author: BERANEK, Judge. ANSTEAD, Judge,

text:
    Anna ROSA, Appellant, v. JEFFERSON’S STORES, INC., and Unemployment Appeals Commission, Appellee.
    No. 82-628.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.
    Richard W. Smith of Johnson & Smith, Fort Lauderdale, for appellant.

      James R. Parks and Norman A. Blessing, Tallahassee, for appellee.
   BERANEK, Judge.

This is an appeal from the denial of an unemployment compensation benefits claim. We affirm. The employer had a policy which allowed discounts to employees and to members of their immediate family residing in the home of the employee. Appellant was well aware of this store, policy when she allowed her son to use her discount card. The factual question was whether the son was residing in the home of his mother. Appellant was terminated because she allowed her son to use her discount card.

The matter was presented to the appeals referee on the basis of conflicting evidence. At least one witness, a store supervisor, testified that appellant herself had previously stated her son had married, bought a home, and moved to a different city. When the appellant gave the card to her son, the same store supervisor told her she should not do so. Appellant was confronted and questioned regarding the incident immediately after giving the card to her son, and at that time she told another store supervisor that she did not know of the policy, and she offered to repay the money involved. Appellant did not say that her son lived in her home when she was initially confronted nor when her employment was later terminated. Eventually, while attempting to regain her job, she said her son was staying in her home temporarily due to a marital spat.

The appeals referee noted the existence of conflicting testimony and specifically chose not to accept the appellant’s testimony. The question was one of credibility. Our function, as a reviewing court, is not to decide whether we believe appellant to have told the truth before the appeals referee. Questions of credibility are for the fact finder. The order below is supported by competent, substantial evidence, and is hereby affirmed. Bagwell Lumber Company v. Florida Department of Commerce, Division of Employment Security, 358 So.2d 1261 (Fla. 2d DCA 1978).

AFFIRMED.

HURLEY, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

In my view the only evidence before the referee was that Mrs. Rosa’s son did reside with her at the critical time. It appears that Mrs. Rosa was the victim of a misunderstanding resulting from her impaired hearing, which required the use of a hearing aid, and her emotional response upon being confronted after the incident took place. I realize that the hearing officer is the one to determine the credibility of witnesses, but I simply do not feel that her testimony and the documentary evidence of the son’s residence with her was sufficiently impeached to permit the officer to reject that evidence. That being the case I would reverse the Commission decision and direct that the appellant’s claim be allowed.


source: Caselaw Access Project

author: BERANEK, Judge.

license: Public Domain

text:
    David A. DANCU, Appellant, v. Judy A. ALEXANDER, Appellee.
    No. 82-1145.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.

      David A. Dancu and Bruce L. Randall, Fort Lauderdale, for appellant.
    George L. Moxon, Fort Lauderdale, for appellee.
   BERANEK, Judge.

This appeal stems from a final judgment dissolving the parties’ one-year marriage. In its order the trial court found that each party was entitled to a one-half interest in the marital home and ordered the sale of the residence following an independent appraisal of its value. The husband’s request for special equity in the marital residence was denied and he appeals.

We reverse. The uncontradicted evidence elicited at trial was that the funds used to purchase the marital residence came solely from the husband’s sale of his own previously acquired properties. Prior to the marriage, the husband owned a townhouse in Fort Lauderdale, a boat, and a second mortgage, all with an approximate value of $40,000. From the proceeds of the sale of these three items, the husband used approximately $38,000 for the down payment and closing costs of the marital home. Furthermore, after the wife left the marital residence, the husband made improvements on the property, continued to pay the mortgage and taxes, and generally maintained the home. The husband did not contest the wife’s one-half interest in the home but merely requested recognition of his contribution of funds from a source unconnected with the marriage. The trial court erred in not awarding the husband a special equity giving due consideration to the husband's contribution to the purchase of the home and his payment after separation of more than his one-half share of the monthly mortgage payments and the taxes. See, Weiss v. Weiss, 390 So.2d 1236 (Fla. 4th DCA 1980); Duncan v. Duncan, 379 So.2d 949 (Fla.1980).

REVERSED AND REMANDED.

HERSEY and WALDEN, JJ., concur.


author: PER CURIAM.

text:
    Paul M. LENNERTZ and Richard B. Dwyer, Appellants, v. Dennis DORSEY and City of Lake Worth, Appellees.
    No. 81-1659.
    District Court of Appeal of Florida, Fourth District.
    Nov. 17, 1982.

      Montgomery, Lytal, Reiter, Denney, & Searcy, P.A., West Palm Beach, and Edna L. Caruso, West Palm Beach, for appellants.
    Robert D. Halstead, Jr., of Bratten & Harris, P.A., West Palm Beach, for appel-lee, Dorsey.
    Michael J. Kennedy of Peterson & Fogarty, P.A., West Palm Beach, for appellee, City of Lake Worth.
   PER CURIAM.

Plaintiffs appeal from the final summary judgment entered in favor of defendants in a slander action. We conclude that the motion for summary judgment was properly granted under the state of the record when the motion was initially presented to the trial judge. Thereafter, a motion for rehearing was filed by plaintiffs and certain factual affidavits were attached. The trial court relied upon Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So.2d 1164 (Fla. 5th DCA 1980), and refused to consider these late affidavits. A somewhat contrary rationale is espoused in Hatmaker v. Advanced Mortgage Corp., 351 So.2d 728 (Fla. 4th DCA 1977), cert. denied, 362 So.2d 1050 (Fla.1978), which held it an abuse of discretion for a trial judge to refuse to admit affidavits filed with a motion for rehearing. In its recent decision in Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 413 So.2d 1 (Fla.1982), the Supreme Court has resolved all doubts by holding that a trial judge does not abuse his discretion in refusing to consider late affidavits filed with a motion for rehearing. In the instant case, the trial court found an absence of any compelling reasons or exigent circumstances which might excuse the tardiness of the affidavits. The court acted properly and the summary judgment is affirmed,

AFFIRMED

BERANEK, HERSEY and DELL, JJ., concur.


text:
    Johnnie BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 81-1471.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 1982.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of State v. Hicks, 421 So.2d 510 (Fla.1982).

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


author: ROBERT P. SMITH, Jr., Chief Judge.

text:
    Aronia W. McINTYRE, Appellant, v. Dilmus Lee LAMB and Excalibur Insurance Co., Appellees.
    No. AE-405.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1982.
    Douglas C. Higginbotham, Jacksonville, for appellant.
    Douglass E. Myers, Jr., of Webb, Swain & Watson, P.A., Jacksonville, for appellees.
   ROBERT P. SMITH, Jr., Chief Judge.

Attempting to sue and serve Lamb, a Georgia resident, for injuries received in a Florida traffic accident, appellant was repeatedly ineffectual in satisfying sections 48.161 and .171, Florida Statutes (1979). Those statutes provide for “substituted service” of process by leaving a copy with the Secretary of State, serving a copy on the nonresident defendant through one of the methods specified in the statute, and filing appropriate evidence of having done so “before the return day of the process or within such time as the court allows.” Section 48.161(1).

Though appellant did not satisfy the close timing requirements of the substituted service statutes, it appears that appellant accidentally complied with sections 48.193 and 48.194, providing for direct personal service outside the state of process issued upon complaint of a tort within the state. Appellant caused a Georgia sheriff to serve upon the Georgia defendant, on January 23, 1981, a copy of the alias summons issued in regular form by the clerk of the circuit court on October 17, 1980. Appellant had first sent the summons to the Secretary of State, who file-stamped a copy in October and apparently returned it to appellant’s counsel; but we know of no reason why that summons must be considered as having lost some necessary virginal quality by being first stamped by the Secretary of State, nor why that process could not then be served in a manner satisfactory to section 48.194, even if timing problems prevented compliance with section 48.161(1). The service was good, and appellant’s suit against Lamb must be reinstated.

REVERSED.

McCORD and MILLS, JJ., concur.


text:
    BARNETT BANK OF JACKSONVILLE, a banking institution, Appellant, v. Marian G. HARRIS, a/k/a Marian Meehan Harris, Appellee.
    No. AE-472.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1982.

      Leo 0. Myers, Jacksonville, for appellant.
    Floyd G. Yeager, Jacksonville, for appel-lee.
   OWEN, WILLIAM C., Jr. (Retired) Associate Judge.

If Section 55.145, Florida Statutes (1979), which contains no reference to judgment liens, meant literally what it so plainly says, the trial court’s summary final judgment ordering appellant to satisfy of record a certain money judgment held by it surely would have been correct. However, perhaps to save the statute from constitutional infirmity, the Supreme Court construed it in Albritton v. General Portland Cement Co., 344 So.2d 574 (Fla.1977), as not authorizing the invalidation of certain types of judgment liens. There remains a fact issue as to whether appellant’s judgment ever attached as a lien on appellee’s property. We therefore reverse for further proceedings.

John D. Harris and Marian Harris were divorced in 1972, at which time by statute they became tenants in common of certain real property which they had theretofore owned as tenants of an estate by the entirety. The property consisted of the marital home, the exclusive possession of which was awarded to Mrs. Harris during the minority of any of the children, a condition which prevails to this time. In October, 1976, •appellant obtained a final money judgment for $6,666.71 against John D. Harris, a certified copy of which was promptly filed in Duval County where the real property was situated. Six weeks later, John D. Harris conveyed his interest in the property to Marian Harris. In 1979, John D. Harris filed a petition for personal bankruptcy, and later that year was discharged from personal liability on or for appellant’s judgment. Over a year later, pursuant to Section 55.145, Marian Harris, appellee herein, sought in the Circuit Court of Duval County, a satisfaction of the judgment. Finding no genuine issue of a material fact, the trial court entered the summary judgment granting the relief requested. By separate order, appellee’s costs and attorneys fees were assessed against appellant.

