text:
    Morris WIMPEY, et ux., Appellants, v. Gabriel SANCHEZ, M.D., et al., Appellees.
    No. 79-1621.
    District Court of Appeal of Florida, Third District.
    Feb. 17, 1982.
    Kuvin, Klingensmith & Lewis and R. Fred Lewis, Miami, for appellants.
    Preddy, Kutner & Hardy and G. William Bissett, Jr., Miami, Gray, Adams, Harris & Robinson and James F. Page, Jr., Orlando, for appellees.
    Before SCHWARTZ and NESBITT and DANIEL S. PEARSON, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on July 22, 1980 (386 So.2d 1241), reversing the final judgment of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, the Supreme Court of Florida, 409 So.2d 20, by its opinion and judgment dated January 14, 1982, now lodged in this court, quashed in part this court’s judgment;

NOW, THEREFORE, it is ordered that the mandate of this court heretofore issued in this cause on September 23, 1980, is withdrawn, the opinion of this court filed July 22, 1980, is amended in accordance with the said opinion and judgment of the Supreme Court of Florida. The final judgment of the trial court is reversed and the cause remanded for further proceedings not inconsistent with our opinion as amended. Costs allowed shall be taxed in the Circuit Court. Fla.R.App.P. 9.400(a).


source: Caselaw Access Project

author:
PER CURIAM.
      ANSTEAD, Judge,

license: Public Domain

text:
    Robert Thomas FELL, Appellant, v. STATE of Florida, Appellee.
    No. 80-378.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

AFFIRMED.

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

ANSTEAD, J., specially concurs with opinion.

ANSTEAD, Judge,

specially concurring:

I concur in the majority’s affirmance, although the point raised by the appellant merits comment. The trial court, erroneously in my view, sustained an objection to a leading question posed to a witness, concerning a statement that the witness had allegedly made as to efforts by the witness to falsely connect the appellant with a weapon similar to the one involved in the offense for which appellant was convicted. However, upon review of the entire record, including the disclosure of substantial bias by this witness against the appellant I am convinced that the trial court’s error was harmless.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Gregory JARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 80-2010.
    District Court of Appeal of Florida, Fourth District.
    Feb. 17, 1982.
    Richard L. Jorandby, Public Defender, and Jon May, 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.

Affirmed.

HERSEY and HURLEY, JJ., concur.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

specially concurring:

I agree with the majority’s conclusion that no reversible error has been demonstrated. The appellant concedes that under the prevailing case law at the time of trial evidence of the victim’s prior acts of violence not known to the appellant were not admissible. Given that concession I do not believe we can find reversible error in the trial court’s ruling on this point. Similarly, it is conceded that the error was not properly preserved for review when the prosecutor made certain improper references to the appellant’s right to confer with his counsel.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. D. M. M., a child, Appellee.
    No. 80-1276.
    District Court of Appeal of Florida, Second District.
    Feb. 17, 1982.
    Jim Smith, Atty. Gen., Tallahassee, Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, Robert E. Jagger, Public Defender, Clear-water, for appellee.
   PER CURIAM.

Reversed. See L. H. v. State, 408 So.2d 1039 (Fla.1982).

GRIMES, A. C. J., and OTT and SCHOONOVER, JJ., concur.


author: WENTWORTH, Judge.

text:
    John KEMP, Appellant, v. MIAMI QUALITY CONCRETE CO., INC., et al., Appellants.
    No. AB-236.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1982.
    Mark L. Zientz of Williams & Zientz, Coral Gables, for appellant.
    Steven P. Kronenberg of Adams, Kelley & Kronenberg, Miami, for appellee.
   WENTWORTH, Judge.

Claimant appeals a workers’ compensation order wherein 15% permanent partial disability benefits were awarded. We affirm the denial of further benefits for wage earning capacity loss based on concurrent employments.

Claimant sustained injury to his low back while employed as a cement finisher. During the 13 weeks prior to his industrial injury claimant worked for seven weeks, one or two days per week, with earnings of $882.80. Claimant also had concurrent employment as a music teacher, averaging $20 per week, and as a musician working only periodically at $40 per night. In the nine-month period subsequent to his injury claimant earned $220 per week as a musician, and later earned $50 per night as a musician working one or two nights per week, and in excess of $70 per week as a music teacher. After terminating his employment as a full-time musician claimant worked as a cab driver at $30 per day, but drove a cab only occasionally, once or twice a week when he could “get one,” as “work is slow.” Claimant has also done occasional work for his uncle as a cement finisher.

Claimant’s initial treating physician opined that maximum medical improvement (MMI) was attained in January of 1979, with a 15% anatomic impairment as a result of the industrial injury. Another physician opined that MMI was attained in December of 1980, with a 12% anatomic impairment, only 6% of which was due to the industrial injury. Claimant is 6'4" tall and at the time of his injury weighed in excess of 300 pounds. He subsequently went on a weight reduction program and lost in excess of 60 pounds; however, claimant has since regained 15 pounds. While claimant suggested that he might undergo a myelogram and consider surgery if he reduced his weight to 200 pounds, he nevertheless indicated to his treating physician a strong disinclination toward any such testing or surgery. Claimant is a 44-year old male with an eighth grade education.

The deputy awarded 15% permanent partial disability benefits, finding that claimant attained MMI in January 1979, and that claimant’s wage earning capacity had not been diminished by more than 15%.

Claimant contends the deputy erred: (1) by failing to award benefits for loss of wage earning capacity; (2) by denying temporary partial disability benefits between March 1978 and January 1979; and (3) by finding MMI in January of 1979.

In finding an average weekly wage of $126 at the time of claimant’s injury, the deputy did not consider claimant’s concurrent earnings. Such earnings should have been considered unless obtained in employment outside the operation of the workers’ compensation act. See American Uniform and Rental Service v. Trainer, 262 So.2d 193 (Fla.1972). Claimant’s pre-injury concurrent earnings were as a music teacher and a musician, and may have been attained as an independent contractor and thus properly disregarded by the deputy. American Uniform; § 440.02(2)(d)1. But claimant does not now contend that such earnings should have been considered by the deputy; rather, claimant contends that his post-injury concurrent earnings should be disregarded. This contention is not in accordance with American Uniform.

Even considering claimant’s pre-injury concurrent earnings as a music teacher ($20 per week) and musician ($40 per night “periodically”), claimant’s post-injury earnings still exceed his pre-injury earnings. After his injury claimant earned $220 per week as a musician for almost a year, and at the time of the final hearing claimant was earning, as the deputy found, $50 per week as a musician, $70-90 per week as a music teacher, and $60 per week as a cab driver.

While post-injury earnings are not dispositive of the issue, they are a strong indicator regarding diminution of wage earning capacity. See Walker v. Electronic Products & Engineering Co., 248 So.2d 161 (Fla.1971). The deputy’s order in the present case indicates that in addition to a comparison of claimant’s earnings the deputy also considered various other criteria enunciated in Walker: claimant’s age, education, job history, current ability to work, and lack of physical restrictions. The deputy has not placed undue emphasis on claimant’s post-injury earnings.

Between March of 1978 and January of 1979, claimant’s earnings greatly exceeded his pre-injury wages. While temporary disability benefits may not rest solely on a comparison between pre-injury and post-injury wages, Alliance Nursing Center v. Angerer, IRC Order 2-3574 (Oct. 20, 1978), consideration of the relevant diminution of wage earning capacity criteria, supra, indicates that claimant sustained no wage earning capacity loss during this time when he was earning $220 per week as a musician.

While obesity treatment may postpone a determination of MMI in an appropriate case, in the present case claimant had already expressed a strong disinclination toward any surgery or myelogram, and it could reasonably be concluded that this disinclination would remain even were the obesity treatment itself successful. We note also that there was no testimony indicating that claimant’s obesity precluded surgery.

The testimony of claimant’s initial treating physician supports the deputy’s finding as to MMI in January of 1979. While there was contrary testimony, the deputy was entitled to accept the opinion of the treating physician. Crowell v. Messana, 180 So.2d 329 (Fla.1965).

The order is accordingly affirmed.

MILLS and THOMPSON, JJ., concur.


author: SCHWARTZ, Judge. FERGUSON, Judge

text:
    Jean LEON, Appellant, v. The STATE of Florida, Appellee.
    No. 80-650.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 1982.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and FERGUSON, JJ.
   SCHWARTZ, Judge.

Leon was convicted of kidnapping Louis Gachelin and the possession of a firearm in the commission of that felony. The only point on his appeal which deserves discussion is the claim that his formal confessions should have been suppressed as the product of police threats and physical violence which had admittedly been asserted against him. We do not agree.

The issue arises from a highly unusual sequence of events. For our purposes, it began when Leon arrived at a shopping center parking lot for a prearranged meeting to collect a ransom from Gachelin’s brother, Frank. At that time, the victim was being, confined at gunpoint in an unknown location by Leon’s co-defendant, Frantz Armand. After an inconclusive confrontation, Leon drew a gun on Frank, whereupon the defendant was at once taken into custody by a number of officers who had accompanied Frank to the scene. For the very good reason that Louis’ life was in grave danger from Armand if Leon (or the officers) did not return within a short time, the police immediately demanded that the defendant tell them where he was. When he at first refused, he was set upon by several of the officers. They threatened and physically abused him by twisting his arm behind his back and choking him until he revealed where Louis was being held. The officers went to the designated apartment, rescued Louis and arrested Armand.

In the meantime, Leon was taken to the police station. There, he was questioned by detectives who had not been involved in the violence at the scene of his arrest, in the presence of none of the officers who had. After being informed of his rights and signing a Miranda waiver form which stated— as confirmed by the interrogating officers, who themselves employed no improper methods — that he did so understandingly, voluntarily, and “of [his] own free will without any threats or promises,” Leon gave full oral and written confessions to the crime. This process was concluded some five hours after his arrest.

