author: WALDEN, Judge.

text:
    STATE of Florida, Appellant, v. Anthony MENDEZ, Appellee.
    No. 81-2183.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Robert H. Trachman, Fort Lauderdale, for appellee.
   WALDEN, Judge.

Mendez, appellee, was charged with armed robbery. His motion to suppress pre-trial and in-court identification was granted. The State appeals. The order being non-appealable as a matter of right, we elect to treat the State’s appeal as a petition for writ of certiorari because the order in question violates the essential requirements of precedential law. State v. Wilcox, 351 So.2d 89 (Fla. 2d DCA 1977). We approve the order as to the pre-trial identification, quash the order as to the in-court identification, and remand with directions.

The victims were 10 and 13 year old boys. The 13 year old was robbed at gun point of his pellet gun and the 10 year old was a witness. Perpetrators were two males in a vehicle, one of whom was Mendez. There was some confusion on the part of the boys as to the person who pointed the gun, he being the passenger. The boys finally settled on Mendez after a photographic lineup. The trial court correctly found that the photographic array was impermissibly suggestive and correctly suppressed that identification. However, the Court went further and suppressed the upcoming effort at in-court identification.

When a line-up is shown to be improper, a presumption arises that the in-court identification is tainted. The presumption is rebutted upon a showing by clear and convincing evidence that the in-court identification is grounded upon an independent basis. Cribbs v. State, 297 So.2d 335, 336 (Fla. 2d DCA 1974), cert. denied, 303 So.2d 335 (Fla.1974).

The in-court identification must be prohibited only if the pre-trial procedure “gives rise to a very substantial likelihood of irreparable mistaken identification.” State v. Sepulvado, 362 So.2d 324, 327 (Fla. 2d DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979). The totality of the circumstances must be viewed in determining whether the in-court identification was independent of the photographic identification. State v. Sepulvado, supra, at 327.

The facts of the case at bar clearly show that the boys got a good look at the passenger of the car who was only four or five feet away. The passenger was also viewed during daylight hours. From these facts it is likely or possible that the in-court identification could be based on events independent of the impermissibly suggestive photographic line-up.

We hold that the State should be allowed the opportunity to prove by clear and convincing evidence that the in-court identification was made independent of the improper photographic line-up. Cribbs v. State, supra. We express no opinion as to whether such effort will or will not be successful and leave such assessment totally in the hands of the trial court.

Affirmed in part; quashed in part; and remanded for further proceedings consistent herewith.

HERSEY and HURLEY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Wendell Lamar MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 81-2421.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 1982.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We remand this ease with instructions for the trial court to vacate that part of appellant’s sentence which requires the appellant to make restitution as a condition of parole and to strike the assessment of $10.00 costs because appellant is indigent. In all other respects, we affirm the conviction, judgment and sentence. See Stewart v. State, 420 So.2d 862 (Fla.1982), Leary v. State, 406 So.2d 1222 (Fla. 4th DCA 1981) and Williams v. State, 400 So.2d 542 (Fla. 3d DCA 1981).

AFFIRMED IN PART, REVERSED IN PART and REMANDED for correction of sentence.

HURLEY and DELL, JJ., and WILLIAM C. OWEN, Jr., Associate Judge, concur.


text:
    Ronald CARTER, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee.
    No. 82-850.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 1982.
    David C. Wiitala of Ingalsbe, McManus, Wiitala & Contóle, P.A., North Palm Beach, for appellant.
    Rosemary Cooney of Paxton, Crow, Bragg & Austin, P.A., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. § 627.736(4)(dX2), Fla. Stat. (1981). See Travelers Insurance Company v. Bartoszewicz, 404 So.2d 1053 (Fla.1981).

ANSTEAD, HERSEY and WALDEN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Robert A. LISCIO and Harry Phillip Engel, Appellees.
    No. 82-1136.
    District Court of Appeal of Florida, Fourth District.
    Dec. 22, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellant.
    Jerome M. Rosenblum of Jerome M. Ro-senblum, P.A., Hollywood, for appellees.
   PER CURIAM.

AFFIRMED. See Lavely v. State, 422 So.2d 975 (Fla. 4th DCA 1982).

LETTS, C.J., and BERANEK and HERSEY, JJ., concur.


author: PER CURIAM. ORFINGER, Chief Judge,

text:
    William B. BEAVERS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1642.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1982.
    James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980).

DAUKSCH and COWART, JJ., concur.

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

ORFINGER, Chief Judge,

concurring specially:

I concur in affirmance. See Faison v. State, No. 60,792 (Fla. October 28, 1982) [1982 FLW 477].


author: COWART, Judge.

text:
    Bruce ALLES, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, CONSTRUCTION INDUSTRY LICENSING BOARD, Appellee.
    No. 82-332.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1982.

      Joe Teague Caruso of Wolfe, Kirschenb-aum, Caruso, Mosley & Kabboord, P.A., Cocoa Beach, for appellant.
    Michael E. Egan of Roberts, Egan & Rou-ta, P.A., Tallahassee, for appellee.
   COWART, Judge.

This case involves the question as to what extent an administrative agency is bound by the findings of fact and conclusions of law of an administrative hearing officer.

Univel, Inc., was general contractor for the erection of the Harbor Cay Condominium in Cocoa Beach, Florida, which structure totally collapsed during construction with great loss of life. Appellant, Bruce Alies, was the “qualifying agent” for Univ-el at the time of the collapse. However, Univel had an arrangement with Dynamic Construction Co. as to the Harbor Cay project, and, instead of having Alies supervise that project, the designated agent of Dynamic Construction, Lawrence M. Stoner, obtained the building permit and was the actual supervising authority of the construction on that project.

After the tragic collapse, appellee, the Construction Industry Licensing Board (Board) of the Department of Professional Regulation (Department), filed an administrative complaint against Alies, seeking to revoke or suspend his contractor’s license or to take other administrative action. The issue was framed by the Board’s contention that Alies, as Univel’s qualifying agent, had statutory duties to affix his license number to the bids and contracts for the Harbor Cay project and to supervise and be professionally responsible for construction of that project. The facts were undisputed that Alies had failed to do those things. On the other hand, Alies pleaded that “he had no involvement at any time with any phase of the Harbor Cay project” and contended that Stoner was the “de facto” qualifying agent for Univel, although Stoner was not registered with the appellee Department as a qualifying agent for Univel. The hearing examiner found the facts as stated because they were not in dispute, but as a conclusion of law the hearing examiner found that although the statute did place a duty on the qualifying agent to affix his license number on all bids and contracts of his company, the statute placed no affirmative duty on a qualifying agent to supervise his company’s projects. The appellee Board, reviewing the hearing officer’s order, approved and adopted his findings of fact but rejected his conclusion that the statute places no duty on a qualifying agent to supervise his corporate principal’s construction projects. Alies appeals that action.

Section 120.57(l)(b)9, Florida Statutes (1979), provides:

The agency may adopt the recommended order as the agency’s final order. The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules in the recommended order, but may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.

It is clear from this that the hearing officer’s findings of fact may not be overturned by the Board unless the findings of fact are not supported by competent, substantial evidence. Moore v. Florida Construction Industry Licensing Board, 356 So.2d 19 (Fla. 4th DCA 1978); Harvey v. Nuzum, 345 So.2d 1106 (Fla. 1st DCA 1977); Campbell v. State, Department of Transportation, 326 So.2d 66 (Fla. 4th DCA 1976). Appellant argues, however, that conclusions of law likewise cannot be overturned by the Board without a specific finding that those conclusions are either not supported by substantial competent evidence or were arrived at in a proceeding which departed from the essential requirements of law, citing Feldman v. Department of Transportation, 389 So.2d 692 (Fla. 4th DCA 1980), Tampa Wholesale Liquors, Inc. v. Division of Alcoholic Beverages and Tobacco, Department of Business Regulation, 376 So.2d 1195 (Fla. 2d DCA 1979), Lord Chumley’s of Stuart, Inc. v. Department of Revenue, 401 So.2d 817 (Fla. 4th DCA 1981), Borovina v. Florida Construction Industry Licensing Board, 369 So.2d 1038 (Fla. 4th DCA 1979), and Venetian Shores Home and Property Owners v. Ruzakawski, 336 So.2d 399 (Fla. 3d DCA 1976).

