author: DANIEL S. PEARSON, Judge.

text:
    Heinz DINTER, Appellant, v. James T. BREWER, Appellee.
    No. 81-1891.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.

      Golembe & Fried and Ronald L. Fried, Miami, for appellant.
    Haber & Roth and Martin L. Roth, Miami, for appellee.
    Before HUBBART, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

In 1978, Brewer recovered a money judgment against Computer Management Corporation. A deputy sheriff attempted to execute the judgment upon the assets of Computer and was informed by an employee that no officers were present to identify the corporation’s assets. The deputy left. When he returned in a few days, Computer’s cupboards were bare.

Brewer then deposed Heinz Dinter, the president of Computer, in aid of execution. During the deposition, Dinter admitted that he and his wife, Martha, were the principal officers, directors and shareholders of Computer; that Computer could not pay the judgment; and that Computer’s assets had been transferred to a new corporation, System H.D. Corporation, in which Dinter and his wife were the principal officers, directors and shareholders. In 1979, Brewer sued the Dinters for fraud on a judgment creditor.

The trial was without a jury. Mr. Dinter did not appear at trial despite Brewer’s efforts to procure his attendance. Martha Dinter did appear. Heinz Dinter’s deposition taken in aid of execution was offered in evidence to show that the Dinters wrongfully drained corporate assets with the intent to defraud Computer’s creditors. The trial court admitted the deposition against Heinz, but excluded its use against Martha. At the conclusion of the trial, the court entered a money judgment against the Din-ters, but thereafter vacated the judgment against Martha. Heinz Dinter’s appeal challenges the ruling of the trial court admitting his deposition and, independently, the sufficiency of the evidence against him. Brewer’s cross-appeal asserts that the trial court erred in vacating the judgment against Martha.

Our analysis of Dinter’s first point begins with the proposition that Heinz Dinter’s deposition, being “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,” is hearsay. § 90.801(l)(e), Fla.Stat. (1979). As such, unless it falls within some exception to the rule excluding hearsay, it is not entitled to admission despite its relevancy. § 90.802, Fla.Stat. (1979); State Farm Mutual Automobile Insurance Co. v. Ganz, 119 So.2d 319 (Fla.3d DCA 1960) (“The general rule which bars the admission of evidence falling within the definition of hearsay is so firmly established and so well known that the citation of authority affirming the general principle seems hardly warranted.” Id. at 321); see generally McCormick On Evidence 579-84 (E. Cleary ed. 2d ed.1972) (“It was in the first decade after the restoration that the century or so of criticism of hearsay had its final effect in decisions reflecting its use, first as to oral hearsay and then as to depositions.” Id. at 580).

Dinter tells us because his deposition does not come within the exceptions to the rule excluding hearsay found in the rules of civil procedure in that (1) he was not a party in the proceeding in aid of execution against Computer, see Fla.R.Civ.P. 1.330(a)(2); and (2) the action for fraud in which the deposition was offered was independent of, rather than supplementary to, the action for damages in which the deposition was taken, cf. Hanisch v. Wilder, 210 So.2d 491 (Fla.3d DCA 1968), his deposition was ipso facto inadmissible. In our view, Dinter’s argument completely misses the mark.

Exceptions to the rule excluding depositions as hearsay are found not only in the rules of civil procedure, but in the rules of evidence. While it is true that when considering the admissibility of a deposition we are conditioned to look to Florida Rule of Civil Procedure 1.330, that rule merely supplies certain exceptions to the rule excluding hearsay, that is, when the deposition is to be used in the action for which it was taken, or in a proceeding supplemental to, or a retrial of, that action. But when the deposition does not come within the exception provided in the civil procedure rule, we must turn to the rules of evidence in our search for an exception. These latter rules “expand the admissibility of depositions taken in the action and in prior actions, but do not limit admissibility as provided for [in the rule of civil procedure].” J. Moore & H. Bendix, 4A Moore’s Federal Practice ¶ 32.02 (1976). This “cumulative” relationship between the rules of evidence and the rule of civil procedure which deals with the admissibility of depositions, see 4A Moore’s, supra at ¶ 32.08 is explained by Professor Moore in his discussion of the counterpart federal rules:

“Rule 804(b)(1) must be read in conjunction with the rules dealing with the admissibility of depositions in civil and criminal proceedings. Rule 32(a)(3) of the Federal Rules of Civil Procedure governs the admissibility of a deposition in the same proceeding in which it was taken. The definition of unavailability is broader in Rule 32(a)(3) [Fla.R.Civ.P. 1.330] than it is in Rule 804(a) of the Federal Rules of Evidence [§ 90.804(a), Fla.Stat.].... The effect of these provisions is to create exceptions to the hearsay rule independent of Rule 804(b)(1). Hearsay which would not be admissible under 804(b)(1) will still qualify for admission if it satisfies these provisions. This is the effect of Rule 802 of the Federal Rules of Evidence [§ 90.802, Fla. Stat., ‘Except as provided by statute, hearsay evidence is inadmissible.’]. As a practical matter the primary impact of Federal Rule 804(b)(1), with respect to depositions, is only in those cases where the deposition was taken in a proceeding different from the one in which it is being offered as evidence.” 11 Moore’s, supra at VIII-262.

Thus, the admissibility of Dinter’s prior deposition testimony does not, as he contends, depend solely on the rules of civil procedure. It matters not whether Dinter’s deposition was taken as a witness or a party, that he had or had not some affiliation with Computer, that the action in which the deposition was introduced was independent of or supplementary to the action in which it was taken, that Dinter was available or unavailable to personally testify, or, indeed, that Dinter’s prior statements concerning his complicity in the transfer of Computer’s assets to System were in the form of a deposition or, for that matter, even sworn.

“The admissibility of an admission made by the party himself rests not upon any notion that the circumstances in which it was made furnish the trier means of evaluating it fairly, but upon the adversary theory of litigation. A party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of an oath.” Morgan, Basic Problems of Evidence 266 (1962), cited in McCormick On Evidence 628-29 (E. Cleary ed. 2d ed.1972).

The admissibility of Dinter’s deposition statements, then, rests on the singular fact that the statements were made by him. Simply stated, the applicable rule of evidence, Section 90.803, Florida Statutes (1981), provides:

“The provision of s. 90.802 [except as provided by statute, hearsay evidence is inadmissible] to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declar-ant is available as a witness:
“(18) ADMISSIONS. — A statement that is offered against a party and is:
“(a) His own statement in either an individual or a representative capacity.” (emphasis added).

Having concluded that Dinter’s deposition was properly admitted against him, we have no difficulty whatsoever in summarily rejecting, without further discussion, Din-ter’s challenge to the sufficiency of the evidence to support the judgment against him.

But even as there is ample evidence to support the judgment against Heinz, there was virtually no competent evidence to support the conclusion that Martha participated in any fraud perpetrated on Brewer, and the trial court correctly vacated the judgment entered against Martha.

Accordingly, we affirm the judgment entered against Heinz Dinter and the judgment exonerating Martha Dinter.

Affirmed.

      . Insofar as the rule of civil procedure, Rule 1.330, allows the use of depositions taken and offered under certain described circumstances “as though the witness were then present and testifying,” it eliminates the threshold hearsay objection based on the deponent’s absence from the court and is, in this respect, a rule of evidence. See Fed.R.Civ.P. 32, Advisory Committee Note, 1970 to Amend.; § 90.802, Fla. Stat. (1981), Law Revision Council Note — 1976 (1981).

      . Decisions and commentaries under the federal rules are persuasive guidelines to the interpretation of state rules closely patterned thereon. Gross v. Franklin, 387 So.2d 1046, 1048 n. 6 (Fla.3d DCA 1980).

      . This, of course, presupposes that the statements made by Dinter were relevant to prove some fact in issue in the suit against him. The obvious relevancy of Dinter’s statements is not challenged here.

