb v. State, 378 So.2d 82 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1111 (Fla.1980).


text:
    Ricky Lopez PEREZ, a/k/a George Perez Lopez, a/k/a Jorge Perez Lopez, a/k/a Jesus Manuel Herrera, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1672.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Stone, Sostchin & Gonzalez and Roy Gonzalez, Jr., Miami, for appellant.
    Jim Smith, Atty. Gen. and Theda James, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   PER CURIAM.

Defendant’s multiple convictions and concurrent sentences for a direct criminal contempt are reversed for noncompliance with Florida Rule of Criminal Procedure 3.830.

Reversed.


text:
    Paul LUSKIN, Joseph Luskin and Luskins High Fidelity, Inc., Appellants, v. INTERNATIONAL WHOLESALERS, INC., and Al Mizrachi, Appellees.
    No. 81-1808.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Entin, Schwartz, Angert, Dion & Broudy and Ronald A. Dion, Miami, for appellants.
    Genet & Milner, North Miami Beach, for appellees.
    Before SCHWARTZ, NESBITT and - BASKIN, JJ.
   PER CURIAM.

Affirmed. Harless v. Kuhn, 403 So.2d 423, 425 (Fla.1981); Overseas Equipment Co., Inc. v. Aceros Arquitectonicos, 374 So.2d 537, 538 (Fla. 3d DCA 1979); Goldstein v. Goldstein, 284 So.2d 225, 227 (Fla. 3d DCA 1973).


text:
    Lorena PINAL and Blanca Cano, Appellants, v. OCEAN SHIP SUPPLY, INC., a Florida corporation, and United States Fidelity & Guaranty Company, a foreign corporation, Appellees.
    No. 81-1889.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Joel V. Lumer, Kaplan, Sicking, Hessen, Sugarman, Rosenthal & DeCastro and Abraham L. Bassie, Miami, for appellants.
    Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

This is an appeal by the plaintiffs from an adverse summary judgment.

The complaint charged Ocean Ship Supply, Inc. with negligently creating a dangerous condition which caused the minor plaintiff, Lorena Pinal (an invitee), to slip and fall into a fan whereby she suffered injury. The defendants generally denied the allegations in the complaint and raised the affirmative defenses of contributory negligence on the part of Lorena Pinal and her guardian. Discovery demonstrated that the manner in which the accident differed from the allegations in the complaint was that specifically the minor plaintiff was not an “invitee”, as alleged, nor did she slip or trip and fall into the fan.

Ocean Ship Supply, Inc. operates a warehouse in North Miami. Two days a week the minor plaintiff’s grandmother, Maria Calderon, cleaned the offices, storage room and bathrooms at the warehouse. The fan involved in the accident rested on the floor of the warehouse. On the day the accident occurred, the minor plaintiff was ill and did not go to school. Because the child’s mother worked, the child remained with the grandmother and accompanied her when she went to the warehouse. Prior to the accident, the child and her grandmother passed by the fan without incident on several occasions as they traveled to the bathroom to rinse out mops. On the final occasion, the child turned to look back at her grandmother and walked into the fan, injuring her hand.

The minor child was a licensee, which is one who has entered onto the property of another for his own convenience, pleasure, or benefit with the owner’s permission. Post v. Lunney, 261 So.2d 146 (Fla.1972). The duty of the landowner is to warn of known dangers which the licensee is unlikely to discover and to refrain from wanton negligence or willful misconduct.

The minor plaintiff had no difficulty avoiding the fan on several prior occasions before the accident occurred. The accident did not occur because of a “condition on the premises”; it happened simply because the minor plaintiff looked behind her to see what her grandmother was doing, and walked into the fan.

We find no duty breached by the defendant, Ocean Ship Supply, Inc., which would constitute negligence. We have examined the other point urged for reversal, and find it to be without merit. Crovella v. Cochrane, 102 So.2d 307 (Fla. 1st DCA 1958).

Affirmed.


text:
    Clay B. COFER and Emilia Cofer, Appellants, v. Albert P. ROSILLO, Guardian Ad Litem, Appellees.
    No. 81-2294.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Mark B. Slavin, North Miami Beach, John Lipinski, Miami, for appellants.
    Albert P. Rosillo, Miami, in pro per.
    Before SCHWARTZ, DANIEL S. PEAR- ' SON and JORGENSON, JJ.
   PER CURIAM.