When appellant recorded in the official records of Duval County, a certified copy of its judgment against John Harris, it became a lien on his undivided one-half interest in the marital domicile, unless the property was and continues to be exempt under Art. X, § 4, Fla.Const. (which appel-lee asserts here to be the case, but which was neither pled nor made the express basis of the court’s order). If the property was not exempt, so that the judgment became a lien against it, then even though the bankruptcy discharge released John Harris from personal liability on the judgment, the lien itself was not discharged, but survived the bankruptcy. 1A Collier on Bankruptcy, § 17.29 (14th ed. rev. 1978). In the Albritton case, supra, the Court stated at page 576:

Nothing in Section 55.145 authorizes the invalidation of liens which survive bankruptcy, to the extent there existed property subject to lien when the petition was filed.

Whether there existed property subject to lien when the petition was filed is the factual issue to be determined upon remand.

While there is language in the Albritton opinion which would appear to exclude from the statute only judgment liens arising prior to bankruptcy, which attached to property remaining in the hands of the bankrupt as exempt property, elsewhere the opinion reflects the view that the statute was intended only to clear title to subsequently acquired property or to property for which title to the bankrupt was cleared in the bankruptcy proceedings. Appellee’s property would not fit into either category.

Appellant’s second point, that appellee did not have standing to bring this action under the category of “any interested party,” is without merit.

The judgment, as well as the separate order assessing attorney’s fees and costs, are severally reversed and the cause remanded for further proceedings consistent herewith.

REVERSED AND REMANDED.

MILLS and WENTWORTH, JJ., concur.

      . In relevant part, the Statute provides:
      55.145 Discharge of judgments in bankruptcy. At any time after (1) year has elapsed since a bankrupt ... was discharged from his debts, pursuant to the act of congress relating to bankruptcy, the bankrupt ... or any interested party may petition the court in which the judgment was rendered ... for an order to cancel and discharge such judgment.... If it appears upon the hearing that the bankrupt ... has been discharged from the payment of that judgment or of the debt upon which it was recovered, the court shall enter an order canceling and discharging said judgment. The order of cancellation and discharge shall have the same effect as a satisfaction of judgment....

      . This language, standing alone, would seemingly support the trial court’s judgment, since, of course, the property was not a part of the bankrupt’s estate, and certainly was not “property remaining in the hands of the bankrupt as exempt property.”


author: MILLS, Judge. ERVIN, Judge,

text:
    Cecil B. STACEY, Appellant, v. STATE of Florida, Appellee.
    No. AH-263.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1982.
    Michael Allen, Public Defender, David J. Busch, Asst. Public Defender, Cecil B. Stacey, pro se, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This appeal has been conducted pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

After reviewing the entire record, as well as a pro se brief, we find no error and affirm.

WIGGINTON, J., concurs.

ERVIN, J., concurs in part and dissents in part.

ERVIN, Judge,

concurring and dissenting.

I concur in all aspects of the majority’s opinion except that portion affirming the sentence which enhanced appellant’s ninety-nine year sentence for armed robbery by imposing a three-year mandatory minimum sentence for possession of a firearm during the robbery’s commission. Appellant’s pro se brief clearly alleged that such enhancement was a violation of our rule in Skipper v. State, 400 So.2d 797 (Fla. 1st DCA 1981), rev’d. on other grounds, 420 So.2d 877 (Fla., 1982), as applied to armed robbery, involving as an essential element the use of a firearm. Accordingly, I would affirm the ninety-nine year sentence for the offense of robbery, but would strike the enhanced three-year mandatory minimum sentence.


text:
    William GETZ, Appellant, v. STATE of Florida, Appellee.
    No. AH-363.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1982.
    Michael Allen, Public Defender, Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   ROBERT P. SMITH, Jr., Chief Judge.

The circuit court denied appellant’s motion to suppress a stolen light fixture introduced as evidence of appellant’s guilt. The sheriff entered upon appellant’s uninhabited 10-acre tract and discovered there, 300 feet down the driveway, an apparently stolen washer-dryer. That discovery led to appellant’s arrest and a further search producing the stolen light fixture. The issue is whether the initial warrantless entry and search were lawful. The property was fenced on three sides but not across the front, where the driveway led in. The property was posted with no trespassing signs that the sheriff said he did not see at nighttime, when he entered. On this evidence the trial judge could reasonably have found that appellant had no legitimate expectation of privacy in storing the stolen washer-dryer beside the driveway into this accessible, though posted, acreage. By the standards of DeMontmorency v. State, (Fla.1982) [1982 FLW 485], and State v. Brady, 406 So.2d 1093 (Fla.1981), cert. granted,U.S.-, 102 S.Ct. 2266, 73 L.Ed.2d 1282 (1982), the evidence was admissible.

We find no error in the court’s denial of appellant’s motion for discharge on speedy trial grounds.

AFFIRMED.

McCORD and MILLS, JJ., concur.


author: JOANOS, Judge. LARRY G. SMITH, Judge,

text:
    Richard A. WAGNER, Appellant, v. STATE of Florida, Appellee.
    No. AI-108.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1982.
    Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Barbara Ann Butler, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

Appellant Wagner has asserted that it was error to deny his motion for judgment of acquittal made at the close of the State’s case because the circumstantial evidence was insufficient to sustain his convictions of burglary of a dwelling and petit theft. We agree and reverse.

Upon returning from a vacation, the victim, Willcox, discovered that someone had broken into his mobile home. He went next door to ask the neighbors, Wagner, Wagner’s parents and sister, if they had noticed any strange activity. Wagner was not home at the time. When Willcox listed the missing items for Wagner’s parents and sister, they retrieved some of the items from various rooms of their mobile home. Wagner was charged with burglary of a dwelling and grand theft.

At a jury trial, Willcox testified that among other things he was missing a half-gallon of Bacardi Rum and two bottles of baby oil. Wagner’s fingerprints were on a rum bottle and baby oil bottles, but there was insufficient evidence to establish these items as the items taken from the Willcox home. At the close of the State’s case, Wagner moved for a judgment of acquittal, which was denied. After presenting his defense, Wagner renewed his motion for judgment of acquittal. Wagner was convicted of burglary of a dwelling and petit theft and sentenced to ten years, with suspended sentence after six years served.

Initially, we note that it is clear under the appropriate rule that Wagner did not waive his motion for judgment of acquittal by the introduction of evidence in his defense. Fla.R.Crim.P. 3.380. The State may not rely upon evidence presented during Wagner's subsequent defense to supply essential missing links in the State’s prima facie case to support the denial of the motion for judgment of acquittal. Therefore, we will not consider the evidence presented in the appellant’s defense.

We have determined that the State’s circumstantial evidence was insufficient to exclude all reasonable hypotheses of innocence. Therefore, it was error to deny the motion for judgment of acquittal. Harrison v. State, 104 So.2d 391 (Fla. 1st DCA 1958). In its presentation, the State has shown that Willcox’s mobile home was broken into, items had been removed, some of the items were recovered from the home where Wagner, his parents and sister lived and Wagner’s fingerprints were on rum and baby oil bottles. There was no evidence placing Wagner in the burglarized structure and there was insufficient evidence to establish the rum and baby oil bottles as items taken from Willcox’s home. Assuming it had been established that the bottles bearing Wagner’s fingerprints were the ones taken from the Willcox home, there would still be insufficient evidence to convict Wagner as his fingerprints could logically be found on items found in his place of residence where three other persons lived. The only evidence linking Wagner to the burglary was that the items were recovered from the mobile home in which he, his parents and sister lived. This is clearly insufficient to sustain the convictions. See, Walton v. State, 404 So.2d 776 (Fla. 1st DCA 1981), petition for review denied, 412 So.2d 471 (Fla.1982).

Accordingly, the Order of Judgment and Sentence appealed is REVERSED and the ease is REMANDED for entry of a judgment of acquittal.

THOMPSON, J., concurs.

LARRY G. SMITH, J., specially concurring with opinion.

LARRY G. SMITH, Judge,

specially concurring.

I concur in the majority’s reversal of the conviction. However, I do not concur in that portion of the opinion dealing with the effect of Wagner’s testimony, during the defense portion of the trial, supplying factual details bolstering the state’s case in chief. Specifically, the effect of Rule 3.380, Florida Rules of Criminal Procedure, and its connection with and relation to the so-called “waiver doctrine” have not been adequately briefed or argued in this proceeding, nor sufficiently addressed in the opinion. Certain Florida cases are cited by appellant in opposition to the state’s “bootstrap” argument, e.g., Adams v. State, 102 So.2d 47 (Fla. 1st DCA 1958); Harrison v. State, 104 So.2d 391 (Fla. 1st DCA 1958); Weinshenker v. State, 223 So.2d 561 (Fla. 3rd DCA 1969); Ponsell v. State, 393 So.2d 635 (Fla. 4th DCA 1981). However, these cases do not touch upon the exact point at issue. Greene v. State, 375 So.2d 55 (Fla. 4th DCA 1979), cert. den. 388 So.2d 1118 (Fla.1980), treats the issue only in a specially concurring opinion of one judge. Most jurisdictions, including the Federal courts, have consistently followed the waiver rule, although it cannot be applied in every case. Cephus v. United States, 324 F.2d 893 (D.C. Cir.1963). See, also, United States v. White, 611 F.2d 531 (5th Cir.1980); Harris v. State, 285 F.2d 85 (5th Cir.1960); and T’Kach v. United States, 242 F.2d 937 (5th Cir.1957).


text:
    Leroy WILSON, Appellant, v. OCALA LUMBER SALES and Corporate Group Services, Inc., Appellees.
    No. AJ-425.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1982.
    Steven H. Gray and Daniel L. Hightower of Green, Simmons, Green, Hightower & Gray, P.A., Ocala, for appellant.
    Merritt C. Fore, Jr., Ocala, for appellees.
   PER CURIAM.

AFFIRMED. Acosta Hoofing Co. v. Gillyard, 402 So.2d 1321 (Fla. 1st DCA 1981).