We reject all contrary dictum in the cases cited by appellant and hold that the statute makes a clear distinction between findings of fact and conclusions of law; the Board may not reverse findings of fact where they are supported by competent substantial evidence, but the Board may reject conclusions of law without limitation. An examination of the statutory scheme providing for qualifying agents shows that it was the legislative intent that such agents have the authority to, and do, supervise the project entered into under their name and by use of their contractor’s license. Section 489.113, Fla.Stat. (1979), prohibits any person from acting as a contractor without being licensed by the Board. Section 489.105 defines “contractor” as “the person who is qualified for and responsible for the entire project contracted for.” The only way a company may be a contractor is by obtaining an individual licensed as a contractor as its “qualifying agent.” § 489.119, Fla.Stat. (1981). In such event, the license for the corporation is issued in the name of the qualifying agent, as contractor, with a notation that it is for the benefit of the company, in order that the company may perform as a contractor. § 489.119(4), Fla.Stat. (1979). Subsection (2) of section 489.119 indicates that the application for a contractor to become a qualifying agent of a company must show “that the qualifying agent is legally qualified to act for the business organization in all matters connected with its contracting business and that he has authority to supervise construction undertaken by such business organization.”

The obvious purpose of these statutes allowing a company to act as a contractor through a licensed contractor is to insure that projects undertaken by a company are to be supervised by one certified and licensed by the board. To allow a contractor to be the “qualifying agent” for a company without placing any requirement on the contractor to exercise any supervision over the company’s work done under his license would permit a contractor to loan or rent his license to the company. This would completely circumvent the legislative intent that an individual, certified as competent, be professionally responsible for supervising construction work on jobs requiring a licensed contractor. Thus, the Board was correct in determining that appellant had a statutorily imposed professional duty, as sole qualifying agent of record of Univel, to supervise all of Univel’s projects.

Appellant’s argument that the existence of “non-record de facto qualifying agents,” such as Stoner, reduces his duty would also permit circumvention of this result. The purpose of the act is to prevent the risk to the public from allowing “incompetent or dishonest contractors to provide unsafe, unstable, or short-lived products or services.” § 489.101, Fla.Stat. (1979). Just as a designated agent may not lend his name to a company in order that the company may act as a contractor and then avoid his responsibility by stating that he had nothing to do with the project, neither may he or the company be permitted to relieve the designated agent of his responsibility by attempting to transfer it to one or more unnamed individuals who are not registered with the Board as qualifying agents of that company.

The appellee Board did not err in disagreeing with the hearing officer’s conclusions of law and did not err in making its own conclusions of law and, therefore, the appealed order is

AFFIRMED.

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


author: COBB, Judge.

text:
    Edgar C. PLATEL, Appellant, v. MARONDA HOMES INC. OF FLORIDA, Appellee.
    No. 82-338.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1982.
    Edgar C. Platel, in pro. per.
    Scott J. Johnson of Maguire, Voorhis & Wells, P.A., Orlando, for appellee.
   COBB, Judge.

The appellant, Edgar C. Platel, plaintiff below, appeals from entry of a final summary judgment granted against him by the trial court. Platel’s amended complaint, based on breach of contract, breach of warranty, and fraudulent trade practices, claimed that the defendant, Maronda Homes Inc. of Florida (Maronda), contracted to build for him a house with 1,000 square feet, but actually built one with only 911 square feet. Platel also claimed poor workmanship in that the kitchen linoleum needed replacing and a chip in the bathroom sink needed fixing. He sought compensatory and punitive damages. The issue is whether the trial court erred by granting a final summary judgment against Platel. We hold it did and reverse.

The parties signed a contract on December 5,1979, whereby Maronda contracted to build a house, known as the “Belmont” model, for $39,105, contingent upon Platel obtaining an FHA-235 mortgage in the amount of $37,900 on or before the first day of February, 1980. Nothing in the written contract referred to the square footage of the house. The contract provided that the seller was to supply the buyer with a copy of the plans and specifications of the plan type for the buyer’s approval. The buyer was to acknowledge such approval in writing within five days of receipt thereof from the seller. Platel financed the purchase through Allstate Enterprises Mortgage Corporation, with FHA financing.

Platel did not see the plans and specifications at the time of the signing of the contract, nor at any time prior to closing. At the time of the contract he had not seen a sample model of the home. On April 14, 1980, closing was held and Platel took possession of the house. At deposition, Platel was asked the basis of his understanding that the house was to have 1,000 square feet. His answer was:

The basis, I originally was told by the sales people that sold me the house that the house was going to have 1,100 square feet. I only found out at settlement [closing], which I didn’t have a set of plans at settlement [closing], I found out from the FHA Commitment that it stated on there 1,000 square feet of improved floor area, which is Exhibit D in the complaint.... That’s the first time I knew that the plans stated 1,000 square feet. I had been told orally it would be 1,100 square feet by the Maronda salesman.

The FHA Commitment, referred to by Platel as the document he viewed at closing, showed the improved floor area of the house to be 1,000 square feet. The appellee argues, in support of the summary judgment, that Platel has no claim whatsoever against the defendant with respect to the contents of the FHA form, since this concerned a contract solely between Platel and his mortgage company, Allstate. Defendant asserts that it had no responsibility in connection with this form. This misses the point because the information in that form, based on the deposition of Platel, inferentially had to come from Maronda.

After Platel took possession of the home in April, 1980, he received from Maronda in October, 1980 a copy of the plans for the “Belmont” model. Page 3 of the plans shows an overview of the floor plan with dimensions. At the bottom of page 3 is the statement, “Living area — 1,000 square feet.” After receiving the plans, Platel measured the house and determined that the measurement of square footage in the plans was based on the outside perimeter of the exterior walls of the house. Platel measured the house using the inside perimeter of the walls and calculated the square footage at 911 square feet.

Maronda claims that all it contracted to do was build a home in accordance with the plans for the “Belmont” model, and that it did so. Maronda states that any dispute as to how the square footage in the “Belmont” model is measured is irrelevant to the issue. As we see it, the issue is not merely a dispute of the proper method of measurement, but whether or not it was represented to Platel, prior to closing in April, 1980, that he was buying a house with at least 1,000 square feet of living area, as opposed to one with merely some 911 square feet of living area. It is clear to us that living area does not encompass the thickness of exteri- or walls. Because the written contract of the parties does not specify square footage of the house, and the plans were not furnished to Platel prior to closing showing the dimensions of the house, he was entitled to rely upon the verbal representations of the Maronda salesman that the house would have 1,100 square feet of living area. (He waived 100 square feet of that living area by having available to him prior to closing the FHA information that the living area was only 1,000 square feet.) Had Maronda furnished Platel with the plans and specifications prior to closing, Platel might have been deemed to have waived any measurement dispute by proceeding to closing, since the plans and specifications were in accordance with the house actually constructed. This, however, was not the case.

Appellee argues in its brief as follows: The only contract plaintiff had with defendant was that the house would be built to the plans and specifications, and the undisputed testimony was that the house was built in accordance with those plans, regardless of how plaintiff would have measured square footage.

This statement is true if we refer only to the written contract; but, it is not true if we accept, as we must for summary judgment purposes, Platel’s statement that the only representation to him prior to closing as to square footage was the verbal one by the salesman and the written representation in the FHA Commitment.

The appellee also attempts to sustain the summary judgment on the basis that Platel has failed to show that he was damaged by receiving a house smaller than he thought he had contracted for. This argument erroneously attempts to shift the burden of proof at summary judgment to the non-movant. If Platel were to fail to establish damages at trial, he would be subject to a directed verdict (or involuntary dismissal in a non-jury trial). It was not his burden to come forward with proof of damages at the summary judgment hearing. Certainly, there is an available inference that damages result from receiving a house approximately l/10th smaller in size than that for which a party contracts. That inference is sufficient to survive a summary judgment motion in the absence of direct proof to the contrary. See Landers v. Milton, 370 So.2d 368 (Fla.1979).

Accordingly, the summary judgment below is reversed and this cause is remanded for further proceedings in accordance with this opinion.

REVERSED and REMANDED.

SHARP, J., and SMITH, C. McFERRIN, III, Associate Judge, concur.

      . After filing the amended complaint, Platel sold the subject house to a third party “as is” for the amount of $38,800, including assumption of an FHA first mortgage.
      In his deposition, Platel has admitted that he makes no further claim for the repairs as alleged in his amended complaint in regard to the linoleum and bathroom sink. Therefore, the remaining dispute is the claim as to square footage.


author: DAUKSCH, Judge.

text:
    Donald E. WITHROW, Appellant, v. Laverne E. WITHROW, Appellee.
    No. 82-373.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1982.
    Gary H. Neely and Edward I. Matz, Day-tona Beach, for appellant.
    Michael Sigman, P.A., Orlando, for appel-lee.
   DAUKSCH, Judge.

AFFIRMED on the authority of Marsh v. Marsh, 419 So.2d 629 (Fla., 1982) and Ball v. Ball, 335 So.2d 5 (Fla.1976).