We reverse on a holding that the Cofers, invited to intervene in this cause by H.R.S. (as agreed to by all the parties), may not now be severed from this litigation because of an apparent personality conflict with the Guardian Ad Litem. In Interest of D.B., 385 So.2d 83 (Fla.1980); In re M., 176 So.2d 600 (Fla. 3d DCA 1965).

The trial court’s prior order permitting intervention is hereby reinstated. This cause is remanded for further proceedings.

Reversed and remanded.


text:
    Fred KLOSENBERG, Petitioner, v. James RAINWATER, Judge of the County Court, Dade County Florida, and Cathy Lynn Klosenberg, Respondents.
    No. 81-2632.
    District Court of Appeal of Florida, Third District.
    March 16, 1982.
    Ephraim Collins, Margate, for petitioner.
    Robert A. Ginsburg, County Atty. and Roy Wood, Asst. County Atty., Broad & Cassel and H. Jack Klingensmith, Bay Harbor, for respondents.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Because the administrative orders of the chief judge, which assigned the respondent county court judge to preside over specified circuit court proceedings designated as “A.F.D.C., U.R.E.S.A. and uncontested paternity” cases, manifestly did not include Dade County Circuit Court Case No. 77-42100 FC 02, the respondent lacks jurisdiction further to consider that cause, and is prohibited from doing so. 25 Fla.Jur. Prohibition §§ 18,40 (1959); see, Martinez v. Demers, 410 So.2d 5 (Fla. 2d DCA 1981). We are certain that it will not be necessary to issue a formal judgment in prohibition.

Prohibition granted.

      . This action of course is without prejudice to any proceedings before the appropriate circuit court judge or a master designated by that court.


author: COVINGTON, Justice Ad Hoc . LEMMON, Justice, LEMMON, Justice. CALOGERO, Justice, MARCUS, Justice BLANCHE, Justice

text:
    STATE of Louisiana v. Robert RAMOIN (Romain).
    No. 81-KA-0215.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    On Rehearing March 1, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Morgan J. Gou-deau, III, Dist. Atty., Donald Richard, Asst. Dist. Atty., for plaintiff-appellee.
    Edward James Lopez, Opelousas, for defendant-appellant.
   COVINGTON, Justice Ad Hoc .

The principal issue in this appeal is the sufficiency of the evidence presented to support the conviction of possession of marijuana with intent to distribute.

Robert C. Ramoin (Romain) was charged by bill of information with the offense of possession of a controlled dangerous substance, marijuana, with intent to distribute, in violation of La.R.S. 40:966 A(l). After a jury trial, the defendant was found guilty as charged and sentenced to serve five years at hard labor in the Department of Corrections, to run concurrently with a previous sentence. He appeals his conviction on the basis of one assignment of error.

The assignment of error by the defendant asserts that the trial court erred in denying his motion for a new trial because the verdict of the jury was contrary to the law and the evidence in that there was no evidence presented by the State to prove “intent to distribute”, an essential element of the offense charged. He contends that there was a total lack of evidence to prove the crime charged in that the State proved only that he owned a cardboard box in which 12 grams (less than one-half ounce) of marijuana was found.

The evidence offered by the State disclosed that, based on information of a confidential informant, on March 27, 1980, St. Landry Parish deputies conducted a search of the cell in the St. Landry Parish jail which the defendant occupied as an inmate serving time under a sentence imposed for a previous conviction, and found 27 hand-rolled marijuana cigarettes (approximately 12 grams) in a cardboard box which belonged to him, located under his bunk, and in which the defendant normally kept his personal property. While the defendant was being taken to be booked on the charge, he attempted to escape. To this we point out that the evidence showed that only the defendant occupied the particular bunk in the cell, and that the defendant admitted that the cardboard box belonged to him. He also had a footlocker which could be locked and which was kept under his bunk. The defendant denied any knowledge or connection with the marijuana cigarettes, and denied smoking marijuana while in jail, stating that it had been a long time since he had smoked marijuana.

We believe that the issue concerning the essential element of “intent to distribute” marijuana is resolved by applying the standard used in reviewing the sufficiency of evidence as enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the defendant was guilty beyond a reasonable doubt. See State v. Moody, 393 So.2d 1212, 1215 (La.1980).