ROBERT P. SMITH, Jr., C.J., and McCORD and MILLS, JJ., concur.


author: JOANOS, Judge.

text:
    James R. GRANDIN, Appellant, v. PAROLE AND PROBATION COMMISSION, Appellee.
    No. AL-299.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1982.

      James R. Grandin, pro se.
    John C. Courtney, Asst. Gen. Counsel, Orlando, Florida Parole and Probation Com’n, for appellee.
   JOANOS, Judge.

Appellant asserts that the Parole and Probation Commission committed several errors in assigning his presumptive parole release date. We disagree and affirm.

(1) The number of months assigned appellant exclusive of aggravating factors was within the matrix time range for his offense set forth in the rules. Adequate administrative remedies are available for rule challenges. Canter v. Florida Parole and Probation Commission, 409 So.2d 227 (Fla. 1st DCA 1982).

(2) The Commission properly aggravated appellant’s concurrent sentences pursuant to Rule 23-19.01(5), Fla.Admin.Code. Griggs v. Florida Parole and Probation Commission, 420 So.2d 367 (Fla. 1st DCA 1982); Sala v. Florida Parole and Probation Commission, 414 So.2d 263 (Fla. 1st DCA 1982); Perkins v. Florida Parole and Probation Commission, 414 So.2d 264 (Fla. 1st DCA 1982).

(3) The Commission did not err in using amended parole guidelines in effect on the date of appellant’s interview. Given the factual setting, this case is controlled directly by Lopez v. Florida Parole and Probation Commission, 410 So.2d 1354 (Fla. 1st DCA 1982).

(4) Appellant has shown no error in his evaluation using the “recidivist criminal factor” of the guidelines.

AFFIRMED.

SHAW and WIGGINTON, JJ., concur.


author: WIGGINTON, Judge.

text:
    Michael Everette BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. AM-462.
    District Court of Appeal of Florida, First District.
    Nov. 17, 1982.

      No appearance for appellee.
   WIGGINTON, Judge.

Brooks appeals from the trial court’s denial of his motion for post-conviction relief, Fla.R.Crim.P. 3.850, contending that his sentence should be corrected to include credit for time spent in county jail prior to sentencing. We disagree and affirm.

While serving a federal prison term, Brooks was removed to Escambia County to answer Florida charges. He was convicted and sentenced on the state charges and was transferred back to federal prison. Essentially, Brooks argues that Section 921.-161(1), Florida Statutes (1975) required the trial judge to give him credit for the time he spent in the Escambia County jail awaiting sentence.

Section 921.161(1) insures that a prisoner will not lose credit for time he spent in jail before sentencing. However, it does not bestow duplicate jail time credit. See generally, Miller v. State, 297 So.2d 36, 38 (Fla. 1st DCA 1974).

Here, Brooks was serving a federal sentence during his stay in county jail, and he does not assert that he will be denied jail time credit by federal authorities. Because Brooks apparently received his federal jail time credit, the trial judge below was not required to give him duplicate credit toward his Florida sentence. See Bruner v. State, 398 So.2d 1005 (Fla. 1st DCA 1981); Watson v. State, 340 So.2d 961 (Fla. 2d DCA 1976), cert. denied, 348 So.2d 955 (Fla.1977). See also, Wingfield v. Page, 422 P.2d 229 (Okl.Cr.App.1966); Southard v. State, 363 So.2d 178 (Fla. 4th DCA 1978).

Brooks additionally alleges that he lost eligibility for federal “gain time” during his Escambia County incarceration. However, we agree with the trial judge that Brooks has failed to demonstrate how this affects his state sentence. Certainly, loss of eligibility for federal gain time does not impact on Section 921.161(1).

Affirmed.

MILLS and ERVIN, JJ., concur.

      . “... the court imposing a sentence shall allow a defendant credit for all of the time he spent in the county jail before sentence.”


author: DIXON, Chief Justice. LEMMON, Justice,

text:
    LOUISIANA STATE BAR ASSOCIATION v. August J. BUBERT.
    No. 81-B-0093.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Rehearing Denied Nov. 19, 1982.
    Thomas 0. Collins, New Orleans, Sam J. D’Amico, Louisiana State Bar Ass’n, Baton Rouge, for relator.
    August J. Bubert, Metairie, John R. Martzell, New Orleans, for respondent.
   DIXON, Chief Justice.

The Louisiana State Bar Association, through its Committee on Professional Responsibility, brought this disciplinary proceeding against August J. Bubert, a member of the Louisiana Bar who has been practicing for twenty-three years. The committee conducted an investigation of the alleged misconduct on the part of the respondent, and after a hearing, in accordance with Rule XVI of this court and Article XV, § 6 of the Articles of Incorporation of the Louisiana State Bar Association, the committee was of the opinion that the respondent had violated the Code of Professional Responsibility. Specifically, the committee found that the respondent had failed to represent his client competently by neglecting a legal matter entrusted to him in violation of DR 6-101(A)(3) and DR 1-102. The committee also found that he issued a check without sufficient funds (for the payment of a malpractice settlement) and failed to make the check good, despite repeated requests, in violation of DR 1-102.

The first complaint, Specification # 2, against the respondent involves the manner in which he handled a client’s (Mr. Joseph Carruth) personal injury and workmen’s compensation claims for the loss of his left leg. The client’s accident occurred on January 6, 1973. At the time of the accident Mr. Carruth was employed by the City of New Orleans as a garbage collector. He was standing behind a garbage truck when a car behind the truck struck him from the rear. As a result of the accident Mr. Car-ruth’s left leg had to be amputated below the knee and he suffered a fractured right tibia. Thus, Mr. Carruth had both a tort claim against the driver of the car, Mr. Nick Slavich, and a workmen’s compensation claim against the City of New Orleans. Allstate Insurance Company, the liability insurer of Mr. Slavich, offered to pay its policy limits of $10,000 and tendered this offer several times, as admitted by Mr. Bu-bert. Yet, Mr. Bubert allowed the tort claim to prescribe while he was attempting to negotiate a waiver from Charity Hospital of New Orleans as to all or part of its lien for medical expenses in the amount of $2220.50, and a settlement with the City of New Orleans as to its claims on the policy for workmen’s compensation benefits. Additionally, Mr. Bubert never filed a workmen’s compensation claim on behalf of his client against the City of New Orleans, and it is now doubtful whether that claim is still viable.

Mr. Bubert has acknowledged that he neglected this case which was entrusted to him. He has also admitted that he never informed his client, Mr. Carruth, that his claim had prescribed. By means of a $30,-000 settlement, Mr. Bubert has made restitution to Mr. Carruth. Since Mr. Bubert did not at the time carry malpractice insurance, he had to pay for this settlement by the issuance of a promissory note, and has secured the payment of this note by placing a second mortgage on his family home. The $30,000 settlement figure was reached by adding $10,000, the policy limits of the tortfeasor’s insurance, and $20,000, the computed disability benefits that Mr. Car-ruth would have been entitled to under the workmen’s compensation statutes in effect at the time.

In connection with this first complaint, the committee is concerned with the client’s assertions that Mr. Bubert continued to take the client, Mr. Carruth, to Civil District Court and always gave him a reason why the case was not tried on that date. Mr. Bubert denies this, and asserts that he was taking the client to the city attorney’s office, which is in the building next to the Civil District Court in New Orleans, to discuss the City’s workmen’s compensation claim on the $10,000 insurance policy. Mr. Bubert suggests that since they often passed through the Civil District Court building on the way to the city attorney’s office, Mr. Carruth may have been confused.

The committee is likewise concerned about Mr. Carruth’s assertions that Mr. Bu-bert failed to return all of his file to him after repeated requests, and with Mr. Bu-bert’s refusal to respond to the committee’s letters requesting the return of the full file. Mr. Carruth asserts that he received only a partial file. Mr. Bubert testified that although he delayed in returning the file, he did return all of it to his former client, so that Mr. Carruth could retain counsel to pursue any claims he had. It should be noted that Mr. Carruth signed a statement when he received the file acknowledging his receipt of the file.

The second complaint, Specification # 3, involves an $800 compromise agreement from a suit filed against Mr. Bubert in March of 1979 for alleged malpractice. Mr. Bubert failed to satisfy this obligation for two years; and, finally, in September of 1981, he paid the $800 in cash to the attorney for Mr. Bubert’s former client, Mr. Sanderford. Mr. Bubert paid the attorney, Mr. Bonin, because Mr. Bubert had previously issued an $800 check which Mr. Bonin had deposited in his firm’s fund established for paying clients. From this account, Mr. Bonin issued a check to Mr. Sanderford. Mr. Bubert’s cheek was subsequently returned twice because of insufficient funds. Mr. Sanderford was unaware of the fact that the obligation had not been satisfied by Mr. Bubert until 1981. Mr. Bonin attempted to collect this amount from Mr. Bubert on several occasions and wrote several letters to him demanding payment, and he eventually contacted the committee and informed them of this matter. The committee found that Mr. Bubert was in violation of DR 1-102 because of the delay in paying Bonin and because of his mishandling of this affair.

Mr. Bubert’s reasons for the delay involve his poor health condition and his personal and financial problems. Mr. Bubert has suffered three heart attacks, and this reversal in his health understandably has adversely affected both his ability to practice law and his financial resources. Additionally, Mr. Bubert attributes the lengthy delay to the fact that he was under the mistaken impression that his associates had paid the $800 obligation.

The committee sent Mr. Bubert several letters pertaining to these complaints, but he did not respond. Yet, when the committee subpoenaed him he did respond and appear, and has since cooperated with the committee. It should be noted that Mr. Bubert has acted to rectify the situations which he created and has verbally expressed to the committee and this court his remorse for his shortcomings as an attorney.