      . The heart of the case against Martha lay in Heinz Dinter’s deposition which the trial court held was inadmissible against her. While that ruling is not challenged here by Brewer, we note its correctness. Heinz’s statements neither constituted admissions by Martha on the theory that the statements concerned a matter within the scope of an agency and were made by him as Martha’s agent during the agency relationship, see § 90.803(18)(d), Fla.Stat. (1981); nor were they statements of a co-conspirator during the course of and in furtherance of a conspiracy, see § 90.803(18)(e), Fla.Stat. (1981), since, apart from the deposition itself, there was no evidence to establish any agency relationship or conspiracy between Heinz and Martha. Unlike the unavailability requirement under Florida Rule of Civil Procedure 1.330(a)(3), which may possibly be satisfied by the deponent’s own statement of unavailability contained in the deposition, see Colonnades, Inc. v. Vance Baldwin, Inc., 318 So.2d 515 (Fla. 4th DCA 1975); but see Haverley v. Clann, 196 So.2d 38 (Fla.2d DCA 1967); Weber v. Berry, 133 So.2d 327 (Fla. 2d DCA 1961); Driscoll v. Morris, 114 So.2d 314 (Fla. 3d DCA 1959), the fact of agency or conspiracy must be established by proof independent of the statement sought to be introduced that an agency or conspiracy existed. See Tresvant v. State, 396 So.2d 733 (Fla.3d DCA 1981). Second, although Heinz was shown to be unavailable by reason of his absence from the trial and the inability of the plaintiff to procure his attendance, see § 90.-804(l)(e), Fla.Stat. (1981), any argument that Heinz’s statement comes within the hearsay exception as a statement against interest, see § 90.804(2)(c), is defeated by the lack of showing that when Heinz spoke at the deposition and admitted, among other things, the transfer of the assets, he was aware of a risk of harm to his own pecuniary or penal interests. See Hunt v. Seaboard Coast Line Railroad Company, 327 So.2d 193 (Fla.1976). Third, while Heinz’s testimony was taken in compliance with the law during a proceeding different from the instant trial, it does not otherwise qualify under the “former testimony” exception to the hearsay rule, see § 90.804(2)(a), since Martha, the party against whom the testimony was being offered at trial, was not present at its taking and had no opportunity or motive to develop Heinz’s testimony by direct, cross or redirect examination. Fourth, even as no rule of evidence would permit Heinz’s deposition to be admitted against Martha, so too Florida Rule of Civil Procedure 1.330 would not authorize its admission. Martha was not, as the rule requires, a party in the proceeding against Computer or the proceeding in aid of execution at which Heinz testified; was not present or represented there; and, insofar as this record reflects, had no notice of it. See Brown v. Tanner, 164 So.2d 848 (Fla. 1st DCA 1964); Hewitt v. Hutter, 432 F.Supp. 795 (W.D.Va.1977), aff’d, 568 F.2d 773 (4th Cir.1978).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ESTATE OF Maurice (Moe) HOROWITZ, et al., or Edith H. Broida and Alvin Edward Horowitz as Personal Representatives of Estate of Maurice (Moe) Horowitz, Deceased, Appellants, v. CITY OF MIAMI BEACH, a Florida Municipal corporation, Appellee.
    No. 81-1919.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Edith Broida, Miami Beach, in pro per.
    Norman Malinski and Steven D. Ginsburg, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

In this condemnation case, the property owners contend it was error for the trial court to disqualify their primary real estate appraiser’s expert testimony. We agree and reverse.

Florida’s constitutional guaranty of full and just compensation in eminent domain actions requires that courts take into account all facts and circumstances which bear a reasonable relationship to the loss occasioned an owner by virtue of his property being taken. Behm v. Division of Administration, Department of Transportation, 383 So.2d 216 (Fla. 1980); Jacksonville Expressway Authority v. Henry G. Dupree Co., 108 So.2d 289 (Fla.1959).

Miami Beach asserts that in light of the trial court’s “almost unbridled” discretion in determining the competency of an expert witness, we are precluded from disturbing its decision to exclude the expert testimony of the owner’s appraiser. We reject that position as being devoid of merit. We recognize that trial courts have broad discretion in determining whether one proffered as an expert witness should be accepted as such; this discretion is not, however, unbridled. Trustees of Central States Southeast and Southwest Areas, Pension Fund v. Indico Corporation, 401 So.2d 904, 905 (Fla. 1st DCA 1981). See also Florida Power Corp. v. Wenzel, 113 So.2d 747, 751 (Fla. 2d DCA 1959).

In the instant case, appellant’s excluded expert appraiser demonstrated that he possessed special knowledge about real estate appraisal that would have assisted the jury in reaching the true value of the property in question. See Buchman v. Seaboard Coast Line R. Co., 381 So.2d 229 (Fla.1980); School Board of Broward County v. Surette, 394 So.2d 147 (Fla. 4th DCA 1981). His qualifications included a bachelor’s degree in business administration from Seton Hall, post-graduate work at Rutgers University, fifteen years’ experience as a real estate appraiser and court expert in New Jersey condemnation matters, a Florida real estate broker’s license and appearance as an expert in the circuit court of Broward County.

We hold that, on these facts, the trial court abused its discretion by excluding the expert testimony. Section 90.702, Fla.Stat. (1979); Fla.R.Civ.P. 1.390(a). Mr. Figini testified that he had devoted in excess of one hundred hours to the study of the appraisal issues in this case. The fact that he had not previously testified in Dade County as an appraisal expert is an insufficient basis to exclude his testimony.

Accordingly, we reverse and remand for further proceedings consistent with the view expressed herein. In view of our reversal, we do not address the other issues presented.

Reversed and remanded.

      . Art. X, § 6, Fla. Const.

      . See Division of Administration v. Saemann, 399 So.2d 359, 361 (Fla. 4th DCA 1981).


author:
BARKDULL, Judge.
      DANIEL S. PEARSON, Judge, FERGUSON, Judge

text:
    JAYRE INCORPORATED and Hilliard Herzog, Appellants, v. WACHOVIA BANK AND TRUST CO., N.A., a National Banking Assn., Appellee.
    No. 81-2199.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.

      Seligman & Sandler and Kenneth San-dler, Hollywood, for appellants.
    Frates & Novey and Terry S. Bienstock and Diane M. Van Ness, Tallahassee, for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   BARKDULL, Judge.

On May 1st, 1981, the appellee bank, as plaintiff, filed an action against the defendants that charged that, it, the bank, had erroneously transferred $87,200. to the bank account of the defendant corporation; that the corporation, through the individual defendant, as its president, had refused to return the funds and thereby converted them and in fact by their conversion and refusal the defendants were guilty of a theft under § 812.035 Florida Statutes (1979).

The complaint sought punitive damages, as well as treble damages pursuant to § 812.035; Florida Statutes (1979), and demanded a jury trial.

Service was had upon the defendants May 19, 1981. A default judgment was entered against both defendants for failure to plead on June 11,. 1981. A motion for final judgment was filed on June 11, 1981 (with no service upon the defendants) it recited the default and advised the court that this action was for fraud, theft and conversion. Final judgment was rendered on the same day against the defendants jointly and severally for the principal sum of $261,600. plus interest costs and attorneys fees.

A motion to set aside the default ultimately came on for hearing before the trial court, accompanied by an answer by the corporate defendant and a motion to dismiss by the individual, contending that the complaint failed to state a cause of action against him individually. The motion was primarily based (supported by an affidavit by counsel for the defendants) upon excusable neglect in failing to plead, since counsel for the defendants had an oral agreement with counsel for the plaintiff that the cause would be held in abeyance until an accounting with a third party could be completed.

Counsel for the plaintiff filed an affidavit that no such oral agreement in fact existed. The trial court denied the motion to set aside default and this appeal of the final judgment ensued.

We affirm as to the denial of the motion to set aside the default. Orthwein v. Cobbs Fruit & Preserving Company, 229 So.2d 607 (Fla. 1st DCA 1969); Osceola Farms Co. v. Sanchez, 238 So.2d 477 (Fla. 4th DCA 1970). Fla.R.Jud.Admin. 2.060(g).

We reverse the final judgment entered on the default, with directions to the trial judge to submit the matter of damages to a jury as requested by the plaintiff in its complaint. A plaintiff, after demanding a jury trial in its complaint cannot withdraw the' demand, absent consent of the defendant, even when a default judgment has been entered against the defendant. Schuppener v. Stein, 374 So.2d 555 (Fla. 4th DCA 1979); Loiselle v. Gladfelter, 160 So.2d 740 (Fla. 3rd DCA 1964), affirmed; Gladfelter v. Loiselle 165 So.2d 767 (Fla.1964). Fla.R.Civ.P. 1.430(d).

In oral argument counsel touched on the question of whether treble damages could be recovered in the trial court under Section 812.035(7) without proof of a prior criminal conviction. This opinion does not address this point. It was not presented to the trial court and was not a point on this appeal. Upon remand, the matter should' first be submitted to the trial court for a determination after a full review of the legislative background leading to the adoption of this Section in 1979; the Section not having heretofore received judicial scrutiny. After the trial court makes a ruling on this point, any aggrieved party may make a point in subsequent appellate proceedings as to the correctness of the trial judge’s interpretation of Section 812.-035(7).

Therefore, for the reasons above stated, the final judgment is hereby reversed and the matter returned to the trial court for further proceedings.

Reversed and remanded.

DANIEL S. PEARSON, Judge,

concurring.

I agree that the defendant is entitled to have the judgment against it set aside and the cause remanded to the trial court for a trial on damages. I believe, however, that since the trial court awarded treble damages under Section 812.035(7), Florida Statutes (1979), and the parties hereto made the propriety of that award a separate issue on appeal, we should reach the quéstion whether treble damages can be awarded upon proof that the civil defendant violated the theft statute, §§ 812.012 et seq., Fla.Stat. (1979), absent proof that the violation resulted in a criminal conviction.