We find that there is ample evidence in the record, viewed in the light most favorable to the prosecution, to establish that the defendant possessed the marijuana with intent to distribute. There was sufficient evidence in the record to convince a rational jury of every essential element of the crime charged beyond a reasonable doubt. We find that the State has proved beyond a reasonable doubt every fact necessary to constitute the crime of possession of marijuana with intent to distribute. See State v. Korman, 397 So.2d 1346 (La.1981).

For reversal, the defendant relies heavily upon several cases which held that quantity of the proscribed substance, standing alone, except in cases of sizeable amounts, is insufficient evidence to establish “intent to distribute.”

In State v. House, 325 So.2d 222 (La.1975), the prosecution offered only evidence that the defendant was in possession of 21 marijuana cigarettes and some seeds and stems. No evidence was offered of any attempted distribution or any circumstances of the transaction tending to show that the defendant possessed with the intent to distribute. The court found that “mere possession” was not evidence of possession with intent to distribute.

In State v. Elzie, 343 So.2d 712 (La.1977), the State “simply proved that the defendant possessed less than Vioth of an ounce of a substance containing one percent of cocaine,” or about 7/thousandths of an ounce of cocaine. The court found from the evidence that “the presence of this substance (containing only minute quantities of cocaine) is more consistent with possession for personal use in mixing or sniffing cocaine than with possession for distribution purposes”. The court held that there was a “total lack of evidence” to prove possession with intent to distribute.

Parenthetically, in contrast to Ramoin, in neither case did defendant deny that he was a user.

The cited cases merely stand for the proposition that having possession of a small quantity of a dangerous controlled substance, standing alone, will not support an inference that the substance was intended for distribution. They do not support the defendant’s contention.

It is, of course, accepted that the quantity of the substance involved (marijuana in this case) may be considered as a part of the “circumstances of the transaction.” State v. House, supra at 224.

In the instant case, the quantity of the dangerous controlled substance did not stand alone. There was at issue the credibility of the defendant, who took the stand in his own defense; i.e., inter alia: there was his attempt to escape when he was confronted with imminent arrest; the freedom to come and go as an inmate on the “work-release program” (and thus have outside access to marijuana); the defendant’s testimony that he did not smoke marijuana (so that the cigarettes could not have been for his own personal use); the possession of 27 hand-rolled marijuana cigarettes in a cardboard box along with defendant’s personal belongings; he was seen to carry the box with him when he went to the shower area; and evidence that no other person had unobserved access to the box, which was found in the defendant’s cell, under his bunk. Thus, we find there was sufficient evidence to establish that the defendant possessed the marijuana with intent to distribute.

This assignment does not show reversible error.

DECREE

For the reasons assigned, the conviction and sentence of Robert C. Ramoin (Romain) are affirmed.

AFFIRMED.

DIXON, C. J., dissents.

LEMMON, J., dissents in part and assigns reasons.

LEMMON, Justice,

dissenting in part.

The circumstances pointed out by the majority support a finding that defendant was guilty of possession, but do not establish beyond a reasonable doubt that defendant had the intent to distribute.

The state did not establish that possession of 27 marijuana cigarettes was inconsistent with personal use for one week. Although defendant was in a work release program and did have access every other week to marijuana on the outside, he was thoroughly searched each time he reentered jail, and it is plausible that, once he smuggled marijuana into jail, he kept more than a week’s supply for personal use in order to minimize the chances of getting caught bringing marijuana into the jail.

Under the evidence presented in this case a rational juror might reasonably conclude that the marijuana in defendant’s possession was either for sale or for personal use. Since either conclusion is reasonably probable, there is no proof beyond a reasonable doubt. I would set aside the conviction and remand for sentencing for possession under State v. Byrd, 385 So.2d 248 (La.1980); See State v. Harveston, 389 So.2d 63 (La.1980).

ON REHEARING

LEMMON, Justice.

We granted a rehearing in order to reconsider the question of whether the state presented sufficient evidence of defendant’s intent to distribute marijuana.

Defendant was an inmate of the St. Landry Parish jail, where he was allowed to participate in a work release program that permitted him to alternate working offshore for seven days and then serving seven days in jail (while he was not scheduled for offshore work). On March 27, 1980, while defendant was serving a seven-day jail stretch, a group of jailers and detectives conducted a drug search of the eight-man cellblock occupied by defendant. Under defendant’s bunk the searchers found a plastic bag, containing 27 marijuana cigarettes, in a cardboard box in which defendant kept his personal belongings.