On May 14, 1980 the committee held a formal investigatory hearing and after the hearing petitioned this court for the appointment of a commissioner. Stewart E. Niles, Jr. was appointed as commissioner to hold a hearing and to report to this court. The commissioner held the hearing on September 25,1981; respondent was represented by Mr. John R. Martzell. The commissioner and the committee found that the respondent had violated DR 1-102 and DR 6-101(A)(3), and recommended that Mr. Bu-bert be suspended from the practice of law for one year.

The purpose of lawyer disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain appropriate standards of professional conduct in order to safeguard the public, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the Code of Professional Responsibility. Louisiana State Bar Association v. Causey, 398 So.2d 88, 92-93 (La.1980). See Louisiana State Bar Association v. Quaid, 368 So.2d 1043 (La.1979); Louisiana State Bar Association v. Bensabat, 378 So.2d 380 (La.1979); Louisiana State Bar Association v. Jacques, 260 La. 803, 257 So.2d 413 (1972); Louisiana State Bar Association v. Ruiz, 261 La. 409, 259 So.2d 895 (1972). The discipline to be imposed will depend upon the seriousness of the offense involved and the facts and circumstances peculiar to each case. These will be examined in light of the purpose of lawyer discipline, and the court will take into account both aggravating and mitigating circumstances. Louisiana State Bar Association v. Causey, supra; Louisiana State Bar Association v. Bensa-bat, supra.

Mr. Bubert has formally admitted his negligence and poor handling of these two matters to the committee and to this court. It does not appear that the respondent previously has been charged with unprofessional conduct. It is recognized that Mr. Bu-bert is currently suffering severe physical, personal and career distress. Further, the humiliation and embarrassment which the respondent has suffered are themselves a severe penalty. However, “[Procrastination and inattention can have effects upon the client that are just as disastrous as if dishonesty were involved.... ” Louisiana State Bar Association v. Causey, supra at 93. See State of Florida ex rel. The Florida Bar v. Graves, 153 So.2d 297 (Fla.1963).

We agree with the commissioner and the Committee on Professional Responsibility that the respondent, August J. Bubert, violated DR 1-102 and DR 6-101(A)(3) of the Code of Professional Responsibility. The commissioner and the committee have taken the respondent’s recent difficulties into consideration in recommending that he be suspended from the practice of law for a period of one year. Allowing a client’s claim to prescribe is a serious act which demonstrates a flagrant violation of the trust a client has placed in his lawyer. Thus, a penalty which will deter other lawyers from similar breaches of the conduct demanded by the Code of Professional Responsibility should be imposed.

For these reasons, the recommendation of suspension from the practice of law for one year is approved.

It is therefore ordered that August J. Bubert, respondent herein, be suspended from the practice of law in the State of Louisiana for the period of one year, and be cast with the costs of these proceedings.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

I concur in imposing a one-year suspension, because respondent failed to make an immediate and full disclosure to his client that he had let the claims prescribe. The only apparent reason for not doing so was to “cover up” the negligence in the hope that the client would not pursue a malpractice claim.

      . “(A) A lawyer shall not:
      (1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.
      (2) Handle a legal matter without preparation adequate in the circumstances.
      (3) Neglect a legal matter entrusted to him.” DR 6-101.

      . “(A) A lawyer shall not:
      (1)Violate a Disciplinary Rule.
      (2) Circumvent a Disciplinary Rule through actions of another.
      (3) Engage in illegal conduct involving moral turpitude.
      (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
      (5) Engage in conduct that is prejudicial to the administration of justice.
      (6) Engage in any other conduct that adversely reflects on his fitness to practice law.” DR 1-102.

      . Mr. Carruth received $49.00 a week in workmen’s compensation benefits after the accident until he returned to work for the City of New Orleans as a night watchman in the Sanitation Department's yard at his previous salary. He later resigned from his job with the City and now works for Delgado College as a janitor at a lesser salary. See R.S. 23:1209 (1964 and Supp.1981).

      . Mr. Dittman, the present attorney for Mr. Carruth, testified that he investigated Mr. Sla-vich’s (the tortfeasor) financial condition and discovered that he had a lot of debts and very few, if any, assets. Therefore, the only thing that he felt Mr. Carruth could recover for his tort claim was the insurer’s policy limit of $10,-000.

      . Mr. Bubert testified that he did not know that the $800 had not been satisfied by his associates until a week before the commissioner’s hearing, when he called his associates for a copy of the canceled check. Once he learned that it had not been paid he immediately called Mr. Bonin and asked him to come to his home as Mr. Bubert did not feel well. When Mr. Bonin went to Mr. Bubert’s home, Mr. Bubert paid him the $800 in cash, and mentioned that he felt obliged to pay Mr. Bonin interest.

      . In recognizing this same distinction, the Florida Supreme Court in State of Florida ex rel. The Florida Bar v. Graves, 153 So.2d 297, 298 (1963), stated:
      “We have reviewed the record thoroughly and we find no showing of moral turpitude or corrupt motive. We do find that respondent procrastinated, was careless and inattentive to his duty; he neglected to keep his client informed as to the state of his business and that he grossly neglected his trusteeship and sense of responsibility to his client.
      Such neglect of duty is annoying and very disappointing to a client but certainly it should not be classed as corrupt and deserving of the degree of condemnation as acts involving moral turpitude. There is no statute that measures the punishment for such offenses. They are governed and punished by rules of the profession but in the application of them, the court is controlled by mercy and discretion and such other factors as the circumstances of the case warrant. No more serious responsibility confronts this court than a challenge to the professional conduct of an attorney. As we have said before, our answer must be just to the public, must be designated to deter others from engaging in like tendencies; it must be fair to respondent and aim at correcting any antisocial tendencies on his part; then the paramount duty in the whole affair is the court’s duty to society.”


author:
CALOGERO, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Gerald PARKER.
    No. 81-KA-1103.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Rehearing Denied Nov. 19, 1982.

      Dennis, J., filed concurring opinion.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Sheila Myers, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Numa Bertel, Dwight Doskey, Orleans Indigent Defender Program, John L. Carroll, Stephen J. Ellmann, Montgomery, Bel-hia V. Martin, New Orleans, for defendant-appellant.
   CALOGERO, Justice.

Gerald Parker appeals his conviction on two counts of second degree murder and his concurrent sentences of life imprisonment, without eligibility for parole, probation, or suspension of sentence for a period of forty years. He was indicted by an Orleans Parish Grand Jury on November 18, 1976, on two counts of first degree murder in connection with an armed robbery of the New Orleans Popeye’s Fried Chicken, Inc., outlet No. 21. At his first trial by jury, Gerald Parker was found guilty of first degree murder and sentenced to death. On appeal this Court reversed that verdict because the jury which tried the case had not been sequestered as required by law. State v. Parker, 372 So.2d 1037 (La.1979). The jury at the defendant’s second trial was unable to reach a verdict. Parker appeals the conviction and sentence rendered at the conclusion of his third trial on the basis of six assignments of error, only the first three of which will be treated in the body of this opinion. The others involve no significant points of law, and are governed by clearly applicable legal principles. They are discussed in an appendix attached to this opinion which remains a public record of this Court but which will not be published in the Southern Reporter.

Upon review, we find that none of these assignments of error have merit, and affirm the defendant’s conviction and sentence accordingly.

The facts which gave rise to Parker’s indictment were as follow. Popeye’s Fried Chicken, Inc., outlet No. 21, was robbed sometime between 7:55 and 8:05 A.M. the morning of October 1, 1976. Two employees, Leathea Woodward and Joseph Morgan, were forced to kneel on the floor of a large walk-in cooler, whereupon both were shot in the head and killed. Approximately six hundred dollars and a metal safe drawer were missing from the store, none of which were recovered. Some cash was found scattered on the floor around the safe and another metal safe drawer was still in the safe itself. Additionally three spent .38 caliber pellets were retrieved, one from each of the victim’s bodies and a third from the cooler wall.

Seventeen days later, a Winn Dixie Supermarket in Donaldsonville, Louisiana was robbed by three black males, in the course of which the employees were made to kneel in a walk-in cooler while the perpetrators escaped. Once alerted, the police chased a car with three black males speeding south through Raceland. The car crashed in a roadside ditch but the men had left the scene before the pursuing officers were able to confront them. Both the defendant and his cousin Frazier Parker were arrested separately shortly thereafter in the vicinity of the accident. The officers found in the car a .38 caliber pistol, and later determined that the car belonged to the defendant Gerald Parker.

Subsequent police investigation showed that the .38 revolver found in the defendant’s car on October 18, 1976 in Raceland, Louisiana was the same .38 revolver used in the October 1, 1976 robbery/murder at Popeye’s in New Orleans. Investigation also determined that the defendant’s right thumbprint matched one on the metal drawer found in the safe at Popeye’s No. 21. Furthermore a search with a warrant, of Frazier Parker’s New Orleans apartment, uncovered coin rollers and bank deposit slips bearing the account number of the Popeye’s franchise.

Following this Court’s reversal of the first guilty verdict, the defendant Gerald Parker asserted an alibi defense in his second and third trials, the latter of which forms the basis for his first assignment of error in this appeal.

ASSIGNMENT OF ERROR NUMBER ONE

By this assignment of error, defendant contends that the trial court erred in allowing the state to present evidence to rebut defendant’s alibi defense in violation of (1) the discovery notice provisions, (2) the hearsay rule, and (3) the trial court’s sequestration order. He argues that the state’s presentation of this rebuttal evidence should have been grounds for a mistrial.

Before the second trial, the defense filed an Answer to the State’s Demand for Notice of Alibi which said in pertinent part:

The defendant, during the relevant time period was either at or en route to the following locations within the Parish of Orleans: 1015 Valence Street; Wah’s Cleaners, 4539 Freret Street; Cadiz Street Grocery, 2836 Cadiz; Golden Day Nursery, 4322 S. Derbigny St. The defendant intends to rely on the following witnesses to establish his alibi: Rosi[e] Scott [Parker], James Griffin, Joe Wah, Cameria Collins, Bruce Larkin [Addresses of witnesses omitted].