Before trial, the defendant moved to suppress the police-station statements on the ground that they resulted from the allegedly improper police activity which occurred when he was arrested.. (The prosecution announced that it would not seek to introduce testimony as to what he was forced to say at that time.) The court denied the motion essentially because the later confessions were given independently of the earlier events. The trial judge held:

The Court is satisfied from having read the [formal] statement that the defendant did understand his rights. The Court is going to deny your motion to suppress. For the record, based upon the evidence before the Court ... the Court will make a finding that based on the evidence before it, it does appear there was force used on the defendant at the time of the making of the initial statement. However, the Court is denying the motion to suppress because it appears to the Court that not only does the defendant understand his rights, but that different officers were involved at the time of the statement. It does not appear that the defendant was under the influence of any duress or threats or promises. The motion to suppress is denied.

The record amply supports this determination. It is well settled that, under appropriate circumstances, the effect of an initial impropriety, even a coercive one, in securing a confession may be removed by intervening events, with the result that a subsequent statement is rendered “free of the primary taint” and thus admissible into evidence as the expression of a free and voluntary act. E.g., Lyons v. Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481 (1944); State v. Oyarzo, 274 So.2d 519 (Fla.1973); State v. Shular, 400 So.2d 781 (Fla. 3d DCA 1981). We hold that the trial judge properly found that the threats and violence which took place at the scene of the arrest did not constitutionally infect the later confessions and that this rule is therefore applicable here.

In reaching this conclusion, we have considered the effect of numerous factors. Among the most important is that the force and threats asserted upon Leon in the parking lot were understandably motivated by the immediate necessity to find the victim and save his life. Unlike the situation in every authority cited by the defendant, and while it may have had that collateral effect, see note 5, infra, the violence was not inflicted in order to secure a confession or provide other evidence to establish the defendant’s guilt. Compare, Brewer v. State, 386 So.2d 232 (Fla.1980); Porter v. State, 410 So.2d 164 (Fla. 3d DCA 1981). Several decisions—and none which hold otherwise have been cited or discovered—have determined that a confession is not invalidated merely because persons other than those who obtained it have, for their own reasons, previously inflicted even unjustified force upon the defendant. Brown v. State, 53 Ala.App. 674, 304 So.2d 17, 25 (1974), cert. denied, 293 Ala. 746, 304 So.2d 27 (1974) (deputy sheriff slapped defendant after being attacked in course of questioning; confession taken shortly thereafter by officer of different agency admissible upon finding it was freely and voluntarily made); State v. Lea, 228 La. 724, 84 So.2d 169, 172 (1955), cert. denied, 350 U.S. 1007, 76 S.Ct. 655, 100 L.Ed. 869 (1956) (striking of defendant by civilian while in custody of officers did not influence subsequent confession); State v. Scarberry, 114 Ohio App. 85, 180 N.E.2d 631, 637 (1961) (striking of defendant by “disgusted” arresting officer while leading him to interrogation room did not invalidate confession properly taken there by detectives and formalized more than three hours later); Berry v. State, 582 S.W.2d 463 (Tex.Crim.App.1979) (threats of arresting officer and slap by security guard at scene of arrest not conditioned upon or related to “any effort to obtain or force a confession;” statement obtained at police station by other officers hour and half after arrest properly admitted by trial court); Brooks v. State, 130 Tex.Cr.R. 561, 95 S.W.2d 136 (1936) (sheriff knocked down and kicked defendant at scene of homicide because he called him a liar; force unrelated to confession properly secured by district attorney the following day); see also, State v. Rini, 151 La. 163, 91 So. 664 (1922).

Although the rationale has not previously been spelled out, the fact that any coercion was not employed to get a confession is highly significant, as evidenced by its being a characteristic common to each of these cases, in terms of the basic issue with which the “taint” decisions are all concerned: whether the ultimate confession is a product of or is caused by the force, or by an exercise of the defendant’s own will. Brewer v. State, supra. When it appears— and it is known to the defendant — that the force is unrelated to whether he confesses or not, it is impossible, on the face of it, to say that a later statement has been caused by the effect of that coercion or fear of its repetition. This observation applies with particular force to the present case. It must have been obvious to Leon that the arresting officers attacked him only to learn the victim’s whereabouts, and that his revelation of that location entirely satisfied their wishes. Thereafter, there was no basis to believe that any force would be used for any other reason — specifically, to secure a confession. Indeed, this is therefore the perhaps unique case in which, by its cathartic effect, the very making of the defendant’s initial utterance was itself an important factor in dissipating the effect of the coercive influence which produced it. Because he had already told the police what they wanted to know, and the reason the force was asserted had therefore vanished, the effect of the violence may be deemed to have entirely passed when Leon gave the confessions now in question.

The elimination of any causative effect of the coercion is shown also by the more commonly discussed elements that a complete set of Miranda warnings was meticulously given, understood, and waived before the subsequent statements; that over five hours transpired between the violence and the formalization of those statements; and that the confessions were secured by entirely different officers than those who employed the coercive tactics. See cases cited supra, at p. 4.In these latter respects, this case is significantly unlike Brewer v. State, supra, upon which the defendant primarily relies. There, the taking of an improperly induced confession was interrupted only by a fifteen minute appearance before a magistrate, after which the defendant returned to further interrogation by the same policemen. Instead, the situation is controlled by Lyons v. Oklahoma, supra, which is discussed in Brewer as follows:

In Lyons v. Oklahoma, an initial confession was improperly obtained by coercion. A second confession was held to be freely given and admissible. In addition to an intervening warning of constitutional rights, the following circumstances, in contrast to the instant case, were present: twelve hours elapsed from the time of the first statement to the time of the second; the second statement was given in response to questioning by an authority different from the one that exerted the improper influence; and the persons who applied the coercion were not present at the time of the second statement.

386 So.2d at 236. For these reasons, we find no basis to disturb the trial judge’s conclusion that, considering the totality of the circumstances, the challenged confessions were freely and voluntarily made. Stone v. State, 378 So.2d 765 (Fla.1979), cert. denied, 449 U.S. 986, 101 S.Ct. 407, 66 L.Ed.2d 250 (1980); Gaspard v. State, 387 So.2d 1016 (Fla. 1st DCA 1980).

Since the defendant’s other points present no error, the judgment below is

Affirmed.

FERGUSON, Judge

(dissenting).

The defendant and victim are not strangers to each other. The scenario is a clumsy plot hatched by co-defendant Armand in an attempt to recover by criminal means a sum of money lost to Gachelin in a voodoo flim-flam. ■

Leon describes himself as a man of slight build. He is Haitian-born and speaks French-Creole and Spanish. He is able to communicate in English haltingly as suggested by the confession which was taken without the use of an interpreter. At the hearing on the motion to suppress, he testified through an interpreter.

The following facts are uncontradicted in the record:

At the scene of the arrest, defendant was pounced upon by several police officers and physically abused by at least two — Detectives Gergen and Derringer — until the whereabouts of the victim had been forcibly extracted. He was told that he would be killed if he did not tell Gachelin’s whereabouts. Leon was then taken to a room in headquarters of the Public Safety Department by some of the same officers who participated in his apprehension, where he remained for approximately two (2) hours before giving a “confession.” The officer who had custody of the defendant and took his statement was Sergeant Jackson, one of the police officers who was present at the scene of the arrest. The statement is witnessed by Detective LeClair an officer who was present at the scene, who had custody of Leon when he left the scene, and who was “in and out” of the room as defendant gave his statement. Several other investigators were also present at police headquarters and it is clear from the record that at least another one of them was also present at, or took part in, the initial arrest.

Though contradicted by Sergeant Jackson, and unnecessary to this dissent, the defendant testified that after he was apprehended Sergeant Jackson was the first officer to strike him in an attempt to learn the whereabouts of Gachelin. He also testified that Sergeant Jackson forced him, under continuing threats to kill him, to sign the waiver document and give a statement.

Three witnesses testified on the motion to suppress — Sergeant Jackson, Detective Ward and the defendant Leon. On the question whether officers who took part in the apprehension of Leon had any further participation in this custody and questioning at police headquarters the following testimony is relevant:

Testimony of Sergeant Jackson — page 101:
Q. [by prosecutor] now, at the shopping center — I am going back now to where the defendant was apprehended. What officers were out there making that apprehension? (emphasis supplied)
A. Myself, Detective LeClaire, Detective Ward, Detective Beline, Detective Derringer, Detective Gergen, Lieutenant Willis. There were several from the VIN unit from our central district. Their names, I don’t know right off-hand, (emphasis supplied)
* * * * * *
Q. In whose custody and control, if you know, [sic] Was he in from the time of the original apprehension was made, during the course of the two hours until you sat down with him across the street in the room?
A. For a portion of the time, he was in my custody or I was with him.
Q. That’s what I mean.
A. And then there were portions of time he was in the custody of other detectives.
Q. What other detectives? Do you know?
A. I don’t know. I believe Detective Beline may have said at one point, had custody of him along with another officer. (emphasis supplied), cross examination:
Q. Detective Jackson, isn’t it true that Mr. Leon was in other people’s, custody when he was first apprehended? He was in other detectives’ custody, Gergen and Derringer, when he was first apprehended?
A. I don’t know who it is; he was in the custody of other investigators, yes sir. cross examination:
Q. Did he [Leon] eventually leave that scene?
A. Yes, sir. We all left the scene.
Q. With whom? Who did he leave with?
A. I believe it was Detective LeClair and Detective McHugh, (emphasis supplied).
******
Q. Detective Ward, so we can clarify your involvement in this, you didn’t physically apprehend Mr. Leon, did you?
A. No, sir, I did not.
Q. That was Gergen and Derringer who apprehended Him?
A. Detective McHugh also, (emphasis supplied).
Q. They are not here today, are they?
A. No, sir.
Q. Okay. Now, approximately how long after they apprehended Mr. Leon did you see Mr. Leon?
A. Moments.
******
Q. But Mr. Leon had already told the investigators where Mr. Gachelin was when you got there?
******
A. Like I said before, the conversation was going on. In fact, in detail, where he was located. Where we could locate him, Mr. Gachelin that is. The investigators were speaking to Mr. Leon and asking him, you know, where Mr. Gachelin was located at, and he was replying answers to the questions.