Defendant was charged with possession of marijuana with intent to distribute. He was convicted after a jury trial and was sentenced to serve five years imprisonment at hard labor.

At trial the defense centered around defendant’s claim that the marijuana did not belong to him and that he did not know of its presence among his personal belongings. In support of this contention he testified that he was resented by other inmates because of his work release privileges and that someone (probably the hall trustee who had tried unsuccessfully to sell barbiturates to him) had “planted” the marijuana in his box. He pointed out that he and the box had been searched when he reentered jail on March 26, and he further stated that he had no need to sell marijuana in jail, because he was earning $1,600 per month in his offshore job and was not short of cash. On cross-examination he stated that during his jail term he had frequently smelled marijuana smoked by other prisoners, and when questioned as to the date of his own last use of marijuana, he replied that he had not used it since his initial arrest because he was determined to “go straight”.

Due process requires that an accused be proved guilty of every element of the offense beyond a reasonable doubt. In accordance with this standard the trial court (on a motion for new trial which urges insufficiency of evidence) and the appellate court (on appeal) can sustain the conviction only when the evidence, considered in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact of the defendant’s guilt beyond a reasonable doubt of every element of the offense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Harveston, 389 So.2d 63 (La.1980).

In the present case a rational juror could have rejected defendant’s disclaimer of knowledge or ownership of the marijuana and could have concluded beyond a reasonable doubt from the remaining evidence that defendant was guilty of knowingly and intentionally possessing the substance. The critical inquiry involves the sufficiency of evidence of his intent to distribute the cigarettes.

Intent to distribute illegal drugs may be established by proving circumstances surrounding the defendant’s possession which give rise to reasonable inferences of intent to distribute. State v. Elzie, 343 So.2d 712 (La.1977). On original hearing we noted that 27 marijuana cigarettes had not been shown to be inconsistent with personal use. Nevertheless, we concluded that defendant’s denial of present use of marijuana provided the basis on which a rational juror could have concluded that defendant therefore must have possessed the marijuana for the purpose of distribution. On reconsideration we now conclude that the evidence and the reasonable inferences that may be drawn from the evidence simply are not sufficient to convince a rational juror beyond a reasonable doubt that defendant intended to distribute the cigarettes.

A person who is spending one week in jail may have 27 marijuana cigarettes in his possession without necessarily intending to distribute them to others. The mere fact of possession of a relatively small quantity of marijuana does not compel the conclusion of intent to distribute. Furthermore, defendant's denial of marijuana use since being sentenced to jail was part of. his effort to deny ownership or knowledge of the marijuana found in the box belonging to him. The jury apparently rejected as untrue both the exculpatory denial of marijuana use in jail and the overall denial of knowledge and ownership of the particular marijuana cigarettes.

Proof that defendant had 27 cigarettes in his possession, combined with defendant’s lies regarding his knowledge and ownership of the cigarettes, simply are insufficient to establish beyond a reasonable doubt the defendant’s intent to distribute marijuana. Defendant obviously possessed the marijuana either for personal use or for distribution. However, since it was at least equally plausible to conclude on this record that he intended only personal use, there is no proof beyond a reasonable doubt of intent to distribute.

Accordingly, we hold that the evidence was insufficient to support the conviction of possession of marijuana with intent to distribute. However, the jury implicitly found that defendant committed the lesser and included responsive offense of possession of marijuana, and the record supports the jury’s conclusion in that respect. See State v. Harveston, above.

For these reasons, the conviction of possession of marijuana with intent to distribute and the sentence are set aside, and the case is remanded to the trial court with instructions to enter a judgment of guilty of possession of marijuana and to sentence defendant accordingly.

CALOGERO, J., concurs with reasons.

MARCUS and BLANCHE, J., dissent and assign reasons.

WATSON, J., dissents, believing the evidence sufficient to uphold the jury verdict.

CALOGERO, Justice,

concurring.

I agree with the majority that under Jackson v. Virginia the evidence of possession with intent to distribute was insufficient to meet due process standards.

MARCUS, Justice

(dissenting).