SHARP, J. and BROWNLEE, JACKSON O., Associate Judge, concur.


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

text:
    R.W. ROBERTS CONSTRUCTION CO., INC., etc. and the American Insurance Co., Petitioners, v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT for the Use and Benefit of McDonald ELECTRIC and Repair Service, Inc., and Robert R. Perry, Circuit Judge, Seventh Circuit, in and for Putnam County, Florida, Respondents.
    No. 82-383.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1982.
    William A. Harmening of Stanley, Har-mening, Lovett, Turner & Livingston, Orlando, for petitioners.
    Joe C. Miller, II, of Clark, Miller & Shine, P.A., Palatka, for respondents.
   FRANK D. UPCHURCH, Jr., Judge.

Petitioner R.W. Roberts Construction Company, Inc., the general contractor for the construction of the administration building for the St. Johns River Water Management District, entered into a subcontract with McDonald Electric to do certain electrical work. Under the general contract, Roberts posted a performance and payment bond with American Insurance Company, as surety, covering payment to sub-contractors. Upon completion of the work by McDonald on October 7, 1980, Roberts refused to pay $23,721.81, the amount claimed by McDonald to be due.

On March 3,1981, McDonald filed a complaint against Roberts seeking recovery under the bond pursuant to section 255.05, Florida Statutes (1979).

The portion of the bond which concerns us here states:

It is stipulated, understood and agreed that the payment bond provisions hereof are statutory in nature, strictly limited to the provisions of section 255.05, Florida Statutes, and all third parties claiming under the payment bond provisions hereof are limited to all procedures and requirements of section 255.05, Florida Statutes.. ..

On March 19, 1981, Roberts mailed to McDonald a demand for arbitration pursuant to the following provision of the subcontract:

All claims by Subcontractor against General Contractor or (sic) whatever nature which involve this subcontract or the project shall be submitted to arbitration in the same manner as provided in the General Contract unless those provisions should prove invalid for arbitration in which event the arbitration provisions of the Florida Statutes shall prevail.

The general contract provides that (1) claims must be submitted to the Architect/Engineer within thirty days from the date they arise; (2) the claim must contain certain enumerated information, including a statement of ultimate facts relevant to the claim, a concise statement of the relevant contract provisions and applicable law, and a demand for the relief sought; (3) the decision of the Architect/Engineer is final unless a petition for arbitration is filed within twenty days thereafter; (4) this petition must also contain information similar to that in the claim.

On March 20, 1981, Roberts moved the trial court for an order compelling arbitration. Also on March 20, 1981, American moved to stay the proceedings against it until after the arbitration demanded by Roberts was completed.

On February 18, 1982, the trial court entered its order denying these motions. The order stated that the arbitration clause lacked mutuality in that it did not require disputes of the contractor to be arbitrated as it did the disputes of the subcontractor. The court further found that the language of the bond required the remedy provided for by statute and that the surety was not a party to the subcontract between Roberts and McDonald.

By this petition for writ of certio-rari, Roberts and American seek to quash the order denying the motion to compel arbitration and to stay proceedings. A petition for common law certiorari is appropriate for review of an order denying a motion to compel arbitration. Paine, Webber, Jackson & Curtis, Inc. v. Lucas, 411 So.2d 1369 (Fla. 5th DCA 1982); Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980). A writ of common law certiorari should issue only upon a clear showing that the court below departed from the essential requirements of law resulting in petitioner’s irreparable injury. United Cab Co., Inc. v. Yellow Cab Co. of Tampa, Inc., 310 So.2d 32 (Fla. 2d DCA 1975).

McDonald contends that the trial court properly found that the arbitration clause in the instant case was invalid. This argument is based on the fact that the arbitration clause only requires arbitration of claims by the sub-contractor against the general contractor but not of claims by the general contractor against the sub-contractor, the general contractor being free to litigate.

On the other hand, Roberts argues that the clause does exhibit a mutual obligation in that both parties were obligated to arbitrate, but that the subject matter was limited to claims by the subcontract against the general contractor. Apparently, no cases construing such a clause have been reported in Florida.

A New York case best illustrates the position of the parties in the instant action. In Deutsch v. Long Island Carpet Cleaning Co. Inc., 5 Misc.2d 684, 158 N.Y.S.2d 876 (1956), a claim was brought against a carpet cleaning company by a customer. The company argued that a receipt given the customer bound the customer to a condition on the reverse side which called for claims of the customer to be referred to arbitration.

The Deutsch majority held that the conditions on the reverse side of the receipt lacked mutuality of obligation because the customer’s claims, but not the company’s, were required to be arbitrated and the company at its option was free to litigate. The court found it important that the arbitration clause was unilaterally inserted with no specific reference to it.

In dissent, Justice Hecht found that mutual obligations were imposed both on the company and the customer and that the arbitration agreement should be construed to mean that only certain types of claims should be arbitrated.

Subsequent New York courts followed the reasoning of the Deutsch majority and even extended it to include arbitration clauses where the promise to arbitrate disputes was made by both parties, but the promise of one party was illusory. In Miner v. Walden, 101 Misc.2d 814, 422 N.Y.S.2d 335 (1979), the court considered an arbitration clause wherein a patient agreed to arbitrate all her claims against her doctor and the doctor agreed to arbitrate all his claims against the patient except for money due. The Miner court, without dissent, found that a claim for money would be the doctor’s only claim, and held the arbitration clause to be unilateral and thus invalid. The court also found the contract unconscionable. As to the lack of mutuality, the court stated:

An arbitration agreement will not be enforced unless it is ‘mutually binding.’ Where an arbitration clause is not mutually binding, but rather grants one party a unilateral right to arbitrate, the court will not enforce such agreement, [citations omitted] The agreement [in this matter] purports to be an exchange of promises to arbitrate with each promise serving as consideration for the other. In return for the patient’s consent to arbitrate all claims arising out of the medical relationship, the doctor agreed to arbitrate all claims except claims of money due for services rendered ... the only claim a doctor would have is for services rendered.

422 N.Y.S.2d at 339.

In Florida, arbitration agreements are contractual and therefore they must fulfill the requirements of a contract. 4 Fla.Jur. Arbitration and Award § 8 (1978). Mutuality of obligation is a requirement, see Sanchez v. Crandon Wholesale Drug Co., 173 So.2d 687 (Fla.1965), although the means of enforcement may differ without necessarily affecting reciprocal obligations. Bacon v. Karr, 139 So.2d 166 (Fla. 2d DCA 1962).

In effect, Roberts is alleging that the trial court departed from the essential requirements of law in interpreting the arbitration clause as being without mutuality of obligation, instead of lacking only mutuality of remedy. Language in a contract is ambiguous when it is reasonably capable of being understood in more than one sense. Black’s Law Dictionary 73 (rev. 5th ed. 1979). In the instant case, the language of the arbitration clause is ambiguous. When contract language is ambiguous, the courts should give the language a reasonable construction. Baker and Company, Florida v. Goding, 317 So.2d 118 (Fla. 3d DCA 1975). While judges may differ as indicated in Deutsch, it was not unreasonable to construe the language of the arbitration clause in the present case as showing a lack of mutuality of obligation, and therefore the order did not depart from the essential requirements of law.

Mutuality of obligation pertains to the consideration. Baker. Therefore, if there were sufficient consideration to support the contract, i.e., consideration, will the arbitration clause fail if that clause lacked mutuality of obligation?

Agreements for arbitration contained in a contract are treated as separable parts of the contract. 16 S. Williston, A Treatise on the Law of Contracts, § 1919A (3d ed. 1976). In Florida, whether a contract is entire or divisible depends on the intention of the parties, and this intention may be determined by a fair construction of the terms of the contract itself and by the subject matter to which it has reference. Local No. 234 of United Assn, of Journeymen and Apprentices of Plumbing and Pipefitting Industry of United States and Canada v. Henley & Beckwith, Inc., 66 So.2d 818 (Fla.1953). In the instant case, the arbitration agreement was collateral to the main contractual matters and the trial court did not depart from the essential requirements of law in finding the arbitration clause severable. While it is true that one consideration may support several promises, as a general statement each severable clause of a contract should have its own consideration or mutual obligation. See generally 6 S. Williston, A Treatise on the Law of Contracts, § 861 (3d ed. 1962). This is apparently the position of the New York courts. In Areata Graphics Corporation v. Silin, 59 A.D.2d 1007, 399 N.Y.S.2d 738 (1977), the court held that the contract provision limiting a buyer to the remedy of arbitration, but not so limiting the manufacturer/seller was void for lack of mutuality, but found that the action on other portions of the contract could continue. Area-ta indicates that where an arbitration clause is void for mutuality of obligation, the sufficiency of other mutual obligations and consideration within the contract will not suffice to save the void provision.