Addressing this question, I find nothing at all in Chapter 812 which even slightly suggests that a conviction for any of the thefts proscribed in this chapter is a necessary predicate to the civil remedies provided by Section 812.035. Indeed, a plain reading of Section 812.035 compels the contrary conclusion. In pertinent part, that section provides:

“(7) Any person who is injured in any fashion by reason of any violation of the provisions of ss. 812.012-812.037 shall have a cause of action for three-fold the actual damages sustained and, when appropriate, punitive damages. Such person shall also recover attorneys’ fees in the trial and appellate courts and costs of investigation and litigation.
“(8) A final judgment or decree rendered in favor of the state in any criminal proceeding under ss. 812.012-812.037 shall estop the defendant in any subsequent civil action or proceeding as to all matters as to which such judgment or decree would be an estoppel as between the parties.
“(9) The Department of Legal Affairs may, upon timely application, intervene in any civil action or proceeding brought under subsection (6) or subsection (7) if he certifies that, in his opinion, the action or proceeding is of general public importance. In such action or proceeding, the state shall be entitled to the same relief as if the. Department of Legal Affairs had instituted this action or proceeding.
“(10) Notwithstanding any other provision of law, a criminal or civil action or proceeding under ss. 812.012-812.037 may be commenced at any time within 5 years after the cause of action accrues. If a criminal prosecution or civil action or other proceeding is brought, or intervened in, to punish, prevent, or restrain any violation of the provisions of ss. 812.012-812.037, the running of the period of limitations prescribed by this section with respect to any cause of action arising under subsection (6) or subsection (7) which is based in whole or in part upon any matter complained of in any such prosecution, action, or proceeding shall be suspended during the pendency of such prosecution, action, or proceeding and for 2 years following its termination.
“(11) The application of one civil remedy under any provision of ss. 812.012-812.037 shall not preclude the application of any other remedy, civil or criminal, under ss. 812.012-812.037 or any other section of the Florida Statutes.”

By providing for estoppel in those cases where a criminal conviction has first occurred, the legislature has recognized, at least implicitly, that there will be other instances where no criminal proceeding exists. By extending the statute of limitations in only those cases where a criminal prosecution or civil action to punish, prevent or restrain violation has first been brought, the legislature has recognized that there will be other cases where no criminal proceeding occurs and the limitations period is not extended. Moreover, the legislature’s disjunctive treatment of the criminal and civil provisions throughout the section, culminating with subsection (11), quite clearly contemplates that a civil remedy can precede or even be unaccompanied by any criminal sanction. Had the legislature intended that the civil remedies provided could only be employed following a criminal conviction, I think that intent, so easily expressed, would not only appear in but would drastically alter the purport of Section 812.035. I think it inescapable that the legislature has provided that the acts of theft proscribed in Chapter 812 may be made the subject of either or both criminal and civil proceedings and that the remedies provided are independent of one another.

Moreover, while this precise issue has not been decided in respect to Chapter 812, courts have uniformly rejected the like contentions (a) that a provided-for civil action for treble damages could not be maintained absent a preceding criminal conviction under the Racketeer Influenced and Corrupt Organizations Act (RICO), Title 18 U.S.C. § 1961 et seq., Parnes v. Heinold Commodities, Inc., 487 F.Supp. 645 (N.D.Ill.1980); Heinold Commodities, Inc. v. McCarty, 513 F.Supp. 311 (N.D.Ill.1979); Farmers Bank of State of Delaware v. Bell Mortgage Corporation, 452 F.Supp. 1278 (D.Del.1978); cf. United States v. Cappetto, 502 F.2d 1351 (7th Cir.1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975) (civil injunctive proceeding under 18 U.S.C. § 1964 alternative to criminal prosecution provided in same criminal statute); but see Kleiner v. First National Bank of Atlanta, 526 F.Supp. 1019 (N.D.Ga.1981) (stating in acknowledged dictum that “It may well be that entitlement to the civil remedy of Section 1964 should be conditioned upon a criminal conviction or at least an indictment,” 526 F.Supp. at 1022 n. 2); and (b) that a condition precedent to forfeiture of personal property under Section 932.703, Florida Statutes (1981), “which has been or is actually employed as an instrumentality in the commission of, or in aiding or abetting in the commission of, any felony,” see § 932.701(2)(e), Fla.Stat. (1981), is a conviction of a felony, Marks v. State, 416 So.2d 872 (Fla. 5th DCA 1982); City of Tallahassee v. In re Forfeiture of One Yellow 1979 Fiat 2-Door Sedan Florida Tag No. FVN-467, 414 So.2d 1100 (Fla. 1st DCA 1982).

FERGUSON, Judge

(concurring).

I agree that the final judgment must be set aside and the matter of damages submitted to the jury. Though the question of entitlement to treble damages was raised as an issue in this appeal the trial court made the award on only appellee’s ex parte motion for judgment which was bare of any legal discussion. Since we are reversing and remanding for a full trial on damages I think it unnecessary to pass on the question whether a conviction is a necessary predicate to the civil remedies provided by Section 812.035, Florida Statutes (1979). Judge Pearson’s persuasive concurring opinion is at least a beginning to the research effort, and indeed may become the opinion of the court in the event of an appeal after trial. Nonetheless, I agree with Judge Barkdull that the trial court and this court might benefit if the parties are permitted to complete the record-then thoroughly brief the novel question.

      . These cases, sub silentio, reject the notion that simply because the civil remedy is found in a criminal statute or criminal code, it is therefore dependent on a criminal conviction.


text:
    LLOYD’S AND COMPANIES OF LLOYD’S, a foreign corporation, d/b/a Ropner Insurance Services, Ltd. and Lloyd’s Insurance and Reinsurance Brokers, and Ray Hampson and Associates, Inc., Appellants, v. Donald L. WOLLARD d/b/a Sea Lark Marine Co., Appellee.
    No. 81-2446.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.

      Fowler, White, Burnett, Hurley, Banick & Strickroot and William McCarthy, Miami, for appellants.
    Marks, Aronovitz & Leinoff and Todd Aronovitz, Miami, for appellee.
    Before HENDRY, NESBITT, and DANIEL S. PEARSON, JJ.
   PER CURIAM.

A negotiated settlement between an insured and his insurer does not entitle the insured to attorney’s fees pursuant to Section 627.428, Florida Statutes (1979). American Home Assurance Co. v. Keller Industries, Inc., 347 So.2d 767 (Fla. 3d DCA 1977), cert. denied, 360 So.2d 1249 (Fla.1978), cert. dismissed, 367 So.2d 1124 (Fla.1979).

Reversed.


text:
    Doris BURDICK, Appellant, v. Isadore BURDICK, as Personal Representative of the Estate of Samuel Burdick, Deceased, Appellee.
    No. 81-2486.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Rothenberg & Lack and Arthur Rothen-berg and Larry A. Rothenberg, Coral Springs, for appellant.
    Malspeis, Lococo, Brown & Schwartz, North Miami, for appellee.
    Before HUBBART, C.J., and BARK-DULL and SCHWARTZ, JJ.
   PER CURIAM.

This is an appeal from a final judgment entered in a probate proceeding below on September 16, 1981, wherein the personal representative of a decedent’s estate [appel-lee Isadore Burdick] is authorized to recover $44,155.72 from the decedent’s widow [appellant Doris Burdick], We reverse.

Without dispute, the above $44,155.52 was paid by the above personal representative to the decedent’s widow pursuant to a prior final order of the court dated November 21, 1977, which was never appealed by any party. See Burdick v. Burdick, 399 So.2d 410 (Fla.3d DCA 1981). Almost four years later, the trial court substantially modified that final order by requiring the decedent’s widow to disgorge $44,155.52 paid thereunder; this was done by court order pursuant to a motion filed by the personal representative in the nature of a motion for relief from judgment under Fla. R.Civ.P. 1.540. This was error as the motion stated no colorable grounds for relief under Fla.R.Civ.P. 1.540. See e.g., Val Bostwick v. Cowan, 326 So.2d 454 (Fla.1st DCA 1976). Moreover, we are unpersuaded that, in the context of this case, the trial court had any other authority to modify the subject final order as it did. All agree, however, that the November 21, 1977 court order no longer has any prospective application insofar as it requires the estate to pay the widow maintenance expenses for her homestead property.

The final judgment under review is, accordingly, reversed and the cause is remanded to the trial court for further proceedings.


text:
    Ola ESCARMANT, Appellant, v. Frazier KNIGHT, Appellee.
    No. 81-2675.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Melvin A. Rubin, Miami, for appellant.
    Hutner & Abramson and Stuart Abram-son, Coral Gables, for appellee.
    Before SCHWARTZ, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

We affirm the judgment of the trial court which found the appellee not to be the father of appellant’s child. Although a blood grouping test established a likelihood that Knight was the father and the appellant unequivocally testified that only Knight could have been, appellant’s credibility was severely eroded by her admissions, inter alia, that she had told a number of persons that a man named Smith had fathered the child; when the child was born (some six years before the paternity proceedings were instituted), she gave the surname Smith to the child; and she lived with Smith during her pregnancy and thereafter married him. Clearly, the trial court was free to find unworthy of belief the appellant’s testimony that she never had intercourse with Smith until after the child was born and free to conclude, as it did, that Knight was not the father.