Apparently the state gave no notice of any witnesses it planned to call to rebut defendant’s alibi witnesses in the second trial; nor did the state call any. That trial ended with a hung jury.

During a June 3,1980, hearing before the third trial with which we are here concerned, the defense counsel informed the trial court and the state that its notice of alibi remained the same and requested that it be made part of the record for that purpose. After the defense presented its case, which included testimony of Gerald Parker and Rosie Scott Parker, defendant’s common law wife, the state called in rebuttal Officers Hahn, Falcon and Woodall, and one James Bowles, the former employer of Rosie Scott Parker.

The testimony of Hahn, Falcon and Woo-dall disputed Parker’s explanation of how his thumbprint came to be on the metal safe drawer. Bowles’ testimony contradicted the earlier testimony of both Rosie and Gerald Parker that the defendant had dropped her off at work around 8:00 A.M. on the morning of October 1, 1976. [As noted, the Popeye’s murders occurred between 7:55 and 8:05 A.M.] James Bowles, the manager of the Bun and Biscuit Restaurant, 308 St. Charles Avenue, testified and brought with him a time card allegedly completed by Rosie Scott Parker which indicated that she had signed in for work on the morning of October 1,1976 at 9:00 A.M. At the close of Bowles’ testimony and out of the presence of the jury, defense counsel moved for a mistrial arguing that the state had violated the discovery provisions by neglecting to notify them of witnesses it would call to rebut Parker’s alibi defense. The trial judge denied the motion on the ground that the Bun and Biscuit had not been listed as one of the locations on which the defense would rely to establish Parker’s alibi. Instead the trial judge determined that the reference to the Bun and Biscuit was contemporaneously added during defense testimony and therefore was subject to rebuttal by the prosecution. The trial judge, however, granted a recess so that the defense could examine Bowles’ records and interview Bowles himself outside the presence of the jury regarding the manner in which the records were compiled. The trial judge also offered to allow defense questioning of Rosie Parker outside the presence of the jury, but the offer was refused.

La.C.Cr.P. art 727 states that upon written demand, a defendant must notify the state of his intention to assert an alibi defense. The article requires that the defendant specify his location(s) at the time of the alleged offense and those witnesses on whom he will rely to establish this defense. Reciprocally the discovery article requires the state to tender in writing to the defense, the names of those witnesses who will place the defendant at the scene of the offense and which will rebut the testimony of the defendant’s alibi witnesses. The initial burden of notification is on the defense if so requested by the district attorney, which then gives rise to a reciprocal burden on the state.

Rosie Scott Parker was listed as an alibi witness in the defendant’s answer to the state’s demand for notice of alibi. Admittedly Bowles’ testimony was presented in rebuttal to Rosie’s testimony (and that of the defendant) concerning the time of her arrival at work on October 1, 1976. However, the question becomes whether this testimony was part of Gerald Parker’s stated alibi defense. We find, as did the trial judge, that it was not.

The perimeters of that alibi defense were drawn initially by the defendant Gerald Parker in his answer to the state’s demand for alibi notice. Those witnesses that need to be revealed in turn by the state in response to the defendant Parker’s notice of alibi are those on which the prosecution will rely to rebut the alibi witnesses’ testimony regarding the defendant Parker’s presence at any of the specified locations. Bowles’ testimony did not rebut Rosie Scott Parker’s testimony concerning the presence of the defendant at 1015 Valence Street; nor at Wah’s Cleaners, 4539 Freret Street; nor at Cadiz Street Grocery, 2836 Cadiz; nor at Golden Day Nursery, 4322 S. Derbigny.

The defendant argues that the phrase “either at or en route to” four designated locations (other than his wife’s place of employment) incorporates his dropping his wife off at her place of employment as part of his alibi defense even though no mention of the Bun and Biscuit, (300 block of St. Charles Avenue) was made in his answer to the state. The discovery article requires specificity. “En route to” is too vague and ill defined to satisfy the specificity requirements of La.C.Cr.P. art. 727. Furthermore, for a journey encompassing each of the four recited locations, the Bun and Biscuit is about thirty blocks out of the way.

The defense argues further that the state was aware of Rosie Scott Parker’s testimony concerning Parker’s driving her to work the morning of the incident since she and Parker had so testified at the earlier trial. Therefore, any witness called by the state to rebut similar testimony given at the later trial would be subject to the same notice requirements as those called to rebut defendant’s presence at any of the locations specified in the written notice. There are several flaws in such an argument. In the first place, this places discovery on a subjective rather than an objective basis. The state’s reciprocal responsibility would be triggered not by the defendant’s written answer as is specifically set forth in La.C. Cr.P. art. 727, but by the state’s perception of what defense testimony is likely to be. Secondly, to allow testimony at former trials to be used to augment defendant’s alibi defense without official notification to the state is to render meaningless the specificity requirement of La.C.Cr.P. art. 727 in all cases where the defendant is afforded a later trial. There is no indication in the language or history of La.C.Cr.P. art. 727, nor its federal counterpart, Rule 12.1, to indicate that the specific notice requirement should apply only to a defendant’s first trial. Finally, there is no guarantee that the testimony of a witness at one trial will be the same as that of the same witness at a subsequent trial. Indeed on another matter [the time she and Gerald Parker awoke on October 1, 1976], Rosie Scott Parker expressly denied a statement she had made earlier, even when faced with a copy of her prior testimony. Relative to this point, defense counsel himself asked the defendant during the third trial: “In a previous hearing in this case, you were asked to give a recitation of your whereabouts that particular day. Did you go into as much detail as you have gone into today?” to which Gerald Parker responded, “No sir. I did not.”

The purpose of the discovery articles is to eliminate unwarranted prejudice which could arise from surprise testimony. State v. Toomer, 395 So.2d 1320 (La.1981). No unwarranted prejudice resulted from Bowles’ testimony. Even were we to decide (which we do not) that the state was under an obligation to inform the defense of its intention to call Bowles as a witness, La.C. Cr.P. art. 729.5 leaves the remedy for violations of the discovery provisions to the discretion of the trial judge. La.C.Cr.P. art. 727(D), and its counterpart, Fed.Rule Cr. Proc. 12.1(d), allows but does not require the exclusion of the testimony of any undisclosed witness offered by a party as to the defendant’s absence from or presence at, the scene of the alleged offense.

Concerning the state rebuttal to defendant’s alibi defense in violation of the hearsay rule, the complaint is to the admission of Rosie Parker’s time card for the day in question, October 1, 1976. It reflected her arrival at the Bun and Biscuit at 9:00 A.M., a full hour after the time of the alleged offense. The defense contends that the time card is hearsay evidence whose admission is not justified under the principles approved by this Court in State v. Pernicia-ro, 374 So.2d 1244 (La.1979) concerning the business record exception. This complaint may or may not have merit. The question, however, is essentially irrelevant to our consideration because the defense made no objection to the testimony of James Bowles, nor did the defense counsel object when the state offered the time cards into evidence. It was only at the conclusion of the direct examination of James Bowles at a time when the jury was not present in the courtroom that the defense asserted any objection. The information from the time card had already been given to the jury in James Bowles’ oral testimony without objection. The admission of the records themselves, therefore, did not prejudice defendant’s rights. State v. Foote, 379 So.2d 1058 (La.1980).

Finally the defendant’s complaint that Bowles’ testimony should have been excluded by the trial judge because the sequestration order was violated is without merit. Not every violation of the sequestration order must result in the exclusion of the witness’ testimony. State v. Lewis, 367 So.2d 1155 (La.1979). The purpose of sequestration is to assure that a witness will testify as to his own knowledge. Absent any evidence that the testimony was tainted by the violation of the sequestration order, the trial judge may properly rule that the testimony should not be precluded. State v. Edsall, 385 So.2d 207 (La.1980). Bowles testified that he heard the prosecutor cross-examining the defendant but heard none of the defendant’s testimony on direct examination. He further testified that he heard approximately fifteen minutes of questioning concerning the time defendant arrived at the Bun and Biscuit but had not known the reason the cards were important in the trial until he arrived at court. There is no evidence that Bowles’ testimony was tainted by the sequestration violation. He testified only to the time cards in his possession, not regarding his personal knowledge of the case. Such a violation of the sequestration rule does not require an exclusion of his testimony. State v. Edsall, supra; State v. Boutte, 384 So.2d 773 (La.1980).

The testimony of James Bowles was properly admitted.

ASSIGNMENT OF ERROR NO. 2

By this assignment defendant contends that the trial court erred in admitting evidence concerning defendant’s alleged flight and in permitting the prosecutor to suggest the commission of other crimes. Of particular concern is the testimony at trial by two state troopers about the auto chase, the auto accident, defendant’s later apprehension in Raceland and the discovery of the gun in the defendant’s vehicle, all on October 18,1976. Although defense counsel did not object contemporaneously to the testimony of the two officers, the defendant filed prior to trial a “Motion to Exclude Evidence Concerning Defendant’s Arrest in Raceland and the events leading up to it”, the court’s denial of which is sufficient to preserve this issue for review. La.C.Cr.P. 841.

The trial judge, in response to a defense motion, barred the state from questioning witnesses about the Donaldsonville armed robbery. The trial judge did allow the state, through police officer testimony, to put before the jury the sequence of events which began with the pursuit of Parker’s Toyota and culminated in his arrest in Raceland and the discovery of the alleged murder weapon in bis car. The trial judge allowed this testimony to be presented at trial, notwithstanding a defense offer to stipulate that the incriminating gun was indeed found in Parker’s car in Raceland.

The evidence that was admitted was relevant to show the jury how the defendant was associated with the .38 revolver allegedly used two weeks earlier in the Popeye’s robbery/murder. The state has the burden to prove its case and can do so by presenting its evidence in court to a jury, despite the defendant’s offer to stipulate.

The trial judge correctly barred any testimony about the Donaldsonville armed robbery. That independent criminal activity was not relevant to any issue in the case at bar. The evidence of misdemeanor traffic violations was hardly evidence of other crimes of any significance and did not portray him prejudicially as a “bad man” capable of murder.