Petition for writ of certiorari is DENIED.

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


author: ORFINGER, Chief Judge.

text:
    Freddy Lee WRIGHT and Theodore Jerome Page, Appellants, v. STATE of Florida, Appellee.
    No. 82-424.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1982.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   ON MOTION TO DISMISS APPEAL

ORFINGER, Chief Judge.

The only issue raised by appellants is that they “were denied their Sixth Amendment right to effective assistance of counsel by being jointly tried and represented by the same attorney where their interests were in conflict.” The State moves to dismiss the appeal, contending that the issue of ineffective assistance of counsel cannot be raised on direct appeal, but should be raised by petition pursuant to Florida Rule of Criminal Procedure 3.850. The State further points out that the record fails to show any objection in the trial court to the joint representation, so that in any event, the issue has not been preserved for appeal. For the reasons discussed, we deny the motion.

It is true, as urged by the State, that ordinarily the issue of ineffective assistance of counsel cannot be raised for the first time on a direct appeal from a judgment of conviction because it is not a matter that has been presented to and ruled on by the trial court. State v. Barber, 301 So.2d 7 (Fla.1974). However, this rule has not been applied to cases where the claim of ineffectiveness arises from a conflict of interests between co-defendants represented by the same attorney. How the issue is presented on appeal depends on whether or not an objection to such joint representation was made below.

The variation of the rule in alleged conflict cases has been stated by the Supreme Court in Foster v. State, 387 So.2d 344 (Fla.1980), thusly:

To deny a motion for separate representation, where a risk of conflicting interests exists, is reversible error. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Even in the absence of an objection or motion below, however, where actual conflict of interest or prejudice to the appellant is shown, the court’s action in making the joint appointment and allowing the joint representation to continue is reversible error.

Id. at 345.

There apparently was no motion made below either objecting to the joint representation, requesting leave to withdraw from one representation or requesting the appointment of other counsel for the co-defendant. There is no rule in Florida that joint representation of co-defendants is per se reversible error. See Belton v. State, 217 So.2d 97 (Fla.1968); Washington v. State, 419 So.2d 1100 (Fla. 3d DCA 1982). However, even in the absence of an objection, appellants have the right to demonstrate, if they can, that actual conflict appears in the record. Foster, supra; Washington, supra; and this they are attempting to do.

The motion to dismiss the appeal is therefore

DENIED.

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


text:
    James R. NUSS, etc., Appellant, v. DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, Appellee.
    No. 82-450.
    District Court of Appeal of Florida, Fifth District.
    Dec. 22, 1982.
    Richard S. Rhodes, Orlando, for appellant.
    James N. Watson, Jr., Staff Atty., Dept, of Business Regulation, Tallahassee, for ap-pellee.
   PER CURIAM.

See Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1979). See also Lash, Inc. v. State, Department of Business Regulation, 411 So.2d 276 (Fla. 3d DCA 1982).

AFFIRMED.

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


author: RYDER, Acting Chief Judge.

text:
    Kevin Paul TINDELL, Appellant, v. STATE of Florida, Appellee.
    No. 82-510.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 1982.
    Jerry Hill, Public Defender and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Acting Chief Judge.

Appellant was convicted of aggravated battery. In addition to imposing a prison sentence, the trial court ordered that restitution to the victim and a lien for the payment of court-appointed counsel be paid as conditions of any parole.

The Florida Parole & Probation Commission has the authority to determine whether or not and under what conditions parole will be granted. Wright v. State, 342 So.2d 565 (Fla. 1st DCA 1977). While the trial court may make recommendations concerning parole, it may not impose conditions to parole. Owens v. State, 308 So.2d 171 (Fla. 1st DCA 1975).

Appellant was also ordered to pay $2.00 in court costs and $10.00 to the Crimes Compensation Trust Fund. As appellant was declared insolvent by the trial court, these costs are hereby stricken. Brown v. State, 407 So.2d 290 (Fla. 2d DCA 1981).

We, therefore, AFFIRM the conviction of appellant, but remand the cause for entry of a judgment and sentence consistent with this court’s opinion.

CAMPBELL and SCHOONOVER, JJ., concur.


text:
    Gerald McGEE, Appellant, v. STATE of Florida, Appellee.
    No. 82-1170.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 1982.
    Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant questions the constitutionality of section 39.04(2)(e)(4), Florida Statutes (1979). The supreme court in State v. Cain, 381 So.2d 1361 (Fla.1980), upheld the constitutionality of the statute in question.

Therefore, we affirm.

OTT, C.J., and RYDER and DANAHY, JJ., concur.


text:
    Charles Walter TESTER, Appellant, v. STATE of Florida, Appellee.
    No. 82-1171.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 1982.
    Jerry Hill, Public Defender, and John T. Kilcrease, Jr., Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant questions the constitutionality of section 39.04(2)(e)(4), Florida Statutes (1979). The supreme court in State v. Cain, 381 So.2d 1361 (Fla.1980), upheld the constitutionality of the statute in question.

Therefore, we affirm.

OTT, C.J., and RYDER and DANAHY, JJ., concur.


text:
    CITY OF CORAL SPRINGS, Appellant, v. Terese W. EKIERT and Richard Ekiert, her husband, Appellees.
    No. 81-729.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Joseph S. Kashi of Grimmett Conrad, Scherer & James, Fort Lauderdale, for appellant.
    William L. Gardiner, III, of Patterson Maloney & Feige, Fort Lauderdale, for ap-pellees.
   PER CURIAM.

This is an appeal from an order taxing costs. The order is reversed and vacated based upon Berek v. Metropolitan Dade County, 422 So.2d 838 (Florida Supreme Court Case No. 60,713, opinion issued November 24, 1982 [7 FLW 523]).

REVERSED.

LETTS, C.J., and DOWNEY and BERA-NEK, JJ., concur.


text:
    AACON AUTO TRANSPORT, INC., Appellant, v. Ernest O. ABBIT, Appellee.
    No. 81-1050.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Richard W. Glenn of Albury, Park, Glenn & Heuer, West Palm Beach, for appellant.
    Donald S. Hershman, Boca Raton, for appellee.
   PER CURIAM.

This is an appeal from that portion of an order which denied appellant’s motion to set aside default and vacate judgment. The affidavits filed by appellant dispelled appel-lee’s prima facie showing of sufficiency of process and service of process. The affidavits further established excusable neglect on the part of counsel and meritorious defenses. Accordingly, we reverse and remand for proceedings consistent herewith.

GLICKSTEIN, DELL and WALDEN, JJ., concur.

      . Although appellee has argued in his brief that the portion of the trial court’s order which denied appellant’s motion to dissolve writ of garnishment was not error, appellant informed the court at oral argument that it does not claim that portion of the order to be error and will seek its relief from the appellee-garnishor, not the gamishee-bank which is not a party to this appeal.


text:
    Nancy Redfern ABEEL, Appellant, v. John Forster ABEEL, Appellee.
    No. 81-1196.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Susan J. O’Hara and Edna L. Caruso, West Palm Beach, for appellant.
    Robert T. Scott of Gunster, Yoakley, Criser & Stewart, P.A., Palm Beach, for appel-lee.
   PER CURIAM.

Affirmed. See Garlinger v. Garlinger, 137 N.J.Super. 56, 347 A.2d 799 (1975); Lepis v. Lepis, 83 N.J. 139, 416 A.2d 45 (1980); and Petersen v. Petersen, 85 N.J. 638, 428 A.2d 1301 (1981).

GLICKSTEIN, DELL and WALDEN, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    Shirley SUNDSTROM, Appellant, v. C. Joseph GROVER, King-Grover-Magnacca, P.A., a Florida Professional Service Corporation, and Federal Insurance Company, a foreign corporation, Appellees.
    No. 81-2195.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.

      Andrew J. Connolly of the Law Offices of Donald L. Burrie, Pompano Beach, for appellant.
    No brief filed for appellees.
   GLICKSTEIN, Judge.

The appellant/wife, together with her dentist husband, brought an action against the appellee/oral surgeon and his professional association for extracting the wife’s wrong tooth — the upper right second molar. The appellees did not counterclaim for contribution against the dentist/husband but raised the affirmative defense of comparative negligence in their answer, as to both plaintiffs. At trial, on special interrogatory verdict, the jury determined the appellee oral surgeon’s percentage of negligence to be 10%; the wife’s, to be 35%; and the husband’s, to be 55%. It awarded $20,000 in damages to the wife and $10,000 in damages to the husband. The trial court reduced the wife’s damages to $2,000, based on the foregoing percentage of the oral surgeon’s negligence, rather than to $13,-000, based on the wife’s being free of negligence to the extent of 65%. Both parties agree it was error so to reduce the wife’s award; and we so find. See Moore v. St. Cloud, 337 So.2d 982 (Fla. 4th DCA 1976). Therefore we reverse and remand.