Affirmed.


text:
    Reginald JACKSON, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2697.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Eric William Hendon, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen. and Lisa M. Berlow-Lehner, Legal Intern, for appellee.
    Before HUBBART, C.J., and BARK-DULL and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Ensor v. State, 403 So.2d 349 (Fla.1981); Miller v. State, 403 So.2d 1307 (Fla.1981); Norman v. State, 379 So.2d 643 (Fla.1980); United States v. Duckett, 583 F.2d 1309 (5th Cir.1978).


text:
    Mark RICHARDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-82.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Bennett H. Brummer, Public Defender and James D. Keegan, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and HENDRY and JORGENSON, JJ.
   PER CURIAM.

Affirmed. United States v. Ross, — U.S. —, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982); Miller v. State, 403 So.2d 1307 (Fla.1981); Rivera v. State, 373 So.2d 64 (Fla.3d DCA 1979).


text:
    Murray Joseph COHEN, M.D., License No. 12031, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
    No. 82-188.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Stephens, Lynn, Chernay & Klein and Robert M. Klein, Miami, for appellant.
    Joseph W. Lawrence, II and Gordon D. Cherr, Tallahassee, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978); DeGroot v. Sheffield, 95 So.2d 912 (Fla.1957); Solloway v. Department of Professional Regulation and Board of Medical Examiners, 421 So.2d 573 (Fla. 3d DCA 1982).


text:
    Tommy Lee CUYLER, Appellant, v. The STATE of Florida, Appellee.
    No. 82-235.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Bennett H. Brummer, Public Defender and Mark Alan LeVine, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Appellant’s co-defendant was also convicted. He appealed, challenging the volun-tariness of his confession. We affirmed. The issues in this case are identical. See Jackson v. State, 420 So.2d 386 (Fla. 3d DCA 1982) (Case No. 82-203, opinion filed October 12, 1982.)

Affirmed.


text:
    Earl McGOWAN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-621.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Bennett H. Brummer, Public Defender and William A. Meadows, Jr., and Mark Hektner, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Scott Silver, Asst. Atty..Gen., for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellant’s probation was violated for several reasons, among which was a changing of residence without the consent of his parole supervisor. Except as to this finding, the other grounds for revoking his probation are sustained. Bernhardt v. State, 288 So.2d 490 (Fla.1974); Straughter. v. State, 384 So.2d 218 (Fla.3d DCA 1980); Butler v. State, 330 So.2d 244 (Fla.2d DCA 1976).

Therefore for the reasons above stated, the order revoking probation is affirmed as modified, by striking the following from the order of revocation.

Violated Condition 2 by changing his residence without first procuring the consent of his Parole Supervisor in that on or about February 9, 1981, he did leave his residence at 8440 N.W. 5th Avenue, Miami, Florida and did change his residence to 465 N.W. 84th Terrace, Miami, Florida without first obtaining the consent of his Parole Supervisor.

Affirmed as modified.


text:
    Alton HAMILTON, Appellant, v. The STATE of Florida, Appellee.
    No. 82-792.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.

      Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Her-shoff, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and NESBITT and FERGUSON, JJ.
   PER CURIAM.

The judgment and sentence entered on a finding that defendant violated his probation by carrying a concealed firearm are affirmed, however, the case is remanded for correction of the order revoking probation to eliminate a finding that appellant failed to make payments of ten dollars a month. See Sampson v. State, 375 So.2d 325 (Fla. 2d DCA 1979).

REMANDED for correction of the order revoking probation; otherwise AFFIRMED.


text:
    Ellis S. TARSCHES, Appellant, v. EASTER SEAL SOCIETY OF DADE COUNTY, INC., a Florida corporation, Appellee.
    No. 82-1422.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Norman S. Segall, Coral Gables, for appellant.
    Walton, Lantaff, Schroeder & Carson and Richard P. Cole, Miami, for appellee.
    Before HUBBART, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Pedro Realty, Inc. v. Silva, 399 So.2d 367 (Fla. 3d DCA 1981); Associated Medical Institutions, Inc. v. Imperatori, 338 So.2d 74 (Fla. 3d DCA 1976).


text:
    Edwin DEMERITTE, Appellant, v. SCHOOL BOARD OF DADE COUNTY.
    No. 82-1457.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 1982.
    Thomas G. Murray, Clinton J. Pitts, Miami, for appellant.
    Frank A. Howard, Jr. and Phyllis 0. Douglas, Miami, for appellee.
    Before HUBBART, C.J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

The petitioner seeks review of the respondent’s, School Board of Dade County, action in dismissing him as an employee, with a petition for review. The correct method to review such an order of dismissal is by appeal. See Rule 9.030(b), (c) Fla.R.App.P.

We consider the petition as a notice of appeal and affirm.

We have copies of applicable portions of the lower tribunal proceedings to enable us to determine that there was ample evidence to support the board’s finding that the relator should not continue in its employ and that there was no error in its order of dismissal. Shapiro v. State, 390 So.2d 344 (Fla.1980); Damiano v. Weinstein, 355 So.2d 819 (Fla. 3d DCA 1978); Florida Living For the Retired v. Koltnow, 143 So.2d 553 (Fla. 3d DCA 1962).

Therefore the order of dismissal is affirmed.

Affirmed.

      . Rule 9.040(c) Fla.R.App.P.


text:
    Mario Abelardo VAZQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1525.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 1982.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne Lantz, Asst. Atty. Gen., and Michael Van-detti, Legal Intern, for appellee.
    Before HUBBART, C.J., and HENDRY and DANIEL S. PEARSON, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court, 405 So.2d 177 (Fla.App.), was entered on August 4, 1981 reversing the judgment and sentence of the Circuit Court for Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, 419 So.2d 1088 (Fla.), by its opinion and judgment filed September 14, 1982 and mandate now lodged in this court, affirmed in part and reversed in part.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on December 1, 1981 is withdrawn, the judgment of this court filed in this cause on August 4, 1981, except as is affirmed by the judgment of the Supreme Court dated September 14, 1982, is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The judgment and sentence appealed from herein is reversed in part and affirmed in part and the cause is remanded to the trial court for a new trial on Counts I & III. Costs allowed shall be taxed in the trial court (Rule 9.400(a) Florida Rules of Appellate Procedure).


text:
    John A. MMAHAT v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY.
    No. 82-C-2474.
    Supreme Court of Louisiana.
    Oct. 5, 1982.
   Re: St. Paul Fire & Marine Insurance Company, applying for Remedial Writs, to the Civil District Court, Parish of Orleans, Number 81-2773; Court of Appeal, Fourth Circuit, Number C-0158.

Granted. The order of September 27, 1982 is reversed insofar as defendant is prohibited from calling as witnesses or calling as experts certain named witnesses.

WATSON, J., dissents from the order and would only order that the disputed witnesses’ testimony be taken by proffer to preserve the issues for consideration on appeal.


author: DIXON, Chief Judge,

text:
    Betty Clark CHAPMAN v. Donald J. GRIFFIN, Sr., Paul H. Romage, United States Fidelity & Guaranty Co., and State Farm Mutual Automobile Insurance Company.
    No. 82-C-1752.
    Supreme Court of Louisiana.
    Oct. 8, 1982.
   In Re: State Farm Mutual Automobile Insurance Company, applying for Supervisory Writs, Orleans Parish, No. 81-11742.

Granted. Ruling of the trial judge reversed. Exception of improper venue filed by State Farm Mutual Automobile Insurance Co. is maintained dismissing plaintiff’s suit as to State Farm. See Meyers v. Smith, 419 So.2d 449.

CALOGERO and DENNIS, JJ., would deny the writ.

DIXON, Chief Judge,

dissenting.

See Surridge v. Benanti, 261 La. 282, 259 So.2d 324. CCP 42 is modified by the provisions of CCP 43; CCP 73 and 77 permit venue in this case in Orleans Parish.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. David Joseph NARCISSE.
    No. 82-KA-0322.
    Supreme Court of Louisiana.
    Oct. 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Dist. Atty., Larry Regan, Charles Richard, Eugene Bouquet, Asst. Dist. At-tys., for plaintiff-appellee.
    James Miguez, Carl Leckband, Lake Charles, for defendant-appellant.
   MARCUS, Justice.

David Joseph Narcisse was charged by bill of information with armed robbery in violation of La.R.S. 14:64. After trial by jury, defendant was found guilty as charged by a vote of ten to two. The state then filed an information accusing defendant of being an habitual offender under La.R.S. 15:529.1 (Habitual Offender Law). After a hearing, the judge found defendant to be an habitual offender and sentenced him to serve sixty years at hard labor without benefit of parole, probation or suspension of sentence. On appeal, defendant relies on seven assignments of error for reversal of his conviction and sentence. Finding reversible error in one of the assigned errors, we need not consider the others.

Defendant contends that the trial judge erred in denying his motion for a new trial grounded on the claim that there was insufficient evidence to support his conviction for armed robbery. Specifically, he argues that the state failed to prove that he was the person who committed the robbery.