Proof of flight from the car containing the .38 revolver connected defendant with the murder weapon. Flight as an expression of guilt only became pertinent in this trial when the defense raised this spectre and protested the use of the Raceland incident at all. It was only in response to the defense motion that the judge was prompted to consider the limits of the flight/guilt rule approved by this Court in State v. Lee, 381 So.2d 792 (La.1980). The trial judge, in deference to defense request, did agree to admonish the jury in accordance with the Lee safeguards:

. .. [bjefore a jury can consider flight, it must believe that the Defendant was fleeing as a result of the commission of the crime for which the Defendant is on trial. Otherwise, it would not indicate a guilty notice, or they are not to infer such a motive as a result of the Defendant’s actions.

This instruction was appropriate. The jury was properly told to consider flight as evidence of guilt only if they believed the men were fleeing the scene of the automobile accident because they had committed the crime for which they were on trial. The instruction probably would have been unnecessary had the defendant not urged a limitation upon the evidence which he viewed as suggesting the possibility of flight because of guilt. Nonetheless, the jury was properly advised in any event and there was no error in what was presented to it for its consideration.'

For the aforesaid reasons, this assignment lacks merit.

ASSIGNMENT OF ERROR NO. 3

By this assignment defendant contends that the trial court erred in denying his motion to suppress items of evidence seized: (1) under a defective warrant for a co-defendant’s house; (2) from defendant after an illegal arrest; and (3) from defendant’s car after an illegal arrest.

The search warrant, which is the subject of this assignment of error, was issued on November 9, 1976, for Frazier Parker’s residence. Upon executing the search warrant, New Orleans Police Officers seized a bank bag and deposit slips marked with Popeye’s Store Number 21. This evidence was admitted at trial.

Defendant argues the affidavit fails to establish probable cause for the issuance of the search warrant. He further argues that nowhere in the affidavit does the affi-ant state that the items listed in the application were taken from the Popeye’s Restaurant or that the items would likely be found in the place sought to be searched.

Defendant’s argument is without merit. The affidavit recited that defendant, his cousin Frazier Parker, and Henry Walker committed an armed robbery at the Winn Dixie Supermarket located in Donaldson-ville, Louisiana, and another establishment, using the same mode of operation as was used in the Popeye’s killing. The affidavit said further that the gun found in defendant’s vehicle was determined to be the same gun that fired the pellets taken from the Popeye’s victims and the wall of the Popeye’s Restaurant. It also said Frazier Parker had informed the affiant that his (Parker’s) residence had been used in the division of money taken during the robberies and that further such use of the residence was contemplated. These assertions establish probable cause to believe that items of evidence from the Popeye’s robbery would be found at Frazier’s residence. Thus, the trial court did not err in denying defendant’s motion to suppress.

His second and third contentions in this assignment are that his arrest (on October 18th in Raceland) was not based on probable cause and that the search of his vehicle and subsequent seizure of evidence therein was unconstitutional.

A review of the record reveals that the police officers in Raceland had ample grounds to stop the defendant’s vehicle, and had probable cause to arrest Gerald Parker. Upon receiving a description of the alleged robbers of the Donaldsonville Winn Dixie, their vehicle, and the direction of their escape, Trooper Price told Trooper Brown that he had just issued a speeding citation to the driver of the vehicle in question (a silver or grey Toyota) who was accompanied by two other black males. The car was headed in Trooper Brown’s direction (south towards Raceland, away from the scene of the robbery). A short while later, such a vehicle occupied by three black men passed Trooper Brown. When he sought to have the car pull over, the driver of the Toyota accelerated over the downtown speed limit of 25 mph, moved onto the shoulder of the highway, ignored at least one traffic light and sped through Raceland until crashing to a stop in a roadside ditch. At that point, the men ran from the car, two through a cane field and over a fence. A private citizen had seen the third man, as yet unidentified, going into the hardware store in the vicinity. Gerald Parker was approached by the officers at the hardware store. The officer was thus justified in arresting Gerald Parker without a warrant, especially in light of the defendant’s unsolicited statement upon being approached by police that “they made [him] do it.” State v. Stewart, 357 So.2d 1111 (La.1978). Thus there is no merit to defendant’s assertion that the motion to suppress should have been sustained because it followed an illegal arrest. The arrest of Gerald Parker was legal.

With respect to the defendant’s contention that the motion to suppress should have been granted because of the subsequent warrantless search of defendant’s automobile, such a search is permissible if it fits under one of the exceptions to the warrant requirement. In this case, exigent circumstances clearly existed.

In State v. Guzman, 362 So.2d 744 at 748 (La.1978), this Court assessed the United States Supreme Court decisions concerning this exception to the warrant requirement.

The cases set out two conditions that must be satisfied before a warrantless search of a movable vehicle is authorized: (1) there must be probable cause to believe that the vehicle contained contraband or evidence of a crime; and (2) there must be “exigent circumstances” requiring an immediate warrantless search, i.e., the impracticability of obtaining a warrant due to the possibility that the car could be moved either by its occupants, if not arrested, or by someone else. An immediate warrantless search is, therefore, constitutionally permissible when “the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.”

In the instant case circumstances surrounding the entire incident suggest an exigency to search without a warrant. The car was left with at least one door open; the keys were in the ignition; two former occupants of the car were still at large and a crowd had begun to congregate at the scene. Furthermore, the occupants having run from the car in the ditch with the door open, coupled with the officer’s having probable cause to believe those running had recently robbed a bank, would strongly suggest to the officers that the automobile’s former occupants had no expectation of privacy in the vehicle but rather that they had abandoned the vehicle and disassociated themselves from it. The officers were justified in conducting an on-the-scene search of the vehicle and seizing the evidence taken from the robberies. See State v. Edsall, supra.

This third assignment of error lacks merit. The trial court did not err in denying defendant’s motion to suppress.

Decree

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

AFFIRMED.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

I continue to disagree with the majority’s view that the Swain rule is the exclusive constitutional safeguard against official racial discrimination in jury selection.

The Louisiana Constitution provides greater protection from race-based discrimination than does the dubious rationale of Swain. See La. Const, art. I § 3; State v. Perry, (Dennis, J., dissenting) (1982); State v. Eames, 365 So.2d 1361, 1364 (La.1978) (Dennis, J., concurring). In Louisiana, a showing of long-standing, systematic discrimination should not be needed to raise an inference of racial discrimination. Har-grave, Developments in the Law — Louisiana Constitutional Law, 41 La.L.Rev. 528, 533 (1981). When a defendant proves a de facto exclusion of blacks in his single case, then the burden of proof falls upon the state to show that the exclusion was not based on race. Id. State v. Fames, supra, (Dennis, J., concurring).

However, in this case, a hearing was held by the trial judge and the evidence warrants his finding that the state’s peremptory challenges were not exercised on the basis of race.

Therefore, I respectfully concur.

       Judges William H, Byrnes, III and David R.M. Williams of the Court of Appeal, Fourth Circuit and Judge Thomas C. Wicker, Jr. of the Twenty-Fourth Judicial District Court, participated in this decision as associates justices ad hoc, joined by Chief Justice John A. Dixon Jr. and Associate Justices Pascal F. Calogero, Jr., James L. Dennis, and Jack C. Watson.

      . Defense counsel filed with this Court thirty nine assignments of error, some of which were not briefed or argued. Those assignments not briefed or argued are deemed abandoned. State v. Gibson, 359 So.2d 147 (La.1978); State v. Mallett, 357 So.2d 1105 (La.1978); State v. Lewis, 351 So.2d 1193 (La.1977); State v. Collins, 350 So.2d 590 (La.1977); State v. Jones, 340 So.2d 563 (La.1976).

      . Frazier and Gerald Parker were jointly charged by grand jury indictment with two counts of first degree murder in violation of La.R.S. 14:30. Frazier Parker successfully moved for a severance, after which the case against him was dismissed for lack of evidence.

      . It was during this time that the defense moved that Bowles’ testimony be excluded because the time cards violated the hearsay rule and because Bowles had been present in the courtroom briefly while Gerald Parker was on the witness stand. Both were denied by the trial judge, the validity of which will be treated later in this opinion.

      . As noted in State v. Bias, 393 So.2d 677 (La.1981), La.C.Cr.P. 727 is identical to Federal Rule of Criminal Procedure 12.1. The rule as originally proposed by the United States Supreme Court would have required that the government only inform the defendant of those witnesses on whom it intended to rely to place the defendant at the scene of the crime. The Committee expanded the prosecution’s obligation to inform the defense, with the conjunctive requirement that the prosecution turn over the names of those witnesses to be called in rebuttal to the defendant’s alibi witnesses. See, 18 U.S.C.A. Fed.Rules Cr.Proc. rule 12.1.

      . In State v. Bias, 393 So.2d 677 (La.1981), this Court adopted as factors to be considered in determining whether the trial court properly exercised its discretionary power under this article, those enumerated in United States v. Myers, 550 F.2d 1036 (5th Cir.1977). As they appear in Bias, supra at 778-79, the factors are:
      [A] district court should consider (1) the amount of prejudice that resulted from the failure to disclose, (2) the reason for nondisclosure, (3) the extent to which the harm caused by nondisclosure was mitigated by subsequent events, (4) the weight of the properly admitted evidence supporting the defendant’s guilt, and (5) other relevant factors rising out of the circumstances of the case. Cf., Advisory Committee Notes on rule 16 of the Proposed Rules of Criminal Procedure, 39 FRD 69, 178 (1966). (footnote omitted).