Although not part of the record, the parties have indicated that there was a post-trial motion for contribution filed with the trial court. It is unclear whether the trial court considered the motion in view of its reduction of the wife’s damages based on the percentage of the oral surgeon’s negligence. On remand the trial court may consider the appropriateness of such motion, about which we express no opinion, should it not have heretofore done so and denied same by appealable order.

DOWNEY and BERANEK, JJ., concur.

      . The reduction of the husband’s award is not questioned on appeal.


text:
    Clarence WARD, Appellant, v. STATE of Florida, Appellee.
    No. 81-2210.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.
    Richard L. Jorandby, Public Defender, and Charles Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

The trial court’s order revoking appellant’s probation is hereby affirmed. Although we do not believe all of the violations alleged were proven, we believe the evidence as to several was sufficient and any error in the findings as to the other charges was harmless.

ANSTEAD, HERSEY and WALDEN, JJ., concur.


author: HURLEY, Judge.

text:
    Ronald C. MILLER, Appellant, v. Cheryl L. MILLER, Appellee.
    No. 82-2.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 1982.

      James A. Week of Week & Week, Fort Lauderdale, for appellant.
    Steve Gomberg of Lubin & Hamill, West Palm Beach, for appellee.
   HURLEY, Judge.

The amended final judgment of dissolution in this case, among other things, awarded the former wife fifteen thousand dollars as lump sum alimony. The same judgment, however, candidly acknowledged that a critical problem in the case “is the lack of immediate and ready dollars .... ” Since the latter determination is amply supported by the record, the award of lump sum alimony cannot be sustained. “A judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status.” Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). Here, the former husband totally lacks the ability to comply with the court’s award. Consequently, it must be reversed. But, since the lump sum award is part of an integrated effort to assist the former wife, we remand the cause with sufficient authority so that the trial court may “exercise broad discretion to modify the related matters within his original plan for division and support as may be necessary in order to do equity and justice between the parties .... ” Eagan v. Eagan, 392 So.2d 988, 990 (Fla. 5th DCA 1981).

Next, we address the limitations which the trial court placed on the use of the marital residence. Prior to the final hearing, the parties agreed that the husband would have custody of the minor child. Counsel for the wife also indicated to the court that “we are not contesting the use to the exclusive right of the home. Mrs. Miller wants her daughter to have the continuance of living in the house.” Accordingly, the amended final judgment awarded custody of the minor child to the father and permitted both to live in the marital home “as long as [the father] is unmarried and has no sleep-over or live-in girl friends.” Because restrictions of this nature impact upon the private life of the custodial par-

ent, they will be sustained only if the record contains competent substantial evidence to demonstrate that they are required to safeguard the best interests of the child. Trylko v, Trylko, 392 So.2d 1034 (Fla. 2d DCA), appeal dismissed, 399 So.2d 1147 (Fla.1981); Hackley v. Hackley, 380 So.2d 446 (Fla. 4th DCA 1979); see also Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). Here, the record is devoid of any supporting evidence. Accordingly, the restrictions are quashed without prejudice to reconsideration on remand.

Finally, we consider the issue of attorney’s fees. Perhaps through a misunderstanding, attorney’s fees were awarded to the wife without a hearing and without a stipulation that affidavits could be used in place of a hearing. The record does not indicate a waiver by the husband and, thus, the award of attorney’s fees must be reversed. However, the court may reconsider the matter on remand. Kalman v. Kalman, 393 So.2d 641 (Fla. 4th DCA 1981).

REVERSED and REMANDED.

DELL, J., and GEIGER, DWIGHT L., Associate Judge, concur.


author: BERANEK, Judge.

text:
    Rosemond A. GALLAGHER, et al., Appellants/Cross Appellees, v. SEAGATE OF GULFSTREAM CONDOMINIUM ASSOCIATION, INC., et al., Appellees/Cross Appellants.
    Nos. 81-455, 81-2052.
    District Court of Appeal of Florida, Fourth District.
    Jan. 12, 1983.

      Herbert L. Gildan of Nason, Gildan, Yeager & Gerson, P.A., West Palm Beach, for appellants/cross appellees.
    Richard H. Gaunt, Jr., of Law Offices of Frank G. Cibula, Jr., West Palm Beach, for appellees/cross appellants.
   BERANEK, Judge.

These consolidated appeals involving a final judgment and an order on attorneys’ fees, grow out of a complex, intra-condo-minium controversy. Plaintiffs/appellants are three individual unit owners and defendants/appellees are the condominium association and its board of directors. We reverse.

The complaint sought a declaratory judgment, an injunction, and damages. The trial court heard testimony and received substantial documentary evidence at a non-jury proceeding. The facts were not in substantial controversy. Most were drawn from the condominium declaration and various other documents of public record. After considering these operative facts, the court entered a final judgment ruling solely on the prayer for injunction. The injunc-tive relief sought was denied on the ground that it would result in unjust enrichment to the plaintiffs. No ruling was made on the general request for declaratory decree nor on the prayer for damages. Plaintiffs appeal and defendants cross appeal. Plaintiffs contest the injunction ruling, but no attack is asserted as to the absence of rulings on damages or declaratory decree. On cross appeal defendants contend the court erred in denying a motion to dismiss for failure to join indispensable parties.

The condominium association was the lessee of real property on which certain recreational facilities were constructed. The rent on the recreation lease was, without serious dispute, a common expense pursuant to the definition stated in Section 718.115, Florida Statutes (1981). In the initial stage of its existence, the association apportioned the total monthly rental of $19,062 in equal assessments of $52.95 per month against each of the 360 condominium units. Eventually, the developer/landlord offered the unit owners a modified individual buy-out proposal whereby each unit owner was allowed, but not required, to purchase a Vaeoth interest in the land which was the subject of the recreation lease. The purchase price was $8,000 per unit. Some 298 unit owners bought a V36oth interest, while 62 owners chose not to purchase. The new landlord (now composed of the original developer and the 298 unit owners purchasers) agreed to reduce the rent to reflect the partial buy-out by simply relieving the purchasers of their proportionate share of the rental assessment and by reducing the association’s total rental obligation by this same amount. The result was that the 62 unit owners who did not purchase an interest were assessed the normal and regular sum of $52.98 per month per unit for the purpose of paying the reduced monthly rent of $3,280.90. The 298 unit owners who bought an interest were not assessed for any portion of the reduced rent.

The plaintiffs asserted that this transaction violated the general condominium law, the declaration of condominium, and the condominium by-laws which all require that each unit owner bear a share of the common expenses proportionate to his or her ownership interest. Plaintiffs specifically relied upon Section 718.115(2), Florida Statutes (1981), and Section 718.116(8), Florida Statutes (1981). Basically, they argued that the rent, now reduced from $19,062 to $3,280.90, was a common expense, and as such the association was required by the above statutes and condominium documents to assess it against all unit owners according to their proportionate share, which, in this case, should have resulted in precisely equal assessments. The result would be that each of the 360 unit owners would pay $9.11 per month instead of $52.95 per month being paid by the 62 unit owners. Plaintiffs contended that the association could not legally waive rent assessment and collection from any unit owner despite the purchase by that unit owner of the interest in the leased property. The trial court found that the rent was a common expense, but denied the request for a mandatory injunction requiring the association to spread the reduced rent among all 360 unit owners.

We reverse. The trial court properly found that the rent due on the recreation lease was a common expense based in part on its designation as such in the condominium documents. Having made that finding, the trial court erred in simply denying all relief to plaintiffs. Section 718.115(2), Florida Statutes (1981), states:

(2)Funds for the payment of common expenses shall be collected by assessments against unit owners in the proportions or percentages provided in the declaration. In a residential condominium, unit owners’ shares of common expenses shall be in the same proportion as their ownership interest in the common elements.

Section 718.116(8), Florida Statutes (1981), prohibiting the waiver of rent provides: “No unit owner may be excused from the payment of his share of the common expense of a condominium unless all unit owners are likewise proportionately excused from payment.” While we are sympathetic with the trial court’s endeavors to fashion an equitable remedy here, it appears that the ruling by the court overlooks these statutory violations.