For the first time in history, and the majority concedes as much, there is articulated a distinction between violent police conduct, the purpose of which is to gain information which might save a life, and such conduct employed for the purpose of obtaining evidence to be used in a court of law. The majority holds that where the illegal conduct is motivated by the first consideration no coercive taint will attach so as to render inadmissible evidence subsequently obtained for the purpose of securing a conviction. In essence, evidence of the whereabouts of a victim may be obtained using “rack and pinion” techniques if the officer on the scene determines the situation life-threatening, and after the information sought has been extracted the status is “deemed” as if the illegality had never occurred — an eerie proposition which should be rejected outright for all too obvious reasons. This rationale would dispose of the requirement imposed upon the State to show that an accused, at the time of giving a subsequent confession, was free from external pressures associated with an earlier illegality.

Consistent with the law as it has been for quite some timé, the issues are simply (1) whether the initial illegal acts of police agents were sufficiently attenuated by changed circumstances other than passage of time so as to render the confession admissible, Brewer v. State, 386 So.2d 232 (Fla.1980), and (2) whether the defendant with a full knowledge of his legal rights, knowingly and voluntarily waived them. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The initial police conduct in this case was unlawful and should not be condoned by this court using any rationale.

When a confession challenged as involuntary is sought to be used against a criminal defendant at trial, the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary and intelligent. Lego v. Twoney, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). The State’s responsibility in this case was to show that (1) physical abuse and threats were not an operative factor in causing or bringing about the confession obtained herein, and (2) the defendant fully understood his legal rights and knowingly and voluntarily waived them.

The circumstances here during and following the arrest were oppressive. There was no break in the stream of events following the initial physical abuse, the taking into custody, and the confession. Brewer v. State, supra. The facts in this case are unlike those in Lyons v. Oklahoma, supra, which is discussed in the Brewer case. After this defendant was arrested he was taken from the scene to other locations and not transported to police headquarters for more than one hour. Approximately two hours after arrival at the station he had signed a written waiver of his constitutional rights. Contrary to the trial court’s finding, defendant, for the entire period beginning with the violent apprehension to the confession, was continually in custody of the same authority and the same officers who were present at the scene of the apprehension, some of whom had taken an active part in it. No reweighing of the evidence is necessary to reach the conclusion that the state failed in its burden of showing by a preponderance of the evidence that defendant voluntarily and intelligently waived his constitutional rights. The confession should have been suppressed.

      . We adopt the version of the record most favorable to the order denying the motion to suppress. State v. Nova, 361 So.2d 411 (Fla.1978).

      . At the hearing on his motion to suppress, the defendant contrarily stated that he had spoken to the detectives only “because I was scared, because they [the arresting officers] told me they would kill me.” While this testimony may be disregarded in the face of the contrary evidence, see note 1, supra, it is noteworthy that Leon never suggested that he was influenced by a concern that he had already irretrievably incriminated himself by the first statement that he knew where the victim was. Hence, we do not consider, and it is not argued, that the so-called “cat out of the bag” analysis of the admissibility of subsequent confessions is applicable or helpful in resolving the present case. Cf. United States v. Bayer, 331 U.S. 532, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947); Darwin v. Connecticut, 391 U.S. 346, 350, 88 S.Ct. 1488, 1490, 20 L.Ed.2d 630, 634 (1968) (Harlan, J., concurring in part and dissenting in part).

      . With the exception of Brown v. State, in which an officer struck the defendant in apparent self-defense, the force involved in each of these cases was clearly indefensible by any standard. Since this is the rule, and the question is therefore irrelevant to our inquiry, we do not attempt to resolve the moral and philosophical problem of whether the force used on Leon in the emergency, life-threatening situation presented to the arresting officers was “justified” or “proper.”

      . On the other hand, if the force causes some lingering and disabling physical or psychological effect, a confession given under that influence would likely not be admissible, no matter what motivated the coercion. There was no such evidence, however, in this case.

      . Although Leon’s disclosure of his knowledge of the victim’s whereabouts was certainly incriminating and thus admissible if not secured by force, it can, under the circumstances, hardly be termed a “confession” or “statement” in the usual sense of those terms.

      .See, Wimberly v. State, 393 So.2d 37 (Fla.3d DCA 1981); see also, Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

      . We affirmed Armand’s conviction and sentence in Case No. 80-1975, opinion filed January 26, 1982.


text:
    Willie WATSON, Appellant, v. STATE of Florida, Appellee.
    No. VV-248.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1982.
    Michael J. Minerva, Public Defender, and Thomas Presnell, Jr., Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Charles A. Stampelos and Miguel Olivella, Jr., Asst. Attys. Gen. for appellee.
   PER CURIAM.

Watson appeals his conviction on two counts of possession of a weapon by a state prisoner and one count of aggravated battery. After due consideration of the record and briefs of the parties, we agree that only the point concerning appellant’s conviction of aggravated battery merits discussion. On that issue, defendant urges that since the trial court granted defendant’s motion for judgment of acquittal at the close of the state’s case in chief, it was error for the trial court thereafter to vacate the judgment of acquittal and require the defendant to proceed with his case, which resulted in a jury verdict of guilty. We agree.

After the state rested its case against appellant, he moved for acquittal on the aggravated battery count on the grounds that the state did not prove a battery because it was not established that the touching was “against the will” of the victim. The court granted the motion. The following morning, the state asked the court to reconsider its acquittal of defendant on the aggravated battery count pointing out to the court that the crime of “battery” is committed if a person intentionally causes bodily harm to another (Section 784.-03(1)(b), Florida Statutes) and that the crime of aggravated battery is committed if in committing a battery a person intentionally or knowingly causes great bodily harm, or uses a deadly weapon (Section 784.-045(1)(a)), and that the element of touching or striking “against the will” of the victim is of no consequence unless the state is attempting to prove battery under Section 784.03(1)(a). Defense counsel conceded the applicability of the statutory definition. However, he stressed that he had not intentionally misstated the law or mislead the court. At the same time, he urged that appellant had been discharged when the court granted the motion for judgment of acquittal and therefore reinstatement of the aggravated battery count would place him in double jeopardy. The court disagreed on the grounds that additional testimony would not be required as appellant would merely be required to proceed with his case.

Appellant relies on Kelly v. State, 334 So.2d 128 (Fla. 2nd DCA 1976), for reversal. In Kelly, the court held that the grant of a motion for acquittal on the charge of malicious destruction of a police car after the state’s case was concluded acted as a bar to subsequent prosecution and that reinstatement of the charge after the close of defendant’s case was reversible error. In so holding, the court noted that the defendant was clearly prejudiced by having the charge reinstated after he had rested his case.

In response, the state argues Kelly is distinguishable since this case presents no question of prejudice. In Kelly, the state argued that the defendant had no opportunity to present evidence on the charge of malicious destruction of a police car since he was operating under the assumption that the charge no longer existed, whereas in this case the court reinstated the charge prior to appellant’s presentation of any evidence.

A brief examination of a judgment of acquittal as it relates to the double jeopardy clause is necessary for resolution of this issue. A judgment of acquittal rendered by a trial judge represents a resolution in defendant’s favor, correct or incorrect, of some or all of the factual elements of the offense charged. United States v. Scott, 437 U.S. 82, 97, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978). Once a defendant obtains an acquittal after jeopardy attaches, even if based on an erroneous interpretation of governing legal principles, as occurred in this case, the double jeopardy clause bars retrial. We believe that in this sense, retrial must be construed to mean further proceedings which would be devoted to the resolution of factual issues concerning the elements of the offense charged. Scott and cases cited therein.

Applying this analysis to the facts herein, we find that the trial judge in granting the acquittal made a determination, although incorrectly, that the factual element of a touching against the will of the victim was not proven and therefore the evidence was legally insufficient to sustain a conviction for aggravated battery. Reinstatement of the charge, even though it did not necessitate a full retrial, did require further proceedings (defendant’s presentation of his case) which were devoted to the resolution of the factual issue of whether or not defendant intentionally caused bodily harm to the victim.

We caution that our decision is not to be construed as prohibiting the trial judge from correcting an erroneous ruling on a motion for judgment of acquittal. In this connection we have examined and find applicable the discussion in Farber v. State, 409 So.2d 71 (Fla. 3rd DCA 1982), concerning the trial judge’s prerogative to correct, change, increase or decrease a criminal sentence after an initial oral pronouncement. As the Farber opinion points out, the pronouncement of sentence is not final at the moment the trial judge utters words constituting a sentence. “The pronouncement is final, at the earliest, when the sentencing hearing comes to an end.” Id. at 73.

It would appear appropriate to apply the same rule to a motion hearing, that is to say, at least until the hearing has come to an end, the trial judge may reverse himself on a ruling on a motion for judgment of acquittal. We are not, however, “drawing the line” at any particular point, there obviously being a variety of circumstances and conditions under which the oral pronouncement of a ruling of acquittal may or may not be final. Our holding here is simply that the ruling of the trial judge made the day before, without any indication that the matter was still under consideration, had progressed toward finality beyond the point that would permit its retraction or correction.

Accordingly, appellant’s conviction of aggravated battery is vacated and he is discharged as to that count. The judgment and sentence rendered on the two counts of possession of a weapon by a state prisoner is affirmed.

MILLS, BOOTH and LARRY G. SMITH, JJ., concur.

      . In the federal courts the government is allowed to appeal from a judgment of acquittal where resolution of the appeal in the government’s favor would not require a retrial of the defendant on remand. Scott, 437 U.S. at 91, footnote 7, 98 S.Ct. at 2194, footnote 7.. In the Florida courts an acquittal, once entered, is not subject to appellate review. Section 924.07, Florida Statutes; State v. Brown, 330 So.2d 535 (Fla. 1st DCA 1976).