The record reflects that on September 16, 1980, just prior to the robbery, David Nar-cisse was seen in Theriot’s Grocery at the far end of the liquor aisle. Also standing in the liquor aisle, near the end that abutted the store’s courtesy booth, was a taller black male. Both men were observed by the same cashier, Cynthia Gallien, who had known Narcisse for eight years as a casual acquaintance and had seen the taller man on other occasions. Ms. Gallien did not see anyone else in that area of the store at the time. She testified that she had checked in from lunch at 2:00 p.m. and was taking a pickup to the courtesy booth when she first saw Narcisse and the other man. As she left off her pickup and walked back out of the booth, she saw Narcisse and the taller man talking. Ms. Gallien testified that no more than three minutes later, she heard someone command everyone to lay down on the floor. When she glanced back toward the courtesy booth, she observed that the taller man she had seen earlier had entered the courtesy booth and another man, wearing a ski mask, was holding a gun to a cashier’s neck. After the taller man took money from the courtesy booth and the nearest register, at gunpoint, both men fled the store. At least $600 was taken during the robbery.

The police were notified of the robbery at 2:34 p.m. All the witnesses corroborated the story of how the robbery took place. None of the witnesses could positively identify the man in the ski mask. Only Ms. Gallien had seen Narcisse in the store just prior to the robbery. However, she had not noted what he was wearing at the time and therefore could not positively say that Nar-cisse was the masked robber. She did give a statement to the police identifying Nar-cisse as having been with the other robber immediately prior to the time the armed robbery took place. She later picked Nar-cisse’s picture out of a photographic lineup. Pursuant to the information given by Ms. Gallien, a search warrant was issued later that day. While the police waited at Nar-cisse’s apartment, Narcisse was out shopping. He loaned $20 to a neighbor, made five purchases plus one on layaway, and looked at some rings for which he said he would be back later in the week. Narcisse paid cash for each purchase, one with a $50 bill, the rest with $20 bills, for a total of about $150. When Narcisse returned home, the police commenced the search. They found that Narcisse had $280 in his wallet. In addition, two envelopes of cash were found on the top shelf of the bedroom closet: one contained $180; the other contained $111. A .22 caliber revolver was found under the pillow of his bed. Evidence introduced at trial to justify the presence of the money found on Narcisse and in his apartment included the stub from his last weekly paycheck for $279.94 paid September 13, three days prior to the robbery, and testimony that the girlfriend living with him had received over $100 in child support money the day before.

On review of the sufficiency of the evidence to support a criminal conviction, it must be determined whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the defendant committed the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Hathorn, 395 So.2d 783 (La.1981). The rule as to circumstantial evidence is that the evidence must exclude every reasonable hypothesis of innocence. La.R.S. 15:438. Thus, on review of a conviction based on circumstantial evidence, we must determine that viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of the defendant’s innocence had been excluded. State v. Austin, 399 So.2d 158 (La.1981).

Even viewing the evidence in the light most favorable to the prosecution, we are not convinced that a rational trier of fact could have concluded beyond a reasonable doubt that Narcisse was the person wearing the ski mask at the time of the robbery. No witness could positively identify Narcisse as the person in the mask. The only evidence connecting defendant with the robbery was the testimony of Ms. Gallien that she had seen him in the store and talking with the other robber shortly before the robbery took place. She took no note of his clothing and therefore could not positively identify Narcisse as the masked robber. Under the circumstances, the masked robber could reasonably have been a person other than Narcisse. The fact that Narcisse had money and owned a gun are hardly circumstances that necessarily point to him as the robber. Clearly, there was a reasonable hypothesis of innocence. Hence, there is insufficient evidence to support defendant’s conviction for armed robbery. We must reverse.

When a reviewing court reverses a conviction on the ground of evidentiary insufficiency, as distinguished from trial error, the double jeopardy clause of the fifth amendment precludes a second trial and requires the direction of a judgment of acquittal. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Phillips, 412 So.2d 1061 (La.1982); State v. Davis, 371 So.2d 788 (La.1979); State v. Liggett, 363 So.2d 1184 (La.1978). Hence, defendant must be ordered discharged in this case.

DECREE

For the reasons assigned, the conviction and sentence are annulled and set aside and a judgment of acquittal is rendered as to the charge of armed robbery.

WATSON, J., dissents.

      . La.R.S. 14:64 provides in pertinent part:
      Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

      . The testimony of the witnesses varied as to the time of the robbery from 2:00 to 2:30 p.m. On cross-examination, Ms. Gallien was asked that, since she had testified that she had returned to the store at 2:00 p.m. and if she were to assume that the robbery took place at 2:30 p.m., would there not be a gap of “about twenty-five minutes” between the time she saw Nar-cisse when she returned from her lunch break and the time of the robbery. She responded in the affirmative.

      . State v. Byrd, 385 So.2d 248 (La.1980), wherein this court, held that discharge of a defendant on the ground of insufficiency of the evidence is not necessary or proper when the evidence supports a conviction on a lesser and included offense which is a legislatively authorized responsive verdict, is not applicable to the instant case where the evidentiary insufficiency results from the failure of the state to prove that the accused was the person who committed the offense.


author: WATSON, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Raymond Earl REED.
    No. 82-KA-0035.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parker-son, Dist. Atty., Lavalle Salomon, Asst. Dist. Atty., for plaintiff-appellee.
    Diehlmann Bernhardt, Monroe, for defendant-appellant.
   WATSON, Justice.

Defendant, Raymond Earl Reed, was convicted of simple burglary and sentenced to four years at hard labor with credit for time served. LSA-R.S. 14:62. On appeal, defendant assigns one error by the trial court.

FACTS

On the night of August 10, 1981, or the early morning of August 11, 1981, there was a burglary at the Town Hall of Ster-lington, Louisiana. The door was pried open, probably with the tire lug tool found inside the following day. A small black metal safe and a pair of gloves were taken. The safe was found empty the next day in Union Parish at an oil well site. Approximately $65 had been removed. Automobile tire marks were left in the sand. The police located Raymond Earl Reed’s 1975 Pontiac and determined that its tires had wear patterns similar to the patterns in the road where the safe was discovered. Reed was arrested August 13, 1981, in Union Parish and taken to the Ouachita Parish jail, where he remained overnight. On the morning of August 14, 1981, Reed signed a printed form waiving his rights and then confessed in a detailed recorded statement that he was one of four participants in the Town Hall burglary. Counsel was appointed; Reed was convicted by a unanimous six person jury and sentenced to four years at hard labor with credit for time served.

ASSIGNMENT OF ERROR

Defendant contends that proof of the corpus delicti and proof that his confession was voluntary were an insufficient basis for admission of his confession, absent independent evidence that he committed the crime.

“. .. [A]n accused party cannot be legally convicted on his own uncorroborated confession without proof that a crime has been committed by someone; in other tyords, without proof of the corpus delicti.” State v. Willie, 410 So.2d 1019 at 1029 (La.,1982). However, it is conceded that there was proof here of the corpus delicti and the voluntariness of the confession. When the details of a proven corpus delicti are corroborated by a voluntary confession, the confession is admissible. State v. Calloway, 196 La. 496, 199 So. 403 (1940); State v. Brown, 236 La. 562, 108 So.2d 233 (1959); State v. Sellers, 292 So.2d 222 (La.,1974). In addition, the pattern of Reed’s worn tires linked him to the crime.

Defendant’s assignment of error lacks merit.

DECREE

For the foregoing reasons, the conviction and sentence of defendant, Raymond Earl Reed, are affirmed.

AFFIRMED.

CALOGERO, J., concurs and assigns reasons.

CALOGERO, Justice,

concurring.

Defendant concedes that there was in this case a corpus delicti. His argument here is not that the absence of a corpus delicti should bar use of his confession. His argument, rather, is that the state must additionally establish some link between the defendant and the corpus delicti and that the only link here was quite nebulous: that he drove a car with worn tires and that a car with worn tires had left tracks at the scene of the crime. We have addressed this specific issue in State v. Freetime, 334 So.2d 2Ó7 (La.1976), and stated therein, without citation of authority, that there was no necessity for the link between the defendant and the corpus delicti and the defendant’s confession could be admitted without independent proof of such a link.

For these reasons, I concur in the affirmance of defendant’s conviction and sentence.

      . Corpus declicti, the body or substance of a crime, has two elements: (1) an unlawful injury has occurred; and (2) some person’s illegal conduct caused that injury. 1 Wharton, Criminal Law, § 28 (Torcía ed. 1978).


author: WATSON, Justice.

text:
    Elijah GREEN v. PROVENCAL TIE MILL, et al.
    No. 82-C-0872.
    Supreme Court of Louisiana.
    Oct. 18, 1982.

      George A. Flournoy, Führer & Flournoy, Alexandria, for applicant.
    Russell E. Gahagan, Gahagan & Gahagan, Natchitoches, for respondents.
   WATSON, Justice.

Plaintiff, Elijah Green, holding a judgment for worker’s compensation benefits against defendant, Provencal Tie Mill, Inc., caused a writ of fieri facias to issue which resulted in the seizure of two hundred cross-ties, located on the premises of a sawmill operated at the time of plaintiff’s injury by Provencal. Cecil Boswell, a member of the family which formerly operated Provencal, filed a petition of intervention prior to judicial sale, of the cross-ties. Boswell claimed ownership of the seized cross-ties and he obtained issuance of a rule to show cause to plaintiff. Plaintiff' moved to dismiss the rule in a pleading which can be fairly considered as an exception to use of summary process. The motion was denied.