We are well aware that plaintiffs are appealing only the denial of their request for injunctive relief, and thereby seek to force the assessment of the reduced rent against all unit owners. In their complaint plaintiffs sought to invalidate the documents which effected the rent reduction. Although the court denied this relief no appellate attack is made on the denial of declaratory relief, which might have invalidated the amendment to the long-term lease and the waiver of rent. By limiting their issues on appeal, plaintiffs would have us grant the mandatory injunction and ignore the issue of the validity of the entire transaction which was raised in plaintiffs’ own pleadings. This would result in the payment by all unit owners of the reduced rent rather than the rent which was in effect prior to the partial buy-out. We agree with the trial court that this result is inequitable. We will not permit a party to pick and choose appellate issues so that this Court is forced to rule in such a manner as to effect an inequitable result.

The question of what other and further relief might have been warranted requires consideration of the issues raised on the cross appeal. The defendants contend the court erred in denying their motion to dismiss based on an alleged failure to join indispensable parties. In their motion they asserted the developer/owner and the unit owners who purchased a y36oth interest were indispensable parties. Although the court did not deal with the plaintiffs’ request to invalidate the overall buy-out transaction these parties may well have been indispensable to these issues which were not ruled upon. These parties are at least necessary to full disposition of the claims seeking to invalidate the rent reduction agreement.

In conclusion we hold that the spreading of common expenses involved here was statutorily prohibited and that the trial court erred in finding to the contrary. This error alone requires reversal. We do not, however, find that the trial court was limited to the narrow injunctive relief demanded by the plaintiffs in this appeal. The court, on remand, is still free to fashion an equitable solution to the overall problem which may require the joinder of all interested and necessary parties. We therefore remand the entire matter to the trial court for further proceedings consistent with this opinion. Amendments to the pleadings shall be allowed and further evidence may be presented.

The auxiliary appeal which deals with the award of attorneys’ fees to the defendants is controlled by this decision. The attorneys’ fee award is vacated.

REVERSED AND REMANDED.

DOWNEY and WALDEN, JJ., concur.


text:
    STATE of Louisiana v. William DIGGS, Jr.
    No. 82-KA-0525.
    Supreme Court of Louisiana.
    Oct. 20, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Ronald Loumiet, William C. Credo, Asst. Dist. Attys., for plaintiff-appellee.
    Martha E. Sassone, Indigent Defender Bd., Gretna, for defendant-appellant.
   PER CURIAM.

Defendant William Diggs was charged by bill of indictment with attempted aggravated rape, in violation of La.R.S. 14:27 and 14:42. Tried before a twelve-member jury on December 1-2,1980, defendant was convicted and subsequently sentenced to forty years’ imprisonment at hard labor. The defendant now appeals his conviction and sentence to this Court, relying on the lone assignment of error filed below.

We have reviewed defendant’s argument concerning alleged trial error and find it to lack substance; for this reason, defendant’s conviction is affirmed. We note, however, an error in the trial court’s imposition of a prison term without parole eligibility and, accordingly, vacate the defendant’s sentence. La.C.Cr.P. Art. 920(2). As prescribed by La.R.S. 14:27(D)(1), the penalty for attempted aggravated rape is punishment at hard labor for not more than fifty years. See, La.R.S. 14:42. Because the statute does not prescribe ineligibility for parole, probation or suspension of sentence, the trial court could not lawfully so qualify defendant’s sentence. See, State v. Welch, 368 So.2d 965 (La.1979).

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED.


author: MARCUS, Justice. DENNIS, Justice,

text:
    SUPER CITY BOXING PRODUCTIONS, INC. v. LOUISIANA STATE ATHLETIC COMMISSION, HMC Management Corporation, Louisiana Stadium and Exposition District, Pace Management Corporation, New Orleans Boxing Club and Ticketmaster of Louisiana, Inc.
    Nos. 82-C-1153, 82-C-1189.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Rehearing Denied Jan. 7, 1983.

      Michael E. Botnick, New Orleans, for applicant.
    La. Dept, of Justice, New Orleans, William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, Louis M. Jones, Joe Giarusso, Jr., Asst. Dist. Attys. Gen., Joseph E. Kopsa, Staff Atty., Baton Rouge, for applicant, La. State Athletic Commission.
    M. H. Gertler, Baton Rouge, for respondent.
   MARCUS, Justice.

After a hearing on an appeal by Super City Boxing Productions, Inc. from a decision of the State Athletic Commission dated September 4, 1981 denying it the right to promote a boxing contest in Orleans Parish on September 16, 1981 and on an application by Super City for a preliminary injunction, the trial judge set aside the decision of the Commission and ordered that Super City be designated as the “sole club” to promote a boxing contest in Orleans Parish on September 16, 1981 and enjoined the New Orleans Boxing Club and Pace Management Corporation from televising or showing the Leonard-Hearns championship fight on September 16,1981 in Orleans Parish. The judgment was signed on September 15, 1981.

The State Athletic Commission, New Orleans Boxing Club and Pace Management Corporation appealed. The court of appeal affirmed. We granted the application of the State Athletic Commission and the joint application of the New Orleans Boxing Club and Pace Management Corporation to review the correctness of that decision.

The record reveals the following facts. On June 25, 1981, it was announced nationwide that the Sugar Ray Leonard-Tommy Hearns championship fight would take place at an unknown site on September 16, 1981. On June 26, 1981 (the next day), Eddie Sapir, a representative of Super City, testified that he and Jimmy Walsh met with Lindsey J. Williams, chairman of the State Athletic Commission, in his (Sapir’s) office. The purpose of the meeting was to secure the date of September 16,1981 for a live championship bout. Williams gave Super City “tentative permission” to hold a live fight on that date. In addition, Sapir asked Anthony Marulla (another representative of Super City) “to see if he could get the Superdome on the 16th for a live world championship, either Sean O’Grady or Sal-vadore Sanchez.” Thereafter, Marulla met with Mike Levy of HMC Management Corporation concerning the rental of the Su-perdome for September 16. However, Levy informed Marulla that a “hold” had been placed on the entire month of September by HMC for the purpose of presenting the live Leonard-Hearns fight or the closed circuit broadcast of said fight.

Subsequently, several events transpired. The proposed Sean O’Grady-Claude Noel championship fight was cancelled. The Leonard-Hearns live fight was awarded to Las Vegas, Nevada, combined with a closed circuit telecast to various states in this country and cities around the world. Pace Management Corporation purchased these closed circuit television rights for Louisiana and several other states. Pace then entered into a joint venture with Lou Messina of the New Orleans Boxing Club to televise the Leonard-Hearns fight on September 16, 1981 in the Superdome. This arrangement combined the promotional talents of Messi-na (a licensee) with the exclusive rights of Pace to televise the fight. On August 25, 1981, Messina wrote Levy of HMC informing him of this arrangement. At about this time, tickets went on sale for the closed circuit telecast of the Leonard-Hearns fight through Pace even though there had not been any formal approval granted by the Commission. On August 27,1981, a written complaint was sent to the Commission by Super City concerning Pace’s selling of tickets.

In response to the complaint of Super City, the Commission held meetings on August 31 and September 2, 1981, but took no action. However, at a meeting on September 4, 1981, the Commission reprimanded Messina and denied Super City “any further rights to the September 16 date on which to promote a professional boxing match.” This litigation ensued.

Since the Leonard-Hearns fight took place on September 16, 1981, the injunction restraining its telecast and the appeal from the Commission’s denial of the right of Super City to promote a fight on that day are most probably moot except for their possible effect on who gets the net proceeds of the gate, an issue which will ultimately have to be litigated. Because of this, appellants urge that we do not recall the writs granted in this matter for mootness. Since our decision in this matter may give practical relief and because judicial economy dictates that we resolve this suit rather than have the same issues go through our court system once again, we will address the merits of the issues before us.

The issues are whether the Commission’s denial of the right of Super City to promote a boxing match in Orleans Parish on September 16, 1981 after having received “tentative permission” from one of its Commissioners constitutes a deprivation of a property interest and, if not, whether the Commission nonetheless acted arbitrarily or capriciously or abused its discretion.

Appellants contend that the “tentative permission” orally given by Commissioner Williams to Super City on June 26, 1981 to hold a live fight on September 16, 1981 did not create a property interest in Super City. We agree.

In Delta Bank & Trust Co. v. Lassiter, 383 So.2d 330 (La.1980), we discussed the concept of a property interest:

The Fourteenth Amendment of the Federal Constitution provides, in part, “... nor shall any State deprive any person of life, liberty, or property, without due process of law.... ” Article 1, § 2 of our state Constitution provides: “No person shall be deprived of life, liberty, or property, except by due process of law.” As can be seen, the obvious, but sometimes overlooked, initial requirement in any due process claim is that the claimant show the existence of some property or liberty interest which has been adversely affected by state action. See e.g., Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

In Roth, supra, the United States Supreme Court held that in order to have a property interest, a person “must have more than a unilateral expectation.... He must, instead, have a legitimate claim of entitlement. ...” Stated another way, a person must have a legitimate expectation.