      . The victim of the alleged aggravated battery, called both as a court’s witness and by the appellant, denied that appellant was his assailant, and appellant also took the stand and denied his involvement. The jury obviously chose to believe contrary testimony from witnesses presented by the state.


text:
    UNIVERSAL ERECTORS, INC., and Michigan Mutual Insurance Company, Appellants, v. Donald MURPHY, Appellee.
    No. YY-145.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1982.

      Peter H. Dubbeld of Watson, Goldstein & Douglass, P. A., St. Petersburg, for appellants.
    No appearance for appellee.
   PER CURIAM.

This is an appeal from a workers’ compensation order granting claimant’s petition for modification. Appellants contend that no mistake of fact was proven, and therefore it was error for the deputy commissioner to grant modification. We agree and reverse.

Appellee was injured in the course and scope of his employment on September 13, 1973, and was diagnosed as having a possible chronic lumbosacral strain. On February 4,1974, the treating physician returned appellee to full work duties. After appellee worked for a few days, he returned to his physician complaining that he could not work. The treating physician remained of the opinion that appellee could work full time. Appellee then sought the opinions of several other physicians, all of whom concluded that claimant suffered no physical, neurological or psychiatric disability.

A hearing on a claim for compensation was held on April 13, 1976. Claimant sought additional temporary total disability benefits for the period of February 4, 1974, to July 4, 1974, wage loss benefits, future medical, attorney’s fees, costs, penalties and interest. The employer/carrier contended that maximum medical improvement had been reached on February 4, 1974, with no permanent disability, and that all benefits had been timely paid. At the conclusion of the hearing, the judge of industrial claims stated “. .. there’s very little competent substantial evidence of anything here except the man had an accident, he got paid for four months. ... ” In the final order, the judge of industrial claims again noted the lack of evidence presented by claimant and dismissed the claim. That order was not appealed.

On June 28, 1977, a petition for modification was filed seeking modification of the prior order on the ground that the judge of industrial claims’ interpretation of the evidence was erroneous. At the hearing on the petition for modification, claimant argued that the prior order was based on an honest mistake by the court in interpreting the evidence. The employer/carrier argued that the petition for modification was in fact an attempt to appeal the prior order. Since no timely appeal had been taken, the findings of fact in that order had become final and were res judicata.

On October 2, 1980, the deputy commissioner entered an order granting the petition for modification based on a mistake of fact. In that order, the deputy states that the testimony at the prior hearing was not clear as to whether claimant could have worked during the period from mid-March until July 4, 1974. The deputy found that maximum medical improvement was reached on July 4,1974, and ordered temporary total disability benefits from March 15, 1974, to July 4, 1974.

The statutory provision for modification based on change of condition or mistake of fact provides an exception to the doctrine of res judicata. Cabrera Vulcan Shoe Corp. v. Padron, IRC Order 2-2593 (1974), cert. denied, 304 So.2d 128 (Fla.1974). The purpose of modification is to provide a remedy for the parties where the condition of the claimant has changed or where the prior order entered by the judge was based upon a mistake in a determination of fact. Ft. Harrison Hotel v. Matroni, IRC Order 2-2856 (1975). Modification is not a method of relitigating issues which have previously been determined. Hall v. Seaboard Maritime Corporation, 104 So.2d 384 (Fla. 1st DCA 1958). It is well established that cumulative evidence which merely controverts or supports evidence taken at the original hearing is not sufficient as a basis for modification. Beaty v. M & S Maintenance Co., 124 So.2d 868 (Fla.1960); Sonny Boy's Fruit Co. v. Compton, 46 So.2d 17 (Fla.1950); City of West Palm Beach v. Chisolm, 405 So.2d 279 (Fla. 1st DCA 1981).

It is clear from a review of the record that claimant failed to establish a mistake of .fact which required modification of the previous compensation order. As in Amway Corporation v. Yearby, IRC Order 2-3319 (1978), at most, it appears that the facts presented to the judge of industrial claims at the original hearing were incomplete. An alternative conclusion which could be reached is that the deputy commissioner changed his mind as to the sufficiency of the evidence originally presented to him; this, of course, is not a basis for modification. Chris Boat Yard v. Albury, IRC Order 2-2418 (1973), cert. denied, 292 So.2d 20 (Fla.1974).

The evidence presented at the modification proceeding did not establish grounds for modification of the order. Accordingly, the order appealed is REVERSED.

BOOTH, SHAW and WENTWORTH, JJ., concur.


text:
    James J. EICHHOLZ and Kay P. Eichholz, his wife, Appellants, v. Virginia E. BELL, Appellee.
    No. AB-62.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1982.
    Richard H. May, Orange Park, for appellants.
    No appearance for appellee.
   PER CURIAM.

The order of the trial court transferring this cause to the county court is REVERSED. § 26.012(2)(a), Fla.Stat. (Supp.1980); § 34.01 Fla.Stat. (Supp.1980).

MILLS, WENTWORTH and THOMPSON, JJ., concur.


text:
    COX OIL & SALES, INC. and Continental Insurance Co., Appellants, v. John R. BOETTCHER, deceased, and Mrs. Dorothy Boettcher, Appellees.
    No. AD-131.
    District Court of Appeal of Florida, First District.
    Feb. 23, 1982.
    Rehearing Denied March 11, 1982.

      Ronald S. Webster of Whittaker, Pyle, Stump & Webster, P.A., Orlando, for appellants.
    Robert C. Cooper of Cooper & Rissman, P.A., Orlando, for appellees.
   PER CURIAM.

We find no substantial error in the deputy’s order except in the assessment of section 440.20(8) penalties on the late payment of sums awarded to claimant’s wife for nursing services. That is not “compensation” within the meaning and application of the statute assessing penalties for the late payment of compensation. Accord, Jessup v. Don’s Gulf Service, IRC Order 2-1472 (1965), cert. den., 180 So.2d 463 (Fla.1965). The question was not raised and addressed in Jones v. Cling Electric, Inc., 397 So.2d 767 (Fla. 1st DCA 1981), which therefore is not contrary to our decision today. On remand the $15 arithmetic error may be corrected.

AFFIRMED IN PART, REVERSED IN PART.

ROBERT P. SMITH, Jr., C.J., and LARRY G. SMITH and WIGGINTON, JJ., concur.


author: COBB, Judge.

text:
    Julius HOPE, Jr.; Peggy L. Goodwine, Linda G. Harris, and Shirley Graham, as distributees of the Estate of Wilson Graham and substituted parties, Appellants, v. Eartha HOPE, Elijah Hope, Frances Hope, Alphonzo Richards, Nathaniel Richards, Annie Pearl Miller, and Benjamin Hope, Appellees.
    No. 81-909.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 1982.
    G. Don Ritter, Ocala, for appellants.
    Thomas C. Ranew, Jr., of McKay & Ra-new, P. A., Ocala, for appellees.
   COBB, Judge.

The appellants’ and appellees’ predecessors in title were co-tenants in the land at issue. The appellants sued the appellees, seeking various relief, including partition. The appellees answered, raised several affirmative defenses, and counterclaimed to quiet title. The parties agreed that the only issue for the trial court’s determination was whether the marketable record title act (MRTA) applies where a tax deed has been granted a co-tenant and the rights of third parties are not involved. Relying upon Allen v. St. Petersburg Bank & Trust Co., 383 So.2d 1171 (Fla.2d DCA 1980), the trial court found that MRTA did cut off the rights of such co-tenant, and granted a summary judgment in favor of the appel-lees.

The appellants argue that under equitable principles, a co-tenant cannot gain sole title to a co-tenancy by paying the taxes and obtaining a tax title. See, e.g., Johnson v. Johnson, 179 So.2d 112 (Fla.2d DCA 1965); Albury v. Gordon, 164 So.2d 549 (Fla.3d DCA 1964). Recognizing this equitable doctrine, the Allen court held that a co-tenant’s interest survives the issuance of a tax deed to a co-tenant, but that MRTA could extinguish that interest if timely notice was not filed pursuant to section 712.-05. 383 So.2d at 1171-72. The appellants’ attempts to distinguish Allen are unavailing. MRTA’s language is clear and broad, and its purpose is to allow persons to rely upon marketable record title as defined in section 712.02. We therefore apply the reasoning of Allen to the circumstances of this case. See also I.T.T. Rayonier, Inc. v. Wadsworth, 346 So.2d 1004 (Fla.1977).

The summary judgment in favor of the appellees is

AFFIRMED.

      . Ch. 712, Fla.Stat. (1979).


author: FERGUSON, Judge.

text:
    Juan AMPUERO, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
    No. 81-2219.
    District Court of Appeal of Florida, Third District.
    March 3, 1982.

      Joseph R. Boyd, Tallahassee, for appellant.
    Deborah J. Miller, Tallahassee, for appel-lee.
    Before HUBBART, C. J., and HENDRY and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant, a physician, seeks review of an emergency order of the Department of Professional Regulation which prohibits him from prescribing any scheduled substances as defined by Chapter 893.03, Florida Statutes. The order of September 8, 1981 is based on a preliminary finding that between December 16, 1980 and May 26, 1981, petitioner prescribed Methaqualone and Ativan, both controlled substances, in excessive amounts, without “good faith”, and outside “the course of his professional duties.”

Appellant requested an immediate hearing on the administrative complaint and was given a hearing date of October 22, 1981. Thereafter on October 12, 1981 appellant was informed by the Department of Administrative Hearings that there was no right to an immediate hearing on the administrative complaint and that the order of emergency restriction was a final order reviewable only in the District Court of Appeal. A Petition for Stay of the order of emergency restriction was filed in this court October 16, 1981 and was denied without hearing.

Petitioner then filed an appeal in this court from the denial of an immediate hearing on the administrative complaint. On the date that the last brief was filed in this matter — December 28, 1981 — a hearing on the administrative complaint was still not scheduled though some one hundred and twelve days had elapsed. At the time of hearing on this appeal, which we treat as a renewed motion to stay the order of emergency restriction, there has been a hearing on the administrative complaint but still no disposition. Almost six months have now elapsed.