I agree that the evidence is insufficient to establish defendant’s intent to distribute marijuana. Hence, the state did not prove an essential element of the crime for which defendant was charged and convicted. Accordingly, he should be ordered discharged. I respectfully dissent.

BLANCHE, Justice

(dissenting).

I respectfully dissent.

While I agree that the evidence was insufficient to support the conviction of possession of marijuana with intent to distribute, I dissent from our instructions to the trial court that a verdict be entered of guilty of the lesser included offense.

This Court has no statutory authority to order a trial court to enter a verdict of guilty. The state has failed to prove each and every element of the charge against the defendant and, accordingly, that charge should be dismissed. See dissent of Watson, J. in State v. Byrd, 385 So.2d 248 (La.1980).

       Judges Covington, Cole and Watkins of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice Dixon, and Associate Justices Marcus, Blanche and Lemmon.

      . The defendant was an inmate in the St. Landry Parish jail serving time as a condition of probation under a previous conviction and sentence. He was permitted to serve his time during the seven days that he was off work from his off-shore job as a roughneck.

      . The cell was occupied by six inmates, including the defendant.

      . LSA-R.S. 15:445 provides:
      “In order to show intent, evidence is admissible of similar acts, independent of the act charged as a crime in the indictment, for though intent is a question of fact, it need not be proven as a fact, it may be inferred from the circumstances of the transaction.” LSA-R.S. 15:446 provides:
      “When knowledge or intent forms an essential part of the inquiry, testimony may be offered of such acts, conduct or declarations of the accused as tend to establish such knowledge or intent and where the offense is one of a system, evidence is admissible to prove the continuity of the offense, and the commission of similar offenses for the purpose of showing guilty knowledge and intent, but not to prove the offense charged."

      . As part of a work release program defendant was allowed to serve one week in jail and to work offshore one week in each two-week period.

      . In order to find defendant guilty of the necessary element of possession the jury necessarily rejected as untrue defendant’s testimony that he was unaware his box contained marijuana and that he had quit smoking marijuana when he was arrested. The jury relied on other circumstantial evidence which supported the element of possession.
      However, the majority uses defendant’s statement, found by the jury not to be credible, to support the element of intent to distribute, when the remaining evidence, standing alone, falls far short of proof beyond a reasonable doubt. An appellate court should be cautious in using rejected exculpatory testimony of a defendant as to one element of an offense to fill a void in the evidence as to another element of the offense.

      . The evidence showed that the marijuana was found, along with other personal possessions, in a box belonging to defendant and that no other person had an opportunity for unobserved access to the box. Furthermore, defendant had frequent opportunities to obtain marijuana during his periods of work outside the jail.

      . In State v. Willis, 325 So.2d 227 (La.1975) and State v. House, 325 So.2d 222 (La.1975), we held that proof of possession of 15 and 21 marijuana cigarettes respectively was alone insufficient to establish intent to distribute, when there was no other evidence such as scales, baggies, materials used for distribution, or evidence of prior efforts to distribute.


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

text:
    STATE of Louisiana ex rel. Rodney BECNEL v. Frank BLACKBURN, Warden, Louisiana State Penitentiary. STATE of Louisiana ex rel. Emile EDWARDS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    Nos. 81-KH-0957, 81-KH-1805.
    Supreme Court of Louisiana.
    Jan. 25, 1982.

      Lawrence M. Lehmann, of Midió & Leh-mann, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, J. Kevin McNary, Asst. Dist. Attys., for plaintiff-res-ponent.
   DIXON, Chief Justice.

Relators, Rodney Becnel and Emile Edwards, were adjudged fourth felony offenders on January 19, 1979 and April 12, 1976, respectively. Each was sentenced to twenty years imprisonment, the minimum allowed for fourth felony offenders under R.S. 15:529.1. The relators subsequently filed separate applications for post-conviction relief in the Orleans Parish Criminal District Court, attacking the constitutionality of two convictions that were included in the multiple bills. Becnel attacked his 1972 conviction for possession of a controlled dangerous substance; Edwards attacked his 1970 conviction for forgery. Both urged that because they were convicted by five member juries, they were effectively denied the right to trial by jury guaranteed by the Sixth Amendment as applied to the states through the Fourteenth Amendment. The trial court denied both applications and the relators sought this court’s review of those denials.