Perhaps, when Super City was given “tentative permission” from Williams on June 26, there was a unilateral expectation on the part of Super City to promote a live fight on September 16. However, it was clearly not a legitimate expectation. To understand why, we must examine the controlling law on the subject.

La.R.S. 4:66 provides:

§ 66. Professional boxing contracts; permits
A. Each club licensed to hold, conduct or give professional boxing contests or exhibitions shall furnish signed contracts to the commission as follows: (1) in the case of main event boxers, six days before the contest or exhibition; and (2) in the case of preliminary boxers, four days before the contest or exhibition. No such licensed promoting club, matchmaker, manager, boxer, or wrestler, may publicly announce or advertise that any bout or exhibition will take place unless such bout or exhibition has been formally approved by the commission. (Emphasis added.)
B. Each club affected by the provisions of this chapter shall secure permits from the commission prior to holding any contest or exhibition. The commission shall not grant more than two permits a week to any club, nor shall the commission grant permits to more than one club in the same parish for the same date.
C. The commission may revoke permits for violation of any of the provisions of this chapter.

Before a promoter can publicly announce or advertise his bout, the Commission must “formally approve” the bout. According to the testimony of Commissioners Williams and Mike Cusimano, a match is not approved by the Commission until the promoter has (1) a match, (2) an arena and (3) a date. In addition, the promoter must furnish “signed contracts” to the Commission six days before a main event contest which are separate and apart from the formal approval of the bout by the Commissioner.

In the instant case, Super City never received formal approval by the Commission. As of September 4, 1981 (just twelve days before the proposed bout), Super City did not have any boxers or an arena. Cusi-mano testified that the “O’Grady-Noel match was an impossible match from the beginning. The match could not be made for New Orleans. As a matter of fact, O’Grady’s title was stripped from him by the courts and Noel boxed for the championship last Saturday [September 12].” Moreover, the Superdome was unavailable. In addition, there is no evidence that Super City attempted to get an alternate fight. From these facts, it is clear that Super City could not have had a legitimate expectation of promoting a fight merely because it had “tentative permission” of a certain date. Hence, the lower courts erred in holding that Super City had been deprived of a property interest as a result of the decision of the Commission.

The second issue is whether the Commission nonetheless acted arbitrarily or capriciously or abused its discretion.

La.R.S. 49:964(G) provides in pertinent part:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; ...

We consider it clear that the Commission’s decision was not arbitrary or capricious or an abuse of discretion. La.R.S. 4:64 provides in pertinent part:

Should any case occur which may not be covered in this chapter or by the rules and regulations of the commission, it shall be determined by the commission, but only insofar as such determination is consistent with justice, the best interests of boxing and with the powers and authority granted by this chapter. (Emphasis added.)

The Commission’s decision to deny a promoter a date is not covered in the Boxing and Wrestling chapter or by the rules and regulations of the Commission; therefore, the Commission has the sole and full discretion to determine what is in the best interests of boxing.

Tentative permission was given to Super City on June 25, 1981, to promote a live fight on September 16, 1981. More than two months later and only twelve days before the proposed fight date, Super City did not have a match or an arena. Super City was granted a hearing before the Commission on three different occasions (August 31, September 2 and 4). The minutes from these meetings reveal that Super City would not be able to present, as originally planned, a live championship match between O’Grady and Noel. Nor was there any evidence that any boxing match was being planned for that date. Moreover, the Commission was in the position to secure what had been described as potentially the greatest match of the century, the Leonard-Hearns fight. Pursuant to La.R.S. 4:64, the Commission was required to act in the best interests of boxing. Hence, it denied Super City “any further rights to September 16th on which to promote a professional boxing match.” As previously stated, we do not consider this action was arbitrary or capricious or an abuse of discretion. The courts below erred in holding otherwise.

DECREE

For the reasons assigned, the judgment of the court of appeal affirming the judgment of the district court is reversed and set aside and the decision of the State Athletic Commission is reinstated.

LEMMON, J., concurs.

DENNIS, J., concurs with reasons.

WATSON, J., dissents, being of the opinion that the matter in moot.

DENNIS, Justice,

concurring.

Though I agree with the majority’s result, I cannot follow its reliance on the absence of a “property right” in Super City for the resolution of this dispute. Rather, I believe that, by virtue of its tentative agreement with the Commission, Super City may have had an enforceable interest, but this interest became unworthy of protection once Super City’s obligation to furnish commitments from the boxers and the arena became impossible to perform.

The majority reasons that injunctive relief or relief on the merits cannot lie where there exists no “property right.” This proposition has no support in our law. Far from requiring an interest in property, our law requires only that claimants demonstrate an interest which the law will recognize in order to seek judicial relief. La. Code Civ.P. art. 681; Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314 (La. 1982) (an interest held by a local police jury to be free from damage to its drainage project from unlawful drainage by adjacent landowners); Louisiana Independent Auto Dealers Assoc. v. State, 295 So.2d 796 (La.1974) (the interest of plaintiff used car dealers in the constitutionality of an act regulating motor vehicle credit transactions). I believe that such an interest was shown prior to the collapse of Super City’s plans, but that the impossibility of arranging the anticipated fight extinguished this interest. For this reason, I believe that the majority’s discussion of property rights is of doubtful necessity and validity.

      . 411 So.2d 1098 (La.App. 4th Cir.1982).

      . 415 So.2d 938 (La.1982).

      . Walsh was a representative of Sean O’Grady who was the World Boxing Association lightweight champion.

      . HMC was the operator of the Louisiana Su-perdome.

      . Super City contends that the sole purpose of this arrangement was to permit the utilization of Messina’s license to circumvent the state’s statutory requirements for licensing. We do not agree. We find nothing in the statutory law of this state that prohibits such an arrangement between a licensee and a person with the exclusive right to televise the fight.

      . Messina was warned that his future promotions would be carefully watched and any violation would be dealt with more severely.

      . Super City’s brief to the court of appeal indicates that the parties entered into a “compromise agreement” allowing the telecast of the Leonard-Hearns fight on September 16, 1981 at the Superdome in New Orleans. This agreement stipulated that all profits earned by Pace would be placed in an escrow account pending resolution of this litigation. The profits amounted to $34,081.81. At oral argument before this court, the parties indicated that there was another lawsuit pending in the district court involving issues presented in this case.

      . La.R.S. 4:61-85.


author: BLANCHE, Justice.

text:
    STATE of Louisiana v. Paul Mitchell GOODLEY.
    No. 82-K-0937.
    Supreme Court of Louisiana.
    Nov. 29, 1982.
    Rehearing Denied Jan. 7, 1983.

      William J. Guste, Jr. Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., Evelyn Oubre, Eugene A. Bouquet, Asst. Dist. Atty., for relator.
    Steven Broussard, Lake Charles, for respondent.
   BLANCHE, Justice.

Defendant Paul Goodley was charged by grand jury indictment with the crime of first degree murder in violation of La.R.S. 14:30. During a trial by jury that began on June 23, 1980, improper jury instructions were given as to the number of jurors who must agree in order to render a verdict. The trial court incorrectly stated that while all twelve jurors had to concur in order to find the defendant guilty as charged, only ten of the twelve had to agree on the responsive verdicts. The defendant neither requested the instruction nor objected to it as being improper. The jury found the defendant guilty of manslaughter by a ten to two vote.

Goodley appealed, challenging only the excessiveness of his 15 year sentence. On appeal, this court considered the incorrect jury instruction to be a patent error and reversed the conviction on the grounds that it was invalid because not returned by a unanimous jury. See State v. Goodley, 398 So.2d 1068 (La.1981). The case was remanded and the State attempted to retry Goodley for first degree murder.

Goodley filed a motion to quash the first degree murder indictment based on principles of double jeopardy. The trial court granted the motion, ruling that jeopardy had attached and therefore the defendant could not be retried for first degree murder. This court granted the State’s writ in order to review the ruling of the trial court on the issue of double jeopardy.

In a single assignment of error, the State argues that the trial court erred in ruling that jeopardy had attached to these proceedings so as to bar retrial of the defendant for the crime of first degree murder. We disagree. In our opinion, principles of double jeopardy do not preclude retrial of this defendant. Rather, we conclude that to retry Goodley for the crime of first degree murder would unconstitutionally impair the exercise of his right to appeal. La. Const, art. I, § 19 (1974).

The Double Jeopardy Clause of the Fifth Amendment, applicable to the States through the Fourteenth, provides that no person shall “be subject for the same of-fence to be twice put in jeopardy of life or limb.” Article I, § 15 of the 1974 Louisiana Constitution contains a similar guarantee. The guarantee against double jeopardy has been said to consist of three separate constitutional protections: “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).