We find the circumstances of this delay more egregious than was the case in Aurora Enterprises v. State, Department of Professional Regulation, 395 So.2d 604 (Fla.3d DCA 1981) wherein we held that a fifty-day delay between the date of temporary suspension of a license and hearing on a complaint for revocation was a denial of due process. When the state undertook to temporarily restrict the petitioner’s privilege to practice medicine it had an affirmative duty to grant a post-suspension hearing and one that would be concluded without appreciable delay. Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979). The dictates of Barry v. Barchi, supra, and Aurora v. State, Department of Professional Regulation, supra have not been complied with.

The emergency order of restriction of license is quashed.

THE COURT WILL NOT ENTERTAIN A MOTION FOR REHEARING.

      . We have jurisdiction pursuant to Section 120.68(1), Florida Statutes (1979).


text:
    NOTTINGHAM ASSOCIATES, a Florida general partnership consisting of Hendry Spiegel, Ann Spiegel and Walter Wekstein, Trustee of the Diane Birdman Irrevocable Trust, Petitioners, v. CITY OF MIAMI, a Florida municipal corporation and Gerardo Salman, as Director of the Department of Building and Zoning of the City of Miami Building Department, Zoning Enforcement, Respondent.
    No. 81-2706.
    District Court of Appeal of Florida, Third District.
    March 8, 1982.

      Norman Malinski, Miami, for petitioners,
    George F. Knox, Jr., City Atty. and Terry V. Percy, Deputy City Atty. and Beatriz Bru, Asst. City Atty., for respondent.
    Before SCHWARTZ and DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

The respondent, City of Miami, confessed error before this Court at time of oral argument. Its position, with respect to both of the alternative theories that the document sought to be protected was either work product or not subject to Chapter 119, Florida Statutes (The Florida Public Record Act), is, in the court’s view, frivolous and utterly without merit.

Accordingly, certiorari is granted and fees in amount of $2,000.00 are awarded to the petitioner pursuant to Section 57.105, Florida Statutes (1978) and Section 119.12, Florida Statutes (1975).

Certiorari granted.


author: NESBITT, Judge.

text:
    William PARKER a/k/a Virgil Harris, Appellant, v. The STATE of Florida, Appellee.
    No. 80-619.
    District Court of Appeal of Florida, Third District.
    March 9, 1982.
    Bennett H. Brummer, Public Defender, and Jay M. Levy, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and NESBITT, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   NESBITT, Judge.

The dispositive point here is whether defendant was entitled to be tried as a juvenile offender rather than as an adult. Because we find that at the time the information was filed the child had not committed two delinquent acts, one of which involved an offense constituting a felony, we reverse his conviction as an adult and remand for further proceedings.

At the outset, we recognize that the state attorney has initial discretion to determine whether to proceed against a child in excess of sixteen years of age as an adult, pursuant to Section 39.04(2)(e)(4), Florida Statutes (Supp.1978). Masci v. State, 397 So.2d 984 (Fla. 3d DCA 1981). However, as the statute plainly provides, upon motion by the child, the case shall be transferred for juvenile adjudication if it is shown that the child has not previously been found to have committed two delinquent acts, one of which constituted a felony. State v. Cain, 381 So.2d 1351 (Fla.1980).

The defendant was informed against in the adult division of circuit court for the offense of burglary of a structure and grand theft. Eight days prior to the trial, he filed a motion activating the provisions of Section 39.04(2) (e) (4), supra, alleging that he had not previously been convicted of two delinquent acts, one of which constituted a felony. The state stipulated as to the basic facts but nonetheless argued that his conviction as an adult in another court prior to this offense made the statute inapplicable. We disagree.

In this case, the fact that the defendant’s motion to transfer was heard and determined prior to his trial readily distinguishes this case from Carter v. State, 382 So.2d 871, 873 (Fla.5th DCA 1980) and State ex rel. Ortez v. Brousseau, 403 So.2d 549, 550 (Fla.2d DCA 1981).

Next, the state, relying upon Smith v. State, 345 So.2d 1080 (Fla. 3d DCA), cert. denied, 353 So.2d 678 (Fla.1977), argues that the juvenile is estopped to request his transfer to the juvenile division because he lied about his age at the time of his arrest. We find that decision to be distinguishable. In that case, the juvenile lied about her age with the express purpose of subjecting herself to the jurisdiction of the adult court and obtaining probation. The defendant failed to appeal her conviction as an adult and accepted the benefits of an order of probation. It was not until post-judgment proceedings involving revocation of her probation that she sought to be treated as a juvenile. Under those circumstances, the court found that the juvenile was estopped from changing positions and asserting her right to be treated as a child. Those facts are not present here.

For the foregoing reasons, the defendant’s judgment of conviction and the order denying his motion to transfer the proceeding to the juvenile division of the circuit court are reversed and remanded for further proceedings.


author: JONES, Justice Ad Hoc.

text:
    STATE of Louisiana v. Joseph L. WILLIAMS.
    No. 81-KA-1410.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied March 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul Car-mouche, Dist. Atty., Robert W. Gillespie, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Donald R. Minor and Jeanette G. Garrett of Indigent Defender Office, Shreveport, for defendant-appellant.
   JONES, Justice Ad Hoc.

Defendant Williams was indicted for the crime of second degree murder (La.R.S. 14:30.1), convicted by jury as charged, and sentenced to life imprisonment at hard labor without benefit of parole. Defendant appealed his conviction and sentence, relying on sixteen assignments of error, twelve of which were argued.

During the early morning hours of December 22, 1979, the defendant, a 27 year old black male, was eating breakfast with several friends at Denny’s Restaurant in Shreveport. Defendant began flirting with their waitress, Cindy Grove, a young white female. When she expressed displeasure with his attention, defendant started harassing and verbally abusing Miss Grove. In the meantime, Wesley Ford (a 21 year old white male), boyfriend of the waitress, entered the restaurant and overheard her complaining to another waitress about the defendant’s behavior. Ford approached the table where defendant was sitting, asked that defendant refrain from bothering the waitress, and returned to his seat at the counter.

As defendant and his party finished their meal and walked to the cashier to pay their bill, defendant stopped where Ford was sitting, placed a hand on Ford and started discussing his difficulty with Miss Grove. Ford reacted by striking defendant on the head with a coffee cup. The two then began grappling and fell to the floor wrestling. Several onlookers, including restaurant employees and customers, immediately separated the two combatants.

Ford stood up, collected his personal belongings that had fallen on the floor, brushed himself off, and engaged in a conversation with Lynn West, an assistant manager of the restaurant. Defendant also regained his feet and walked to the first of the double doors leading out of the premises, as though to leave the restaurant. However, upon reaching the door defendant pulled a revolver, turned around, walked toward Ford and fired several shots at him. Three bullets struck Ford, fatally wounding him.

Assignment of Error No. 1

Defendant argues that the trial judge erred in denying his challenge for cause of seven prospective jurors, each of whom on voir dire examination expressed personal disapproval of interracial dating. He contends that because of this prejudicial attitude these prospective jurors could not have been impartial in this case involving a black defendant and a white victim, and should have been disqualified under La.C.Cr.P. Art. 797(2).

This court noted in State v. McZeal, 352 So.2d 592 (La.1977):

“A prospective juror’s negative opinions on racial intermarriage and social preferences do not necessarily reflect on his ability to judge fairly and justly, free from prejudice. (citations omitted) Rather, the true test of a juror’s qualification to serve is his ability to judge impartially based on the law and the evidence admitted at trial, as gleaned from the totality of his responses on voir dire examination.”

The record in this case reflects that each of the challenged prospective jurors denied that his or her attitude toward interracial dating would in any way prevent him or her from serving as a fair and impartial juror. Considering their responses as a whole to the voir dire examination, we do not find that the trial judge erred in denying the challenges for cause.

Consequently, this assignment lacks merit.

Assignment of Error No. 6

Defendant claims that the trial judge erred in denying his motions for mistrial after the jurors observed defendant wearing handcuffs, thereby subverting his presumption of innocence.

It appears that defendant might have been observed in handcuffs by the jurors on three occasions: when brought into the courtroom with other prisoners on the morning of the trial; on the first day of the trial in the hall while being transported either to or from jail during the lunch break; and the next day, again during the lunch break, being transported to or from jail. On each of the latter two occasions defendant was either going to or coming from the jail elevator and was handcuffed for security purposes.

In State v. Wilkerson, 403 So.2d 652 (La.1981), several jurors saw the defendant handcuffed after the trial had been adjourned for the day. Noting that the defendant was not handcuffed during the trial but was handcuffed solely for the purpose of transport to and from the courtroom, this court held:

“Ordinarily, a defendant before the court should not be shackled or handcuffed or garbed in any manner destructive of the presumption of his innocence and of the dignity and impartiality of judicial proceedings, (citations omitted) However, exceptional circumstances may require, within the discretion of the trial court, the restraint of the prisoner for reasons of courtroom security or order or where the prisoner’s past conduct reasonably justifies apprehension that he may attempt to escape, (citations omitted)
“If the handcuffing is objected to at the time of trial, for a finding of reversible error the record must show an abuse of the trial court’s reasonable discretion resulting in clear prejudice to the accused.” (p. 659)

Here, the defendant was initially brought into the courtroom with a group of prisoners and his handcuffs were immediately removed. On the other two occasions defendant was handcuffed solely for security reasons when being taken to and from jail. There was no evidence that any juror ever observed the defendant in handcuffs. Be that as it may, it is clear that the jurors were informed by defense counsel during the course of the trial that the defendant was in custody.

Under the circumstances, we do not find that defendant’s right to a fair trial was prejudiced by the trial judge’s ruling on these motions for mistrial.

Assignment of Error No. 7

During the presentation of the state’s case one of its witnesses, Lynn West, Denny’s assistant manager, stated that a waitress, 16 year old Ivy Ross, was struck in the arm by a bullet during the shooting incident. Defendant moved for a mistrial, arguing that the age of the waitress was irrelevant and that this testimony was elicited solely to inflame the jury. The trial judge’s denial of the motion for mistrial forms the basis of this assignment.