Thereafter, the trial court held a hearing on the rule to show cause, again overruled plaintiff’s objection to the mode of procedure, held that Cecil Boswell had proved his ownership of the ties in question, and ordered the sheriff to release them to him.

The ruling was affirmed by the Court of Appeal, chiefly on the basis of credibility. 411 So.2d 1228 (La.App. 3 Cir.1982). A writ of review was issued to consider the judgment and to determine whether there is any relief to which plaintiff is now entitled. 414 So.2d 380 (La., 1982).

Plaintiff contends initially that the trial court erred in hearing this matter on a rule to show cause. His position is well taken. A person claiming ownership of property seized under a writ of fi fa may assert his claim by intervention. LSA-C. C.P. art. 1092. The intervention is to be asserted by the filing of a petition. LSA-C.C.P. art. 1093. Injunctive relief is available to the intervenor to prevent a sale before adjudication of his claim of ownership. LSA-C.C.P. art. 1092. There is no provision for use of summary process. LSA-C.C.P. art. 2592.

In the present case, Boswell, the interve-nor, properly filed a petition asserting his claim to the ownership of the seized cross-ties, although the trial court was in error when it ordered that a rule to show cause issue to plaintiff. Adams v. Boss Amusement Co., 182 La. 252, 161 So. 601 (1935). The trial of the ownership of the seized cross-ties by summary process was improper.

However, following the overruling of plaintiff’s motion objecting to the use of summary process, plaintiff did nothing to preserve his rights. He did not, for example, seek supervisory writs. Following the hearing on the merits of the rule, plaintiff failed again to take steps to preserve his rights. He did not, for example, appeal suspensively. Defendant’s counsel asserts in brief, and plaintiff’s counsel admits in oral argument, that the cross-ties released by order of the trial court have now been sold. Therefore, the dispute over ownership of the cross-ties is moot and there is nothing before this court for adjudication.

The writ will be recalled as having been improvidently issued.

WRIT RECALLED.

LEMMON, J., dissents.

      . Compare Art. 398, Code of Practice of 1870.

      . Plaintiff’s counsel urges that we make findings concerning the legal status of Provencal Tie Mill, Inc., but the present posture of the case does not present any appropriate issues for determination.


author: LEMMON, Justice.

text:
    STATE of Louisiana v. Mark DOUCET.
    No. 82-K-1057.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Glen Petersen, Asst. Dist. Attys., for relator.
    Philip N. Burt, Baton Rouge, for respondents.
   LEMMON, Justice.

We granted certiorari to review the trial court’s suppression of a controlled dangerous substance found by two policemen when they conducted a full search of defendant’s person after stopping his vehicle and arresting him for driving while intoxicated.

At the hearing on the motion to suppress, conducted 13 months after the offense, the two police officers were the only witnesses at the hearing. Both Officer McClain and Officer Larkin testified that at about 1:00 a.m. defendant’s vehicle approached their patrol car on the wrong side of the road, forcing them to swerve to avoid an accident. They executed a U-turn and overtook defendant with red lights flashing and siren sounding. Defendant, who was alone in the automobile, was asked to step out and produce his driver’s license. When defendant did so, the officers noticed that defendant’s walk was uncoordinated, his speech was slurred, and his breath smelled strongly of alcohol.

McClain further testified that defendant was then advised that he was under arrest and was informed of his constitutional rights, after which McClain ordered him to place his hands on the car and to spread his feet. McClain stated that he then performed a search of defendant’s person, in which he discovered in one of defendant’s pockets what he described as a white envelope containing little white pills, suspected to be narcotics, and money. According to McClain, defendant was then handcuffed and placed in the police vehicle to be transferred to headquarters for further testing for intoxication.

In describing the search on direct examination, the other policeman, Officer Larkin, stated “at that time he was in handcuffs”. The prosecutor then asked Larkin if defendant was handcuffed before or after the pills were discovered, and the officer replied “I believe he was handcuffed before”. Asked a third time, Officer Larkin said that was the case “to the best of my knowledge”. On cross-examination, defense counsel harped on the time of the handcuffing, stressing in a comment to the trial judge the importance of the chronology.

In argument to the trial court (and in brief to this court), defendant pointed out inconsistencies in the officers’ testimony. Defendant argued that each officer claimed to have informed defendant of his rights and that one officer stated defendant was handcuffed after the search, while the second stated defendant was handcuffed before the search. The trial court granted the motion to suppress “on the basis of the uncertainty of the testimony”.

Neither “inconsistency” urged by defendant is of any significance. Both officers clearly established that they had probable cause to arrest defendant for driving while intoxicated, perhaps when they first stopped him and certainly when they observed defendant’s demeanor and detected the odor of alcohol. They imposed an actual physical restraint before the search by requiring him to spread his feet and place his hands on the car. See C.Cr.P. Art. 201.

Their testimony clearly established their intent to take defendant to the station to have the intoxication test administered. Both officers also testified that they effectively took defendant into their custody immediately upon realizing that he was drunk.

Thus, there was no question that the arrest preceded the search, whether or not the handcuffing did. The search of the defendant’s person was therefore validly conducted as an incident to a lawful “full custody arrest”. See United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

Accordingly, the judgment of the trial court is reversed, the motion to suppress is overruled, and the matter is remanded for further proceedings.

      . Under C.Cr.P. Art. 703, defendant could have testified without having his testimony used to prove his guilt at his trial.

      . Officer Larkin testified that Officer McClain discovered a plastic bag containing numerous white pills and an envelope containing broken pills and money. The arrest report indicated that the officers, during the search for weapons, first discovered a clear plastic baggie, which contained 25 white tablets and pieces of white pills, and later discovered a white envelope containing $135 in cash.

      . Officer Larkin initially testified that defendant was advised of his rights and of the officers’ intent to arrest him as soon as the officers discovered that defendant was drunk. However, during cross-examination, defense counsel brought to Larkin’s attention the arrest report, which indicated that defendant was advised that he was under arrest after he was searched. Larkin then testified that defendant was not told that he was being arrested until after the search. Nevertheless, Larkin unequivocally stated that they intended to arrest defendant when they ordered him to place his hands on the top of the car.

      . Because the hearing took place 13 months after the arrest, it is not surprising that the testimony of the two officers was inconsistent on some points.

      . The officers testified that defendant either could not or would not blow up the device necessary to administer the IntoXilizer test.

      . Once the policemen, who only narrowly avoided a head-on collision, discovered the intoxicated condition of the motorist (defendant), their only reasonable course of action was to effect a full custody arrest in order to protect others on the road and defendant himself from the danger posed by his drunken driving.
      Therefore, unlike the facts of State v. Breaux, 329 So.2d 696 (La.1976), there was unequivocal and unrebutted evidence of the officers’ intent to effect a full custody arrest, and their actions reflected that intent. Significantly, there was no conflict in the officers’ testimony on this point, and their actions were perfectly consistent with that purpose.
      Nothing in this record reasonably supports an inference that the officers acted without probable cause in arresting defendant or that they effected a full custody arrest as a pretext to justify the subsequent full search of defendant’s person. The uncontested facts did not even hint that defendant was merely stopped for a minor traffic infraction, for which officers would normally issue a traffic citation and allow the motorist to go on his way.

      .This court on many occasions has observed that an arrest occurs when a person’s liberty is curtailed in a significant manner, rather than when the officer proclaims the words “you are under arrest”. State v. Coleman, 412 So.2d 532 (La.1982). See also Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).


author: CHARLES R. WARD, Justice Pro Tem-pore .

text:
    STATE of Louisiana v. Dennis L. McCABE.
    No. 82-KA-0147.
    Supreme Court of Louisiana.
    Oct. 18, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., for plaintiff-appellee.
    David L. Wallace, Evans, Bradley & Wallace, DeRidder, for defendant-appellant.
   CHARLES R. WARD, Justice Pro Tem-pore .

The Grand Jury of Beauregard Parish indicted Dennis McCabe charging him with the second degree murder of Janice New. The pertinent part of the Louisiana Criminal Code, R.S. 14:30.1, defining second degree murder provides:

Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm. ...
* * * * * *

The Trial Jury found McCabe guilty as charged, and the Trial Judge sentenced him to the penalty prescribed by R.S. 14:30.1: life in prison without benefit of probation, parole or suspension of sentence. McCabe appealed his conviction, and he has designated eight errors as grounds for reversal.

Before discussing the alleged errors, a brief description of events that occurred before and after the murder will aid in understanding McCabe’s contentions and his assignments of error.