Writs were granted and the cases were consolidated for our review because both presented similar issues. State ex rel. Becnel v. Blackburn, 400 So.2d 212 (La.); State ex rel. Edwards v. Blackburn, 404 So.2d 277 (La.).

In Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), the United States Supreme Court held that conducting a criminal trial before a jury consisting of only five members deprived the defendant of his right to trial by jury under the Sixth and Fourteenth Amendments. The Court, in Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), held for much the same reason as in Ballew that a five to one verdict convicting the defendant of a nonpetty offense violated the right to a jury trial. Burch was applied retroactively in Brown v. Louisiana, 447 U.S. 323, 334, 100 S.Ct. 2214, 2223, 65 L.Ed.2d 159, 169 (1980), the court stating:

“In sum, Burch established that the concurrence of six jurors was constitutionally required to preserve the substance of the jury trial right and assure the reliability of its verdict. It is difficult to envision a constitutional rule that more fundamentally implicates ‘the fairness of the trial — the very integrity of the fact-finding process.’ .. . ‘The basic purpose of a trial is the determination of truth.’ ... and it is the jury to whom we have entrusted the responsibility for making this determination in serious criminal cases. Any practice that threatens the jury’s ability properly to perform that function poses a similar threat to the truth-determining process itself. The rule in Burch was directed toward elimination of just such a practice. Its purpose, therefore, clearly requires retroactive application.” (Citations omitted). (Emphasis added).

The rationale of Burch seemingly compels the same sort of retroactive application of Ballew v. Georgia, supra. That conclusion was reached in a recent decision of the Fifth Circuit Court of Appeals. In Thomas v. Blackburn, 623 F.2d 383 (5th Cir. 1980), cert. den. 450 U.S. 953, 101 S.Ct. 1413, 67 L.Ed.2d 380 (1981), the court granted petitioner relief on his habeas corpus application challenging his pre-Ballew conviction by a five member jury. Petitioner’s original state proceedings were completed in 1972. The court reasoned:

“The recognition that Ballew and Burch share the same purpose mandates that Ballew also be applied retroactively, regardless of good faith reliance by the state on the former rule or disruptive effect on the administration of justice.” Id. at 385.

Ballew, therefore, is to be given retroactive effect. The trial court erred in refusing to grant the relators’ post-conviction relief.

Emile Edwards’ application for post-conviction relief was filed in the district court in which his 1970 conviction was obtained. While recognizing the merit of Edwards’ argument, the trial judge nevertheless denied the application, apparently believing that Edwards was attacking the sentence he had received as a habitual offender. The trial court stated that the “proper forum to resolve such a matter would be that in which the relator received his enhanced punishment.” Had Edwards’ application attacked only the sentence he received as a habitual offender, the trial judge’s reasoning would have been proper. However, the application makes it clear that the relator was attacking only his 1970 conviction. The appropriate forum to attack a conviction is the court in which it was obtained. C.Cr.P. 925; State v. Linkletter, 345 So.2d 452 (La.1977).

Similarly, Rodney Becnel filed his application for post-conviction relief in the trial court in which his 1972 conviction was obtained. The trial judge dismissed the application without a hearing, stating that since the relator had served his sentence on the conviction the matter was moot.

This ruling was erroneous. The fact that one convicted of a crime has served his sentence does not render a subsequent attack on a constitutionally invalid conviction moot where the conviction is attended with collateral consequences, such as vulnerability to a multipe offender proceeding and a possible enhanced sentence. Whether the person may or may not be resentenced if convicted following a new trial is immaterial to this determination. See Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946); Sinclair v. Blackburn, 599 F.2d 673 (5th Cir. 1979), cert. den. 444 U.S. 1023, 100 S.Ct. 684, 62 L.Ed.2d 656 (1980); Scott v. District Attorney of Jefferson Parish, 309 F.Supp. 833 (E.D.La.1970), aff'd. 437 F.2d 500 (5th Cir. 1971); State ex rel. Bishop v. Blackburn, 384 So.2d 406 (La.1980).

In the present case, Becnel was adjudged a fourth felony offender; the four offenses included the 1972 conviction which he now attacks. Our law requires that such persons receive no less than twenty years imprisonment at hard labor. It is clear, therefore, that Becnel now suffers substantial detriment from the judgment of conviction, which survived the satisfaction of the sentence imposed on him. The constitutionality of that conviction is not “moot.”