An analysis of the present case in conjunction with the criteria set forth above demonstrates that retrial of this defendant would not expressly violate any of the interests sought to be protected by the Fifth Amendment. This fact becomes evident when we examine the effect of the jury verdict in the prior proceeding.

On our first consideration of this case, we ruled that the jury’s manslaughter verdict was invalid under La.C.Cr.P. art. 782 and Article I, § 17 of the 1974 Louisiana Constitution. In doing so, we stated:

“In addition to these express provisions it has been determined that a conviction on a lesser included offense operates as an acquittal on the greater charged offense. Code of Criminal Procedure Article 598; Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). Therefore, in view of the above, it is clear that the vote on the lesser included offense, which acts as an acquittal verdict on the capital charge must conform to the requirements of a lawful verdict on the greater offense, a unanimous verdict.” State v. Goodley, 398 So.2d 1068, 1070 (La.1981).

According to this rule, the ten to two verdict handed down by the jury at Goodley’s first trial could constitute neither a conviction of manslaughter nor an acquittal of murder. Without the concurrence of all twelve jurors, there could be no verdict. Therefore, for all practical purposes, it is as if the jury in the prior proceeding failed to reach a decision. It is a well-established part of our constitutional jurisprudence that “jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where ‘unforseeable circumstances ... arise during [the first] trial making its completion impossible, such as the failure of a jury to agree on a verdict.’ Wade v. Hunter, 336 U.S. 684, 688-689 [69 S.Ct. 834, 837], 93 L.Ed. 974, 978.” Green v. United States, 355 U.S. 184, 188, 78 S.Ct. 221, 224, 2 L.Ed.2d 199 (1957).

The rule announced in Green v. United States, supra, likewise does not operate to bar retrial of this defendant under double jeopardy principles. Green holds that when one is convicted of a lesser offense included in that charged in the original indictment, he can be retried only for the offense of which he was convicted rather than that with which he was originally charged. The Green decision was based upon the double jeopardy provision’s guarantee against retrial for an offense of which the defendant was acquitted. Since Goodley was not validly convicted of manslaughter and hence not acquitted of first degree murder, the double jeopardy rule of Green is not applicable to resolve the present situation.

An examination of the jurisprudence in this area reveals that the true test of whether double jeopardy precludes retrial in various situations involves a balancing of the defendant’s interest in seeing that criminal proceedings against him are resolved once and for all in a single prosecution against society’s valued interest in enforcement of its criminal laws. United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). As the Supreme Court noted in Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837 (1949), “a defendant’s valued right to have his trial completed by a particular tribunal must in some circumstances be subordinated to the public’s interest in fair trials designed to end in just judgments.” Consistent with this principle, it has repeatedly been recognized that the double jeopardy clause does not prohibit the government’s retrying a defendant whose conviction has been set aside because of an error in the proceedings leading to conviction. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). As Justice Harlan has explained: “The determination to allow reprosecution in these circumstances reflects the judgment that the defendant’s double jeopardy interests, however defined, do not go so far as to compel society to so mobilize its decisionmaking resources that it will be prepared to assure the defendant a single proceeding free from harmful governmental or judicial error.” Jorn, supra 400 U.S. at 484, 91 S.Ct. at 556.

Under this analysis, it follows that the Fifth Amendment likewise should not bar retrial of a defendant where a non-waivable defect, such as an illegal verdict fails to result in either a conviction or acquittal at defendant’s first trial. Where no valid judgment has been obtained, the defendant’s double jeopardy interests simply cannot be considered to extend so far as to compel society to relinquish its interest in punishing one whose guilt is clear by means of a fair and procedurally accurate trial.

This principle has been implicitly recognized and followed in Louisiana. In the case of State v. Cook, 396 So.2d 1258 (La.1981) a patent error review revealed an invalid verdict which necessitated the reversal of the defendant’s conviction. In ordering the reversal, this court held that retrial of the defendant was proper because “there was no legal verdict rendered, either of conviction or of acquittal”. Cook, supra at 1261. Although the Cook opinion does not directly address the double jeopardy issue, its holding does implicitly recognize that the double jeopardy protection simply does not extend to a situation in which no verdict, either of conviction or acquittal, has been rendered.

It therefore becomes evident that the prohibition against double jeopardy does not operate to bar Goodley’s retrial for the crimes of first degree murder or manslaughter. Although there is no doubt that jeopardy did attach in Goodley’s initial trial for first degree murder, such jeopardy is not regarded as having come to an end so as to bar a subsequent prosecution for either first degree murder or manslaughter. Under the Fifth Amendment, where a non-waivable defect, such as an illegal verdict, prevents a jury from delivering either a conviction or acquittal at a defendant’s first trial, that defendant cannot avail himself of the plea of double jeopardy.

Despite the fact that the constitutional protection against double jeopardy does not in and of itself prohibit Goodley’s retrial for first degree murder, we are of the opinion that to retry Goodley for the crime of first degree murder would be inconsistent with the right to appeal in Louisiana.

Louisiana Code of Criminal Procedure article 912.1 and article I, § 19 of the 1974 Louisiana Constitution guarantee a defendant in a felony case a right to appeal. Appeals have always been favored in the law of this state. Davidge v. Magliola, 346 So.2d 177 (La.1977).

In exercising his right to appeal, Goodley did not attack his conviction for manslaughter. He raised only the issue of the exces-siveness of his sentence. Now, as a result of this court’s patent error reversal of that conviction, the State is attempting to retry Goodley for first degree murder. Should the State be allowed to do so, the defendant would be facing a possible death sentence or life imprisonment as a result of an appeal through which he sought only to have this court review the excessiveness of his sentence for manslaughter. Such a result is unconscionable.

Due process of law requires that avenues of appellate review, once established, must be kept free of obstacles that can only impede open and equal access to the courts. Rinaldi v. Yeager, 384 U.S. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966). Consistent with this principle, this court has held that the State may not seek the death penalty on retrial of a capital case in which the defendant was successful in having his life sentence reversed. State v. Washington, 380 So.2d 64 (La.1980). In Washington, it was recognized that to allow the defendant to again be faced with the death penalty after successfully attacking his first conviction “would ‘impair [] to an appreciable extent,’ Crampton v. Ohio, reported sub nom., McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 1470, 28 L.Ed.2d 711 (1971), the policies underlying the constitutional right to appeal in Louisiana.” State v. Washington, supra at 67.

Although this court in Washington accepted the analysis in Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) that the prospect of a more severe sentence on retrial after a successful appeal will not, in the ordinary course, “chill” the accused’s right to appeal, the present case involves a unique factual situation. In the first place, this case deals with reinstituting a more severe charge than the defendant was “convicted” of below. Secondly, since the defendant never attacked his conviction for manslaughter, he cannot now be said to have been successful in having it overturned. Consequently, the Chaffin rationale does not control the present situation.

Under the present set of facts, Goodley did not have the opportunity to weigh the possibility of retrial when deciding whether or not to appeal. Because he at no time questioned the validity of his conviction, the defendant did not even contemplate the possibility of retrial. It was only because this court, on its own motion, searched for and discovered a patent error that the validity of the conviction was ever considered. Now, by forcing a procedurally accurate trial on the defendant for the first degree murder charge, this court is in effect penalizing him for pursuing his right to appeal. As we held in Washington, such a result is inconsistent with the policies underlying the constitutional right to appeal in Louisiana. cf. In re Merritt, 391 So.2d 440 (La.1980).

Therefore, we conclude that to subject Goodley to a second prosecution for first degree murder would have a chilling effect on the exercise of his right to appeal in violation of La. Const, art. I, § 19 (1974). However, nothing in this opinion should be interpreted to preclude retrial of this defendant for the crime of manslaughter, since on retrial he would not be faced with a more severe charge than he was “convicted” of below.

DECREE

For reasons assigned, the judgment of the trial court quashing the indictment for first degree murder is hereby affirmed.

DENNIS, J., concurs.

      . La.C.Cr.P. art. 592 provides that jeopardy begins when the 1st witness is sworn at the trial on the merits. Under Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) jeopardy attaches when the jury is impaneled and sworn. La.C.Cr.P. article 592 has been judicially amended to comport with the federal rule. State v. Sermon, 404 So.2d 261 (La.1981).
      Under either rule, there is little doubt that jeopardy did attach in this case, as defendant was subjected to a full blown trial on the merits.

      . Although it must be noted that in arguing the motion to quash in the trial court, the assistant district attorney stipulated that the state would not seek the death penalty.

      . The Federal constitution similarly prohibits “penalizing” those who choose to exercise the right to appeal. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).