The first indication that McCabe was responsible for a murder occurred on November 20, 1979, when McCabe sought help from a friend, Charles Mahaffey, asking Mahaffey to use his truck to pull McCabe’s car from a ditch. Mahaffey agreed to help, and after getting his truck, Mahaffey drove McCabe to a rural dead-end road in Beauregard Parish where McCabe’s car was stuck. While helping McCabe, Mahaffey noticed that his brother-in-law’s .22 caliber pistol was in McCabe’s belt and that a 410 shotgun, which also belonged to his brother-in-law, was lying on the front seat of McCabe’s car. While working to free the car, McCabe opened the trunk where Ma-haffey saw a briefcase and a shovel covered with fresh mud. McCabe told Mahaffey that he had just killed and buried four people who had been out to get him.

Approximately two months later, shortly after McCabe had left Louisiana to go to Nebraska, Mahaffey contacted the Sheriff’s office and informed the Sheriff of what he had seen and of what McCabe had said when the two men had been pulling the car out of the ditch. Mahaffey and Deputy Sheriff Bartlett went to investigate the area where Bartlett discovered a spent .410 shotgun shell, and, ultimately, the body of Janice New, which had been buried in a shallow grave near the place where McCabe’s car had been stuck. The coroner’s autopsy showed that Janice New had been shot three times with a pistol, which was held no more than two inches from her head, and she had been shot a fourth time in the head with a shotgun. After further investigation, the Beauregard Parish Sheriff’s Office notified Nevada authorities that Dennis McCabe was wanted as a suspect in the murder of Janice New. Shortly thereafter, Nevada authorities informed the Beauregard Parish Sheriff’s Office that McCabe had been indicted for a second murder in Nevada and that he was in jail waiting trial on those charges in Douglas County, Nevada. Deputy Sheriffs Bartlett, Burban and Bishop immediately went to speak with McCabe in the Nevada jail where McCabe recounted his version of the killing in Louisiana.

According to McCabe, he and Janice New had lived together in the State of Nevada while she worked in a house of prostitution, an occupation condoned by the laws of that State. He told the sheriffs how, after living with her for several months, he had left Nevada with another woman and had come to Lake Charles to live with his uncle. Nonetheless, again according to McCabe, he and Janice New had stayed in touch with each other, and on November 20, 1979, Janice New had come to Lake Charles where he had met her in a bar to discuss details of a narcotics transaction. McCabe said that when he declined to participate, Janice New threatened him by saying that unless he changed his mind, his children would be killed by someone who was named Jack and who lived in Nevada, and in order to underscore the threat, she showed him some photographs of his children. In spite of this, McCabe told how they had left the bar and driven together in McCabe’s car to a secluded rural area, forty miles north of Lake Charles where Janice New suddenly whipped out a knife and stabbed him, forcing him to shoot her in self defense, at least twice with a pistol and once with the shotgun for good measure. He recounted how he drank a few beers, how he buried the body in a shallow grave with the empty beer cans, how he left the scene only to find that his car was stuck in the ditch, and how he sought help from Mahaffey to free the car.

ASSIGNMENT OF ERROR NO. 1

McCabe contends that the Trial Court erred in refusing to provide funds for an investigator to pursue witnesses and evidence in Nevada because there were numerous people in Nevada who had heard the victim state her intention to come to Louisiana to kill McCabe. During a hearing on his motion to provide funds, McCabe testified that the names and addresses of the potential witnesses were already known to him but that he had made no effort to contact them. The Trial Judge held that since the whereabouts of the witnesses were already known to both McCabe and his counsel, McCabe had not shown a compelling need for funds for an investigation. This Court has held in both State v. Madison, 345 So.2d 485 (La.1977) and State v. Clark, 387 So.2d 1124 (La.1980) that the State must supply funds to employ an investigator upon the motion of an indigent defendant who shows that existing evidence is crucial to his defense and that he is without means to obtain that evidence.

In the instant case, however, as in State v. Clark, supra, there is an “insufficient showing that. . . the lack of a private investigator prevented (McCabe) from obtaining existing evidence crucial to his defense.” The Trial Judge is correct; McCabe did not show a compelling need for either funds or an investigator.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 2

McCabe contends that the Trial Court erred when it denied him the right to serve as co-counsel.

After the Trial Judge appointed counsel to represent him, McCabe requested that the Trial Judge also appoint him as co-counsel for his trial, particularly during the voir dire and questioning of certain witnesses. A hearing was held on the motion, and although the Trial Judge denied it, he informed McCabe that he would reconsider the request during the trial proceedings, implying that he would also appoint McCabe if McCabe could make a convincing showing that he should be enrolled as co-counsel. McCabe did not make another request to be recognized as co-counsel either before or during the trial.

In State v. Bodley, 394 So.2d 584, 593 (La.1981), this Court held that “[w]hile an indigent defendant has a right to counsel as well as the opposite right to represent himself, he has no constitutional right to be both represented and representative.”

The ruling by the Trial Judge was therefore correct; McCabe was represented by court-appointed counsel, and he did not also have a right to represent himself pro se. Moreover, the Trial Judge went beyond what was required when he gave McCabe an opportunity to show during the trial that there was a compelling reason to appoint him as co-counsel.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

McCabe contends that the Trial Court erred in refusing his motions to subpoena several witnesses from Nevada and Nebraska, witnesses who McCabe alleges would testify that Janice New had said that she was coming to Louisiana to kill him.

Before ruling on the motion, the Trial Judge requested supplemental information to show that these witnesses would be “relevant and material, and not cumulative.” In response, McCabe’s counsel asserted the right to subpoena twelve witnesses, and he argues that this is an unqualified right, which is given to defendants by La.C.Cr.P. Article 738 and which does not require a showing of either relevance, materiality, or the non-eumulative nature of the evidence sought. Defense counsel’s focus is misplaced, however, because La.C.Cr.P. Article 738 only gives a defendant an unqualified right to subpoena twelve witnesses from within the State, not from other States.

In a criminal trial, the vehicle for compelling the attendance in Louisiana of witnesses from another state is an interstate compact, the Uniform Act to Secure the Attendance of Witnesses. Nevada, Nebraska, and Louisiana have each adopted it, and in Louisiana, it is set out in the Code of Criminal Procedure, La.C.Cr.P. Art. 741-745. La.C.Cr.P. Art. 741 describes the procedure for subpoena of witnesses from another State. In essence, after first determining that the witness is a material witness, the Trial Judge may issue a certificate to the appropriate Court of another State requesting that Court to compel the witness to appear in Louisiana to testify. La.C. Cr.P. Art. 741, which is based on Section 3 of Uniform Act to Secure the Attendance of Witnesses, clearly gives the Trial Judge discretion either to issue the certificate or to deny the motion for it. Of course, that discretion may be abused.

In State v. Barnes, 365 So.2d 1282 (La.1978) and in State v. Jenkins, 340 So.2d 157 (La.1976), this Court has held that a defendant must show both that the testimony of out of state witnesses would be material and that the Trial Judge abused his discretion in denying defendant’s motion requesting them. During the hearing on McCabe’s motion to subpoena eighteen out of State witnesses, McCabe declined to make any showing that their expected testimony would be material. Because McCabe did not show materiality, it is not necessary to consider if the Trial Judge abused his discretion.

The Trial Judge did not err when he refused to issue a certificate and request the eighteen out of state witnesses whom McCabe sought to subpoena.

ASSIGNMENT OF ERROR NO. 4

McCabe argues that the Trial Court erred in refusing to quash the indictment because the State denied to him his constitutional right to a speedy trial. McCabe argues that he has been prejudiced by the delay, and he contends that the delay was caused by the State of Louisiana.

This murder occurred in November, 1979. In January of 1980, McCabe was arrested in Nevada where he was charged with yet another murder, and although he was convicted of that crime in July, 1980, the Beauregard Parish Sheriff’s Office was not notified of that conviction until August, 1980. Obviously, during that time, the defendant was not available for trial in Louisiana.

Following the Nevada conviction and sentencing, McCabe sent a letter to the District Attorney of Beauregard Parish in December, 1980, asking that the District Attorney either drop the charges or give him a speedy trial. The District Attorney elected to proceed, and he presented the case to the Grand Jury, which returned an indictment on December 8, 1980. Shortly after the indictment, extradition proceedings were begun, and McCabe was returned to Louisiana in April, 1981.

After his return, McCabe was arraigned on May 15, 1981, and the trial was set for the next available felony trial date, September 21, 1981. On September 14, 1981, McCabe filed his motion to quash the indictment, only five days before the original trial date. The State moved for a continuance from this date because one of its witnesses was ill, and trial was reset for October 19, 1981.

In State v. Dewey, 408 So.2d 1255, 1257 (La.1982), with facts similar to the present case, this court held:

The right to a speedy trial is guaranteed by the sixth amendment to the federal constitution and by article one, section sixteen of our state constitution. The right attaches when an individual becomes an accused whether by formal indictment or bill of information or by arrest and actual restraint. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Perkins, 374 So.2d 1234 (La.1979). Four factors must be considered in determining whether a defendant has been deprived of his right to a speedy trial: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The initial inquiry is into the length of delay; if the delay is presumptively prejudicial, there will be an inquiry into the other factors. The length is dependent upon the peculiar circumstances of the case.