      . In Perniciaro, 374 So.2d at 1247, we reaffirmed our statement in State v. Monroe, 345 So.2d 1185 at 1190 (La.1977) to the effect that
      [b]efore the exception may be invoked by the State against the defendant, allowing introduction of a permanent record made in the ordinary course of business from personal knowledge of the facts recorded, or from information furnished by one having a business duty to observe and report the facts, it must be shown that the person who made the record is genuinely unavailable for testimony, that he had no strong motive to misrepresent, and that in all probability the evidence is trustworthy.


author:
WATSON, Justice.
     LEMMON, Justice, CALOGERO, Justice,

text:
    STATE of Louisiana v. Daryl Wayne ROBERTSON.
    No. 81-KA-2739.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Concurring Opinion Nov. 9, 1982.
    Rehearing Denied Nov. 19, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Warren Hebert, Asst. Dist. Attys., for plaintiff-appel-lee.
    Merrily T. Longacre and Janice S. Clark, Bush & Marabella, Baton Rouge, for defendant-appellant.
   WATSON, Justice.

Defendant, Daryl Wayne Robertson, was convicted of aggravated rape by a ten to two jury verdict and sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. LSA-R.S. 14:42. Defendant has appealed his conviction, arguing nine of twenty assignments of error.

FACTS

About midnight, on August 1, 1978, two men knocked at the front door of the victim’s house on Evergreen Street in Baton Rouge and asked for a person who did not live there. They left. About 4:00 A.M., two men wearing bandanna masks and baseball caps entered the victim’s unlighted bedroom with a gun and held it to her temple. They had come through an unlocked back door. Both men raped the victim. After leaving the bedroom, they returned to look for a missing cigarette lighter but could not find it. A Bic cigarette lighter was later found under the sheets. Tests of the seminal fluid showed one of the rapist to be a secretor with Type 0 blood. This blood type is common to forty-five percent of the population; eighty percent are secretors.

Robertson was arrested about 9:30 P.M. January 22, 1980, on an unrelated charge. A gun was seized from his automobile. He told arresting officer Reed he had participated in a rape on Evergreen Street. Since Reed did not handle rape cases, he notified the sex crimes division of the department. About 11:00 A.M. the next day, officer O’Brien and detective Laird interviewed Robertson. He signed a waiver of his rights, repeated his oral confession and mentioned losing his cigarette lighter. The victim could not identify Robertson in a lineup and selected another man. At trial, Robertson’s gun was held to the victim’s temple, and she said it felt like and “[c]ould have been” (Tr. 126) the one used by her assailants. Robertson is a secretor with Type 0 blood and has one year of college education.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court erred in not suppressing his confession.

Donald Hollis, a career criminal in Robertson’s cell, testified that Robertson was bruised in the solar plexis area after his questioning by O’Brien and Laird and asked for medical help, which he did not receive. There were approximately twenty other men in the cell. According to Robertson, the officers pistol whipped him. O’Brien and Laird said no threats, coercion, or physical force were used in the brief interrogation.

It is argued that Laird and O’Brien contradicted each other and did not give consistent testimony at the suppression hearing. Also, it is contended that O’Brien’s testimony differed between the suppression hearing and trial. Laird and O’Brien were inconsistent about some details of the interrogation. This probably resulted from lapse of time; the arrest was on January 22,1980, and the hearing on March 10,1981. The discrepancies were not critical.

Defendant made a knowledgeable waiver of his rights. Although the testimony of Hollis and Robertson conflicted with that of the two officers, the trial court found the latter more credible. Determination of credibility is a function of the trier of fact. State v. Dewey, 408 So.2d 1255 (La., 1982). The testimony of O’Brien and Laird was corroborated at trial by officer Reed. Robertson denied confessing to Reed but admitted that Reed had not used any force against him.

The trial court did not err in concluding that the State proved beyond a reasonable doubt that Robertson’s oral confession was free and voluntary.

This assignment lacks merit.

ASSIGNMENTS OF ERROR NUMBER THREE, FOUR AND THIRTEEN

Defendant contends that the trial court erred in admitting defendant’s handgun into evidence and allowing a demonstration of the gun at the victim’s temple.

Robertson had a handgun which felt to the victim like the one used for the rape. Possession of the gun, which was demonstrated by its introduction into evidence, tended slightly to increase the likelihood of Robertson’s guilt. It was therefore relevant evidence. LSA-R.S. 15:441. Many people own handguns just as many people have Type 0 blood. However, both factors are compatible with defendant’s guilt and the jury had a right to consider the evidence. Robertson’s gun could have been the crime weapon. Compare State v. Manieri, 378 So.2d 931 (La., 1980) and State v. Landry, 388 So.2d 699 (La., 1980). The pistol was taken from Robertson’s car and was connected with him. Compare State v. Davis, 336 So.2d 805 (La., 1976). The gun could not be positively identified as the one used in the crime, which is probably the case in many handgun crimes. The issue of identification goes to the weight of the evidence rather than to admissibility of the weapon. The connexity is a factual matter for consideration by the jury. The trial court did not abuse its discretion in deciding that the possession and availability of a handgun had probative value.

These assignments lack merit.

ASSIGNMENTS OF ERROR NUMBER TWELVE AND FOURTEEN

Defendant contends that the verbal confession to officer Reed was not free and voluntary and Reed’s testimony had impermissible references to other crimes. LSA-C.Cr.P. art. 770(2).

Although defendant claimed that he did not make a statement to Reed, Reed’s contrary testimony was corroborated by O’Brien and Laird. Reed’s testimony that Robertson’s confession was free and voluntary is uncontradicted.

On redirect, Reed testified that his department handles burglaries, robberies and street crimes, but not rapes. The evidence explained to the jury why Reed did not prepare a written report about his interrogation. It was not intended to infer that Robertson was a burglar. “Unless the inference is plain that the prosecutor commented on other crimes committed by the defendant, Art. 770 is inapplicable.” State v. Curry, 390 So.2d 506 at 509 (La., 1980).

These assignments lack merit.

ASSIGNMENTS OF ERROR NUMBER TEN AND FIFTEEN

Defendant contends that the trial court erred in allowing the cigarette lighter to be introduced in evidence. However, there was no contemporaneous objection. State v. Duncan, 390 So.2d 859 (La., 1980).

Defendant also objects to a leading question intended to elicit testimony from O’Brien about defendant leaving his cigarette lighter at the scene. Although the question was leading and admittedly reminded O’Brien about the lighter, the same information could have been elicited by proper questioning. Defendant was not prejudiced.

These assignments lack merit.

ASSIGNMENT OF ERROR NUMBER TWENTY

Defendant contends that a black and white photograph of him taken approximately two weeks after the rape should not have been admitted into evidence.

The photograph was used in rebuttal to show that defendant’s appearance altered between the rape and the lineup. It was intended to explain why the victim failed to identify defendant. The photograph had no identifying features and was introduced by a policeman in plain clothes. It was properly admitted in evidence.

This assignment of error lacks merit.

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

AFFIRMED.

LEMMON, J., concurs and assigns reasons.

AUGUSTINE, J., dissents.

CALOGERO, J., dissents and assigns reasons.

LEMMON, Justice,

concurring.

The most difficult issue is the admissibility of the pistol which was found in defendant’s automobile at the time of his arrest one year after the crime, but which was not shown to be the pistol used in the crime for which defendant was being tried. Defendant objected to the introduction on the ground that the evidence was irrelevant to this case.

When the relevancy of evidence is challenged, the trial judge is accorded wide discretion, and the determination of admissibility involves balancing the probative effect of the evidence against its potential tendency to mislead the factfinder. See State v. Giles, 253 La. 533, 218 So.2d 585 (La.1969); Fed.R.Evid. 401, 403. In this instance, the evidence of defendant’s possession of a pistol months after the crime in question was barely relevant to the issue of defendant’s guilt. The evidence had almost no tendency to establish the fact that defendant had committed the charged offense. Thus, I agree with defendant that the trial court should not have admitted the evidence.

Nevertheless, I cannot conclude that the jury in this case was misled or that the evidence’s potential for prejudice so outweighed its probative effect (however slight) as to warrant reversing the conviction. In my view, the impact on the jury was very close to “neutral”, particularly since the prosecutor frankly admitted in closing argument that the state had no idea whether this pistol was the weapon used during the rape. Moreover, the prosecutor did not suggest that defendant had a bad character because he possessed a pistol in his automobile (which is not itself a crime, unless the possessor is a convicted felon).

The principal factual issue in this case (in which defendant’s confession was the only solid evidence linking defendant to the crime) was the credibility of the officers who testified concerning the confession. In view of the overall circumstances, I cannot conclude that the trial court committed reversible error in admitting the pistol into evidence. See C.Cr.P. Art. 921.

CALOGERO, Justice,

dissenting.

I find merit in assignment of error number one involving the suppression of the defendant’s confession. The defendant testified to very specific instances of police threats and physical violence used in order to elicit his oral confession. The police officers were never recalled to the stand to rebut the defendant’s detailed allegations of police misconduct. We have consistently held that a general disclaimer by officers prior to the defendant’s testimony containing specific allegations is not sufficient to meet the state’s burden. State v. Franklin, 381 So.2d 826 (La.1980); State v. Peters, 315 So.2d 678 (La.1975). The officers’ testimony, occurring before that of the defendant, that no force had been used did not meet the burden of the state to prove the confession to be free and voluntary.

The admission of the oral confession was crucial to this case since no taped or written version existed. There was little or no real evidence linking Robertson to the crime which occurred well over one year prior to his apprehension by police. The only shred of positive physical evidence was a Bie lighter found at the crime scene. The defendant purportedly told police that he had lost the lighter in the victim’s house; however, this statement does not appear in the officer’s report. In fact this evidence came to light only in testimony at trial after the police officer was prodded and prompted by the prosecution’s question. With the scarcity of physical evidence, the defendant’s oral confession became essential to the state’s case. It was, however, essential to justice that the confession be admitted only if the state had proven affirmatively and beyond a reasonable doubt that it had been made freely and voluntarily, not through coercion. State v. Simmons, 328 So.2d 149 (La.1976). The state did not carry its burden in this case.