In State v. Haarala, 398 So.2d 1093 (La.1981) this court explained:

“The general prohibition against the use of other crimes evidence does not bar admission of criminal acts which are an inseparable part of the whole deed. 1 Wigmore, Evidence, § 218 (3d Ed. 1940). In Louisiana, such acts are denominated as part of the res gestae and admitted under the authority of La.R.S. 15:447-48.
“This court has approved the admission of other crimes evidence when it is related and intertwined with the charged offense to such an extent that the state could not have accurately presented its case without reference to it. (citations omitted) In such cases, the purpose served by admission of other crimes evidence is not to depict the defendant as a bad man, but rather to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.”

In this case there was testimony that the defendant fired his revolver some five times, but that only three bullets struck Ford. Evidence that one of the bullets struck a bystander was clearly part of the res gestae and admissible although tending to prove another criminal act. Testimony concerning the age of the wounded waitress was merely incidental to her identification and was nonprejudicial.

This assignment is without merit.

Assignments of Error Nos. 8 & 9

These assignments relate to asserted errors on the part of the trial judge in admitting into evidence photographs of the victim lying on the floor at Denny’s Restaurant (state exhibits 7, 9,11 & 12) and autopsy pictures (state exhibits 15-22).

Defendant contends that the pictures of Ford on the restaurant floor were not accurate depictions of the location of the victim’s body immediately after the shooting — apparently arguing that someone moved the body.

It is axiomatic that a trial judge’s determination regarding the relevancy of evidence will not be disturbed in the absence of a clear abuse of discretion. The photographs in question depicted for the jury the general layout of the crime scene, the identity of the victim and the area where he died. The trial judge did not abuse his discretion in ruling them admissible.

Defendant asserts that the autopsy pictures should not have been admitted into evidence because of their gruesome nature.

The test of admissibility of allegedly gruesome photographs is whether their probative value outweighs the potential prejudicial effect on the jury. State v. Hartman, 388 So.2d 688 (La.1980). These autopsy pictures showed the location, number and nature of the wounds sustained by the victim. They were not unduly gruesome. Their probative value clearly outweighed any prejudicial effect they might have had upon the jury.

These assignments lack merit.

Assignment of Error No. 10

Defendant complains that the trial judge erred in prohibiting him from questioning state witnesses West and Grove about the victim’s reputation. The state previously advised defense counsel that the victim had been convicted for carrying a concealed weapon (gun and brass knuckles) and was placed on probation.

Evidence of the dangerous character of a victim is admissible only if the accused first produces evidence that the victim made a hostile demonstration or overt act against the accused at the time of the incident. La.R.S. 14:482; State v. Lee, 331 So.2d 455 (La.1975).

As the term is here used, an overt act is a hostile demonstration of such character as to create in the mind of a reasonable person the belief that he is in immediate danger of losing his life or of suffering great bodily harm. State v. Brown, 172 La. 121, 133 So. 383 (1931).

We do not construe the victim’s striking the defendant on the head with a coffee cup to be such an overt act, since it should not have placed a reasonable person in fear of either losing his life or suffering great bodily harm. This is confirmed by defendant’s action in first walking away from the fight scene. Consequently, the requisite foundation for introduction of evidence of the victim’s reputation was lacking.

Even if the victim’s conduct amounted to an overt act under La.R.S. 15:482, the defendant did not lay a proper foundation for admissibility of the reputation evidence. As pointed out in State v. Lee, 331 So.2d 455 (1975):

“But, once the overt act is established, this type of evidence is admissible in support of a plea of self-defense in a murder prosecution for two distinct purposes: (1) to show defendant’s reasonable apprehension of danger which would justify his conduct; and (2) to help determine who was the aggressor in the conflict.”

In this case it was never asserted in any fashion that the defendant acted in self-defense. To the contrary, in his opening statement to the jury defense counsel remarked:

“I believe the principal issue you will have to decide is the reason for the shooting, whether or not the state in its proof of the killing satisfies you in relation to that area whether or not there was provocation to deprive a person as the law states of the self-control and cool reflection.”

Defendant himself took the stand and conceded that he had never seen the victim before the restaurant encounter, never observed any kind of weapon on the victim and that the victim “didn’t do nothing to upset me.” Seeking to explain his shooting of the victim, the defendant asserted that when he reached the door on his way out he “changed all over” and was “controlled by something.”

Defendant argues that evidence of the victim’s reputation should have been admitted as tending to prove that there was sufficient provocation to reduce the offense from second degree murder to manslaughter. Since the defendant admittedly did not know the victim, evidence of the victim’s reputation would not be admissible to show the defendant’s reasonable apprehension of danger. On the other hand, if the defendant is using this language to assert that the victim was the aggressor in the incident there might be some validity to his argument. However, in that case evidence is admissible only of general reputation and not of specific acts or the personal opinion of the witness. La.R.S. 15:479. Here, defense counsel did not lay a proper predicate by first establishing that the witnesses were community members with a general knowledge of the victim.

Be that as it may, in the final analysis defendant’s own testimony belies any contention that the victim was the aggressor in the dispute.

This assignment is without merit.

Assignment of Error No. 11

Defendant had three previous criminal convictions — for aggravated assault in 1970 and 1972 and for carrying a concealed weapon in 1974. The trial judge granted a defense motion to suppress the first two convictions for purposes of impeaching defendant’s testimony since he was not represented by counsel. The trial judge ruled, however, that the state could use those convictions in cross-examining defendant’s character witnesses, but cautioned that the state would have to strictly adhere to the pertinent guidelines delineated in State v. Johnson, 389 So.2d 372 (La.1980). Defendant objected to this ruling and elected not to call defendant’s employer as a character witness. The court’s ruling is the basis for this exception.

This court has held that the use for impeachment purposes of prior convictions which are void for failure to afford defendant his right to counsel deprives a criminal defendant of due process of law where the use of such prior convictions might well have influenced the outcome of the case. State v. Bernard, 326 So.2d 332 (La.1976). In this case, however, there was no attempt by the state to use prior uncounseled convictions for impeachment purposes or any ruling by the trial judge that this would be permissible. Conversely, the trial judge properly held that these convictions might be used in questioning character witnesses provided the Johnson guidelines were followed by the state. Since it is well established that a character witness may be questioned about arrests, it seems to logically follow that he may be interrogated relative to convictions even though uncoun-seled.

This assignment lacks merit.

Assignment of Error No. 12

During the state’s cross-examination of defense witness Charlotte McCall the following colloquy occurred:

“Q. Where had you been that night before you got to Denny’s Restaurant?
A. To Shady Oaks—
MR. MINOR: Your Honor, I object to the relevancy of that.
MR. GILLESPIE: Your Honor, this witness has testified as she has. I think the State—
THE COURT: Excuse me. I haven’t made my ruling. Do you suggest it will be relevant?
MR. GILLESPIE: I suggest it will be as to whether or not she may be under the influence of any drugs or narcotics—
THE COURT: The witness is under cross-examination. The Court will allow you to pursue your questioning.
MR. MINOR: Your Honor, I would ask that the jury be removed.”

Defendant objected to the prosecutor’s comment concerning drugs or narcotics, contending that a mistrial should have been granted.

Questions concerning the consumption of substances that might impair the ability of a witness to accurately see, hear or perceive are within the proper scope of cross-examination. However, even if this comment was improper, any possible prejudice was cured by the trial judge’s admonition to the jury. This court will not overturn convictions because of prejudicial comments unless it is convinced the remarks influenced the jury and contributed to a verdict adverse to the defendant. State v. Lee, 340 So.2d 180 (La.1976).

There is no merit to this assignment.

Assignments of Error Nos. 13, 14 & 15

Defendant contends that the trial judge erred in refusing to give special requested jury charges.

In his general charge the trial judge defined both second degree murder and manslaughter and delineated the distinction between the two. He further cautioned the jury against letting sympathy for the victim influence its verdict, emphasizing the importance of basing its verdict solely on the evidence presented to it and the law explained by the court.

We find that the requested special jury charges were adequately covered by the general jury charge. La.C.Cr.P. Art. 807.

This assignment is without merit.

Assignment of Error No. 16

Defendant argues that the trial judge erred in denying him a new trial, claiming that even in viewing the evidence in the light most favorable to the prosecution the proper verdict should have been “guilty of manslaughter.”

As previously pointed out, defendant’s own testimony contradicted any contention that he killed the victim in sudden passion or heat of blood after having been provoked by conduct of the victim. Defendant’s only excuse for the killing was that he was under “outside control.”

Our review of the record convinces us that there was sufficient evidence from which a rational trier-of-fact could conclude beyond a reasonable doubt that the defendant committed second degree murder of Wesley Ford. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

This assignment is without merit.

Decree

For the reasons set forth, defendant’s conviction and sentence are affirmed.

       Judges O. E. Price of the Court of Appeal, Second Circuit, John C. Boutall, Court of Appeal, Fourth Circuit, and Fred W. Jones, Jr., Court of Appeal, Second Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Justices Pascal F. Calogero, Jr., Walter F. Marcus, Jr., James L. Dennis and Jack C. Watson.

      . (1) In order to find the defendant guilty of Second Degree Murder the State must prove beyond a reasonable doubt that there was not provocation sufficient to deprive the defendant or an average person of his self-control and cool reflection.
      (2) In order to find the defendant guilty of Manslaughter it is not necessary to find that an average person would have responded to the provocation in the same manner as did the defendant, but only that an average person subjected to the same provocation would have been deprived of his self-control and cool reflection.
      (3) You are not to be influenced by sympathy, passion, prejudice, or public opinion. You are expected to reach a just verdict.

      . Manslaughter is:
      (1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed; or (La.R.S. 14:31)


author:
BOUTALL, Justice Ad Hoc.
     DENNIS, J.,

text:
    STATE of Louisiana v. Henry L. TAYLOR.
    No. 81-KA-1571.
    Supreme Court of Louisiana.
    Jan. 25, 1982.
    Rehearing Denied March 12, 1982.