The major cause of the delay from his indictment in December, 1980, to the trial in October, 1981, was McCabe’s arrest, trial, and conviction in Nevada, not the conduct of Louisiana authorities. Moreover, McCabe has failed to show that any prejudice was caused by this State; he testified that his witnesses had scattered as early as March, 1980, (Vol. 2, p. 40) while he was in jail waiting trial on the Nevada charges for murder.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 5

McCabe also argues that the Trial Court erred in refusing to quash the indictment because the State did not meet the conditions contained in an Interstate Agreement on Detainers, which McCabe had signed in March, 1981, before he returned to Louisiana. He contends that there was prosecutorial misconduct because the agreement provided that if he would voluntarily return to Louisiana to answer the murder charges, he would have the right to trial within 180 days after a request by him for final disposition.

Louisiana is not, however, a participant in the Interstate Agreement on Detainers, and the agreement was never signed by Louisiana officials. Instead, Louisiana officials proceeded to seek extradition of McCabe by the formal procedure, using the Governor of Louisiana’s warrant for McCabe’s arrest and the Governor’s request for the return of McCabe to this State.

If McCabe was misled, it was done inadvertently by Nevada officials, not by the State of Louisiana. There was not prosecu-torial misconduct by officials of this State, and the assignment lacks merit.

ASSIGNMENT OF ERROR NO. 6

McCabe argues that the Trial Court erred in admitting several items of evidence, which were exhibits for the State, because the chain of custody had not been proven. He argues that the fingerprints of the victim, the shotgun pellets, and a .22 caliber bullet removed from the body of Janice New during the autopsy should not have been permitted to go to the jury as evidence.

During trial witnesses identified each of these items. Nevertheless, McCabe argues that because there was a break in the chain of custody of these items, they were not sufficiently identified and, hence, were inadmissible.

In State v. Davis, 411 So.2d 434, 438 (La.1982.), this court held:

“To admit demonstrative evidence at trial, the law requires that the object be identified. The identification can be visual, that is, by testimony at the trial that the object exhibited is related to the case. It can also be identified by chain of custody, that is, by establishing the custody of the object from the time it was seized to the time it was offered into evidence. State v. Paster, 373 So.2d 170 (La.1979); State v. Drew, 360 So.2d 500 (La.1978). A continuous chain of custody is not essential to enable the state to introduce physical evidence as long as the evidence as a whole establishes that it is more probable than not that the object introduced was the same as the object originally seized by the officer. State v. Guzman, 362 So.2d 744 (La.1978). State v. Godeaux, 378 So.2d 941 (La.1980).”

In the instant case, as in the Davis case, a continuous chain of custody was not essential because the evidence as a whole establishes that it was more probable than not that the fingerprints were those of the victim and that the shotgun pellets and the .22 caliber slugs were the pellets and slug removed from the victim’s head.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 7

McCabe, in addition to arguing that the Trial Judge erred when he refused to subpoena out of state witnesses, now argues that the Trial Court erred in refusing to allow the Clerk of Court to testify and inform the jury that McCabe had attempted to subpoena those witnesses. He contends that even though the Trial Court denied his motion to subpoena out of state witnesses, the testimony of the Clerk was admissible in order to refute any adverse inference that may arise from their failure to testify, and conversely, because the Trial Judge refused to permit the testimony, there was a prejudicial inference that McCabe made no efforts in his defense.

In his ruling, the Trial Judge said “because of the fact that you did not support your request (for out of state witnesses) properly, I denied the request for those subpoenas.. .and I do not feel that you’re entitled to bring before the jury the fact that you requested some subpoenas.... ” (Tr. 183).

As we have previously said, McCabe did not show that those witnesses were material to his defense. Because he did not show that they were material, the Trial Judge did not err when he refused to permit McCabe to show he had attempted to subpoena witnesses; his attempt to subpoena immaterial witnesses would be irrelevant.

ASSIGNMENT OF ERROR NO. 8

Finally, McCabe argues that the Trial Judge erred when he refused to admit as evidence both a briefcase and some photographs of his children, items which had been taken from McCabe at the time of his arrest. McCabe wanted to prove that the victim, Janice New, had used the photographs to underscore her threats that his children would be harmed if McCabe did not participate in the proposed drug transaction because, he contends, these threats also provoked the killing. There was no proof offered, however, to show that the photographs, which were in the briefcase when it was seized, had also been in the briefcase when the crime was committed.

Furthermore, although the jury usually must be given an opportunity to decide what weight it will give to an item of evidence, in this instance, the jury had the opportunity to read McCabe’s written statement given to Sheriff Bartlett which told of the alleged threats by Janice New and how she had underscored those threats by showing him photographs of his children. The photographs themselves, even if relevant, would merely have been cumulative evidence.

In his ruling, the Trial Judge stated:

Now, if the pictures were seized in his possession, I don’t see any particular relevance to say that somebody else had pictures four months before. I don’t believe that it’s relevant here, and I don’t think there’s been sufficient proof to establish any photographs that were found in a briefcase in Omaha, Nebraska four months after the alleged incident tie in with this case.

The Trial Court is vested with much discretion in determining whether evidence is relevant and admissible, and his ruling “as to relevancy should not be disturbed in the absence of a clear showing of abuse of discretion.” State v. Walker, 344 So.2d 990, 996 (La.1977).

This assignment lacks merit.

For the above reasons, the conviction and the sentence are affirmed.

DIXON, C.J., dissents.

       Judges William H. Byrnes, III and David R.M. Williams of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Pro Tempore, with Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.


author: DAVID R.M. WILLIAMS, Justice Pro Tem.

text:
    STATE of Louisiana v. William D. POPE, Jr.
    No. 82-KA-0180.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion B. Farmer, Dist. Atty., Abbott J. Reeves, Walter Reed, Asst. Dist. Attys., Margaret Coon, Asst. Dist. Atty., for plaintiff-appellee.
    S. Austin MeElroy, Covington, for defendant-appellant.
   DAVID R.M. WILLIAMS, Justice Pro Tem.

Defendant William D. Pope, Jr. pleaded guilty to possession of a controlled dangerous substance (marijuana) with intent to distribute, in violation of La.R.S. 40:967 and was sentenced to serve six years at hard labor. Defendant has appealed this sentence, asserting that it is unconstitutionally excessive.

The circumstances of defendant’s arrest are found in the Pre-sentence Investigation Report ordered by the trial judge. On November 1, 1980, the St. Tammany Parish Sheriff’s Office searched defendant’s residence pursuant to a search warrant. The search yielded 5 and xh lbs. of marijuana and three scales presumably used to weigh the marijuana. The defendant and his wife were arrested and charged with violations of La.R.S. 40:967.

At sentencing, the trial judge reviewed the facts of the defendant’s arrest, as contained in the Pre-sentence Investigation Report and noted some of the defendant’s personal history. Defendant is 28 years old, married, and has two minor daughters. He completed the eighth grade and has been steadily employed since that time. Although this was defendant’s first felony offense, he had previous arrests for simple battery, hunting without a license, and issuing worthless checks.

At the sentencing hearing, the trial court found no indication that there was an undue risk that the defendant would commit another crime during a period of probation or if sentence were suspended. Nevertheless, the court stated that the evidence indicated that the defendant was openly “dealing drugs” in the community, and that, therefore, there was a strong possibility that defendant’s actions caused harm to society. The judge found no provocation to defendant’s actions nor mitigating factors that were not a defense to the crime. The judge noted that the victim of the crime was society, and that the “victim” had not induced or facilitated the crime and could not be recompensed for the crimes nor restitution made. The court further stated that it could not determine whether the defendant would respond to probation. Finally, the court acknowledged that prison would be a hardship on the defendant’s family.

The court found that the defendant was in need of correctional treatment because of the seriousness of the offense. The court further reiterated its position that defendant’s actions were a grievous injury to society and concluded by .stating that a lesser sentence would deprecate the seriousness of the crime.

The defendant has appealed this sentence asserting that the trial court failed to adequately consider mitigating factors contained in the Pre-sentence Investigation Report, such as the defendant’s work record, his family, and the fact that this was his first felony offense. The maximum sentence which can be imposed for a violation of La.R.S. 40:967(A) is imprisonment at hard labor for ten years and a fine of fifteen thousand dollars.

Because the record fully shows that the court adequately considered the guidelines of La.C.Cr.Pr. Art. 894.1, in imposing sentence, our review is limited to whether the trial court abused its wide discretion in sentencing defendant. State v. Cox, 369 So.2d 118 (La.1979); see State v. Guiden, 399 So.2d 194 (La.1981).

We find, that in view of the circumstances of the defendant’s crime, the sentence is not unconstitutional. The facts presented by this case do not merit a reversal on the ground that the trial court abused its discretion in sentencing defendant.

For the foregoing reasons the sentence imposed upon the defendant is affirmed.

       Judges David R.M. Williams, Charles R. Ward and William H. Byrnes, III, of the Court of Appeal, Fourth Circuit participated in this opinion as Associate Justices Pro Tempore with Chief Justice Dixon and Associate Justices Ca-logero, Dennis and Watson.

      . The charges against the defendant’s wife were later dropped.