Accordingly, I dissent from the majority’s affirmance of defendant’s conviction and sentence.

       Judges H. Charles Gaudin of the Court of Appeal, Fifth Circuit, and Philip C. Ciaccio and Israel M. Augustine, Jr., of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Justices Calogero, Dennis, Watson and Lemmon.

      . The lineup was held a year and a half after the offense.

      . LSA-R.S. 15:441 provides:
      “Relevant evidence is that tending to show the commission of the offense and the intent, or tending to negative the commission of the offense and the intent.
      “Facts necessary to be known to explain a relevant fact, or which support an inference raised by such fact, are admissible.”

      . The lighter was introduced after being identified as an item found under the sheets on the bed where the rape occurred. The victim’s testimony later established that it probably belonged to one of the rapists.

      . As a matter of fact, it was defense counsel who argued to the jury that the state offered evidence of the pistol only to show that defendant was a “bad man”.


author: LEMMON, Justice.

text:
    The DOW CHEMICAL COMPANY v. Freddie H. PITRE, Sr., Sheriff and Tax Collector, Parish of Iberville, State of Louisiana. Freddie H. PITRE, Sr., Sheriff, et al. v. LOUISIANA TAX COMMISSION and the Dow Chemical Company.
    No. 81-C-2594.
    Supreme Court of Louisiana.
    Oct. 18, 1982.
    Rehearing Denied Nov. 19, 1982.

      G. William Jarman, R. Gordon Kean, Jr., Sanders, Downing, Kean & Cazedessus, Baton Rouge, for applicant.
    Michael R. Fontham, Stone, Pigman, Walther, Wittmann & Hutchinson, J. Broocks Greer, New Orleans, Houston, J. Gascon, III, Plaquemine, Robert H. Abbott, Baton Rouge, for respondents.
   LEMMON, Justice.

We granted certiorari to determine the proper venue and procedure for judicial review of a decision of the Louisiana Tax Commission regarding the 1980 tax assessment of Dow Chemical Company’s property located in Iberville and five other parishes.

I.

Dow timely submitted a property tax report to the assessor in each parish, and the assessors subsequently completed the assessment lists. Dow thereafter protested its assessment before the six parish boards of review, composed of members of the police juries of the respective parishes.

After all protests were denied, Dow appealed to the Louisiana Tax Commission. R.S. 47:1989. The commission held one consolidated hearing on the protest, since the issues were common as to each parish, and one consolidated record was developed.

The decision of the Tax Commission had not been rendered by December 31, 1980, the date on which payment of the assessment was required. Therefore, pursuant to R.S. 47:2110, Dow paid the taxes in the individual parishes under protest and filed petitions for refunds against the sheriffs of each of those parishes.

On May 6, 1981, the Tax Commission rendered a decision, reducing the assessment, but not to the extent that Dow had requested. Dow then filed petitions in the district court in East Baton Rouge Parish, seeking review of the Tax Commission’s decisions for each of the six parishes under judicial review provisions on the Louisiana Administrative Procedure Act, (A.P.A.), R.S. 49:964. Shortly thereafter, Dow filed a motion to consolidate the appeals in East Baton Rouge Parish. The motion was granted, and those consolidated suits are now pending in Division “H”.

In the meantime Dow, apparently as a precautionary measure, also filed petitions for appeal and judicial review of the Tax Commission decision in each of the six parishes, pursuant to the provisions of R.S. 47:1998 for review of an action by the Tax Commission. Under the same statutory authority, the Iberville Parish Sheriff and Assessor and the various tax recipient bodies filed a petition for appeal and judicial review in the district court of Iberville Parish, contesting the reduction in the Tax Commission’s decision. All of the suits in Iberville Parish were consolidated.

In the consolidated actions in Iberyille Parish, Dow excepted to the venue and alternatively to the right of any party other than the Assessor to bring the appeal. Dow also moved to transfer or to stay the Iber-ville proceedings, because of the previously pending appeals in East Baton Rouge Parish.

The district court in Iberville Parish overruled Dow’s exceptions and denied the motions to transfer and to stay. The court of appeal thereafter denied an application for supervisory writs. We then granted Dow’s application for certiorari. 409 So.2d 627.

II.

Dow contends that the Tax Commission is subject to the A.P.A. Using this predicate, Dow argues that when a record is made of the protest hearing before the Commission pursuant to R.S. 49:955 F, the Commission’s decision must be based upon the evidence in the record, and judicial review must be confined to the record (R.S. 49:964) and must be instituted in the parish in which the agency is located. Dow concludes by asserting that even if the judicial review provisions of R.S. 47:1998 have some applicability, the Legislature did not intend to provide two procedures for judicial review in several different jurisdictions, with the resulting duplication, loss of efficiency, and waste of time, effort and cost which is likely to occur in this case.

On the other hand, the Assessor (and other officials) argue that because Dow thwarted the prehearing attempts to obtain information, it is unfair to confine the proceedings in the district court (in any parish) to the record compiled before the Commission. Furthermore, according to the Assessor, Dow has resisted discovery efforts in the district court, and proceeding under the A.P.A. on the existing record would result in “trial by ambush”. The Assessor also points out that there are no limitations in R.S. 47:1998 on the receipt of evidence in the district court. Finally, the Assessor contends that R.S. 47:1998 is a specific statute for judicial review of Tax Commission decisions and takes precedence over the more general statutes of the A.P.A., which should be applied only in the absence of a specific provision.

The procedure for assessment of ad valo-rem taxes is contained in R.S. 47:1951 et seq. Dow appealed from the decision of the local board of review to the Tax Commission pursuant to R.S. 47:1989, which also provides that the decisions of the Tax Commission become final unless appealed to the district court within 30 days. R.S. 47:1998 provided that any taxpayer dissatisfied with the action of the tax commission under the provisions of R.S. 47:1989 may institute suit within 30 days in the district court of the parish where the property is located. Thus, R.S. 47:1998 is an express legislative complement to R.S. 47:1989’s reference to appeals after the Tax Commission has reviewed the decision of the local board of review. Since the Legislature has expressly provided a specific procedure for judicial review of the Tax Commission’s actions on appeal of local board decisions, as part of the overall procedure controlling ad valo-rem tax assessment, any other administrative procedure that pertains generally to all nonexcluded agencies and commissions simply is not applicable.

Moreover, since the assessor may bring suit to protect the state’s interest (as was done here) under the express provisions of R.S. 47:1998 C, it is highly unlikely that the Legislature contemplated that the taxpayer could bring suit as an alternate remedy under the A.P.A., while the assessor may bring suit in a different parish under R.S. 47:1998 C.

Finally, the suits involving the valuation of the pipeline can all be tried in Iberville Parish. R.S. 47:1998 A provides that a taxpayer who owns property assessed in more than one parish may file suit in the district court in any one of the parishes. Dow’s pipeline is assessed in more than one parish, and the suit on all valuations of that pipeline could be filed and tried in Iberville Parish. Thus, allowing the suit to proceed in Iberville Parish does not present any significant potential for judicial inefficiency-

The rulings of the trial court are affirmed.

      . At issue in Iberville Parish is the proper valuation of machinery, equipment and pipelines. The only issue in the other parishes is the pipeline valuation.

      . The principal issues are (1) whether Dow is entitled to a deduction from the appraised value based on the economic and functional obsolescence of the property and (2) whether the assessors should be required to apply an updated index to their valuations so as to fix the same valuation date as for all other property.

      . The suit against the Sheriff of Iberville Parish was filed in the district court in that parish. R.S. 47:2110 D expressly provides that the right to sue under that statute shall be in addition to the rights provided in R.S. 47:1998.

      . R.S. 49:964 provides in part:
      “A. A person who is aggrieved by a final decision or order in an adjudication proceeding'is entitled to judicial review under this Chapter whether or not he has applied to the agency for rehearing, without limiting, however, utilization of or the scope of judicial review available under other means of review, redress, relief, or trial de novo provided by law. A preliminary, procedural, or intermediate agency action or ruling is immediately renewable if review of the final agency decision would not provide an adequate remedy and would inflict irreparable injury.
      “B. Proceedings for review may be instituted by filing a petition in the district court of the parish in which the agency is located within thirty days after mailing of notice of the final decision by the agency or, if a rehearing is requested, within thirty days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record.” (Emphasis supplied.)

      . R.S. 47:1998 was partially rewritten in 1980 (without substantive change pertinent to this case) and now provides in part:
      “A. Any taxpayer in the state dissatisfied with the action of the tax commission under the provisions of R.S. 47:1989, shall have the right to institute suit within thirty days of the decision of the tax commission in the district court of the parish where, the property is located contesting the correctness of assessment. Any taxpayer who owns property assessed in more than one parish may institute this suit in the district court of any one of the parishes in which the property is located and assessed. Any taxpayer who has filed suit under this provision and whose taxes have become due shall pay said taxes under protest and shall cause to issue notice to the officer designated by law for the collection of such tax under the provisions of R.S. 47:2110(E).
      i{S tfc t{! ífc if* jfc
      “C. The assessor shall bring suit, when necessary to protect the interest of the state, and shall also have the right of appeal and such proceedings shall be without cost to him or the state.” (Emphasis supplied.)

      .Agency is defined in R.S.-49:951(2) as follows:
      “ ‘Agency’ means each state board, commission, department, agency, officer, or other entity which makes rules, regulations, or policy, or formulates, or issues decisions or orders pursuant to, or as directed by, or in implementation of the constitution or laws of the United States or the constitution and statutes of Louisiana, except the legislature or any branch, committee, or officer thereof, any political subdivision, as defined in Article VI, Section 44 of the Louisiana Constitution, and any board, commission, department, agency, officer, or other entity thereof, and the courts.”

      . The record of the hearing before the Commissioner was compiled under the Rules and Regulations of the Tax Commissioner, although the A.P.A. contains a provision requiring a transcript upon request. There is no specific indication in this record that the A.P.A. was applied at any stage of the assessment proceeding.