    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Bridget Bane, Michael Campbell, John Craft, Linda Bizzaro, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Elizabeth W. Cole, John A. Murphy, David M. Dubin, and Bernard P. McSherry, of Tulane Criminal Clinic, New Orleans, for defendant-appellant.

       Dixon, C. J., Calogero and Dennis, JJ., would grant a rehearing.

   BOUTALL, Justice Ad Hoc.

Henry Taylor was charged with and convicted of the crime of aggravated rape, R.S. 14:42. He was sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence. He appeals urging four assignments of error.

Assignments of error one and three are related to the judge’s charge to the jury on the definition of “reasonable doubt.” Prior to the charge, defense moved that “reasonable doubt” not be defined for the jury on the grounds that any definition would tend to confuse and obscure the concept rather than clarify it, and that a confusing definition would invite the jury to convict on a lesser standard of proof than it would otherwise require. In support of that proposition, the defendant refers us to the following authorities:

U.S. v. Lawson, 507 F.2d 433 (7th Cir. 1974); Commonwealth v. Wood, 404 N.E.2d 1223 (Mass.1980); People v. Gray, 80 Ill.App.3d 213, 35 Ill.Dec. 372, 399 N.E.2d 206 (Ill.App.1979); State v. Starr, 216 S.E.2d 242 (W.Va.1975); Templer v. State, 494 P.2d 667 (Okla.1972); People v. Cagle, 244 N.E.2d 200 (Mass.1969); Pierce v. State, 159 Tex.Cr.R. 504, 265 S.W.2d 601 (Tex.1954); Simmons v. State, 40 So.2d 289 (Miss.1949); Boutwell v. State, 143 So. 479 (Miss.1932); see additionally Wigmore on Evidence, Vol. 9, Section 2497, p. 316 (3rd Ed. 1940).

The simple answer to this contention is that Louisiana’s Code of Criminal Procedure, Article 804, specifically permits the judge to give a definition of “reasonable doubt” or give any other or further charge upon the same than that contained in this article. See also State v. Henderson, 362 So.2d 1358 (La.1978).

As to the specific charge given, the defendant does not argue that any portion of it is in specific error, but points out that the charge may cause confusion and may lead the jurors to convict on a standard lower than that required by law. We agree that the charge is lengthy and to some degree repetitious, and that some of the statements, if taken alone out of context, may tend to create some apparent confusion, but taken as a whole, we conclude that reasonable persons of ordinary intelligence would have no problem in understanding the definition of “reasonable doubt.” Accordingly, we find the assignment of errors to be without merit.

The next two assignments of error, numbers two and four, relate to a motion for mistrial based upon comments by the prosecutrix during rebuttal closing arguments concerning possible statements as to what a witness may have said outside the court.

To set the background, we note that the state produced two witnesses who had seen the man who perpetrated the rape. One, of course, was the victim herself, and the other was the victim’s stepfather, Frank Wheeler. The victim had called Wheeler that morning and asked him to bring over a pack of cigarettes. When he arrived at her residence, he walked upstairs, knocked on the door and identified himself. Upon being told that the victim had company, Wheeler placed the cigarettes on the door valance and started downstairs. During his departure, the man left the apartment, announced to Wheeler that “_she wants you_” and passed Wheeler. Although Wheeler testified that he had a clear view of the man as he passed him, he also testified that when lje was called to the lineup conducted by the police shortly after the defendant’s arrest, he had identified the wrong man. The prosecutrix did not ask Wheeler whether he could identify in court the defendant as the man he had seen coming out of his step-daughter’s apartment. On cross-examination, Wheeler testified that his misidentification was caused by the fact that Taylor had grown hair on his face.

During her closing argument on rebuttal, the prosecutrix made the following remarks, to which defense counsel objected and moved for mistrial:

“. We keep coming back to Frank Wheeler. She really has the state on the horns of a dilemma. She uses this in her argument. She says, “Nobody asked Frank Wheeler whether he could identify that man over there as the one he saw coming out. He had misidentified him in the lineup, and I had a choice to make and that was my choice. Nobody did ask Frank Wheeler, and if we had asked Frank Wheeler, and he made the most positive identification in the world, and he said, ‘Boy, now I recognize that guy.’ And, I’m not telling you — I can’t tell you what he said or did not say outside of this courtroom, but I can tell you that if the question had been asked and he said, ‘Yeah, that’s him. Look at those eyes. Look at that beard. That’s exactly the man.’, she would have gotten up and said,.”

Defendant’s counsel objected to these statements as prejudicial contending that the clear inference of these remarks is that Mr. Wheeler told the prosecutrix out of court that the defendant was the individual he saw leaving the victim’s house. He argues that the statements go well beyond the scope of the evidence and are prohibited by Article 774 of the Code of Criminal Procedure as well as prejudicially referring to matters within the personal knowledge of the prosecutrix but not in evidence as denounced in State v. Harrison, 367 So.2d 1 (La.1979), and State v. Kaufman, 304 So.2d 300 (La.1974).

It is apparent to us from the above quoted argument that defense counsel has misinterpreted the plain language of the prose-cutrix’s comment. The hypothetical nature of the prosecutrix’s remarks are clear. She did not say what the witness had told her but was merely illustrating the nature of the dilemma faced by the State in its proof of identification and answering a point which had been brought up by the defense on argument. Defense counsel had pointed out that the prosecutrix had not asked Wheeler if the defendant was the man he saw coming from the house that day, noting that while the victim was on the stand she asked the victim several times if that was the man and stated that the prosecutrix did not ask Wheeler if this was the man, stating, “not a word because the answer would have been ‘no’.” Thus, in her rebuttal argument, the proxecutrix sought to explain why she had not asked the question, observing for the jury that Wheeler’s misidentifi-cation of. the defendant at the lineup had effectively discredited any subsequent identification he might make and the defense counsel would have surely pointed out this fact. Although the prosecutrix’s words may have been unwise, we do not conclude that they are prejudicial in the context in which the statements were uttered. We find no merit to these assignments of error.

For the reasons above stated, the conviction and sentence of Henry L. Taylor are affirmed.

AFFIRMED.

CALOGERO, J., dissents being of the view that assignments of Error 2 & 4 have merit.

DENNIS, J.,

dissents being of the opinion that the instruction on reasonable doubt was both misleading in its definition of reasonable doubt and insufficient in its failure to inform the jury that reasonable doubt was being based on a lack of evidence. C.Cr.P. 804.

      . Judges John C. Boutall of the Court of Appeal, Fourth Circuit, and O. E. Price and Fred W. Jones, Jr., of the Court of Appeal, Second Circuit, participating in this decision as Associate Judges Ad Hoc, joined by Justices Caloge-ro, Marcus, Dennis and Watson.

      . If you entertain any reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, it is your sworn duty to give him the benefit of that doubt and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilt, yet if it does not establish it beyond a reasonable doubt, you must acquit the accused. This doubt must be a reasonable one, that is, one founded upon a real, tangible, substantial basis, and not upon mere caprice, fancy or conjecture. It must be such a doubt as would give rise to a grave uncertainty, raised in your minds by reason of the unsatisfactory character of the evidence; one that would make you feel that you had not an abiding conviction to a moral certainty of the defendant’s guilt. If, after giving a fair and impartial consideration to all of the facts in the case, you find the evidence unsatisfactory upon any single point indispensably necessary to constitute the defendant’s guilt, this would give rise to such a reasonable doubt as would justify you in rendering a verdict of not guilty. The prosecution must establish guilt by legal and sufficient evidence beyond a reasonable doubt, but the rule does not go further and require a preponderance of testimony. It is encumbent upon the State to prove the offense charged, or legally included in the indictment, to your satisfaction and beyond a reasonable doubt. A reasonable doubt is not a mere possible doubt. It should be an actual or substantial doubt. It is such a doubt as a reasonable man would seriously entertain. It is a serious doubt, for which you could give good reason. In order words, earlier in the case in the selection of the jury, I told you one of the things that you should consider in the definition of reasonable doubt is when you have a doubt and you can assign a reason—give a reason for that doubt. That is reasonable doubt.


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

text:
    STATE of Louisiana v. Haywood BING.
    No. 81-KA-1684.
    Supreme Court of Louisiana.
    Jan. 26, 1982.
    Concurring Opinion Feb. 15, 1982.
    Dissenting Opinion March 10, 1982.
    Rehearing Denied March 12, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Mike McDonald, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Woodrow Wyatt, Baton Rouge, for defendant-appellant.
   DIXON, Chief Justice.

Defendant Haywood Bing was charged by bill of information with possession with intent to distribute marijuana in violation of R.S. 40:967(A). Defendant pleaded not guilty on January 29, 1981, but withdrew his plea and pleaded guilty as charged on March 26, 1981. Defendant was sentenced to four years at hard labor and was fined $3000 plus court costs. Defendant appeals the sentence on the basis of excessiveness. The sentence is set aside, and the case is remanded for resentencing.

Defendant was arrested after police, pursuant to a valid search warrant, recovered twenty-five to twenty-eight pounds of marijuana in a closet in his house. Defendant testified he had the marijuana for about three hours when the police arrived. Some of it had been broken down into one pound packets for resale. Bing stated he was to sell the individual pounds to friends. The judge asked Bing for the name of his supplier at the “Boykin" examination and the sentencing hearing. Bing refused to answer, claiming he was afraid of placing himself in danger by revealing the source of the marijuana. However, defendant reconsidered and provided detailed information to the judge, an assistant district attorney and a sheriff’s officer.

The court ordered an abbreviated presen-tence investigation following defendant’s plea of guilty. The investigation revealed that the defendant had no prior criminal convictions. He had one prior arrest in 1973 for possession of marijuana for resale in Tennessee, but the charge was nolle prossed. The sentencing report recommended defendant be placed on probation.