Finally, the state asserts that the relators’ failure to object to the invalid convictions at their respective multiple offender hearings amounted to a waiver of the objection under C.Cr.P. 841. The state’s position is untenable. The attack in this case is aimed only at the constitutionality of two of the convictions that were used in the multiple offender proceedings, not the sentences that resulted from those proceedings. See State v. Nelson, 379 So.2d 1072 (La.1980).

For these reasons, the decisions of the respective trial courts are reversed; the 1972 conviction of Rodney Becnel in Orleans Parish for possession of a controlled dangerous substance is vacated and set aside, and the case is remanded to the district court for a new trial in accordance with law; the 1970 conviction of Emile Edwards in Orleans Parish for forgery is vacated and set aside, and the case is remanded to the district court for a new trial in accordance with law.

LEMMON and MARCUS, JJ., dissent and assign reasons.

BLANCHE, J., dissents and will assign reasons.

MARCUS, Justice

(dissenting).

I do not consider that the United States Supreme Court's decision in Brown v. Louisiana, 447 U.S. 323, 100 S.Ct. 2214, 65 L.Ed.2d 159 (1980), compels an overruling of our previous decision in State v. Robinson, 361 So.2d 864 (La.1978), holding that Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), is not to be retroactively applied. A majority of the Brown court was opposed to complete retroactive application of Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979). Accordingly, I adhere to our decision in Robinson holding that Baliew, which disapproved of five-member juries in serious criminal trials, should not be applied retroactively to convictions obtained by juries impanelled prior to the date of that decision. The effect of making Baliew retroactive to criminal cases tried prior to the change in our law effective January 1, 1975, and to enhancement of punishment proceedings, as in the instant case, will, in my opinion, have a significant disruptive effect on the administration of justice in this state without serving the purpose of the new constitutional rule.

Accordingly, I respectfully dissent.

LEMMON, Justice,

dissenting.

While the rationale of Brown v. Louisiana, above, is certainly applicable to this case, the various opinions in Brown indicate that five of the members of the Court (as then constituted) would hold that Ballew v. Georgia, above, is not retroactive under the facts of this case. Moreover, one of the justices in the four-judge plurality in Brown has now retired. I therefore conclude that the Brown decision does not dictate the majority’s position in the present case.

More importantly, five-person juries have not been used in Louisiana since 1973, and they were used, when allowed, only in cases in which a prison sentence was not mandatory. It is therefore probable that few, if any, persons convicted by five-person juries are still serving time in prison. The present decision, therefore, probably has significance only to habitual offenders and therefore has applicability more as a sentencing consideration than as a consideration bearing on guilt or innocence.

Since I view Burch and Ballew (as did the three dissenters in Brown) not as a complete rejection of the reliability of five-person juries, but rather as a determination of the point where the “line drawing” for jury size should occur, I would not prohibit the state from using the earlier convictions in order to enhance relator’s sentences.

      . See Atkins v. Listi, 625 F.2d 525 (5th Cir. 1980).

      . By revision of the Louisiana Constitution (art. 1, § 17) of 1974 and amendment of C.Cr.P. 782, the five member jury was abolished. Previously, this court held that the Ballew decision, which disapproved of five member juries in serious criminal trials, should not be applied retroactively to convictions obtained by juries impanelled prior to that decision. State v. Robinson, 361 So.2d 864 (La.1978).

      . R.S. 15:529.1 provides in pertinent part:
      “A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:

      (3) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then,
      (a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life;

      .C.Cr.P. 841 provides:
      “An irregularity or error cannot be availed of after verdict unless it was objected to at the
        time of occurrence. A bill of exceptions to rulings of orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
      The requirement of an objection shall not apply to the court’s ruling on any written motion.”

      . Only four Justices of the Court (Brennan, Stewart, Marshall and Blackmun) were in favor of retroactive application. Two Justices (Powell and Stevens) were of the view that the new constitutional rules should apply retroactively “in cases still pending on direct review.” The remaining three Justices (Rehnquist, Burger and White) approved of the “applicable standards for gauging the need for retroactivity” but disagreed with the “application of those standards in this case.”

      . Three justices dissented, and two concurred in the result only because the Brown case was still pending on direct review when the Court decided Burch v. Louisiana, above. The present case was not pending on direct appeal when Baliew was decided.

      . The relators in this offense are fourth offenders challenging only one prior conviction.