Haywood Bing is a forty-year-old male who was honorably discharged from the Navy. He attended junior college, has raised a family and has a good work history. Mr. Bing earned substantial wages as a pipefitter and equipment operator until he was injured on the job in 1980. His only income is $148.00 a week from worker’s compensation. The report suggested defendant be required to pay a substantial •fine in order to take away any profit. However, defendant testified he was to pay for the marijuana after selling it and had not made any profit.

Article I, § 20, La.Const., prohibits imposition by law of excessive punishment. In State v. Sepulvado, 367 So.2d 762 (La.1979), we held that a sentence within statutory limits may still violate defendant’s constitutional right against excessive punishment. A trial court is given wide discretion to impose sentence within limits defined by the legislature. The sentence imposed by the trial court should not be set aside as excessive unless there has been abuse of its discretion. See State v. Forshee, 395 So.2d 742 (La.1981); State v. Molinet, 393 So.2d 721 (La.1981); State v. Sepulvado, supra. The sentencing criteria in C.Cr.P. 894.1 “provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives.” State v. Sepulvado, supra, at 769.

The trial judge correctly allowed defense counsel to introduce evidence of mitigating circumstances to justify a lesser sentence for defendant. However, that evidence does not appear to have been properly weighed by the trial judge. Drug use in schools, an appropriate social concern in relation to the suppression of drug traffic, seems to have overshadowed all other considerations in a procedure which should have been directed toward individualizing the sentence. As far as the record shows, this was the first time defendant ever possessed drugs with the intent of distributing them.

After declining to tell the judge, in open court on March 26 at the “Boykin” hearing the name of his supplier, defendant answered the judge’s question at the April 24 sentencing hearing as follows:

“... The main reason that I am not willing is because — because I believe I would be putting myself in more trouble and more danger by informing — by telling you that then (sic) I am already in— uh — and I am already in all the trouble in the world right now.”

The judge should have understood that his public interrogation, commendable in its object, involved great risk of jeopardy to defendant completely beyond any sentence the judge could impose. Law enforcement officers and prosecutors, not judges, are equipped to seek such information in ways more likely to protect the source.

The trial court concentrated on Bing’s refusal to name his supplier when it applied the 894.1 criteria, and found (1) there was undue risk defendant would commit another crime during probation, (2) defendant had not compensated the people of East Baton Rouge Parish, (3) defendant’s conduct was the result of circumstances likely to recur, (4) Mr. Bing’s character and attitude indicated he was not unlikely to commit another crime, and (5) that he would not respond to probation. The record reflects the sole justification for the hard labor sentence imposed on defendant was his failure to divulge the name of his supplier. The trial court went far beyond a simple notation of defendant’s attitude. Haywood Bing was grilled repeatedly under penalty of a lengthy prison term.

A defendant has no right to withhold incriminating information about others who have been or are presently engaging in criminal activity. See Roberts v. United States, 445 U.S. 552, 558, 100 S.Ct. 1358, 1363, 63 L.Ed.2d 622, 629 (1980). “Unless his silence is protected by the privilege against self-incrimination, see Part III, infra, the criminal defendant no less than any other citizen is obliged to assist the authorities.” Roberts indicates it was not necessarily improper for the trial judge to consider defendant’s refusal to cooperate; here, however, there was an undue risk in the interrogation of defendant. Further, once defendant supplied the requested information, the trial judge did not suspend the prison sentence as defendant had been led to believe.

The considerations listed in C.Cr.P. 894.1 provide a method for particularizing sentences of individual defendants. Defendant’s refusal to cooperate was one factor for the judge to consider when deciding sentence. However, it should not have been the controlling factor. The trial judge apparently disregarded any mitigating circumstances, including even the fact that defendant finally named his supplier. The defendant received a favorable presentence report recommending probation. The judge was not bound by the sentencing report, but the recommendation should have been seriously considered in light of Bing’s military record, education, work history and lack of prior record.

In finding this sentence excessive, we specifically do not hold that four years at hard labor and a $3000 fine is, on its face, an excessive sentence for the possession of twenty-eight pounds of marijuana with the intent to distribute. We do find that the sentence is excessive on the facts of this ease as we understand them.

The plea of guilty has not been attacked in this appeal, and its validity is not before us.

For these reasons, the sentence is vacated, and the case is remanded for resentenc-ing in accordance with the views expressed herein.

BLANCHE, J., concurs and assigns reasons.

LEMMON, J., dissents and assigns reasons.

BLANCHE, Justice

(concurring).

The transcript of the Boykin examination and the sentencing hearing convinces this writer that the trial judge had abandoned his role as judge and was acting as prosecutor in attempting to obtain information for the state concerning the source of defendant’s marijuana supply. It is also obvious that the trial judge did not consider the mitigating factors set forth in the majority opinion or, if he did, failed to articulate the same. Additionally, the defendant asserts that the presentence investigation report, though not binding on the trial judge, did recommend that he receive a suspended sentence.

Further, it is obvious that the trial judge’s sentence of defendant was motivated by his failure to obtain the information he sought for the state. In attempting to obtain this information, it is also obvious that the judge’s remarks could be considered as a veiled promise of leniency if defendant would give him the information sought. Stated in other words, it is this writer’s opinion that the judge led the defendant to believe there would be leniency if he confessed the source, and Angola if he remained silent.

It is also the opinion of this writer that when a judge ^attempts to intermingle a prosecutorial function with his own judicial function, he renders suspect his fairness as a judge. However, if it is true as stated in counsel’s brief that defendant was promised a suspended sentence if he gave the requested information at a time when the sentence had not yet been made executory, then this writer is of the opinion that it would be unconscionable for the trial judge, after having received the information, not to keep his bargain. More than that, it was wrong for the judge to give the impression that he might give a suspended sentence in exchange for the information.

With regard to the heavy responsibility placed on a judge in making a sentencing determination, this writer believes it is the judge’s duty to give a fair, even-handed sentence based upon all the facts and circumstances surrounding the commission of the crime and after considering all the aggravating and mitigating considerations as shown by the record.

I concur in the remand of the case for resentencing with instructions to the trial judge to resentence defendant in accordance with the views both there and herein expressed.

LEMMON, Justice,

dissenting.

There are two principal issues in this appeal based on the excessiveness of the sentence: (1) whether it was appropriate for the trial judge to question defendant as to his source of illegal drugs and (2) whether the trial judge assigned inordinate weight to defendant’s refusal to cooperate with law enforcement officials by revealing his source of illegal drugs.

It is not inappropriate for a trial judge to require a convicted criminal to reveal his knowledge of criminal activity of other persons who participated in his crime in order to receive a “soft” sentence or a suspended sentence. It is only inappropriate for a trial judge to require disclosure of this information in order for the defendant to receive a fair sentence.

On this record I cannot say that a four-year sentence and a $3,000 fine was not a fair sentence. Defendant was found with 28 pounds of marijuana, broken down into small packages, and defendant admitted that he intended to sell the marijuana. The maximum penalty was 10 years at hard labor and a $15,000 fine, and the sentence imposed was below the mid-point of the range. Furthermore, defendant will be eligible in 16 months for parole, which in all likelihood will be granted, if this first offender conducts himself with good behavior. One can hardly say that the prison sentence is excessive for this serious offense which is presently the object of grave social concern.

Nor can I say, as the majority apparently believes, that the trial judge considered defendant’s refusal to cooperate with law enforcement authorities as the “controlling factor” in fixing the sentence. The trial judge clearly assigned considerable weight to that factor, but he also reviewed all other pertinent factors, particularly the fact that defendant had previously been apprehended for distributing marijuana and had escaped conviction only because of a search warrant deficiency. (The trial judge expressly noted that since defendant had not learned a lesson the first time he was caught selling marijuana, there was an undue risk he would commit another crime if placed on probation.)

Finally, I disagree with the majority’s statement that the trial judge “disregarded any mitigating circumstances, including even the fact that defendant finally named his supplier”. At the time of sentencing, defendant had refused to disclose his supplier, and this record does not suggest that he ever did so (or that the trial judge promised a suspended sentence or lighter sentence if he did). A beyond-the-record and unverified statement during appellate argument certainly does not constitute a mitigating circumstance which the trial judge should have considered during sentencing.

       Judges Pike Hall, Jr., Charles A. Marvin and Jasper E. Jones of the Second Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Lemmon.

      . At both the “Boykin” examination and sentencing hearing, Bing refused to declare the name of the person from whom the marijuana had been obtained. Defense counsel represents in brief to us that, at a later hearing held in the judge’s chambers, defendant told the judge in the presence of a court reporter, defense counsel, an assistant district attorney, Mr. McDonald and Lt. Michelle Founder of the East Baton Rouge Parish Sheriffs Office when, where, how and from whom he had acquired the marijuana. Bing did this after the court told him it would suspend the imprisonment sentence upon his supplying the name of his source. These representations were not denied by the state, but no transcript has been furnished us. If the representations are true, the sentence of imprisonment should be suspended. The sentence had been pronounced on April 24, 1981, but execution had been deferred until June 15, 1981; the trial court had authority to suspend sentence after the defendant provided the information.

      . The Legislature has expressly authorized such a procedure in R.S. 40:967, and we have approved the statute’s validity in State v. LeCompte, 406 So.2d 1300 (La.1981).
      Perhaps defendant is suggesting that seeking disclosure of information by convicted criminals for the purpose of fostering the prosecution of unapprehended offenders is not properly a judicial function. However, sentencing is a judicial function, and one of the appropriate considerations in sentencing is whether the defendant has cooperated with law enforcement officials (regardless of who initiated the request for cooperation).

      . See R.S. 15:574.3 and 574.4.

      . The district attorney’s post-argument brief asserts that defendant did not reveal his source after sentencing, but simply gave vague and unverifiable information. Moreover, if defendant did eventually reveal his source after this record was complete, then defendant’s appropriate recourse was to file a motion to remand to the trial court for reconsideration of the sentence in the light of that disclosure and for an evidentiary hearing to supplement the present record.